PETER BERKOWITZ: Toward A Negotiated Settlement Of The Trump-Harvard Showdown

Conservatives, who have been sounding the alarm about higher education’s failings for decades, have divided over how best the Trump administration should hold Harvard accountable.

On the one hand, the federal government has considerable leverage: It provides Harvard more than $500 million annually with billions in the pipeline. On the other hand, the Trump administration must respect constitutional and statutory limits on executive power. Political prudence dictates, moreover, that the president and his team consider that a sizeable majority of the public opposes increasing the federal government’s oversight of universities and that the federal government is ill-suited to the task.

Best for both sides would be a negotiated settlement. The settlement should minimize the federal government’s role in managing Harvard while ensuring that the university obeys civil-rights law, curbs progressive indoctrination, and bolsters traditional liberal education.

Harvard precipitated the crisis. The proximate cause of the Trump administration’s drastic intervention was the university’s violation of civil-rights law by indulging antisemitism and discriminating based on race.

Harvard’s indulgence of antisemitism stands in marked contrast to the alacrity with which it has protected non-Jewish minorities and women. For decades, Harvard has been narrowing the boundaries of permissible campus speech to shield students – particularly favored minorities and women – from supposedly offensive utterances, the offense of which often consists in departure from progressive orthodoxy. Yet following Iran-backed Hamas’ Oct. 7, 2023, massacre in southern Israel, former Harvard President Claudine Gay discovered that campus free speech is wide and flexible enough to sometimes protect calling for the genocide of the Jews. Furthermore, as the university has acknowledged, it has harbored antisemitism and has been slow and ineffective in responding to campus antisemitism’s post-Oct. 7 surge.

In addition, for decades Harvard discriminated based on race. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023), the Supreme Court held that the university’s race-conscious admissions violated the Equal Protection Clause of the 14th Amendment. Yet despite losing in the highest court of the land, Harvard maintained DEI (Diversity, Equity, and Inclusion) programs that classified, and doled out and withheld, benefits based on race.

Beyond the proximate cause of the Trump administration’s unprecedented efforts to reshape Harvard lies the longstanding cause. For decades, Harvard has betrayed liberal education. It has offered undergraduates a shambolic curriculum: Instead of concentrating on the essentials of an education for freedom – the American experiment in ordered liberty, the defining events and seminal ideas of Western civilization, and basic knowledge of non-Western civilizations – professors lard the curriculum with courses revolving around their arcane research interests. And for decades, Harvard has politicized the humanities and social sciences, promoting a progressive – and often radical – ideology that puts advocacy for left-wing social change ahead of understanding the basics of ethics, economics, culture, society, and politics.

Harvard’s hospitability to antisemitism and its race-conscious policies justified aggressive White House measures to compel the university to abide by its legal obligations or lose federal financial support. The university’s decades-long debasement of liberal education magnified the White House’s sense of urgency. But Trump administration remedies adopt a cavalier attitude toward the law and overlook the federal government’s limited competence.

The week before Harvard filed its lawsuit, City Journal published essays by Manhattan Institute senior fellows Heather MacDonald and Christopher Rufo assessing Trump administration endeavors to reform Harvard. While agreeing that reform was vital, the two eminent commentators on higher education differed over the government’s tactics.

A searing critic of universities’ war on free speech and discrimination disguised as diversity, MacDonald nonetheless worries in “The White House’s Clumsy Attack on Harvard” that the Trump team has overreached. “The administration calls for oversight of faculty hiring to ensure ‘viewpoint diversity,’ though the legal basis for such authority is unclear,” writes MacDonald. “Its demand for a ‘critical mass’ of intellectually diverse faculty is either a wry joke or unintentionally ironic. After all, the notion of a ‘critical mass’ of ‘diverse’ students was one of the flimsy concepts the Supreme Court used for decades to justify racial admissions preferences.”

In contrast, Rufo wants to fight fire with fire. In “The Right Is Winning the Battle Over Higher Education,” he argues that the left transformed the 1964 Civil Rights Act into “a vehicle for entrenching left-wing racialist ideology throughout American institutions.” Now, maintains Rufo, the right must use civil-rights law to achieve its original purpose – to establish “a framework grounded in colorblind equality.” He insists that “racial discrimination is wrong whether it targets whites, Asians, and Jews or blacks and Hispanics.” And he urges the Trump administration to “use every tool at its disposal to ensure that America’s elite universities adhere to the principle of colorblind equality.” But Rufo overlooks the Trump administration’s proclivity to reach for constitutionally and congressionally prohibited tools, and its penchant for unwisely, if lawfully, extending federal authority.

Meanwhile, Harvard’s lawsuit argues that the Trump administration overreached in the legal sphere.

Harvard’s first major allegation might be a close call. According to the university, the government’s freezing of funds and demanding of sweeping reforms of admissions, hiring, curriculum, and internal governance unconstitutionally burden Harvard’s free-speech rights. The Trump administration will probably argue that its demands do not impair Harvard’s speech but rather give the university a choice. Harvard can say what it likes and do as it pleases and, consequently, lose federal funding, to which there is no constitutional entitlement. Or Harvard can adopt measures that would make the university worthy of taxpayer dollars.

Harvard is likely to prevail on the second major allegation, which is that the Trump administration disregarded the congressionally established procedures for withholding approved federal funds. The facts are clear: The Trump administration froze federal funding for Harvard without taking the statutorily prescribed steps for suspending or terminating signed contracts and approved grants.

A court battle would bloody both parties.

Needed, therefore, is an out-of-court settlement. In dealing with the proximate cause of the showdown, a reasonable settlement should ensure that Harvard abides by civil-rights law and that the Trump administration respects constitutional and statutory limits on executive-branch power. In handling the longstanding cause, a reasonable settlement should reduce indoctrination at Harvard in favor of liberal education while obliging the government to honor the university’s academic freedom and institutional independence.

Ethics and Public Policy Center senior fellow Stanley Kurtz has provided an excellent proposal that provides an appealing compromise concerning the longstanding cause of the Trump-Harvard showdown. In “Trump vs. Harvard: A Negotiated Solution,” which appeared online at National Review on April 21 (the day Harvard sued the Trump administration), Kurtz highlights Harvard’s “lax handling of disruptive demonstrations and antisemitic harassment” and its “pervasive leftist bias.” At the same time, Kurtz expresses skepticism about the Trump administration’s demand that Harvard place itself “into a de facto federal receivership.” But Harvard and the Trump administration, Kurtz optimistically contends, could agree to a compromise based on “model legislation called General Education Act (GEA), a limited version of which just became law in Utah, and which is likely to be considered by other states in 2026.”

A co-author of the model GEA, Kurtz sketches a modified version for Harvard. It would create within Harvard a “School of General Education, where the governing dean and the newly recruited faculty are committed to a traditional ‘great books’ approach.” While Harvard undergraduates could earn a degree in general education, “[t]he distinctive feature of this plan is that the new School of General Education is put in charge of teaching a set of great books and Western Civ–focused courses required of every student at the university in question.” Whereas the Trump approach involves intrusive federal monitoring – and Democrats would remove it immediately upon regaining the presidency – the school of general education, once established, would be difficult to abolish.

Everyone could claim victory. The Trump administration could claim credit for impelling Harvard to invest in liberal education. Harvard could take pride in maintaining its independence. Harvard students could acquire precious knowledge of their civilizational heritage while learning to exchange conflicting opinions in a spirit of curiosity, civility, and toleration. Higher education in America could adopt as a model the liberal-education reforms instituted by the nation’s oldest and most famous university. And citizens could draw inspiration from the White House’s and Harvard’s cooperating to achieve compromise and conciliation that advances the public interest.