For universities, Trump’s punishments far exceed the alleged crimes

The adage “let the punishment fit the crime,” articulated by the Roman philosopher Cicero some 2,060 years ago, reflects a principle fundamental to every modern legal system.

The notion of reciprocal justice — “an eye for an eye” and not “two eyes for an eye” — also appears in the Code of Hammurabi and the Book of Exodus. The Magna Carta in 1215 mandated that an offender should be fined “only in proportion to the degree of his offence,” a concept later reflected in the English Bill of Rights, the Common Law tradition and the U.S. Constitution.

The Supreme Court has recognized the importance of proportionality to the rule of law, often framing it in terms of balancing tests or “levels of scrutiny.” Perhaps more important, proportionality is central to Americans’ sense of fundamental fairness, from the playground to the courtroom.

In the Trump administration, however, scorched earth warfare has replaced the idea that punishment should fit the crime.

Accusing Harvard University of tolerating antisemitism, the administration has frozen or terminated billions in research funding, launched at least eight intrusive investigations, threatened to revoke the university’s tax-exempt status and terminated its ability to enroll international students. While inflicting enormous damage, these sanctions are not tied to any discernible gain.

Harvard has sued the government, and its legal case is strong. A judge recently issued a temporary restraining order securing its right to enroll international students. But even if Harvard prevails in the courts, the cost will be exorbitant. And Harvard is just one of many universities under attack.

People of good will can differ about whether Harvard and its peer universities have met their legal obligations to Jewish students. But, by any standard, the Trump administration’s response has been grotesquely disproportionate.

Proportionality analysis in law takes different forms. Common elements intended to constrain excessive government actions include such phrases as “legitimate goal” — as in, government sanctions should be designed to further a legitimate goal, with a rational connection between the sanction and that goal. Another is “necessity,” meaning sanctions should be necessary to achieve the goal and the least restrictive means available. A third is “undue burden,” meaning that penalties should be commensurate with the moral culpability of the person or institution sanctioned and should not cause society more harm than good.

These principles are reflected in Title VI of the 1964 Civil Rights Act, the main anti-discrimination statute the government is relying on to justify its attacks on higher education.

Title VI contains multiple procedural safeguards “designed to spur agencies into seeking consensual resolutions with recipients.” The Department of Education’s Office of Civil Rights, which oversees most Title VI cases, may only seek to terminate federal funding as “a last resort, to be used only if all else fails,” because “cutoffs of Federal funds would defeat important objectives of Federal legislation, without commensurate gains in eliminating” discrimination.

As Supreme Court Justice Byron White once explained, “to ensure that this intent would be respected, Congress included an explicit provision … that requires that any administrative enforcement action be ‘consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.’’’ And as the Justice Department’s guidelines for the enforcement of Title VI make clear, “in each case, the objective should be to secure prompt and full compliance so that needed Federal assistance may commence or continue.”

In the early years of Title VI, the Office of Civil Rights did ultimately terminate federal funding for Southern schools that refused to desegregate. But as Sen. Hubert Humphrey, the lead author of the 1964 Civil Rights Act, observed, “it is not expected that funds would be cut off so long as reasonable steps were being taken in good faith to end unconstitutional segregation.”

During the 30 years before the Trump administration’s decision in March to cancel $400 million in grants and contracts to Columbia University — taken without a hearing or any semblance of due process — no college or university was stripped of federal funding under Title VI.

The administration’s slash-and-burn approach fails every conceivable proportionality test.

Combating antisemitism is, of course, a legitimate goal. But even assuming that the administration is not using antisemitism as a pretext to pursue a broader political agenda of undermining critics, democratic institutions and the rule of law, there is no rational connection between terminating research on cancer, artificial intelligence or nanotechnology and ending antisemitism. Nor has the administration even tried to demonstrate how barring Harvard from enrolling all international students, as opposed to students proven to have engaged in antisemitic activity, advances its supposed objectives.

If implemented, the Trump administration’s sanctions would devastate Harvard’s ability to remain one of the world’s leading research universities. And the sanctions are hardly the least restrictive means available to address campus antisemitism.

Harvard has acknowledged the challenges it faces in ensuring a safe and supportive environment for its Jewish community. And, unlike the Southern schools whose continued resistance to Title VI’s antidiscrimination mandate in the 1960s was clear, Harvard had already taken significant steps to combat antisemitism and indicated a willingness to address the government’s concerns before officials sent it an extravagant list of demands. (Many of those demands, such as plagiarism reviews for all faculty, bore little or no connection to antisemitism.)

Whether Harvard has done enough, quickly enough, is a matter that can be debated. But the administration has certainly not proven that Harvard displayed the “deliberate indifference” that warrants a finding of institutional responsibility for the harassment of Jewish students under Title VI, much less a degree of culpability to justify the penalties the government continues to pile on. Nor is it possible to conclude that slashing funding for scientific and medical research, banning all international students or revoking Harvard’s tax-exempt status do more good than harm.

The Trump administration is imposing crushing penalties wholly incommensurate with any fault of the targeted institutions simply because it can — or thinks it can — and because it believes that “shock and awe” will compel all institutions of higher education and their faculty to fall in line.

Abandoning the principle that the punishment must fit the crime would set our democratic standard of justice back to the “might makes right,” Sticks and Stone Age.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.