Earlier today, Harvard University sued various officials and departments of the Trump administration. Harvard’s complaint, which you can read here, seeks injunctive relief overturning the administration’s announcement that it was “freezing” $2.2 billion in federal grants to the university.
Harvard’s complaint alleges that the administration’s termination of funding violates the First Amendment. That strikes me as debatable. More substantially, the complaint alleges that the administration failed to follow the Administrative Procedure Act and various regulations. Thus:
129. Title VI delineates specific procedures that an agency must follow to
“terminat[e] . . . or refus[e] to grant or to continue assistance” based upon alleged violations of Title VI. 42 U.S.C. § 2000d-1. Defendants have ordered the freeze of Harvard’s federal financial assistance without following these mandatory procedures.
And:
147. Defendants’ regulations require them to follow specific procedures for freezing federal financial assistance based on alleged violations of Title VI. E.g., 45 C.F.R. § 80.2 (HHS and NIH); 45 C.F.R. § 611.1 (NSF); 32 C.F.R. § 195.1 (DoD); 10 C.F.R. § 1040.1 (Energy); 34 C.F.R. § 100.2 (Education); 41 C.F.R. § 101-6.203 (GSA); 28 C.F.R. § 42.103 (DOJ); 14 C.F.R. § 1250.101 (NASA).
Harvard’s complaint seems to suggest that it is entitled to federal funding in perpetuity:
42. No action to terminate or refuse to grant or continue federal financial assistance may be taken “until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” 42 U.S.C. § 2000d-1; see Adams v. Richardson, 351 F. Supp. 636, 641 (D.D.C. 1972).
That makes sense as to an action to terminate a grant or contract in progress, but to “refuse to grant” or “continue federal financial assistance”? However, as noted above, that is what Title VI seems to say. And that is the relevant standard if the administration’s termination of Harvard’s grants is due to the university’s anti-Semitism, as the administration says.
I expect the Trump administration will lose this case. It is one more in a series of instances where the administration’s heart is in the right place, but its execution is inept. While seemingly better staffed than in 2017, the administration is still not ready for prime time. If it had acted prospectively, leaving Harvard and other left-wing universities out of future funding, it would have had a defensible and, I assume, winning position. But by purporting to “freeze” spending that had already been agreed to, without following its own procedures, the administration set itself up for an ignominious defeat.
I might be proved wrong. Stranger things have happened. But that is how it looks to me.
