In a recent piece for National Review, John Yoo and Robert Delahunty argue the Trump administration is justified in challenging Harvard’s tax-exempt status. Citing the U.S. Supreme Court’s decision in Bob Jones University v. the United States (1983), the authors point to precedent establishing university policies “contrary to a fundamental public policy” and in violation of “deeply and widely accepted views of elementary justice” constitute grounds for revoking 501(c)(3) status.
It can be added that the administration is on solid ground in stripping funding from Harvard under Title VI of the Civil Rights Act of 1964, which bars institutions receiving federal assistance from discriminating on the basis of race, color, or national origin. That action was recently taken in response to Harvard’s rejection of the Trump administration’s settlement proposal following its investigation of Harvard’s failure to protect Jewish students from targeted harassment and violence. The terms of the settlement included several reforms, the most controversial of which required Harvard to take reasonable action to address rampant viewpoint discrimination against conservative-leaning students and faculty.
For Yoo and Delahunty, this minimally proscriptive requirement (asking Harvard to consult with an external party of its choosing) is a bridge too far as it “seem[s] to fall outside the mandate of a national government whose only true power here is to end racial discrimination and ensure that its grant recipients obey the Constitution and federal law.” The authors caution:
Conservatives should worry that a President Gretchen Whitmer in 2029 will exploit the precedent set here to force colleges and universities to return to aggressive Obama/Biden-esqe DEI programs, capture of departments by extreme Marxist ideologues, and disregard of the rights of political and religious minorities.
With due respect to Yoo and Delahunty, both distinguished legal experts, this take misses the mark.
First, consider that Yoo and Delahunty warn of a potential return to abusive diversity, equity, and inclusion (DEI) policies. The argument that conservatives should be careful not to go too far lest leftists reciprocate would carry more weight had leftists not already gone deep into that territory. That ship has sailed.
As sure as the sun rises in the east, the next leftist presidential administration will work to roll back the Trump administration’s civil rights reforms. The right’s newfound willingness to employ the potent tools of the civil rights state does not constitute the end of the left’s willingness to do the same. Rather, it means a formerly one-way, left-only ratchet now operates bidirectionally.
And appeals to precedent and shared norms are unlikely to resonate with a movement fervently committed to the minority side of 80-20 cultural issues (see: immigration, transgenderism, and DEI). The people who distorted civil rights law so that men could intrude into women’s sports and intimate facilities aren’t interested in half measures.
What could constrain either side’s use of the civil rights state is judicial action to hold administrations to the statutory limitations of the powers they seek to wield. To this end, the Trump administration is on much firmer ground than its opponents. The administration’s war on illegal DEI relies on a far more straightforward application of Title VI prohibitions than left-leaning efforts to institutionalize discriminatory treatment.
Indeed, even President Lyndon Johnson’s now-revoked “affirmative action” executive order, which institutionalized racial preferences (discrimination) for federal contractors, explicitly prohibited racial discrimination. But under the leftist administrative state, companies rarely needed to consider whether their efforts risked violating the civil rights of disfavored groups.
The Trump administration should act boldly, as its rivals have acted before and will act again. It should wield its civil rights authorities to replace the left’s outcomes-based (“equity”) spoils system with one rooted in the principles of color-blind meritocracy.
This leads to the second problem with Yoo and Delahunty’s take: Although viewpoint discrimination is not prohibited under civil rights law, there is a clear connection between an aggressive left-wing campus monoculture and tolerance of campus antisemitism. The core tenets of the dominant “woke” paradigm cast Jews as “oppressors” by virtue of their success and proximity to whites. The institutionalization of this paradigm in higher education contributes to an astonishing two-thirds of 18-to-24-year-olds now asserting that Jews as a “class are oppressors.”
The Trump administration is right to hold Harvard accountable, not only for its toleration of antisemitism but also for the full range of civil rights violations it inflicts on students, faculty, and staff. It should aggressively wield its authorities to address rampant viewpoint discrimination at elite universities, understanding that such discrimination is intimately related to other forms of discrimination explicitly prohibited under federal law.
Christopher Schorr holds a Ph.D. in American Government from Georgetown University. His dissertation addresses the challenge posed by white nationalism to conservatism and to the American political system.
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