The New Yorker:

Universities are accustomed to acquiescing to the government, but Trump made Harvard an offer it couldn’t not refuse.

By Jeannie Suk Gersen

In a thrillingly delightful surprise—and that’s understating it—to many of us who’ve been working in universities for much of our adult lives, Harvard chose not to accede to the Trump Administration’s threats to its federal funding and announced on Monday that the university “will not surrender its independence or relinquish its constitutional rights.” The development was a stunning break from the submission to government coercion that, in recent decades, I’d come to expect.

When I was a law student at Harvard, during the Clinton and Bush Administrations, “don’t ask, don’t tell” was the U.S. military’s policy on gay service members. Many students wanted the school to protest by ending military recruitment on campus, but a federal law conditioned the receipt of funding on military access. Jeopardizing the university’s federal funding was a non-starter. Several years later, when I was a professor, the then dean, Elena Kagan, sent anguished yearly e-mails to the Harvard Law School community expressing support for gay equality but explaining that the school could not refuse the government and endanger funding on which the university depended.

Later, during the Obama Administration, the Department of Education’s Office for Civil Rights published a list of colleges and universities that it was investigating for allegedly inadequate responses to sexual assault. Harvard was on the list. Obama’s O.C.R. had said, in nonbinding guidance documents, that schools should adopt certain procedures for adjudicating campus sexual-assault complaints, including lowering the standard of proof to “more likely than not.” These preferences were not law, but the Administration treated them as if they were, saying that schools violating them were also violating Title IX, a statute that prohibits sex discrimination in educational institutions receiving federal funds. Some law professors, myself included, objected to the new procedures as unfair, and hoped that universities would legally challenge the government. But, amid the investigations, O.C.R. threatened the schools’ federal funding, putting them under intense pressure to reach a settlement rather than be found in noncompliance. As documented in an article I co-authored in 2016, we saw, instead of lawsuits, a series of “resolution agreements,” in which, one by one, universities agreed to do what the government demanded, regardless of whether the law required it.

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