Inside the First Circuit’s Harvard Arguments: The Panel’s Signals and the First Amendment Stakes

Today, Thomas Berry, the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, was in the Boston federal courthouse for the US Court of Appeals for the First Circuit’s arguments in two companion cases over the Trump administration’s treatment of Harvard University. Berry is available to talk through the hearing and what it means.

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Background:

The administration has tried to withhold billions of dollars in contracts from Harvard unless the university adopts governance structures the administration approves and promotes viewpoints the administration prefers. A federal district court ruled for Harvard, finding that the government was trying to “force Harvard to better manifest the government’s favored worldview” in violation of the First Amendment. Cato joined the ACLU and a broad coalition of civil liberties groups in an amicus brief supporting Harvard on appeal.

What to know from today’s arguments:

• The government mostly sidestepped the constitutional question. Its main argument was that because Harvard seeks money owed under federal grants, the case belongs in the Court of Federal Claims. Paul Clement, arguing for Harvard, and Elizabeth Prelogar, arguing for a group representing Harvard faculty, responded that this is a constitutional case, not a contract dispute. That court cannot enjoin future viewpoint-based denials of funding, which is the most important relief the district court granted.
• Judge Sandra Lynch appeared firmly on Harvard’s side. She pressed the government’s lawyer hard and asked the most questions on the merits, stressing the academic freedom interests at stake. That suggests she expects the court to keep jurisdiction.
• The other two judges were harder to read, but there were encouraging signs for Harvard. Judge Gustavo Gelpi asked about shaping the scope of the injunction, a question that matters only if the injunction is at least partly affirmed. Judge Joshua Dunlap looked like the swing vote on jurisdiction, and Prelogar’s argument may have moved him: any review of the grant terminations must examine the evidence of viewpoint discrimination and the skipped procedural protections.
• The government’s choice of advocate stood out. Given the stakes, it was surprising that the government sent a more junior lawyer instead of Civil Division head Brett Shumate to face two former US Solicitors General.

To speak with Berry, contact Christopher Tarvardian.