Education Law

Harvard and the Fight for Foreign Collaboration | News

For more than 30 years, Section 117 of the Higher Education Act was one of the litany of obscure items in the United States federal code that was all but obsolete.

The provision, passed by Congress in 1986, requires American universities to disclose gifts and contracts from foreign sources that total more than $250,000 in a calendar year. But for years, the requirement was often ignored by federal officials and seldom understood by the schools responsible for the disclosures, rendering it to be largely toothless.

Universities handed over data about their foreign contributions only sparsely, and warnings from the government were few and far between. From 2014 to 2017, for instance, Yale did not report any foreign contributions.

That all changed in 2019.

In the final two years of Donald Trump’s administration, the federal government ramped up efforts to monitor how academia handles money it gets from abroad. The Department of Education launched high-profile investigations into 19 U.S. universities, including some of academia’s biggest names: Harvard, Yale, Stanford, MIT.

The investigations represented a marked shift in the government’s handling of the foreign funding requirements — and it didn’t come in isolation.

Just two weeks prior, Harvard’s campus witnessed an even more jarring run-in with federal investigators: the arrest of Charles M. Lieber, then the chair of the school’s Chemistry Department, who was hauled out of his office in handcuffs. Lieber, a renowned research chemist and nanoscientist, was charged with lying to government officials about funding he received from the Chinese government. He was eventually convicted on six felony counts.

The two incidents — Lieber’s conviction and the Education Department’s investigation — ensnared Harvard in a high-stakes policy battle over how the government should oversee foreign collaborations. Though they involved separate federal laws and were handled by different government agencies, both were part of a growing push to crack down on American universities and researchers that fail to disclose foreign funding.

Debate over the regulation of foreign money in academia, once an afterthought, has become a microcosm of the U.S.’s attempts to remain the world’s top innovator, exposing a tension between the government’s efforts to remain competitive and academia’s goals to promote innovation and the free flow of ideas.

As China continues its meteoric rise toward the top of the world order, the movement to crack down on non-disclosure is part of a broader effort by federal officials to prevent “foreign influence” at universities and protect American intellectual property. In Washington, there is a bipartisan consensus that universities should face more stringent disclosure and transparency requirements relating to their foreign ties.

But many schools say the regulatory efforts go too far, threatening the collaboration that is critical to advancing research, innovation, and the free flow of ideas.

‘Looking for a Needle in a Haystack’

On Capitol Hill, lawmakers are currently debating new legislation seeking to tighten disclosure requirements for American institutions that receive foreign money. Differing bills were passed in both the House and Senate as part of President Joe Biden’s effort to boost innovation and shore up America’s competitiveness with China.

Higher education is pushing back.

In an interview from Washington, D.C., last week, Harvard President Lawrence S. Bacow said proposals that would lower foreign contribution reporting thresholds to $0 and require many schools to create more sophisticated disclosure databases would create “enormous burdens” for administrators and faculty alike.

“The government doesn’t need to know who’s buying somebody else a cup of coffee,” Bacow said.

Terry W. Hartle, the senior vice president of the American Council on Education, which has led the opposition to the proposal, said bills seeking to police foreign money flowing into universities would only hamper the government’s regulatory efforts.

“This is an exercise in looking for a needle in a haystack,” Hartle said of the legislation, “and what the proposals on Capitol Hill would do is begin by making the haystack bigger.”

Additional requirements, Bacow said, would also make American universities less competitive in the “global market for academic talent.”

“We are often competing with other institutions for faculty — especially, actually, with European institutions these days,” Bacow said. “In that competition, it makes it harder to recruit faculty to the United States when they perceive that our government is imposing burdens and obligations upon them — which makes it harder to secure the kind of support necessary to sustain their scholarship.”

‘Herding Cats’

The foreign funding kerfuffle kicked off in earnest three years ago when a routine report by a little-known Senate subcommittee caught the eye of officials at the Education Department.

The report found that more than 30 American universities failed to properly report funding they received from a Chinese government-affiliated organization for the upkeep of Confucius Institutes — centers for academic and cultural exchange between China and the rest of the world that are sponsored by the Chinese government.

The Senate report said the Education Department did “not conduct regular oversight” into whether universities complied with federal requirements. Prior to the Senate report’s release three years ago, the last time the government notified schools about the requirement was 2004.

Harvard and the Fight for Foreign Collaboration | News

The Lyndon Baines Johnson Department of Education building in Washington, D.C. By James S. Bikales

The findings prompted the Department of Education to release its own report in October 2020, which found that its foreign funding disclosure requirements are “neither complicated nor burdensome.” Instead, the report suggested, the blame fell on universities for submitting “systemically underinclusive and inaccurate” reports.

Universities and many experts reject that notion: The federal requirements are the issue, schools say, because of their opaque and ambiguous language.

Nelson G. Dong, a partner at the law firm Dorsey & Whitney, said the “decentralized nature of reporting” at universities poses difficulties for administrators aiming to keep track of all the foreign funding that comes in.

“Various institutional organizations representing research universities have argued for years that it would be a lot easier to make these reports if the Department of Education would simply issue a regulation,” he said. “The historical position of the Department of Education has always been to say, ‘There are no regulations needed because the statute is so clear.’”

The Education Department under Trump opted instead to open investigations into big-name universities in order to compel compliance with the disclosure requirements. In its 2020 report, the Education Department praised its own investigations, saying the inquiries “catalyzed” schools to disclose $6.5 billion in previously unreported foreign funds.

“This statistic exemplifies how institutions are both recognizing the gravity of Section 117 compliance and that institutions are largely capable of reporting these foreign gifts and contracts when they choose to do so,” the report reads.

After the Education Department opened the investigation into Harvard, the University submitted updated disclosures including money taken between 2014 and 2018 that it previously failed to disclose.

Daniel G. Currell, who worked as an official in the Trump Education Department, said he believes disclosure gaps from universities were the result of administrative oversight, not malice. The requirement, he said, is often forgotten as administrators come and go from their positions.

“It’s clear to me, watching how schools operate — they’re herding cats trying to get people to disclose all of the things,” he said.

The Department of Education did not respond to a request for comment.

‘Not National Security Threats at All’

Disputes over foreign funding disclosures have never just been about the money.

Agencies across the federal government have long connected the requirements to broader national interests — including protection of intellectual property and national security.

In its 2020 report, the Education Department said efforts to enforce its disclosure requirements are “one part of a collaboration” with other federal agencies to improve oversight of American universities.

“It is not the Department’s statutory mission to police institutions’ entanglements with foreign sources,” the report said. “The facts we have discovered drive home the need for an integrated Federal approach to the national problems posed by the theft of intellectual property, espionage, propaganda, and foreign influence operations on U.S. campuses.”

No government effort seeking to address espionage issues has garnered more attention and controversy in recent years than the Justice Department’s now-defunct China Initiative.

The program — which launched in 2018 as an effort to target “Chinese sponsorship of hacking into American businesses and commercial networks” — led to high-profile indictments of several academics, including Lieber.

But the program increasingly attempted to prosecute “research integrity” issues — which critics say is emblematic of how the program strayed from its initial goal. Instead, academics have been charged with various counts relating to fraud and misstatements.

According to a database of China Initiative cases compiled in December 2021 by the MIT Technology Review, just 19 of 77 cases brought by the program overall include charges under the Economic Espionage Act.

“Where I think some of the problems have come up is that the government, in some of these cases, was trying to bring criminal enforcement actions against professors who really were not national security threats at all,” said Amy Jeffress, a former federal prosecutor.

Lieber was convicted on six counts — two relating to false statements he allegedly made to government investigators and four regarding undisclosed income on his tax returns.

H. Holden Thorp, the editor-in-chief of Science, said the prosecutions of academics amount to government missteps that will “slow down” collaboration between the U.S. and foreign countries, ultimately hampering America’s innovative capacity.

“Ironically, in the name of trying to make U.S. science stronger, the most likely outcome is that Chinese science is going to get stronger because they’re going to be doing more research solely within their country,” Thorp said. “They are far more nimble and can put resources to work far faster than we can because they don’t have elaborate processes to go through.”

Harvard professor Charles M. Lieber exits the John J. Moakley United States Courthouse in December after being convicted of lying about his ties to a Chinese recruitment program.

Harvard professor Charles M. Lieber exits the John J. Moakley United States Courthouse in December after being convicted of lying about his ties to a Chinese recruitment program. By Mayesha R. Soshi

Critics of the China Initiative also accused the DOJ of targeting individuals of Chinese descent. In an interview, Theodore A. Betley, the current chair of Harvard’s Chemistry Department, lamented the DOJ’s “extreme focus on researchers of Asian descent.”

“Many of [the cases] have not actually materialized into charges that have stuck,” he said. “In that instance, those can be crippling to the careers and the scientists that have been called into question — their integrity has been called into question.”

Stanford chemistry professor Bianxiao Cui said “Chinese-born American scientists” like herself have a permanent tie to China that the DOJ’s prosecutions have made them keenly aware of.

“Because of that, I kind of intentionally have to limit contact in China — any potential collaboration — which I previously would not have been thinking about,” she said.

Betley also said researchers who run afoul of federal reporting requirements should be given the opportunity to “course correct” for mistakes in reporting.

The Department of Justice is headquartered at the Robert F. Kennedy Building in Washington, D.C.

The Department of Justice is headquartered at the Robert F. Kennedy Building in Washington, D.C. By Caroline S. Engelmayer

The DOJ ended the China Initiative in February — with a public acknowledgment of the policy’s perceived bias towards individuals of Chinese heritage.

“By grouping cases under the China Initiative rubric, we helped give rise to a harmful perception that the department applies a lower standard to investigate and prosecute criminal conduct related to that country or that we in some way view people with racial, ethnic or familial ties to China differently,” said Assistant Attorney General for National Security Matthew G. Olsen.

‘The Government Has to be Involved’

Outside of criminal prosecution, an array of federal agencies — including the Departments of Energy and Defense, the National Institutes of Health, and the National Science Foundation — have bolstered oversight of the accuracy of foreign funding disclosures on research grant applications.

Following inquiries launched by the National Institutes of Health and the FBI into potential intellectual property theft at American universities in 2019, Harvard formed an oversight committee to ensure the school complies with guidelines set by federal funding agencies.

Many experts say the government’s efforts to prevent espionage through disclosure enforcements are justified in the interest of national security.

Andrew J. Nathan ’64, a professor of political science at Columbia University, wrote in an email that China’s intellectual property acquisition through “both legal and illegal means has been a long-standing reality.”

“In terms of the specific national security/espionage aspect, we have to recognize this is a problem. It does occur,” he wrote.

Because universities “lack the expertise” on national security threats, Nathan wrote that “the government has to be involved.”

David M. Sacks, a research fellow at the Council on Foreign Relations, said researchers collaborating with individuals or entities in China may not always understand whether they are engaging with a private or state-sponsored organization.

“The way that China’s system operates is that it is so opaque and it is so difficult to tell where the party ends and where the private sector begins,” Sacks said. “It does kind of take a U.S. government effort to figure that out and to share that information and knowledge with researchers.”

But many researchers take issue with the government’s underlying justification for its crackdown. The term “academic espionage,” sometimes used to refer to efforts by foreign governments to steal intellectual property from universities, is “in some ways an oxymoron,” said Harvard Dean of Science Christopher W. Stubbs.

“We have nothing that’s classified. We publish all our stuff in the open literature,” he said. “But there still is this sense that somehow people are swooping in and grabbing ideas in the innovation cycle in a way that is somehow not consistent with our norms and expectations.”

Stubbs said faculty are “apprehensive” about international collaborations — in part because of the government’s efforts.

“The government needs to be clearer. There needs to be better coordination across agencies,” he said. “We’re all hoping for more uniformity and more clarity about where the guardrails are.”

Christopher W. Stubbs serves as the dean of Science at Harvard.

Fernando M. Reimers, director of the Global Education Initiative at the Harvard Graduate School of Education, said he is concerned that heightened oversight will deter faculty from pursuing engagements with academics in countries with which the U.S. has an adversarial relationship.

Rising “transaction costs” for international engagements mean that faculty “really need to have a very good reason” to dedicate their time to the administrative tasks that accompany foreign collaborations, he said.

“I think the pendulum may have gone a little bit too far,” Reimers said.

The net effect, some worry, will be less international collaboration, which could have wide-ranging implications.

“It’s in the long-term interest of peace for those relations to happen — even when it’s challenging,” Reimers said.

‘The Golden Goose’

The debate over how the government should regulate foreign funding remains a live issue as researchers and university administrators continue to face pressure from the government to increase disclosures.

In Trump’s final month in office, his administration issued a memorandum that required research funding agencies to strengthen and standardize federal grant disclosure regulations in an effort to protect against “foreign government interference and exploitation.” In January, Harvard updated its reporting process for NIH and NSF submissions after the White House Office of Science and Technology Policy issued new guidance to universities.

Derek Adams, a partner at the Potomac Law Group, said he expects the government to pursue fewer prosecutions of disclosure violations in court, even as individual federal agencies scale up oversight.

“At the agency level, it continues to be a focus — NIH, NSF, DOE, DOD,” he said. “I think we’re going to see less criminal prosecutions now that the DOJ is moving away from this focus — and we’ll probably see more actions dealt with at the civil level or the administrative level going forward.”

Currently, lawmakers on Capitol Hill are debating a number of provisions that would stiffen foreign funding regulations. Universities have lobbied against a Senate-approved proposal that would allow foreign gifts and contracts totaling more than $1 million to be preemptively vetted by the federal government if the funding relates to the development of “critical technologies.”

Harvard University President Lawrence S. Bacow met with lawmakers on Capitol Hill earlier this month.

Harvard University President Lawrence S. Bacow met with lawmakers on Capitol Hill earlier this month. By Leah S. Yared

Bacow said last week the proposal would be “extremely burdensome,” adding that the vetting requirement “has absolutely no tie to national security interests.”

“It will be burdensome for institutions, but more than that, it will flood the government with information which the government is not prepared, actually, to process in a timely way,” he said. “It, I believe, will act as a barrier or an obstacle to research support received from a variety of sources.”

Proponents of the Senate proposal — which also includes the more stringent disclosure requirements — contend that looking into foreign funding will help improve competitiveness with China by preventing the country from stealing American intellectual property.

U.S. Senator James E. Risch (R-Idaho), a key proponent of the provision, called it “a small investment, given the large cost of the [legislation], to protect our ideas, research and intellectual property before it’s too late, which is often the case” in a statement to Axios last year, after it was first proposed in the upper chamber.

But some academics say the government’s broader effort to regulate universities and their researchers may become counterproductive by thwarting international collaboration.

“I think the government needs to be really attentive to the deleterious effects of some of their policies and not kill the golden goose that’s driving economic progress because of rare outlier instances,” Stubbs said.

Still, many lawmakers on both sides of the aisle are eager to support legislative efforts seeking to stymie the U.S.’s largest global competitor. The regulatory efforts have sparked a debate about the government’s responsibility in protecting national security while maintaining international collaboration, with many academics warning that officials should tread carefully to avoid stifling innovation.

“I can tell you with certainty that if American universities lose their connections with the rest of the world and become more insular, the great American universities will no longer be great,” Reimers said.

—Staff writers Cara J. Chang and Isabella B. Cho contributed reporting.

—Staff writer Eric Yan can be reached at [email protected]

—Staff writer Omar Abdel Haq can be reached at [email protected]

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