Noah Feldman: The Harvard ruling was written just for Amy Coney Barrett

In a historic decision, U.S. District Court Judge Allison Burroughs ruled that the Trump administration violated Harvard University’s First Amendment rights — and federal law — when it froze and then terminated the school’s federal grants. The outcome marks a significant victory for the university as well as for free speech and academic freedom. The Trump administration may appeal to the U.S. Court of Appeals for the First Circuit, which is likely to uphold Burroughs’ well-reasoned decision.

If the administration loses, it can still petition the Supreme Court to reverse the lower courts’ rulings. But Burroughs’ opinion was carefully crafted to align with the guidance that Supreme Court Justice Amy Coney Barrett provided in an August decision about grants terminated by the National Institutes of Health. A close reading of the Harvard decision, alongside existing Supreme Court precedent — such as it is — suggests that Barrett would provide the decisive fifth vote to uphold the ruling in Harvard’s favor.

The clearest and most straightforward part of Burroughs’ opinion is her finding that the Trump administration targeted Harvard — where I teach constitutional law — because the university exercised its constitutional right to free speech. The judge noted that “even based solely on Harvard’s own admissions, [the university] has been plagued by antisemitism in recent years and could (and should) have done a better job of dealing with the issue.” But she emphasized that, “there is, in reality, little connection between the research affected by the grant terminations and antisemitism.” Based on a review of the record, she wrote, it would be “difficult to conclude anything other than that [the Trump administration] used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.” The consequence, Burroughs concluded, “jeopardized decades of research and the welfare of all those who could stand to benefit from that research.”

In addition to vindicating Harvard’s First Amendment claims, the judge held that the administration had violated Title VI, which prohibits discrimination in higher education based on race and national origin. Title VI does allow termination of grants under some circumstances, but only after there has been a finding on the record, after a hearing, of unlawful discrimination. The Trump administration didn’t bother to comply with the law.

Moreover, Burroughs further held that the administration’s actions were arbitrary and capricious, in violation of the Administrative Procedure Act (APA). The government did not provide reasoned explanations for its actions, as required by the act. Indeed, Burroughs noted, the administration “had essentially no information about the prevalence of antisemitism at Harvard” before it froze the grants. Nor did it consider Harvard’s efforts to “research or address antisemitism on campus.”

In court, the administration barely attempted to respond to most of Harvard’s claims. It placed nearly all its eggs in one basket: the argument that the district court lacked jurisdiction because the case amounted to a contract dispute that had to be litigated in the Court of Federal Claims. Here, things get a little technical, so bear with me.

In the NIH decision, which I wrote about when it happened, the Supreme Court — ruling in its emergency docket — considered lawsuits brought by researchers and organizations who lost funding when the administration terminated grants related to gender, DEI and COVID. Four justices — the three liberals plus Chief Justice John Roberts — concluded that federal district courts could decide on the legality of grant terminations and reinstate the funding if the cuts were unlawful. Four conservative justices argued that only the Court of Federal Claims could hear such cases because they involved contracts. Barrett, whose vote controlled the outcome, held that the grant recipients could sue in district court to challenge the legality of the NIH’s actions going forward. But she also ruled that they must pursue claims for backward-looking monetary relief in the specialized Court of Federal Claims.

In her ruling, Burroughs engaged with Barrett’s opinion. First, she noted that the NIH case was specifically about claims brought under the Administrative Procedure Act. With respect to Harvard’s APA claims, she said Barrett’s rule applied: Harvard could pursue forward-looking relief in her court but would have to seek backward-looking monetary relief in the specialized court.

But Burroughs noted that Harvard’s claims under the First Amendment and Title VI were different from the APA ones addressed in Barrett’s opinion. She explained that the Court of Federal Claims lacks jurisdiction over First Amendment claims, and likely also those related to Title VI. Under Barrett’s logic, Burroughs reasoned, it would make no sense to send the First Amendment and Title VI claims to a court that could not adjudicate them.

For good measure, Burroughs also engaged with Barrett’s explanation that addressing both backward- and forward-looking claims would have required two separate court orders. The justice called that a reason to send the cases to different courts. In the Harvard case, Burroughs held that a single order could dispense with both the university’s First Amendment and Title VI claims.

It is no exaggeration to say that this part of Burroughs’ opinion ultimately has an audience of one: Justice Barrett. As one careful exponent of technical legal craft addressing another, Burroughs hit the mark. Although the case still has some distance to go before it reaches the Supreme Court, I would expect Barrett to be persuaded when the time comes.

Of course, Harvard and the Trump administration could still settle. But the university’s negotiating position is now significantly stronger than it was before the ruling. Free speech and academic freedom are winning — at least for now.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."