Harvard legal fight supercharged by Trump foreign student ban

Harvard University has so far been reluctant to ask a federal judge to immediately block the Trump administration’s attacks. But the extraordinary order barring Harvard from enrolling international students adds new urgency to the fight.

Homeland Security Secretary Kristi Noem on Thursday said the government is revoking Harvard’s ability to enroll students from overseas, a group that currently makes up about 27% of the student body. International students must transfer or lose their student visas, and incoming first-years or transfers can’t matriculate.

The government has already frozen more than $2.6 billion in funding to Harvard, with a court challenge by the school set to be aired in July. Trump has also threatened to revoke the school’s tax-exempt status. But this latest action takes direct aim at current students, and at one of the school’s top sources of revenue: Tuition.

“Because it directly affects the ability of students to enroll or remain enrolled at Harvard, I think they’ll seek a temporary restraining order and I think they’ll receive one,” said Erwin Chemerinsky, dean of the law school at University of California, Berkeley.

Arguing that the government’s ban goes into uncharted territory and asking a judge to block it temporarily could be the most efficient way for Harvard to try to avoid disruptions for the coming academic year.

Harvard, the country’s oldest and richest university, has not signaled its legal intentions yet. In a statement, a spokesperson said the school is “fully committed to maintaining Harvard’s ability to host international students and scholars, who hail from more than 140 countries and enrich the University — and this nation — immeasurably.”

The Department of Homeland Security did not immediately respond to a message seeking comment.

Some legal experts said courts are likely to find that the government’s action lacks a reasoned basis and smacks of punishing Harvard for political reasons.

“This is so disproportionate to any problem there may be at Harvard that it’s hard to imagine an an impartial judge thinking this is appropriate,” said Pamela Karlan, a law professor at Stanford University. “I’m trying to imagine the judge in this country who looks at this and says, ‘Oh yeah, sure, no problem.”’

The Trump administration’s actions are rooted in its charge that Harvard has “failed to condemn antisemitism.” In a mid-April letter to the university demanding detailed information on the activities of foreign students, Noem invoked a January executive order that set as policy “using all available and appropriate legal tools to prosecute, remove or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”

In its suit challenging the funding freeze, Harvard has argued that the government violated its rights to due process and to free speech. The arguments in any new Harvard lawsuit are likely to be similar, said Paul Gowder, a professor at Northwestern Pritzker School of Law in Chicago.

“This is pretty similar to all of the rest of the stuff against Harvard,” Gowder said. Trump’s actions are “transparent viewpoint discrimination, and I expect the courts to rule accordingly.”

Foreign students may also seek to challenge the government’s action, said Margaret Russell, a professor at the Santa Clara University School of Law.

“In both cases the basic arguments will be lack of due process, a lack of proper procedures,” she said. “Part of the free expression for the university is to determine its academic freedom.”

Jewish students at Harvard — as well as at other universities — have said they were subjected to widespread antisemitism after Israel went to war with Hamas in Gaza. Harvard acknowledged in a report last month that there has been both antisemitism and anti-Muslim bias on campus, and President Alan Garber apologized for the conditions.

But Harvard has resisted what it views as Trump administration demands to allow federal oversight of its curriculum and university operations, and hasn’t agreed to turn over additional information on foreign students.

On Thursday, the government alleged that many of the “agitators” on campus are foreign students, and it accused Harvard’s leadership of coordinating with the Chinese Communist Party. In a social media post, Noem said the action against Harvard is a “warning to all universities and academic institutions across the country.”

Harvard is being singled out “based on the government’s dislike of what they say,” said Jessica Levinson, a law professor at Loyola Marymount University in Los Angeles. “That’s one of the main things the First Amendment guards against — the government picking winners and losers based on who’s saying what.”