Title VI: An Old Law Is a New Tool in the War for Harvard
In the Trump administration’s campaign to punish universities for their response to pro-Palestine protests, Title VI of the Civil Rights Act has emerged as the clear legal weapon of choice.
The 1964 law was used earlier this month to justify slashing $400 million in government contracts to Columbia University, where, like Harvard, the White House alleged antisemitism was allowed to fester.
While the move was an unprecedented escalation in Republicans’ long-standing crusade against elite universities, it was hardly the first time the Trump administration has turned to Title VI — which prohibits discrimination in federally-funded programs and institutions — as a political cudgel.
Last month, the Department of Health and Human Services opened a Title VI investigation into Harvard Medical School for pro-Palestine messaging worn by students at last spring’s graduation ceremonies.
And just hours after a federal antisemitism task force announced that it would visit Harvard and nine other colleges over allegations of campus antisemitism, task force head Leo J. Terrell promised to use Title VI to strip funding across the higher education landscape.
“Let me tell you what we’re going to do: we’re going to take away your funding, we’re going to sue you under Title VII, we’re going to sue you under Title VI,” he said in an interview with Fox News on Feb. 28.
Despite Terrell’s threat and the limited investigation into HMS, Harvard itself is not under a Title VI investigation, and Trump has not taken steps to sue.
The Department of Education created confusion over that fact earlier this month, after it included Harvard on a list of 60 colleges and universities that could face “potential enforcement actions.” While the list included schools that are under investigation, a person familiar with the matter said Harvard itself is only being informally monitored.
But in interviews with The Crimson, more than a dozen legal experts warned that if the $400 million cut at Columbia is any indication, the Trump administration could significantly reinterpret Title VI and strategically use it to target Harvard and peer institutions.
“If the end goal is to withdraw federal funding from these educational institutions, Title VI would be the way to do it,” said Hannah N. Perls, a lecturer at Harvard Law School.
‘A Roadmap’
While Trump’s return to the White House in January energized Republicans seeking to punish Harvard and other elite institutions suspected of tolerating antisemitism, Republicans in Congress began building a Title VI case against Harvard just weeks after Oct. 7, 2023.
During former President Claudine Gay’s now-infamous testimony in front of the House Committee on Education and the Workforce, former Rep. Bob Good bluntly suggested that Harvard’s response to pro-Palestine protests was in violation of Title VI.
“Why should Congress continue to invest money in Harvard when Harvard clearly violates Title VI and helps foster a hostile environment for Jewish students,” Good asked Gay.
Gay barely got a word in.
“Your institution is clearly producing students who are sympathetic to a terrorist organization,” he snapped.
Since then, the Education and Workforce Committee has continued to suggest that Harvard and peer institutions have violated Title VI.
In a highly-anticipated 325-page October report, the House Committee on Education and the Workforce — which spearheaded the Republican charge against Harvard and other elite universities — laid out what they called a “roadmap” for “investigations into potential violations of Title VI.”
House Republicans suggested that the 20-day pro-Palestine encampment in Harvard Yard, one-day occupation of University Hall, and a flurry of other high-profile demonstrations on campus were enough proof that Jewish students had been “intimidated and harassed” on campus.
They alleged that Harvard deliberately gave lighter punishments to pro-Palestinian protestors and criticized the University for downgrading probation periods for some protestors.
While the claim that universities have a legal obligation to protect students from discrimination is not new, and it was Democrats who first began investigating Harvard for possible Title VI violations, the scale of Republican threats on the basis of Title VI is unprecedented.
“I think we have to at least ask ourselves why this tool that has been around for so long is now being discussed in the ways that it is, when it has never actually been a tool that was intended to regulate or to get in the middle of protest and speech,” said Raquel E. Aldana, a professor at the University of California, Davis School of Law.
The statute — which prevents discrimination on the basis of race, color, or national origin — applies to any entity benefiting from federal funds, including government agencies, hospital systems, and colleges and universities.
For forty years, it did not include an explicit provision on the basis of religion, and could not be used as part of antisemitism complaints.
But in 2004, the Department of Education’s Office of Civil Rights ruled that Title VI extends to religion when the discrimination is based on shared ancestry or ethnic characteristics, including citizenship in a country with a dominant religious ancestry.
The ruling, which was affirmed by the Obama administration in 2010 and Trump in 2019, has guided antisemitism litigation for the past two decades. And since returning to the White House in January, Trump has made a concerted effort to expand its applicability.
In a Dear Colleague letter issued on Feb. 14, Trump’s Department of Education wrote that Title VI prevented the use of race in decisions relating to hiring, admissions, and “all other aspects of students, academic, and campus life” — a free-handed interpretation of what has traditionally been a narrowly applied statute.
“We have a very different interpretation of Title VI, both through the executive orders and the February 14 Dear Colleague letter,” said Scott Z. Goldschmidt, a higher education lawyer. “I think the new administration has used pretty significant, aggressive language in what they’re expecting in terms of Title VI compliance.”
The Legal Basis
Even in the face of public threats, winning a Title VI case over antisemitism allegations remains an uphill battle.
Claims under Title VI are evaluated by the the Department of Education’s OCR with two considerations: whether an institution fostered a “hostile learning environment” and whether it subjected a select group of students to “disparate treatment” according to Marc Brenman, a former OCR attorney.
In a separate Dear Colleague letter issued in May 2024, the education department explained that a learning environment could be considered “hostile” if discrimination “is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from a school’s education program” — the same language in Harvard’s Discipline policies.
Brenman said disparate treatment — when a group is treated differently because of a protected class — needs to show both impact and intent to hold legal ground.
“Intent is where we say we are not hiring any Jews as faculty,” he said. “Disparate impact is where you look at statistics and history and you see if there’s a difference in different treatment among groups.”
“It is much harder to prove intent,” Brenman added.
But of the two provisions, legal experts said it would be comparatively easier to show that Jewish students faced a hostile learning environment and would be lower hanging fruit for the Trump administration to build a case against Harvard.
“If I had to choose between the two — if I’m the one defending this in court — hostile environment is the pathway to go forward,” said Ronak D. Desai, a partner at law firm Paul Hastings.
In the October report, House Republicans argued that Jewish students’ learning experience had been “intimidated and harassed” on campus.
They pointed to a Dec. 4, 2023 demonstration on campus where pro-Palestine protestors interrupted classes with bullhorns — chanting phrases including “from the river to the sea” and “long live the intifada” — and argued that the encampment had effectively prevented Jewish students from attending classes.
They’ve also seized on Garber’s own words, arguing his public warnings about the spring encampment proved the environment was hostile toward Jewish students.
At the height of the encampment, Garber wrote in an email to affiliates that the protests presented “a significant risk to the educational environment of the University” — a statement lawmakers took as a public admission that the University had permitted a hostile learning environment for Jewish students.
“We have also received reports that passers-by have been confronted, surveilled, and followed,” Garber wrote on May 6, 12 days after the encampment began.
According to Desai, the argument that universities failed to protect Jewish students has substantial legal precedent and would meet the legal threshold set by prior cases.
“Hostile environment — the language, the rhetoric they’re using on failing to protect — that’s deliberate, that’s intentional, and that reaches the precedent here that they’re looking to in order to ensure that this survives judicial scrutiny,” he said.
A Harvard spokesperson declined to comment for this article.
But to make a successful disparate treatment argument, the Trump administration would need to show that Harvard responded more leniently to pro-Palestine protests than it did to protests organized by Jewish, Israeli, or Zionist students — a difficult argument without large-scale pro-Israel protests to use as a comparison.
The argument that Harvard would have responded to other groups differently would be an uphill battle for Republicans in court, according to former Office of Civil Rights attorney Miriam A. Nunberg.
“Any time there’s evidence of one group being disciplined more harshly than another group for similar behavior, that could be a finding of a Title VI violation for sure — but it has to be for engaging in similar behavior,” she said.
‘A Rhetorical Piece’
But in the last two months, the Trump administration has shown little sign that it plans to wait for Title VI investigations to be adjudicated through the legal system.
The White House unilaterally moved to cut off $400 million in federal funding for Columbia just one month after the Department of Education opened a Title VI investigation into the school and before any federal court had weighed in on allegations of campus antisemitism.
According to Brenman, the former OCR attorney, the funding cut came without “a real investigation.”
“A real investigation includes looking at a lot of documents, interviewing a lot of witnesses, making on-site visits, interviewing a lot of people,” he said. “I’ve seen no evidence that the Office for Civil Rights has done any of those things.”
“Taking away this money without having done a proper investigation and making a proper finding and attempting to settle the case through a negotiated settlement, appears to me, as an expert in the field, to be arbitrary and capricious,” Brenman added. (The White House did not respond to multiple requests for comment about the depth of its investigation into Columbia.)
But in the meantime, the premise of an impending lawsuit has allowed Trump to impose unilateral penalties on Columbia.
And even the threat of similar cuts at Harvard forced Garber to institute cost-saving measures that had thus far been reserved for financial crises.
According to Goldschmidt, the higher education lawyer and former deputy general counsel at the Catholic University of America, the Trump administration’s use of Title VI serves both a legal and messaging function — the latter of which would withstand the Department of Education’s demise or legal challenges to Trump’s $400 million cut to Columbia.
“Is it a rhetorical piece where they’re trying to get more voluntary compliance and trying to change behavior, or will they really announce and take a big swing and really come after schools’ existence if they don’t comply,” Goldschmidt said.
Days after losing its funding, Columbia officials agreed to adopt new disciplinary policies, overhaul its Middle Eastern Studies department, and hire nearly 40 new security guards to police campus protests — effectively bowing to the administration’s demand without assurance the funding would be restored.
Adam Kissel, Trump’s former education department deputy assistant secretary, said instilling fear in other universities is explicitly part of the plan.
“The first time that an institution does lose its federal funding, even if only for one day, that will dramatically change behavior across the whole sector,” he said.
The response to the Columbia cuts has largely proven Kissel’s prediction true.
Since the $400 million funding cut, a number of universities have preemptively adjusted their policies on protests and DEI programming in the hopes of staying out of the White House’s crosshairs. On Wednesday, Case Western Reserve University shut down its diversity, equity, and inclusion office, citing concerns that continuing its operations could jeopardize federal funding.
At Harvard, the changes have been small: replacing the word “multicultural” with the word “community,” axing the campus climate task forces, and on Wednesday, quietly removing the Harvard Catalyst Program for Diversity and Inclusion — a mentorship program aimed at retaining faculty from underrepresented backgrounds.
The changes suggest that even absent full investigations or legal resolution, Title VI is becoming a powerful catalyst for institutional action — a form of compliance born not out of adjudicated legal findings, but out of fear of political retribution.
Harvard Law School professor Kenneth W. Mack, an expert in civil rights law, said invoking Title VI, even without a formal complaint, has the potential to reshape the higher education landscape.
“The power of that lever can’t be overestimated,” Mack said.
—Staff writer Dhruv T. Patel can be reached at dhruv.patel@thecrimson.com. Follow him on X @dhruvtkpatel.
—Staff writer Grace E. Yoon can be reached at grace.yoon@thecrimson.com. Follow her on X @graceunkyoon.