Special Edition: Court Hears Key Arguments in Harvard College v. HHS Funding Fight

Harvard argued the freeze was retaliatory, unconstitutional, and arbitrary — imposed wholesale after it rejected a set of sweeping federal demands.

The federal government countered that it lawfully terminated its contracts with Harvard, which it says it can do for any reason. It also argued the case belongs in the Court of Federal Claims since Harvard seeks “only” monetary relief.

The American Association of University Professors (AAUP) and its Harvard chapter presented their parallel lawsuit, seeking the same funding relief as Harvard but raising distinct claims about faculty harm that could complicate a potential settlement between the University and the government.

Because the hearing was for summary judgment, the case could be resolved without a trial.

Judge Allison Burroughs has not yet ruled; Harvard requested a decision before September 3.

First, as we just shared in the Wall Street Journal, Harvard could win on principle, but still lose in practice. The government could appeal — potentially all the way up to the Supreme Court — or simply decline to fund future grants. Either way, the political, financial, and institutional risks won’t vanish with a court ruling. More on this point below. 

Second, a legal victory does not absolve Harvard of its responsibility to address campus antisemitism. The University has acknowledged serious concerns, and whether this ends in a court ruling or a government settlement, the work to reform and improve Harvard remains. Harvard should act not out of pressure or relief, but because it’s the right thing to do; let’s not mistake a favorable opinion for a finished task.

1636 Forum’s Key Takeaways

What Did Harvard Argue?

What Did the Federal Government Argue?

Why Is the AAUP and Its Harvard Chapter Seeking a Separate Ruling?

When Can We Expect a Decision?

During arguments, Harvard acknowledged the presence of antisemitism on campus, stating that it "does not dispute" that such problems exist even as it has taken measures to address them.

The government raised similar concerns, and Judge Burroughs said she "would be the first to agree" that Harvard has had issues on campus.

At the close of the hearing, Burroughs emphasized that she doesn't want her ruling, whatever it may be, to be interpreted as a ruling on the existence of discrimination at Harvard.

Judge Burroughs made clear that the core legal issue of the federal government's argument is whether it can terminate contracts based on constitutionally impermissible grounds.

She questioned whether research funding could be lawfully revoked for speech-related reasons, stating: "[The government's] not funding speech, they're funding research. And you're tying that research to speech."

Near the close of the hearing, she explicitly clarified that the central issue of this case is not whether antisemitism is wrong — she believes it is — but rather, "I think the issue is whether there's a legitimate relationship between our distaste for discrimination and the approach the administration is taking."

Peppering the hearing with moments of humor, Burroughs asked pointed questions to both parties to understand the legal standard she should apply for her analysis.

Still, she appeared more skeptical of the government's position. She repeatedly returned to the idea that the government cannot sidestep constitutional concerns by labeling its actions as "contractual."

She questioned the government's assertion that its letter demands to Harvard prior to the funding freeze were "negotiations," noting that calling them "settlement discussions" is "a reach."

She asked how defunding research in fields like Alzheimer's disease advances government goals toward combatting antisemitism, and also challenged the idea that constitutional violations can be excused through contract terms: "The consequences [for constitutional law] would be staggering."

Steven Lehotsky (JD '02) argued for Harvard, joined by General Counsel Jennifer O'Connor (AB '87). DOJ attorney Michael Velchik (AB '12, JD '16) argued alone for the government, responding to both Harvard and its AAUP Chapter.

Judge Burroughs remarked at the end of the hearing how she appreciated both the effort of the lawyers' arguments and how they had engaged with each other respectfully on a contentious topic, reflecting the spirit of civil discourse Harvard is trying to rekindle on campus.

During the hearing, Harvard highlighted a May 5 letter from Education Secretary Linda McMahon stating that Harvard "should no longer seek GRANTS from the federal government, since none will be provided." The University noted that it cannot litigate over contract terms for future grants — meaning that even if it prevails in this case, it may still face exclusion from future federal research funding.

As we've been saying at 1636 Forum, Harvard's crisis won't wrap up with a courtroom decision. In both this case and the international student visa dispute, the greatest risk lies not just in the loss of current grants, but in the long-term erosion of research capacity, partnerships, and credibility. That concern was underscored by a post from former President Trump following the hearing, which echoes the administration's message: even if Harvard wins in court, the campaign to isolate its funding sources will continue.

In the meantime, based on Trump's post, we expect the government to appeal if it loses.

As we've noted, Harvard retained Robert Hur (AB '95), William Burck, and Steven Lehotsky (JD '02) as outside counsel — a lineup that may signal a broader strategy of turning to prominent figures in conservative legal circles as the University prepares for a potential Supreme Court fight.

Harvard argued the freeze was retaliation for rejecting unconstitutional demands outlined in the government's April 11 letter, including viewpoint-based conditions on hiring, admissions, DEI programs, and ideological audits.

It called the move a clear First Amendment violation, emphasizing the timing: the freeze came just hours after Harvard declined the terms, indicating punishment for protected expression.

Harvard contended the freeze was unlawfully broad, cutting wholesale across all schools without findings of discrimination in specific units. Harvard emphasized that Title VI allows targeted enforcement based on documented noncompliance, not sweeping sanctions.

Harvard also noted that the government's claim about antisemitism being a federal priority emerged only after the funding freeze, suggesting the government applied a retroactive, pretextual rationale. Because the freeze lacked specificity and justification, Harvard said it violated the APA as "arbitrary and capricious."

Harvard argued that the government failed to follow required procedures under Title VI and the APA, including making a formal finding of noncompliance, notifying the University, attempting resolution, and offering a hearing before terminating funding. None of that happened.

The absence of such findings, according to Harvard, highlighted a lack of process and factual support.

Citing the Queen of Hearts, Harvard summed it up: "Sentence first — verdict afterwards." The administrative record, it said, contained no such findings and no evidence that termination was treated as a last resort, making the freeze both unlawful and arbitrary.

Harvard argued that even if grant contracts allow for termination at any time, that authority cannot be used for unconstitutional purposes like compelling speech or retaliating against dissent.

It emphasized that Harvard is not-your-typical government contractor given its billions at stake, and the government was exercising regulatory, not contractual purchasing power.

Federal grants are discretionary and can be terminated "at any time." It therefore was acting lawfully when it ended its contracts with Harvard over perceived failures to address antisemitism, aiming to redirect funding in line with President Trump's executive order.

The government was not retaliatory and did not punish Harvard for rejecting its April 11 letter. It was always planning to revoke Harvard's funding (like it did with Columbia in March) if the University didn't make a deal.

Because it was terminating a contract and Harvard seeks only monetary relief, the case belongs in the Court of Federal Claims, which handles such disputes. The government said that "Harvard might ultimately prevail" in the case, but it needs to do so in what it sees as the proper forum.

Alongside Harvard College v. HHS, Judge Allison Burroughs also heard a case filed by the AAUP and its Harvard chapter against many of the same federal agencies. The plaintiffs argued that the agencies' actions harmed their members by cutting funding, chilling speech, and hindering recruitment and advocacy.

The AAUP argued that while it also seeks monetary relief, Harvard's case doesn't fully address "coercion," and restoring Harvard's funding or affirming its First Amendment rights wouldn't remedy the harm to AAUP members' research and careers. The group is seeking a separate ruling, citing concerns that Harvard may settle with the government and has continued making changes despite its lawsuit.

At the hearing's outset, Judge Burroughs questioned why the AAUP's case shouldn't be stayed until Harvard College v. HHS is resolved, noting its duplicative nature and the complex question of the group's standing.

"First, the court found that the AAUP/AFT could not sue over the cancellation of federal grants because the grants were legally awarded to Columbia, not to the unions or their members."

"Second, the court ruled that the unions lacked standing to claim that their members' First Amendment rights had been harmed. The reason here is that it was Columbia's own internal decisions—not government mandates—that shaped how faculty were affected."

"In short, the court didn't rule on whether the government's actions were right or wrong, only that the wrong plaintiffs had brought the case."

We don't know for certain. Judge Burroughs said that she needed to review the filings again, but would "get an opinion out as quickly as [she] can."

However, Harvard has asked the court to issue a ruling before September 3 — the date when final grant closeout paperwork would begin and it believes the funding window would effectively close.

In the meantime, we'll keep you updated in our weekly newsletter on any new developments in the case. Please keep sending us your questions and we'll keep trying to answer them! If this email was forwarded to you by a friend, don't forget to subscribe here.