> It’s not reasonable to characterize SFFA as a finding of wrongdoing on Harvard’s part
As I understand it, that’s the legal effect of SFFA. SFFA sued Harvard seeking, among other things, a declaratory judgment that Harvard’s admissions policies violate Title VI. The district court ruled, after bench trial, that Harvard didn’t violate Title VI. The Supreme Court didn’t remand for further proceedings, it outright reversed. Meaning that it found that Harvard’s procedures did violate Title VI.
Bad faith or malice aren’t elements of a Title VI violation. And I don’t see any legal reason why an administration couldn’t hold Harvard’s discrimination against students—which happened, even if the Supreme Court changed its mind about whether it was permissible—against Harvard in allocating federal funding.
Of course, now that Harvard has decided to fight it, the administration will have to prove its belief: https://www.axios.com/2025/04/28/harvard-law-review-trump-ad.... That’s how these enforcement letters always pan out. Many targets fold to avoid litigation. Sometimes, a defendant fights it and the government has to initiate a formal enforcement action.
The DOJ, FDA, FTC, and SEC do stuff like this all the time. These agencies all lean very heavily on the threat of an enforcement action to enforce changes in private behavior without having to actually take entities to court.
> Meaning that it found that Harvard’s procedures did violate Title VI
Declaratory judgments aren't findings of wrongdoing. They're simply words (hence "declaratory") that describe a relationship between the parties of a case. Cases that end in declaratory judgements are also always civil in nature, so I don't believe they can be used to penalize the party later as if they had conducted a criminal act.
> I don’t see any legal reason why an administration couldn’t hold Harvard’s discrimination against students—which happened, even if the Supreme Court changed its mind about whether it was permissible—against Harvard in allocating federal funding.
That would actually be an interesting case. I find it difficult to believe that the Court would allow such an ex post facto application. The problem with this is that anyone who engaged in behavior that was lawful at the time, then subsequently deemed unlawful, could be subject to abrogation of benefits or other penalties. That said, in light of how the Court's makeup has changed in the past 20 years, I suppose I shouldn't be surprised if I turn out to be wrong. I would be very sad, though, because it would mean that nobody can be assured that their current conduct, even if lawful at the time, won't be held against them in the future if the law changes later.
> Harvard’s defiant response to SFFA provides a reasonable basis for the administration to believe it has continued to engage in discrimination
I don't think it does. I think Harvard is saying "we will continue to lawfully promote diversity however we can." There's no unlawful action being contemplated, described, or advocated in its response. Costco and Disney, BTW, do the same.
> now that Harvard has decided to fight [Trump’s investigation of Harvard Law Review’s publication policy], the administration will have to prove its belief
You're mixing up two different plot lines. We're discussing NSF and other Federal grant withdrawal resulting from Harvard's failure to implement discretionary measures Trump wants them to take relating to hiring, policy, and curriculum. This other story is about investigating Harvard Law Review, which was announced weeks after the grant rug pull. It seems pretty obvious that Trump is trying to find any angle he can to prevail in his war against the institution.
As I understand it, that’s the legal effect of SFFA. SFFA sued Harvard seeking, among other things, a declaratory judgment that Harvard’s admissions policies violate Title VI. The district court ruled, after bench trial, that Harvard didn’t violate Title VI. The Supreme Court didn’t remand for further proceedings, it outright reversed. Meaning that it found that Harvard’s procedures did violate Title VI.
Bad faith or malice aren’t elements of a Title VI violation. And I don’t see any legal reason why an administration couldn’t hold Harvard’s discrimination against students—which happened, even if the Supreme Court changed its mind about whether it was permissible—against Harvard in allocating federal funding.
Moreover, Harvard’s defiant response to SFFA provides a reasonable basis for the administration to believe it has continued to engage in discrimination: https://news.harvard.edu/gazette/story/2023/06/harvard-unite...
Of course, now that Harvard has decided to fight it, the administration will have to prove its belief: https://www.axios.com/2025/04/28/harvard-law-review-trump-ad.... That’s how these enforcement letters always pan out. Many targets fold to avoid litigation. Sometimes, a defendant fights it and the government has to initiate a formal enforcement action.
The DOJ, FDA, FTC, and SEC do stuff like this all the time. These agencies all lean very heavily on the threat of an enforcement action to enforce changes in private behavior without having to actually take entities to court.