BY MICHAEL BANERJEE

A July 26, 2025 New York Times article brought to light the federal government’s desire to have Penny Pritzker, the senior fellow of the Harvard Corporation, Harvard University’s governing board, step down as part of Harvard’s negotiations with the federal government, which the university sued in April after the government demanded that Harvard make a number of policy changes.  According to the article, an anonymous Harvard professor “suggested that Ms. Pritzker’s departure would be a small price to pay” because, “[u]nlike many of the demands that the Trump administration is making of the school, losing the board’s leader would not compromise Harvard’s academic freedom.”  This evinces a serious misunderstanding of academic freedom and that which protects it.

My August 2025 California Law Review Online article, entitled “What Harvard’s Lawsuit Should Have Said,” attempts to show how Harvard’s corporate rights protect its academic freedom, and how these corporate rights, properly understood, offer powerful arguments that Harvard should have advanced in its lawsuit against the federal government.  Below, I summarize the article.

The article’s epigraph is a quotation from Ian McNeely and Lisa Wolverton’s 2008 book Reinventing Knowledge: “[The university’s] autonomy as an independent corporation is another building block of academic freedom.”  I take this point further, arguing that the university’s corporate autonomy is actually the very foundation of academic freedom, underlying and guarding all educational freedoms enjoyed by scholars.

Harvard’s corporate rights stem from its Charter, granted by the Massachusetts Bay Colony in 1650.  The charter made Harvard a corporation, which is a general legal term for a unity at law.  (The term corporation bears no necessary connection to business—businesses received corporate status centuries after churches, guilds, towns, and universities did.)  The charter endows Harvard with perpetual succession, the right to sue and be sued in its corporate name, the right to use a corporate seal, the right to legislate, exemption from taxation, and the right to choose its own officers and servants.

In 1780, the People of Massachusetts transformed Harvard’s corporate rights into constitutional rights when they, speaking through their Constitution, mandated that Harvard will hold forever in its corporate capacity “all the powers, authorities, rights, liberties, privileges, immunities and franchises” that it has or is entitled to have.  According to their Constitution, the People of Massachusetts granted this array of entitlements because Harvard honors God, advantages the Christian religion, and benefits Massachusetts and other states by training public servants and encouraging the arts, sciences, and good literature.  In short, the sovereign People protected Harvard’s corporate rights for the same reason that public authorities have granted such scholarly rights and privileges for a millennium—because of the “public utility that abides in scholars.”  In addition to the aforementioned rights, Harvard holds, in its corporate capacity, rights to freely associate and speak under the Massachusetts Constitution.  These rights are Harvard’s original constitutional rights.  At the same time, Harvard holds associational and speech rights under the U.S. Constitution.

Thus, Harvard’s constitutional rights arise from two independent sources of fundamental law, each supreme in its domain: the Massachusetts Constitution and the U.S. Constitution.  All of these corporate-constitutional rights undergird the university’s first civil right: to freely constitute itself.  The right to freely constitute itself is what the “four essential freedoms of a university” are all about.  These four freedoms, articulated in the 1950’s by a South African scholar and popularized in the U.S. by Justice Felix Frankfurter in a 1957 opinion, include the university’s freedom “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”  Because the federal agencies demanded that Harvard make a number of changes implicating its first civil right, the university sued.

The Administrative Procedure Act (APA), the federal statute under which Harvard sued the government, provides in relevant part that courts shall “hold unlawful and set aside agency action . . . contrary to constitutional right, power, privilege, or immunity.”  Although the APA does not guard against violations of federal constitutional rights, Harvard’s lawsuit only mentioned certain rights it holds under the federal Constitution, leaving out the many enumerated and unenumerated rights it holds under the Massachusetts Constitution, in addition to the rights it holds in its corporate capacity under the federal Constitution.

Here’s what Harvard’s lawsuit should have said:

“The Harvard Corporation is a 375-year-old university corporation that possesses ancient powers, authorities, rights, liberties, privileges, immunities, and franchises arising from its 1650 Charter, the 1780 Massachusetts Constitution, and the U.S. Constitution, among other sources.  Harvard holds in its corporate capacity many enumerated and unenumerated rights that predate the establishment of the United States.  First, the Massachusetts Bay Colony granted Harvard a suite of rights and powers in its 1650 Charter.  Then, the People of Massachusetts, in their sovereign capacity, perpetuated and protected these rights through their highest and most fundamental law—the Massachusetts Constitution—which itself predates the establishment of the United States.  Thus, since 1780, Harvard has held its enumerated and unenumerated corporate rights as constitutional rights, and these rights include Harvard’s rights to govern itself, and to freely speak and associate.  Moreover, Harvard holds in its corporate capacity federal constitutional rights, including to free speech and association.  The APA provides remedy for federal violations of all of Harvard’s constitutional rights.  The APA does not attempt to relegate state constitutional rights—Harvard’s original constitutional rights—to second-class status.  Instead, Congress provided remedy for federal agency violations of a ‘constitutional right, power, privilege, or immunity.’  Harvard’s many constitutional rights, powers, privileges, and immunities derive from both the Massachusetts Constitution and the U.S. Constitution, and the APA equally protects these constitutional rights, regardless of their origin.  The U.S. government has no authority to disturb these ancient corporate-constitutional rights and, by extension, to disparage the sovereign People of Massachusetts.  Nor does the government have authority to infringe on Harvard’s federal constitutional rights, which it holds in its corporate capacity. But that is exactly what the government’s April 11 demand letter did.”

This line of argument is relevant for all American universities—not just Harvard.  That’s because all universities, including public ones, have corporate rights.  They also all have constitutional rights that they hold in their corporate capacities.  A number of universities, like the University of California and the University of Michigan, even have explicit corporate-constitutional rights similar to and often more impressive than those held by Harvard.  Corporate rights are the foundation of academic freedom.  The right to decide educational matters like what and how to teach free of external interference depends on these corporate rights, which protect the university from outside intrusion.  Universities therefore cannot sacrifice their corporate rights—including by removing certain members of university governing boards because of extramural pressure—without endangering their academic freedom.  None of this is meant to take a position on what the Harvard Corporation’s senior fellow should do.  My point is a more general one: when external forces seek to determine how a self-constituting university corporation composes itself, those forces not only compromise academic freedom, they undermine its very foundation.  Scholars need to understand the corporate rights that universities hold and why public authorities granted them in the first place.  Understanding why these authorities granted universities their corporate rights can help us make the case to the public for why universities still deserve their independence today.

Michael Banerjee is a PhD Candidate at the University of California, Berkeley.  He holds a JD from the Harvard Law School.