Read the judge’s fiery decision in restoring Harvard’s federal funds

Federal Judge Allison D. Burroughs didn’t mince words in the conclusion to her 84-page decision restoring about $3 billion in federal funds to Harvard on Wednesday.

Burroughs called the Trump administration’s focus on antisemitism as reasoning behind freezing billions in research funding a “smokescreen” and characterized the administration’s efforts to prove the U.S. District Court of Massachusetts lacked jurisdiction in the case a “red herring.”

Perhaps most damning, Burroughs implied that the Trump administration was putting forward “arbitrary” grant terminations in the name of enacting its agenda, “no matter the cost.”

Burroughs hasn’t been shy about issuing commentary on the suit, originally filed in April, as it has unfolded over the past several months.

During a July court hearing, Burroughs characterized a Trump administration argument — that the federal government could cancel grants across the institution without proving that researchers or labs had engaged in antisemitism — as “a little bit mind-boggling.”

Burroughs, who is Jewish, said that taking away grants from labs and researchers could hurt “Americans and Jews.”

Burroughs also jabbed at Trump administration attorney Michael Velchik, who is a Harvard alum.

“I hear what you are saying, and you’re saying it very well. That Harvard education is paying off for you,” Burroughs told him in July.

Burroughs issued a decision on Wednesday in response to Harvard’s request for summary judgment in the case. Harvard argued that a decision must come by Wednesday’s date, when the university has to begin closing out its federally funded research projects.

“Once that close-out occurs, Harvard anticipates the Government will take the position that no restoration of funds is possible,” Harvard lawyers said in court filing in June.

Burroughs concluded that it was the job of the courts to step up and uphold the First Amendment and safeguard academic freedom and freedom of speech.

Read the decision

The full 84-page decision can be read here. The following is an excerpt from the decision’s conclusion:

This case, of course, raises complicated and important legal issues, but, at its core, it concerns the future of grants sponsoring research that promises to benefit significantly the health and welfare of our country and the world. Through the government’s statements and actions, the fate of that research has now become intertwined with the issue of antisemitism at Harvard. Antisemitism, like other types of discrimination or prejudice, is intolerable. And it is clear, even based solely on Harvard’s own admissions, that Harvard has been plagued by antisemitism in recent years and could (and should) have done a better job of dealing with the issue. That said, there is, in reality, little connection between the research affected by the grant terminations and antisemitism. In fact, a review of the administrative record makes it difficult to conclude anything other than that Defendants used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities, and did so in a way that runs afoul of the APA, the First Amendment and Title VI. Further, their actions have jeopardized decades of research and the welfare of all those who could stand to benefit from that research, as well as reflect a disregard for the rights protected by the Constitution and federal statutes.

With respect to the difficult jurisdictional issues in this case, the Court has done its best to follow the Supreme Court’s limited recent guidance, which is preliminary and might well change over the course of this litigation (and the many other cases involving similar issues)—an outcome that seems not unlikely given the seeming lack of consensus in APHA and the procedural challenges posed by having substantially similar cases proceed in two different forums. Although the doctrinal framework that applies to these threshold issues is certainly important, the issue of jurisdiction is something of a red herring. Whether this case plays out in this Court or in the Court of Federal Claims, what lies at the core of this dispute is the fact that Defendants are trying to pressure Harvard to accede to the government’s demands in a way that squarely violates Plaintiffs’ First Amendment rights and ignores the procedural requirements of Title VI and, to a certain extent, the APA. The idea that fighting antisemitism is Defendants’ true aim is belied by the fact that the majority of the demands they are making of Harvard to restore its research funding are directed, on their face, at Harvard’s governance, staffing and hiring practices, and admissions policies—all of which have little to do with antisemitism and everything to do with Defendants’ power and political views.

The First Amendment is important and the right to free speech must be zealously guarded. Free speech has always been a hallmark of our democracy. The Supreme Court itself has recognized that efforts to educate people, change minds, and foster tolerance all benefit from more open communication, not less. As Justice Brandeis wrote in the seminal case of Whitney v. California, “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence,” 274 U.S. 357, 377 (1927) (Brandeis, J., concurring), or, in this case, the forced adoption of a political orthodoxy. As pertains to this case, it is important to recognize and remember that if speech can be curtailed in the name of the Jewish people today, then just as easily the speech of the Jews (and anyone else) can be curtailed when the political winds change direction.

Defendants and the President are right to combat antisemitism and to use all lawful means to do so. Harvard was wrong to tolerate hateful behavior for as long as it did. The record here, however, does not reflect that fighting antisemitism was Defendants’ true aim in acting against Harvard and, even if it were, combatting antisemitism cannot be accomplished on the back of the First Amendment. We must fight against antisemitism, but we equally need to protect our rights, including our right to free speech, and neither goal should nor needs to be sacrificed on the altar of the other. Harvard is currently, even if belatedly, taking steps it needs to take to combat antisemitism and seems willing to do even more if need be. Now it is the job of the courts to similarly step up, to act to safeguard academic freedom and freedom of speech as required by the Constitution, and to ensure that important research is not improperly subjected to arbitrary and procedurally infirm grant terminations, even if doing so risks the wrath of a government committed to its agenda no matter the cost.