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The intensifying conflict between Harvard University and the Trump administration has been depicted in first press accounts as an event of seismic significance: a showdown that will build backbone into the response of other universities to the extraordinary demands this government is making on elite educational and professional institutions. This may well prove to be the case.
But what has transpired in the last 24 hours seems more complicated. True, Harvard did reject the “agreement in principle” that the administration was pressing for, and the administration did respond with a freeze of $2.3 billion in grants and contracts. With the freeze comes a far higher possibility—rising perhaps to a probability—that the conflict will move to the courts. Yet it is also possible to see in Harvard’s letter from counsel rejecting the proposed agreement that it is prepared to negotiate a truce or settlement—before or following any litigation—on terms different from the draconian ones reflected in the government’s proposed “agreement in principle.” And this possibility draws support from a quiet post-publication amendment to a public letter to the Harvard community from President Alan Garber that originally rejected negotiation over its “independence or constitutional rights” and was then revised to strike the words “will not negotiate.” It now expresses Harvard’s refusal to “surrender its independence or relinquish its constitutional rights.”
Any assessment of Harvard’s choices in this matter must begin with the alternative that was not open to it. It is rightly lauded for rejecting the agreement in principle, but it could never have accepted it. It would have committed Harvard to reaching a “binding settlement” by which it became accountable to the United States government for—and would have given the government an extensive role in—Harvard’s institutional governance. The list of demands reflected in that agreement is extensive, but consider, most notably:
In its “hiring, promotion, compensation, and related practices,” Harvard would be required to share data with the federal government and would be subject “to a comprehensive audit by the federal government” to ensure the implementation of required reforms to cease “preferences based on race, color, religion, sex, or national origin throughout its hiring, promotion, compensation, and related practices among faculty, staff, and leadership.”
Harvard would have to reform its “recruitment, screening, [and] admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence” and “report to federal authorities … any foreign student, including those on visas and with green cards, who commits a conduct violation.” Once again, the federal government would be entitled to “audit” Harvard’s compliance with this requirement.
Harvard would commit to various reforms to achieve “viewpoint diversity” in admissions and hiring, including commissioning “an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity.”
Harvard would be accountable to the government under this proposed agreement to “reform its student discipline policies and procedures” in various ways, including adopting new policies on “student groups or clubs.” This would include a commitment to ending recognition of certain groups and to disciplining their officers and active members.
Even where the agreement does not provide for specific audits or direct government participation, all of the reforms to which it would agree would be subject to extraordinary transparency and monitoring requirements. “[A]t least until the end of 2028,” Harvard would be required each quarter to submit a report to the federal government, “certified for accuracy,” describing its progress on the implementation of all the reforms imposed through the “agreement in principle.”
And the agreement in principle would be just the beginning. The government expected the next step to be “a more thorough, binding settlement agreement.”
Harvard could not agree to these demands. It could not do so on principle, consistent with its nature and mission as an independent higher education institution, and had it done so, it would have had a devastating revolt on its hands from students, faculty, and major donors—perhaps even resignations among administrators and trustees.
In rejecting the administration’s position, however, Harvard took care in the way its objections were framed, and in the choice of the counsel, at least at this stage in the conflict, whom it engaged to speak on its behalf.
First, the framing: Harvard opened its response to the freeze by reaffirming its opposition to antisemitism and “other forms of bigotry,” and proceeded to call attention to the “lasting and robust structural, policy, and programmatic changes” that it has made—“and will continue to make”—to provide “a welcoming and supportive learning environment for all students.” Harvard’s counsel added that the school “continues to abide in all respect with federal law … while fostering open inquiry in a pluralistic community free from intimidation and open to challenging orthodoxies, whatever their source.” It summarized a range of changes made “over the past 15 months” in the areas identified as sources of concern in the administration’s proposed agreement in principle. “As a result,” the response averred, “Harvard is in a very different place today from where it was a year ago.”
It is after this opening that the university complained that the government has “disregard[ed] Harvard’s efforts,” and proceeded to defend its constitutional and statutory rights against federal government overreach into its affairs. “Neither Harvard nor any other private university can allow itself to be taken over by the federal government.” And so it concluded that it cannot “accept the government’s terms as an agreement in principle.” But Harvard counsel also made clear that the university “remains open to dialogue about what the university has done, and is planning to do,” so long as it is not required to agree to “demands that go beyond the lawful authority of this or any administration.” The letter notably does not reject reaching an agreement, but only the “terms” in the one proposed.
Harvard signaled its ultimate openness to further discussion and negotiation in yet another way. The counsel responding on behalf of the university, Bill Burck and Robert K. Hur, are high-profile lawyers who are Republicans with prior service in senior roles in Republican administrations. Hur was also special counsel in the Biden administration responsible for the inquiry into the former president’s handling of classified information. (I represented then-President Biden in that matter.)
Of the two, Burck is the most revealing choice. He is the ethics advisor to the Trump Organization, responsible for reviewing deals affecting the president’s personal finances for potential conflicts of interest. He has also in other cases represented others negotiating the resolution of conflicts with the administration. He was a counsel to New York City Mayor Eric Adams in helping to work out the deal to end the criminal prosecution of the mayor on the understanding that Adams would support the government’s immigration policy initiatives. Most recently, he represented Paul Weiss in reaching an agreement with the administration to take steps, such as $40 million in pro bono commitments, that resulted in rescission of the executive order directed against the firm.
Burck’s representation of Harvard suggests, as does the text of Harvard’s response to the administration and the post-publication amendment to the Garber public letter, that the university has not ruled out a negotiation of some kind. Burck’s other professional involvements with this president are hard to square with a role in an all-out confrontation with the administration.
That Harvard has so far proceeded in this fashion does not in any way mean that it is somehow speaking out of both sides of its institutional mouth—making all the right noises in writing, while intimating that it will entertain a constructive dialogue behind the scenes. But the university is keeping its options open. It must vindicate core principles but also protect the various and vast interests of a complex institution, including interests in vital funding for health care services and scientific research. It is in the nature of these conflicts that a lawyer like Burck, hired for the role he is suited to play, will likely have communicated Harvard’s position in more ways than in writing—and at a level of complexity that cannot be captured in two-page formal letters from counsel or public letters from Harvard’s president to the university community. A negotiation remains a possibility, even if a lawsuit over the funding freeze and possibly other matters looms and is eventually filed. Active litigation is not incompatible with the resumed “dialogue” that Harvard counsel held open as still available. The two can go hand in hand.
What any future resolution entails will be the final measure of what Harvard successfully protects and how it manages its responses to the demands the administration makes in any negotiation behind the scenes. It is a complex challenge that institutions throughout the higher education community and the legal profession have faced from this government. Some, like Columbia University and elite firms like Paul Weiss, have stumbled and set bad examples. Now it’s Harvard’s turn and responsibility to make hard decisions about the right way forward.