Feds Can’t Regulate “Ideological Diversity” at Schools Like Harvard

No one is arguing that there can never be strings on grants or that there is an entitlement to permanent money from Washington. There isn’t. (Federal funding for scientific research, it seems to me, if proper at all, should be allocated based on who can best carry out the research, not who has the most ideologically balanced humanities department.) But the courts have made it clear in rulings based on the doctrine of unconstitutional conditions that Washington may not use the threat of defunding to extract the surrender of constitutionally protected rights such as those protected by the First Amendment. Those are very much at stake here, especially given the administration’s open appetite for using its leverage to change the ideological tone of the Harvard faculty.

I’ll let others address the claims that the university violated the rights of Jewish students by tolerating hostile Gaza protests and in other ways. (A court would be the best place for those claims to be adjudicated.) I will, however, point out that, contra the demands from Washington, no civil rights law requires private universities to cease all so-called diversity, equity, and inclusion (DEI) programs. It’s true that recent Supreme Court rulings remove the Court’s previous approval of “reverse” discrimination practices in areas like admissions, and universities that have had such practices will need to end them. But courts have not yet sorted out what the implications are for a wide array of so-called softer DEI practices, such as employee trainings, that do not necessarily deprive any student or faculty member of opportunity. In my view, it’s quite unlikely that courts will find all of those banned by law—which means they can also not properly be banned by presidential decree or arm-twisting.

And should a court find that discrimination against individual Harvard students or groups of them has been proved, it’s very unlikely to order remedies that police “viewpoint diversity” or “ideological capture,” require the university to deprecate some ideological viewpoints in favor of others, or otherwise slice deeply into traditional areas of academic freedom. Courts are usually at pains to craft remedies that respect constitutional rights and liberties.

Now Trump has added fuel to the fire, according to published reports, by directing the Internal Revenue Service to revoke Harvard’s tax exemption on the strength of the notion (which is not, in fact, the law) that institutions cannot be tax exempt unless they serve what the ruler regards as the public interest. This move is exceedingly unlikely to be upheld in court, despite supporters’ gestures toward the 1983 Bob Jones University case, in which the Supreme Court upheld the revoking of a tax exemption based on racial discrimination. 

In the 40 years since that ruling, defenders of limited government have worked carefully and successfully to confine the supposed principle to the narrow facts of that one case. For one thing, it was very obvious that the right of religious and conservative institutions to tread their own path was at stake—indeed, a scattering of progressives then and now have called for stripping the tax exemptions of Catholic universities because they view as discriminatory that church’s stands on female ordination and other questions.

The confining of Bob Jones to its facts is still a worthy goal—even if some of Trump’s allies have decided to change sides on the subject. 

Walter Olson is a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. This article, originally posted to the Cato Institute website, is published courtesy of the Cato Institute. This blog is lightly edited and cross-posted from the author’s Substack, where a longer version ran.