Didn't SFFA clearly establish that? The Supreme Court outright reversed the bench trial ruling, which had found that Harvard and UNC's programs comported with Title VI and the Equal Protection Clause.
You have a point that I should've said "was found to have violated" rather than "is in violation." Whether Harvard is still violating the law is debatable. But I'm not sure Title VI withholding can't be predicated on a recent violation.
Regardless, as you know, the government routinely uses the threat of legal action for suspected violations to coerce compliance. Virtually every FDA/SEC/CFTC/etc. enforcement action starts with a letter along the lines of: "you're in violation of the law, do X, Y, and Z, or else we'll take action."
At the time, universities were adhering to existing law (Bakke and Grutter cases). The Court then overturned its own precedent and decided that what was once acceptable under its own law was no longer so. The text of the Equal Protection clause didn’t change; the only thing that changed was the Court’s interpretation of it.
So it’s not like Harvard was operating in bad faith or being malicious, which is the characterization suggested by your “violation” language. (Not to mention that every university in America that considered race in their admissions process, despite not being a named party to the suit, was similarly situated—probably most universities in the country.) And there’s no evidence to suggest that Harvard didn’t respond appropriately and in a timely fashion to the new law.
As I understand it, that’s the legal effect of SFFA. SFFA sued Harvard seeking, among other things, a declaratory judgment that Harvard’s admissions policies violate Title VI. The district court ruled, after bench trial, that Harvard didn’t violate Title VI. The Supreme Court didn’t remand for further proceedings, it outright reversed. Meaning that it found that Harvard’s procedures did violate Title VI.
Bad faith or malice aren’t elements of a Title VI violation. And I don’t see any legal reason why an administration couldn’t hold Harvard’s discrimination against students—which happened, even if the Supreme Court changed its mind about whether it was permissible—against Harvard in allocating federal funding.
Moreover, Harvard’s defiant response to SFFA provides a reasonable basis for the administration to believe it has continued to engage in discrimination: https://news.harvard.edu/gazette/story/2023/06/harvard-unite...
Of course, now that Harvard has decided to fight it, the administration will have to prove its belief: https://www.axios.com/2025/04/28/harvard-law-review-trump-ad.... That’s how these enforcement letters always pan out. Many targets fold to avoid litigation. Sometimes, a defendant fights it and the government has to initiate a formal enforcement action.
The DOJ, FDA, FTC, and SEC do stuff like this all the time. These agencies all lean very heavily on the threat of an enforcement action to enforce changes in private behavior without having to actually take entities to court.
Declaratory judgments aren't findings of wrongdoing. They're simply words (hence "declaratory") that describe a relationship between the parties of a case. Cases that end in declaratory judgements are also always civil in nature, so I don't believe they can be used to penalize the party later as if they had conducted a criminal act.
> I don’t see any legal reason why an administration couldn’t hold Harvard’s discrimination against students—which happened, even if the Supreme Court changed its mind about whether it was permissible—against Harvard in allocating federal funding.
That would actually be an interesting case. I find it difficult to believe that the Court would allow such an ex post facto application. The problem with this is that anyone who engaged in behavior that was lawful at the time, then subsequently deemed unlawful, could be subject to abrogation of benefits or other penalties. That said, in light of how the Court's makeup has changed in the past 20 years, I suppose I shouldn't be surprised if I turn out to be wrong. I would be very sad, though, because it would mean that nobody can be assured that their current conduct, even if lawful at the time, won't be held against them in the future if the law changes later.
> Harvard’s defiant response to SFFA provides a reasonable basis for the administration to believe it has continued to engage in discrimination
I don't think it does. I think Harvard is saying "we will continue to lawfully promote diversity however we can." There's no unlawful action being contemplated, described, or advocated in its response. Costco and Disney, BTW, do the same.
> now that Harvard has decided to fight [Trump’s investigation of Harvard Law Review’s publication policy], the administration will have to prove its belief
You're mixing up two different plot lines. We're discussing NSF and other Federal grant withdrawal resulting from Harvard's failure to implement discretionary measures Trump wants them to take relating to hiring, policy, and curriculum. This other story is about investigating Harvard Law Review, which was announced weeks after the grant rug pull. It seems pretty obvious that Trump is trying to find any angle he can to prevail in his war against the institution.
Title VI seems to clearly say "don't discriminate" but again I might not understand how exceptions are allowed.
So, from the 1960s until recently, the Court allowed universities to consider race in university admissions because it advanced a public policy that sought to improve the lot of Black people: the more Blacks could enter the ranks of the educated elite, the better off they would be in the long run, both socially and economically.
Over time, though, people whose admissions were rejected started to fight back: they felt that academic merit trumped all other considerations. After all, if they got better grades and aptitude test scores, weren't they more deserving of admission? The fights began, and over time, the Court chipped away at the acceptable use of race in admissions. Finally, in SFAA, the Court did away with them altogether.
As far as "pushing the boundaries" is concerned, actors will generally try to do whatever's in their best interest provided it's not illegal. There's no reward for maintaining a wide margin from legal boundaries when there's competition.
This is very much false, and can be easily refuted by reading what the lawmakers were saying as the law was being passed. For example, here's from the DoJ's memorandum, as quoted on the Senate floor by Senator Clark:
> "Finally, it has been asserted that title VII would impose a requirement for 'racial balance.' This is incorrect. There is no provision . . . in title VII .. .that requires or authorizes any Federal agency or Federal court to require preferential treatment for any individual or any group for the purpose of achieving racial balance. . . . No employer is required to maintain any ratio of Negroes to whites .... On the contrary, any deliberate attempt to maintain a given balance would almost certainly run afoul of title VII because it would involve a failure or refusal to hire some individual because of his race, color, religion, sex, or national origin. What title VII seeks to accomplish, what the civil rights bill seeks to accomplish is equal treatment for all."
This explicitly says that you cannot have a racial quota, because it would be against Title VII of the proposed Civil Rights Act, meaning that the lawmakers proposing the bill explicitly said that the Title VII will protect whites (and all other races) as well as blacks.
