My Supplemental Submission to the US Civil Rights Commission
My latest Verdict column (favorably) discusses the final report of the US Commission on Civil Rights on the topic of the federal response to campus antisemitism. In the column, I provide a link to my original written testimony and to the video of my oral testimony before the Commission back in February. For completeness, I'm devoting today's entry on the blog to publishing the supplemental letter I sent the Commission in March. It is also available in the folder labeled "Panel 1" here but you have to jump through some hoops to find it. Because I republished my initial written testimony on the blog, I thought it sensible to include the supplemental here.
Supplemental Submission of Michael C. Dorf*
Robert S. Stevens Professor of Law, Cornell Law School
United States Civil Rights Commission
RE: Antisemitism on America’s College and University Campuses:
Current Conditions and the Federal Response
March 24, 2026
Distinguished commissioners:
In this supplemental submission, I address two questions you posed to me in a letter of March 18, 2026 and supplement my answer to a question about the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism that was posed during the live briefing on February 19, 2026.
Your Questions
The first question you posed to me was as follows: “In your testimony, you wrote that the Trump Administration’s actions are unlawful, unconstitutional, and destructive. Please elaborate, addressing each.” My statement to which this question refers appears in the overview portion of my written testimony. I elaborated it in the remaining text and footnotes therein, but I am happy to explain those points further here.
(1) The Trump Administration’s actions have been unlawful in that they did not adhere to the procedural or substantive statutory limitations on how the federal government is permitted to go about using funding cutoffs in response to alleged Title VI violations by recipients of federal funds. Your second question posed in your March 18 letter asks specifically about those statutory requirements. It states: “Please outline your interpretation of the federal statutory requirements in order for the government to cut off federal funding to colleges and universities, and how these requirements differ from what the Trump Administration has been doing.” Accordingly, in elaborating how the Trump Administration’s actions are unlawful, I shall also answer your second question.
In the paragraph that carries over from page 5 to page 6 of my original statement, I summarized the procedures the government legally must follow in order to withhold funds from an institution subject to Title VI. As I indicated in footnote 12 of that statement, these are codified in 42 U.S.C. § 2000d-1. For your convenience, here is another summary of those provisions, found in the federal district court opinion granting Harvard’s motion for summary judgment in its lawsuit contesting the lawfulness of the Trump administration’s funding freeze and termination:
In Title VI, Congress identified specific procedures that an agency must follow before “terminating, or refusing to grant or continue, assistance” based on an alleged failure to comply with a requirement adopted pursuant to Title VI. [42 U.S.C.] § 2000d-1. Specifically, Title VI provides that no action terminating financial assistance “shall be taken until the department or agency concerned has” 1) “advised the appropriate person or persons of the failure to comply with the requirement,” and 2) “determined that compliance cannot be secured by voluntary means.” Id. If the relevant department or agency determines that voluntary compliance is not possible, it may then terminate grants, but only if “there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement,” and the termination must be “limited to the particular ... recipient as to whom such a finding has been made,” as well as “the particular program, or part thereof, in which such noncompliance has been so found.” Id. Further, once these procedural steps have been met, “the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action.” Id. After this report is filed with Congress, the action still may not “become effective until thirty days have elapsed.” Id. Only then may an agency terminate funding because of concerns about discrimination.
It is undisputed that Defendants did not comply with these requirements before issuing the Freeze Orders or Termination Letters. The administrative record contains no evidence of a notice of noncompliance, an assessment that compliance could not be achieved by voluntary means, a hearing, a finding on the record, or a report to Congress.
President & Fellows of Harvard Coll. v. United States Dep’t of Health & Hum. Servs., 798 F. Supp. 3d 77, 125-26 (D. Mass. 2025).
The Trump administration defendants did not deny that by unilaterally purporting to cancel and freeze funds to Harvard they had failed to comply with the statutory requirements for a funding cutoff under Title VI. Rather, they disingenuously claimed, post hoc, that they were cutting funding under different authority. The district judge made short work of this claim, stating that the administration defendants
argue that they terminated Harvard’s funding pursuant to 2 C.F.R. § 200.340(a)(4), which provides that a “Federal award may be terminated in part or its entirety ... [b]y the Federal agency ... pursuant to the terms and conditions of the Federal award, including, to the extent authorized by law, if an award no longer effectuates the program goals or agency priorities.” … Notably, however, neither the April 14 nor the May 5 Freeze Order contains any reference to 2 C.F.R. § 200.340 ....
Furthermore, the Trump administration’s most recent action against Harvard, the unprecedented lawsuit it filed seeking reimbursement from Harvard for past payments, makes no mention of 2 C.F.R. § 200.340. See Complaint, United States v. President & Fellows of Harvard College, No. 1:26-cv-11352 (D. Mass. filed Mar. 20, 2026), https://www.justice.gov/crt/media/1432096/dl.
To be sure, this new complaint claims that the administration followed a few of its statutory obligations. Paragraphs 8 and 9 respectively state that the Department of Health and Human Services (which makes and administers substantial grants) provided Harvard with notice that it had opened an investigation on February 3, 2025, and with notice of its findings on June 30, 2025. Conveniently omitted from that timeline is the fact that in between, and without adhering to the statutorily mandated procedures, on April 11, 2025, the Trump administration sent Harvard a letter demanding federal control over admissions, hiring, governance, and more.
That omission severely undercuts the new complaint’s assertion that it is authorized by the fact that the Trump administration “has determined that compliance cannot be secured by voluntary means,” as required by 42 U.S.C. § 2000d-1before resort is made to funding cutoffs. For one thing, the administration initially cut funds long before any determination that compliance could not be secured by voluntary means. For another, it is noteworthy that most of the allegations in the government’s new complaint are taken from a report by a task force Harvard itself convened to assess its response to antisemitism and anti-Israeli bias. See Final Report: Presidential Task Force on Combating Anti-Semitism and Anti-Israeli Bias, Harvard University 10-11 (Apr. 29, 2025), https://www.harvard.edu/wp-content/uploads/2025/04/FINAL-Harvard-ASAIB-Report-4.29.25.pdf. The production of that report is hardly consistent with the Trump administration’s portrayal of Harvard as indifferent to antisemitism and anti-Israel bias. See Actions and Commitments to Combat Antisemitism and Anti-Israeli Bias, Harvard Univ., https://www.harvard.edu/task-force-on-antisemitism/#actionsandcommitments (Updated December 2025) (providing links to information on Harvard’s response).
Nor can the Trump administration be taken at its word that voluntary compliance cannot be secured. Negotiations have apparently stalled, but that hardly means that Harvard is unwilling to comply voluntarily with Title VI. Rather, it apparently indicates that Harvard is unwilling to accede to all of the additional conditions that the Trump administration is demanding—including the payment of tribute or ransom wholly unauthorized by any statute and the sacrifice of institutional autonomy. I would not be surprised to see a judicial conclusion that the government has been negotiating in bad faith and thus that its determination that voluntary compliance cannot be obtained is legally invalid.
In any event, you posed your questions to me on March 18, 2026, two days before the filing of the latest lawsuit by the Trump administration. I have referred to it in my answer only to emphasize that it does not change my assessment that the administration’s actions are unlawful in failing to comply with the requirements of 42 U.S.C. § 2000d-1. In so doing, I have focused on the administration’s actions with respect to Harvard because there is a judicial opinion regarding Harvard. However, my conclusion is equally applicable to the administration’s funding freezes and cutoffs targeting other universities. The fact that some of those other universities chose to settle with the administration rather than risk going without federal funds for months or even years while litigation played out is not evidence that the Trump administration acted lawfully in its dealings with them. The fact that a crime victim hands his wallet to an armed assailant who demands “your money or life” does not mean the assailant’s ultimatum was lawful.
(2) The Trump administration has acted unconstitutionally. The district court decision discussed above granted summary judgment for Harvard on three free speech claims: first, that the administration retaliated against Harvard for its assertion of its constitutional rights; second, that the administration sought to impose content-based and viewpoint-based restrictions on speech by Harvard and its faculty; and third, that the administration sought to coerce Harvard to restrict the free speech rights of students and other third parties in violation of the proposition, unanimously reaffirmed by the Supreme Court in National Rifle Ass’n of America v. Vullo, 602 U.S. 175, 190 (2024), that the government “cannot coerce a private party to suppress disfavored speech on [its] behalf.”
I do not wish to belabor these points, so I would point the Commission to the relevant discussion in the district court opinion. See President & Fellows of Harvard Coll., 798 F. Supp. 3d at 116-25. I note that the Trump administration’s conduct with respect to other universities has likewise been unconstitutional in the second and third ways identified in the Harvard case. The administration has not engaged in unconstitutional retaliation (the first category of violation identified with respect to Harvard) against those other universities chiefly because most of those universities entered into settlement agreements rather than asserting their rights and views; thus, there was nothing for the administration to retaliate against.
I would also point to a statement that I co-authored and co-organized with Professors Eugene Volokh and David Cole in response to the targeting of Columbia University by the Trump administration. The statement was co-signed by fifteen additional constitutional law scholars. Underscoring the bipartisan consensus that the Trump administration’s funding cutoffs and freezes have been unlawful and unconstitutional, the signer whose name comes first alphabetically is a noted conservative and co-founder of the Federalist Society. See Steven G. Calabresi et al., A Statement from Constitutional Law Scholars on Columbia, N.Y. Rev. Books (Mar. 20, 2025), https://www.nybooks.com/online/2025/03/20/a-statement-from-constitutional-law-scholars-on-columbia/.
The statement begins with a bedrock constitutional principle:
The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.
The statement also explains how the administration has acted in violation of 42 U.S.C. § 2000d-1 (making versions of the points I made above) and then draws a crucial connection between statutory and constitutional requirements:
[T]he lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected. …The government’s action therefore risks deterring and suppressing constitutionally protected speech—not just illegal discriminatory conduct.
A year later, it is fair to say that the Trump administration’s deterrence and suppression of constitutionally protected speech are no longer a mere risk but a reality.
(3) The Trump administration’s actions have been destructive along two main dimensions. First, they have had what appears to be the intended effect of stifling academic freedom, which, as I emphasized in both my written and oral testimony, has constitutional status. See, e.g., Sweezy v. New Hampshire, 354 U.S. 254 (1957).
Even before the administration began canceling funding, many faculty were self-censoring, see Ashley Finley & Hans-Joerg Tiede, Academic Freedom and Civil Discourse in Higher Education: A National Study of Faculty Attitudes and Perceptions, Am. Ass’n of Colls. & Univs., Am. Ass’n of Univ. Professors (Jan. 2025), https://dgmg81phhvh63.cloudfront.net/content/user-photos/AACU_AcademicFreedomReport_010825_PUBLISHED.pdf., but the crackdown has exacerbated that phenomenon. See Lee Ann Rawlins Williams, College Faculty Are Under Pressure to Say and Do the Right Thing—The Stress Also Trickles Down to Students, The Conversation (Oct. 23, 2025), https://theconversation.com/college-faculty-are-under-pressure-to-say-and-do-the-right-thing-the-stress-also-trickles-down-to-students-267400 (reporting recent conversations with faculty who “described ‘navigating sensitive boundaries’ in their lectures, avoiding having any discussion about race, gender and religion”).
Those indirect impacts compound direct attacks on academic freedom, such as the demand in the Trump administration’s April 11, 2025 letter to Harvard “that each department, field, or teaching unit must be individually viewpoint diverse” to the satisfaction of the federal government. Letter from the Federal Task Force to Combat Anti-Semitism to Alan M. Garber, President, Harvard Univ., and Penny Pritzker, Lead Member, Harvard Corp. (Apr. 11, 2025), https://www.harvard.edu/research-funding/wp-content/uploads/sites/16/2025/04/Letter-Sent-to-Harvard-2025-04-11.pdf. Although viewpoint diversity is a worthwhile academic goal, a government-mandated requirement of viewpoint diversity, much less one imposed in every field, is unconstitutional viewpoint-discrimination, plain and simple.
Second, the Trump administration’s funding freezes and terminations have been destructive for the obvious reason that they have stymied important research that universities perform. Princeton lost “research support from the Department of Defense, the Department of Energy and NASA.” Alan Blinder & Anemona Hartocollis, Trump Pauses Federal Grants to Princeton, N.Y. Times (Apr. 25, 2025), https://www.nytimes.com/2025/04/01/us/trump-federal-grants-princeton.html. “Cornell received more than 75 stop work orders from the Department of Defense related to research that is profoundly significant to American national defense, cybersecurity, and health.” Darren Incorvaia, Cornell and Northwestern Next Up for Federal Funding Freeze, Jeopardizing Health Research, Fierce Biotech (Apr. 9, 2025), https://www.fiercebiotech.com/research/cornell-and-northwestern-next-federal-funding-freeze-jeopardizing-health-research (quoting joint statement of Cornell’s president, provost and provost for medical affairs). The administration’s coercive funding cuts jeopardized “innovative and life-saving research, like the recent development by Northwestern researchers of the world’s smallest pacemaker, and research fueling the fight against Alzheimer’s disease . . . .” Id.(quoting Northwestern spokesperson after the Trump administration announced cuts of $790 million). And that is only a small sampling of the damage.
* * *
To be clear, Congress could decide to cut federal research funding to universities. If it so chose, I would hope it would do so judiciously but the decision ultimately rests in its hands, as Article I of the Constitution gives Congress the power of the purse. Conversely, however, the president has no authority to cancel federal funding except in accordance with the Constitution and the substantive and procedural standards contained in the statutes Congress enacted delegating enforcement powers to the executive branch. As I have shown above, the Trump administration violated both statutory and constitutional requirements—all with the consequence of undercutting vital research that American universities perform in the service of the American people.
The IHRA Definition of Antisemitism
At the conclusion of the panel on which I participated on February 19, 2026, an invitation was extended to submit supplemental materials. Accordingly, I wish to follow up on a question that was raised during the session. Commissioner Jones asked panelists for our views about incorporating the IHRA definition of antisemitism into federal law, including Title VI.
In my oral response, I said that the IHRA definition treats certain statements about Israel as presumptively antisemitic. If federal law creates even a rebuttable presumption that anti-Israel statements are antisemitic, I added, then it is unconstitutional under the First Amendment as viewpoint-based. In an apparent response to my reference to a presumption, Mr. Goldfeder stated that the examples provided in IHRA do not “automatically” result in the conclusion that anyone espousing the views to which they refer has engaged in antisemitism. Because the panel was already over time, there was no opportunity for me to respond, so I do so briefly here.
Mr. Goldfeder is correct that the IHRA definition states that antisemitism “could … include” the examples it articulates, but that does not mean that it fails to create the presumption to which I referred. Simply as a linguistic matter, the word “could” is consistent with a rebuttable presumption. Consider that eyewitness testimony that a defendant committed some crime could establish guilt beyond a reasonable doubt, but it might not if, say, it is rebutted by an alibi and evidence that the defendant has an identical twin. That is a quintessential presumption.
The IHRA examples are of the same character, only more so, because with respect to some of them, it is nearly impossible to imagine how one could rebut the presumption. One of the examples is “claiming that the existence of a State of Israel is a racist endeavor.” How could someone who made such a claim go about showing it was not antisemitic? Would it suffice to point out that the speaker also thinks that the United States is a racist endeavor? That the speaker has Jewish friends? That the speaker is Jewish? Meanwhile, although the IHRA definition includes numerous examples that “could” be antisemitic “taking into account the overall context,” it nowhere provides any hint of what sort of context might render the examples not antisemitic. Thus, it arguably creates an irrebuttable presumption that the examples amount to antisemitism.
Even apart from the foregoing analysis of the language of the IHRA definition of antisemitism, experience shows that when incorporated into rules governing conduct, it functions as a de facto presumption that a great deal of speech critical of Israel will be deemed antisemitic. See Jan Deckers & Jonathan Coulter, What Is Wrong with the International Holocaust Remembrance Alliance’s Definition of Antisemitism?, 28 Res Publica 733 (2022) (discussing experience in Canada, the European Union, the United Kingdom, and the United States). Even in the United Kingdom, where the IHRA definition was adopted without the examples, the examples have thoroughly informed its application in ways that facilitate censorship of speech critical of Israel. See Rebecca Ruth Gould, Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech, 18 Law, Culture & Human. 1 (2022).
Accordingly, I stand by my oral representation that adoption of the IHRA definition as part of federal law would create a presumption that much protected speech critical of Israel is prohibited and that such a presumption would violate the First Amendment.
Finally, I have focused here on whether the IHRA definition creates a presumption that its examples amount to antisemitism, but I also agree with other criticisms of the proposed adoption of the definition, including those expressed by Professors Eidelson, Lakier, and Volokh during the panel, as well as in the supplemental statement provided on March 15, 2026 by Professor Eidelson.
-- Michael C. Dorf
* This supplemental submission, like my original written and oral testimony, reflects my personal views as a scholar and a citizen. I reiterate that I do not purport to speak for Cornell Law School, Cornell University, or any other entity or organization.