Harvard could beat Trump in court but lose the war with his administration

When the Trump administration tried to take away Harvard’s ability to enroll foreign students, the university filed a lawsuit, and a federal judge blocked the order the next day.

But even as that case – and another lawsuit the university has filed against the administration – winds through the courts, President Donald Trump had made his next move, with a proclamation Wednesday aiming to keep international students out of Harvard.

And by Thursday afternoon, Harvard had gone back to court. The university’s lawyers filed an amended complaint in U.S. District Court in Massachusetts, arguing Trump’s action is unlawful and unconstitutional.

“The proclamation,” the university’s lawyers wrote, “is a patent effort to do an end-run around this Court’s order.”

Hours later, Harvard asked the court to block Trump’s proclamation, filing a motion for a temporary restraining order. Thousands of international students have been admitted and are expected to come to campus for the summer and fall terms, lawyers wrote, and about a quarter of the student body is at risk of having their visas revoked and being subject to deportation, including nearly half of all graduate students in science, technology, engineering and mathematics fields.

Harvard may prevail again in court. But the escalating feud has some experts predicting that even if the school wins every case, it won’t escape unscathed.

That’s because even if judges continue blocking Trump’s action, the administration holds enormous power over how visas are actually granted, experts said. The Trump administration has shown a willingness to try aggressive and untested tactics. The administration’s relentless attack on Harvard is having a chilling effect on current and prospective students and faculty, raising questions about whether the school will lose top talent as the battle continues.

There is more than one way, experts said, to punish Harvard.

“Harvard can win everything in the courtroom and still lose in the long run,” said Allison Wu, a 2022 Harvard Business School graduate who leads the 1636 Forum, a group of Harvard alumni that has pressured the university to change.

It is not just the fight over international students. The Trump administration also has frozen more than $2.2 billion in research funding to Harvard, threatened to revoke the university’s tax-exempt status and initiated federal investigations in an effort to force change at the school.

Harvard filed a sweeping lawsuit, challenging the administration’s withholding of federal funding as a means to control academic decision-making at the school.

Yet, even if the contracts and grants are restored, the administration can still deny future grants and contracts. Last month the education secretary froze all new grants to Harvard.

The practical impact of losing those funds – combined with the ongoing drama – may push away top student and faculty prospects, Wu said. There is a meaningful difference between attracting excellent students and those at the top, she said, such as someone who might win a Nobel Prize. Harvard, Wu said, may start losing those top prospects.

“The sheer level of uncertainty really increases the risks that people leave Harvard or are poached by other institutions or don’t come,” she said.

At the same time, the administration has the power to reverse its campaign against Harvard, and the president has been known to shift gears on important policy matters, sometimes abruptly.

But for now, Harvard is pushing ahead with legal challenges, and the administration’s actions could weaken what has long been seen as one of America’s premier universities.

Administration officials have argued that they are taking necessary steps to protect national security and ensure campuses are safe and welcoming for Jewish students.

On Thursday, Trump predicted success as he spoke about the administration’s demand that Harvard turn over information about any foreign students’ illegal, dangerous and violent behavior.

“They’re going to be giving us the list now,” he said at the White House. “I think they’re starting to behave, actually, if you want to know the truth.”

On Thursday, Harvard President Alan Garber told the campus community that the school had amended its lawsuit and would ask the court to immediately halt the enforcement of the proclamation. Contingency plans were being developed to ensure that international students and scholars can continue to pursue their work at Harvard this summer and through the coming academic year, he said.

Harvard’s international students and scholars make outstanding contributions, Garber said, adding: “We will celebrate them, support them, and defend their interests as we continue to assert our Constitutional rights.”

Last month, the Department of Homeland Security revoked Harvard’s certification to enroll foreign students, saying the university had allowed “anti-American, pro-terrorist” foreigners “to harass and physically assault” people and that the university had worked with a Chinese Communist Party paramilitary group. Harvard challenged the action the next day, and within hours a federal judge had blocked it.

On Wednesday, Trump tried again. He issued the proclamation that sought to suspend for six months the entry of international students planning to attend Harvard, and it called on the secretary of state to consider whether current students should have their visas revoked.

The State Department has enormous authority over who is granted a visa. Consular officers “can refuse a visa on any grounds,” said Shev Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association. They are not required to explain their reasoning, she said, and those who are rejected generally have no power to challenge the decision.

Applications also can be put into “administrative processing,” she said, describing this as a “black hole” that has no timeline and where applicants have no clue what is happening with their cases.

Visa officers at the State Department have been directed to scrutinize applications from Harvard students. “I suspect that we’re going to see a much higher visa denial rate for incoming Harvard students, even though Harvard may win the litigation battle,” said Stephen Yale-Loehr, a retired professor of immigration law at Cornell University.

For students, Dalal-Dheini said, the result is that they may not get a decision until the semester has begun. She added that switching to another school is difficult and often too late by the time one finds out their application is in limbo.

That means students and researchers may stop choosing Harvard because of the uncertainty, several people said.

And it’s not just Harvard. “I would imagine would-be students all over the world are reconsidering whether the United States is as desirable a destination as they thought,” said Julia Gelatt, associate director of the Migration Policy Institute’s U.S. immigration policy program.

“I’m really worried,” said Ted Mitchell, president of the American Council on Education, a lobbying group that advocates for colleges and universities. “It’s so much easier to break things than it is to repair them.”

High-stakes court battle

Even as Harvard faces these headwinds, its legal case is strong, many experts said. Harvard argues that the denial of visas amounts to “direct retaliation” against the university for refusing to cede control of its academic prerogatives.

On Wednesday, a spokesperson for Harvard said Trump’s proclamation was “yet another illegal retaliatory step taken by the Administration in violation of Harvard’s First Amendment rights.” Harvard would continue to protect its international students, the spokesperson added.

Some saw Trump’s proclamation as a tacit acknowledgment that the earlier attempt by DHS was legally defective.

“Most competent lawyers don’t want to defend a hopelessly losing case,” said David Super, a law professor at Georgetown University. He called the original ban “blatantly contrary” to regulation and procedure. With the proclamation, the administration is looking for a do-over, Super said.

Unlike executive orders, presidential proclamations typically do not have the force and effect of law, unless the president is given the authority by the Constitution or federal law, according to the Library of Congress.

Trump’s proclamation cites several immigration statutes to justify its restrictions on international students. But those laws don’t fit what the administration is attempting to do, Super said. For instance, one of the statutes covers prohibitions on how people can enter the country, but “has nothing to do with who enters and certainly not what educational institution they go to,” Super said.

The proclamation also alleged that Harvard’s international students pose a national security threat because they could be used by foreign countries or businesses to steal or exploit American research or spread misinformation. It linked Harvard to China and alleged that China was exploiting the student visa program. And it painted the university’s admission of international students as denying opportunity to American applicants, which it labeled a form of discrimination.

Gelatt, of the Migration Policy Institute, was also skeptical of the alleged national security concerns cited in the proclamation. “That could be a tough road to convince judges that international students at one of our most selective colleges in the country present a threat” she said.

The school’s decision to fight has been celebrated by many students, faculty and alumni. Even if the university does suffer damage from the battle, much of the Harvard community is bolstered by its willingness to defend its academic independence.

Another of Trump’s targets, Columbia University, took a different tack. It has been in talks with the administration for months and has made numerous changes that align with its demands. Despite that, it hasn’t had its research funding restored. And on Wednesday, not long before Trump issued his proclamation about Harvard, his education secretary announced another strike on Columbia: They notified the school’s accrediting body that it did not meet standards because it was allegedly in violation of federal antidiscrimination laws.

The support for Harvard’s approach was evident at the school’s commencement last month, when Garber was greeted with a sustained standing ovation.

“When we all received that email from President Garber saying that Harvard was not going to capitulate to the Trump administration’s demands, we felt really buoyed,” said Elisabeth Stelson, a postdoctoral research fellow in the department of epidemiology at Harvard T.H. Chan School of Public Health. The reaction, she said, was, “Yes! We are going to stand up for what we believe in!”