The Department of Homeland Security’s decision to stop Harvard’s ability to enrol foreign students is an unconstitutional retaliation. It is also another escalation in the Trump administration’s war on the university. Harvard’s response — rejecting these latest demands and suing the administration again this morning, quickly receiving a temporary injunction — is the correct course of action.

Homeland Secretary Kristi Noem’s letter states that Harvard has lost its privilege to enrol foreign students because it failed to turn over requested information, used racist DEI policies, and maintained an antisemitic climate (one that “promotes pro-Hamas sympathies,” no less). The latter two claims would indeed carry serious legal weight if they emerged from a proper legal process. Instead, presenting them as fully-formed conclusions at the outset undermines the very notion of due process.

This isn’t to say that Harvard didn’t do those things. Perhaps it did. But if that were the case, the Government’s priority should have been to investigate allegations of Harvard’s discriminatory practices. Instead, it proposed sweeping ideological reforms and retaliated when Harvard sued over the unconstitutional freezing of $2.2 billion in research funding. But as it stands, these conclusions are derived from a process more familiar to Steven Frayne than Louis Brandeis.

Would banning international students even help the problem of antisemitism on Harvard’s campus? The administration’s attempts to deport international students suggest it believes that. But some of those international students are, in fact, Israeli, and even though over a quarter of Harvard’s student body is international, they’re a minority in creating the groupthink that helps antisemitism spread. What’s more, it does not require a Harvard historian to know that if foreign students are driven off campus in the name of antisemitism, the people likely to be blamed and targeted in an ideological backlash are the Jewish students on campus.

The Department of Homeland Security letter doesn’t blame the students, though. It says that, as a result of antisemitism on its campus, Harvard has lost the privilege of enrolling international students and existing students must transfer or lose their visas. That makes it sound like losing the ability to enrol international students is just a convenient lever to exert pressure, and it’s not really about the students. But if that’s the reasoning, then why does the Department’s letter demand that Harvard turn over  six categories of records (e.g., recordings of protests, discipline records, any record of “dangerous or violent activity,” and so on) about international students at Harvard? It would be an awfully strange decision to go on a fishing expedition if you didn’t even want the fish.

Among those six kinds of records sought, the administration’s attempt to seek records related to protest activity is particularly indefensible. We all know that the US government cannot force students or faculty to pledge loyalty to any idea. And we all know that persons on American soil have the right to express ideas that criticise and oppose the government. So when the Department asks Harvard for video or audio of “any protest activity involving a nonimmigrant student,” the constitutional alarm bells go off.

Even seeking these records will intimidate foreign students who have protested and frighten away those who might protest in the future. Given that the Government has already attempted to deport students for nothing more than their viewpoints, it is very likely that DHS would use that information against them.

It’s not even clear that Harvard could legally turn over the requested information without violating student privacy laws. While students on suspended visas waive certain rights under the Family Educational Rights and Privacy Act (FERPA), that waiver applies only as needed to comply with specific regulations. Those regulations might require a university to disclose disciplinary actions resulting from a criminal conviction — but not the underlying evidence used to reach that decision. If federal privacy law doesn’t authorise the release of this information, Harvard faces a catch-22: lose visas for noncompliance, or risk losing all federal funding for complying.

Ultimately, this is not about what Harvard did or didn’t do. And Harvard probably won’t be the last university targeted either. This isn’t about Harvard or even antisemitism. This is about due process, free speech, the Constitution, and the nation’s future.  Harvard wasn’t the first university to be targeted with extralegal and unconstitutional pressure — it was just the first one that didn’t bend the knee. We ignore what the Trump administration is doing to Harvard at our own peril because it won’t end with the nation’s most prestigious university.