Earlier this month, the federal government withheld billions in funding from Harvard. Last week, the IRS considered whether the school should keep its tax-exempt status.
Harvard’s response? They’ve labeled these moves as somehow “unlawful.” But they can’t explain how, because they’re wrong.
First, as it relates to funding, let’s be clear: No institution is simply entitled to billions of taxpayer dollars. The federal government has the absolute right to attach conditions to the programs it pays for, especially when it comes to compliance with applicable civil rights laws.
Contrary to what Harvard’s leadership may believe, this isn’t a First Amendment issue because the government is not suppressing free speech—it is exercising its own. And the Supreme Court has been crystal clear about this.
In Walker v. Texas Division, Sons of Confederate Veterans (2015), for example, the court explained that “when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” In fact, the court has continually refused “to hold that the government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”
In short, there is no First Amendment issue here because the government is not telling Harvard what to do: Harvard is free to keep on discriminating to its own heart’s content — just not on the government’s dime.
Second, the IRS has full authority to revoke Harvard’s tax-exempt status, and it is not a close call.
Over 40 years ago, the Supreme Court in Bob Jones University v. United States (1983) ruled that the IRS could (and should) revoke a university’s tax-exempt status because its racially discriminatory practices violated public policy. In fact, in some ways, this case is even easier, because not only is discriminatory antisemitism in this context against public policy, it is also actually unlawful under Title VI of the Civil Rights Act.
The fight against antisemitism has never been about Jewish exceptionalism, but rather Jewish equality, and while some talking heads might laugh at the idea of taking anti-Jewish hate just as seriously as other forms of discrimination, thankfully, the government is not laughing.
The real story here should not be that Harvard is losing some funding, or that it might forfeit its taxpayer-subsidized preferential treatment. The focus should be on how hard and how openly the University is willing to fight for its self-given “right” to continue violating civil rights laws with impunity.
Shame on them.
Shame as well on those public figures who somehow find their voices only just in time to criticize those finally imposing accountability where it is so desperately needed.
Where were they when Jewish students were being attacked on campus? Silent. But when the Trump administration started deporting anti-Israel protest organizers like Mahmoud Khalil, these same politicians rushed to whitewash his violent behavior and paint him as a misunderstood peacenik.
If only they had fought so hard to protect the rights of those who were harassed for over a year, or even the innocent non-Jews caught in belligerent crossfire, it might not have come to this.
These are the same folks who would theatrically jump on a plane to El Salvador to visit a deported accused wife-beater and alleged gang member who entered our country illegally, but don’t appear to have any time left to advocate for a Jewish American citizen, Edan Alexander, still held captive for over 18 months in a Hamas terror tunnel under Gaza.
The bottom line is this: We are living at an inflection point in our country’s history, and it is time for everyone to take a long, hard look in the mirror to see where they stand.
If you are fine with protesters using their free speech to incite anti-Jewish hate, but not with the government using its free speech to stand up for the Jews; if you are okay with the IRS revoking tax breaks for racist institutions, but not for ones who ignore antisemitism; if you romanticize leaders of groups that endorse the murder of Jews, yet call it “unlawful” when the government enforces civil rights; and if you care so much about “illegal” detentions that you simply must get on a plane and act, but only when the person being held is not Jewish, well, there is a word for that, and it isn’t pretty.
Let’s hope Harvard and its supporters realize what they’re actually defending before it’s too late. Their blind hatred for President Trump is leading them to actually openly fight for the “right” to discriminate — and frankly, it’s disgraceful.
To paraphrase Vice President J.D. Vance: Harvard, do you hear yourself?
Mark Goldfeder, J.D., is a law professor and CEO of the National Jewish Advocacy Center. Follow him on X @markgoldfeder