Tag: attack

In the USA, universities are under attack on multiple fronts
Last week I was in the US, as part of the CASE Global Leaders Programme, visiting five leading universities – Harvard, Boston, Princeton, Johns Hopkins and Georgetown. I also visited the United Nations, the Washington Post, the British Embassy and US university associations. I met and spoke with over 100 senior staff – mostly under the Chatham House rule – about the severe current challenges facing US universities.

US universities are under “an unprecedented political attack,” I was told – it is “a very dangerous moment.” The Trump administration has unleashed a “flood the zone” strategy. University leaders are shocked at the rapid speed and breath of the policy and political assault. Universities are reeling from the ferocity of the attacks. The Trump administration “has declared war on colleges.”

The Trump administration tactics are clear – they are attempting to weaken and undermine major institutions that they see as liberal ballast, a barrier to the MAGA agenda. The playbook should not be a total surprise. It was largely outlined in Project 2025, with a raft of policies to deconstruct the US administrative state. For universities, it is time for a reckoning.

Shocks and tremors

The elite research institutions are the primary target. Amongst these, the President’s Office have deliberated targeted a number of specific institutions – pulling $400m (£310m) of federal funding from Columbia University, saying that it failed to fight antisemitism on campus, and suspending $175m (£135m) in federal funding to the University of Pennsylvania over the school’s policy regarding transgender athletes. Making an example of these universities – through public humiliation and bullying – is an attempt to strike fear in to other institutions and scare others from speaking out. There has been a notable lack of public figures speaking out in defence of these institutions. The tactics were described to me as “if you cross them, they will come after you.”

Worryingly, the MAGA attacks have some grounding in public opinion, coming at a time when US public confidence in higher education has been falling for a decade. Public opinion research by the Association of American Universities (AAU) shows that only 29 per cent of the US public agree with the statement that Ivy League universities “make us better off” – whereas 57 per cent believe that they “make us worse off.” Although Republicans are even more critical than Democrats, a large majority of both parties’ supporters think Ivy League universities make people worse off.

Across US universities there is a sense of crisis, with leaders struggling to cope with the tidal wave of political attacks. Shocks and tremors are being felt across the sector – but there is no agreement on which are the primary challenges. The hierarchy of these concerns varies and the impact is certainly not uniform. I heard about over a dozen current threats:
- removal of federal funding due to accusations of “woke ideology”
- major research funding cuts due to cuts to USAID
- detaining and deporting faculty and students accused of holding views and speaking on controversial topics
- tightening of visas for international students
- threats to increase tax on university endowments
- federal government instruction to withdraw specific research funding
- increasing levels of disinformation
- hostile environment leading to loss of faculty to universities overseas
- falling philanthropic donations, due to reputational damage and economic weather
- falling investment income from an economic downturn
- a chilling effect on free speech and academic freedom
- flight of international students as families overseas view the US as not a welcoming place to send their children
- the growing possibility of a new cold war with China
- splits and tensions amongst the alumni and donor communities.
Despite the huge wealth, resources, influence and global reputation, I witnessed a university sector unprepared for the tsunami of political challenges and unsure about how to respond. It is a “a very destabilising moment, we’re trying to work things out… how do we navigate the challenges, the politics…”

After the crisis response

US universities face choices: to fight back, to “lean in” towards the Trump agenda, to hunker down, to uphold their values, to adapt or evolve – though these options are not mutually exclusive.

For some, it is clear that they will speak out powerfully and fight back to defend universities,

This brave article by the president of Princeton explains how American universities have given the country prosperity and security, and strikes back against the The Trump administration’s attack on academic freedom.

For others, there is a recognition that this is “not just about telling a better story, we also need to do things better.” Maybe universities haven’t really listened enough to the dissatisfied and acted on concerns. Perhaps there is some truth in the accusations that some parts of higher education have exasperated or created inequality, protecting the “haves” and ignoring the “have nots”. This Atlantic article How the Ivy League broke America is essential reading in this genre. For some, the answer is a much stronger focus on reaching out across divides, and renewed efforts to increase civic impact – and perhaps the curtailment of some activities.

For all, there is a sense that this is not simply a crisis response moment, rather that universities need to think long-term, to protect the values of higher education and redouble efforts to demonstrate their impact. There is a need to think about the longer term stewardship of the institutions and “play the long game” rather than simply respond to the immediate shocks.

The search for something to hold onto

I also heard many comments that gave me reasons for hope. Public opinion research by the Association of American Universities (AAU) shows that 42 per cent most trust American research universities to find a cure for diseases like cancer whereas only five per cent most trust the government, and only three per cent most trust large US corporations.

At some universities, alumni donors are coming forward to offer support to help plug the financial gap being created by research funding cuts. Many universities are refusing to back-track on commitments made on DEI issues – citing very strong support from faculty and students – and arguing clearly and consistently that diversity of people (minds, experiences, backgrounds and thought) and plurality of views is vital to support excellence.

On the day on my visit, Harvard became the latest elite school to announce that families with incomes under $200,000 will not pay tuition as a way to bolster diversity. There is also a view that the combination of the stock market falls, public opinion and the Supreme Court may soon have the impact of curtailing some of the President’s most aggressive actions.

Overall, my visit to the US has left me with mixed emotions: deep concerns for US universities, the loss of vital research programmes, the negative impact on access to universities, the weakening of international collaboration and the personal threats to faculty and students. I also recognise that many of the political and public views which have contributed to this onslaught do not feel alien to the situation in the UK.

However, the trip has also given me hope. These are deeply resilient institutions, led by exceptional people, with brilliant faculty, supportive alumni and donors. There is continuing strong demand from students for a higher education – and these students want to experience a plurality of views. By upholding their values, by redoubling efforts to build public support by doing things even better, by demonstrating impact, and by taking the longer-term view I am confident that US universities can ride through this storm.
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March 27, 2025
Trump’s attack on law firms threatens the foundations of our justice system

Atticus Finch is remembered as one of literature’s greatest heroes for his willingness to defend an unpopular client despite great professional and personal cost. I was reminded of Atticus when the Trump administration recently retaliated against attorneys explicitly because they represented clients and causes the president dislikes.

On March 6, President Trump issued an executive order targeting a law firm, Perkins Coie, for activities that are protected by the First Amendment. The order cites the firm for “representing failed Presidential candidate Hillary Clinton” and commissioning opposition research into the Trump campaign. Trump also critiqued Perkins Coie for bringing a lawsuit to challenge election laws Trump supports, “including those requiring voter identification.”

This order came after the president revoked the security clearances of attorneys at another firm for representing a client the president dislikes: former Department of Justice Special Counsel Jack Smith, who had led the government’s investigations into Trump’s role on January 6 and his handling of classified documents.

In yet another order, Trump also singled out attorneys at a third firm, Paul Weiss, for bringing a lawsuit against individuals who protested at the Capitol on January 6, and for hiring an attorney who had investigated Trump while in government service. Trump’s orders against Perkins Coie and Paul Weiss not only barred federal agencies from engaging the firms’ services but also suspended the security clearances of its attorneys and restricted their access to federal buildings. These sanctions cripple the attorneys’ ability to represent clients in disputes with the federal government. The administration points to no evidence that these firms are a genuine security risk, and expressly targets these firms for their client selection and speech.

This is deeply troubling regardless of where one stands on the activities or firms affected. The process of defending constitutional rights relies heavily on the ability of private attorneys to bring lawsuits against the government. This requires lawyers to be free from official government pressure when choosing which clients and causes to represent. If lawyers are put in fear of federal government retaliation for representing clients who challenge the government or stand for unpopular causes, many injustices will never be challenged.

The administration’s actions represent a direct assault on this freedom. Punishing firms for their choice of clients or the nature of their legal work cannot help but intimidate the legal community, discouraging attorneys from taking on cases that may be politically unpopular or present a challenge to those in power.

History is repeating itself with Trump’s latest efforts. What is at stake here is nothing less than the legal profession’s capacity to fulfill its role in a democratic society.

It also sets an ominous precedent for future presidents to exploit. If the Trump administration can target specific firms on this basis, what prevents future administrations from blacklisting firms that represent, say, gun-rights groups? This concern is hardly theoretical: just last year, the Supreme Court had to slap down a New York state official for trying to punish a third party for doing business with the NRA. Could religious organizations be next? Or animal-rights activists? Could the next Democratic president ban from federal buildings any attorneys that represented Republican candidates? What is the limiting principle?

Furthermore, how can a lawyer who is considering representing a politically controversial client know that she will not be targeted the next time control of the White House changes hands? The safest course of action will be to avoid representing clients of any political salience, right or left, even if their cause is just.

Even before Trump’s latest actions on this front, a number of law firms have already shown their willingness to run from controversial causes, such as when Kirkland & Ellis withdrew from its representation of the NRA because the NRA advocates for gun rights. Supreme Court litigator Paul Clement, one of the firm’s most famous attorneys, had to leave the firm entirely simply so he could continue to represent his gun-related clients. Clement could afford to do this precisely because he was so well-known. But if the government can punish an entire law firm over the nature of the work of one of its attorneys, less influential attorneys will face enormous pressure from colleagues to avoid taking controversial cases and clients.

These actions also directly violate the First Amendment. They explicitly target these firms for the clients they have represented and the legal positions they have taken on election law matters. The Supreme Court has recognized the First Amendment right of lawyers “to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.” By officially punishing lawyers on the basis of these associations, the executive order therefore is unconstitutional viewpoint-based retaliation and violates the right of freedom of association. For this reason, a federal judge this week issued a temporary restraining order blocking the order against Perkins Coie.

There is a long, troubling history of trying to silence advocacy through fear and intimidation of the advocates. Attorneys who fought for abolition and civil rights were frequently harassed, or even subjected to threats and violence such as when Thurgood Marshall barely escaped a lynch mob while arguing civil rights cases in the South before Brown v. Board of Education (1954). Many other civil rights attorneys, including those working for the NAACP, were investigated by the FBI, accused of communist sympathies, and faced professional blacklisting. More recently, government officials pressured the firms that represented Guantanamo Bay detainees in the 2000s to drop the cases.

History is repeating itself with Trump’s latest efforts. What is at stake here is nothing less than the legal profession’s capacity to fulfill its role in a democratic society. As the judge in Perkins Coie’s lawsuit warned, the administration’s decision “threatens to significantly undermine our entire legal system and the ability of all people to access justice.”

Public interest organizations like FIRE understand this principle well. Because we are committed to the nonpartisan defense of free speech, we are routinely accused of being “right-wing hacks” or “left-wing radicals,” often during the same week. But defending the rights of the unpopular is not about political allegiance — it’s about ensuring that fundamental freedoms apply to everyone. Civil rights groups must be able to defend speech and causes that challenge those in power, regardless of who holds office.

Atticus Finch understood how crucial vigorous representation is. In his impassioned speech to the jury, he explained, “In this country our courts are great levelers, and in our courts all men are created equal.” If lawyers fear retaliation for simply doing their jobs, then the courts can no longer serve as the “great levelers” as unpopular or politically powerless individuals and causes are unable to get their day in court. We’re all better off when even “bad people” can get a good lawyer — whoever those in power have deemed “bad people” today.

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March 18, 2025
Trump Escalates Attack on Columbia With His Latest Demands

If Columbia University wants a financial relationship with the federal government, the Ivy League institution will need to overhaul its discipline process, ban masks, expel some students, put an academic department under review, give its campus security “full law enforcement authority” and reform its admissions practices.

Those are just some of the sweeping and unprecedented demands the Trump administration made Thursday in a letter to the Manhattan-based institution. They come less than a week after the cancellation of $400 million in federal grants and contracts at the university. Columbia has until March 20 to respond.

“We expect your immediate compliance with these critical next steps,” three Trump officials wrote. “After which we hope to open a conversation about immediate and long-term structural reforms that will return Columbia to its original mission of innovative research and academic excellence.”

The demands escalate an already precarious situation for Columbia as it simultaneously faces pressure from the White House to comply and pressure from students and faculty to fight back.

“We are in a state of shock and disbelief, and we are working with our administration to … reaffirm free speech and shared governance on campus, and to resist all Trump efforts to take academic decisions out of the hands of academics,” said Jean Howard, a member of the executive committee of the Columbia chapter of the American Association of University Professors. “Our administration has been cautious in dealing with Trump up to now. We’re hoping they will take a more aggressive posture in the future.”

A Columbia spokesperson told Inside Higher Ed that officials are reviewing the letter but didn’t say Friday whether the university will comply with the demands. Several free speech and higher ed policy experts say the letter amounts to an unprecedented assault on higher education that could threaten foundational principles such as academic freedom. The demands, which don’t appear rooted in any specific legal authority, also offer yet another hint at how President Trump could reshape higher education.

“The subjugation of universities to official power is a hallmark of autocracy,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia, said in a statement. “No one should be under any illusions about what’s going on here.”

But the Trump administration says canceling the grants and contracts is necessary due to Columbia’s “continued inaction in the face of persistent harassment of Jewish students.” In the letter, officials said that the university “has fundamentally failed to protect American students and faculty from antisemitic violence.”

Building Tensions

Ted Mitchell, president of the American Council on Education, criticized the letter as an “outrageous” example of “extreme federal overreach,” adding that institutional autonomy is a critical part of American higher education.

“It’s perfectly reasonable for the federal government to hold all of those institutions accountable to civil rights laws, and we expect that,” he said. “But for the government to prescribe changes in academic structure, changes essentially in curriculum and to curtail research, that’s beyond the pale.”

One of the letter’s 12 demands is for Columbia to put its Middle East, South Asian and African Studies department under academic receivership for at least five years. This would mean that faculty lose control of the department and the university puts an outside chair in charge. The letter didn’t specify why officials focused on this particular department. But it’s worth noting the academic division is home to Joseph Massad, a controversial tenured professor whom lawmakers have accused of making anti-Israel and anti-Jewish statements over the years.

Federal scrutiny of colleges and universities, especially by Republicans, ratcheted up after the wave of pro-Palestinian protests in fall 2023 and spring 2024. But the Trump administration has only added to the pressure on colleges since it took office in January, quickly moving to cut funding to programs and institutions seemingly at odds with the president’s priorities.

Columbia has been at the epicenter of the scrutiny, particularly after an encampment popped up on the small Manhattan campus’s central lawn last April. The protests culminated in early May, when students occupied a campus building and New York City police officers eventually stormed the hall, arresting those inside.

Although other colleges faced protests and were accused of mishandling reports of antisemitic harassment and discrimination, Columbia took a hard line with protesters and was one of the few to bring in law enforcement. But that hasn’t stopped the Trump administration from targeting the university, nor has it led Columbia to draw a line and start fighting back.

On Thursday, the same day the letter was sent, Columbia handed down student sanctions related to the building occupation. The sentences ranged from multiyear suspensions and expulsions to temporary degree revocations for graduates.

Professors and other experts have warned that federal scrutiny—including high-profile grillings and subpoenas from Capitol Hill—could have damaging consequences for colleges. But alarm escalated significantly last week when the Trump administration bypassed the typical investigation process for civil rights violations and slashed Columbia’s access to grants and contracts.

The cuts, made by Trump’s novel multidepartment antisemitism task force, are the first but likely not the last.

The task force has already said at least 10 other universities are under review, including Harvard University and the University of California, Berkeley. Meanwhile, the Office for Civil Rights is investigating allegations related to antisemitism at at least 60 colleges.

Ryan Enos, a professor of government at Harvard, said Columbia needs to reject the demands and other universities need to speak up now in defense of higher education. If left on its own, Columbia could fail to defend itself, he said.

“Other universities have an imperative to come to the defense of Columbia, because this is not just about Columbia,” Enos said. “The Trump administration is trying to attack all of higher education, and Columbia cannot try to mount a defense on its own.”

Frustrations Abound

Outside policy analysts and scholars on both sides of the political spectrum are frustrated with the situation—but for different reasons.

Frederick Hess, director of education policy studies at the American Enterprise Institute, a right-leaning think tank, described Columbia’s handling of antisemitism on campus over the course of the past year as “egregious” and a “clear violation” of Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on ethnicity or national origin. But at the same time, he said the Trump administration’s unclear process for determining a remedy is problematic.

“Some of the things on the list I find pretty facially plausible. Others require a much higher standard of justification,” he said. “But because they have not been transparent and … there has not been any back-and-forth, there has not been a proper demonstration of the misconduct, which would be necessary to convince me that these specific remedies are called for.”

Benjamin Ginsberg, a Johns Hopkins University professor who studies American politics and Jewish history, sees the situation as one of “competing truths.”

“The Columbia administration has needed for a long time to act against antisemitic demonstrators and vandals on the campus,” Ginsberg said, noting that arrests without indictments or suspensions are not enough. But at the same time, “the Trump administration has overreached by threatening Columbia with dire consequences,” he added.

He noted that the situation presents Columbia administrators with an opportunity.

“Sure, the [Trump] administration has overstepped. It’s threatening to fire a cannon, drop a nuclear bomb,” Ginsberg said. “But as I say, that threat gives the Columbia administration an opportunity to do things that it has needed to do and probably wanted to do for some time.”

He added that though he’s certainly hesitant when the government tries to dictate what departments are valid, in this instance, higher education has failed in its responsibility to its students. He also trusts that the Trump administration will be satisfied so long as Columbia carries out disciplinary action against students who disrupt academic life and threaten others’ safety.

“Anytime the federal government tells the university how to organize its admissions processes, or which, if any, academic departments are valid and legitimate, of course I’m concerned,” Ginsberg said. “But my guess is that nothing will come of those particular demands. I mean, I hope the university won’t cave in.”

On the other hand, Eddy Conroy, a senior education policy manager at New America, a left-leaning think tank, said all the Trump administration’s recent actions should be “deeply troubling.”

Columbia has already demonstrated an aggressive response to student protests, which should be protected by the First Amendment, Conroy said, and it’s not up to the federal government to determine whether those disciplinary procedures were adequate.

“We have an important history of peaceful protest in the United States, and sit-ins are part of that. Columbia can choose if it wants to deal with those things through its own disciplinary procedure or by pursuing trespassing charges,” he said. But to Trump, this “is a test case of how far we can push things when it comes to suppressing speech.”

Conroy believes that the president is trying to make an example of Columbia in the hops that other institutions will then capitulate without fight, and the university’s response as a test dummy isn’t helping.

“The [Trump] administration hits Columbia, and Columbia cowers and says, ‘Please hit us harder,’” he said.

To Howard, the Columbia AAUP representative, Trump’s actions are a threat to the gemstone that is American higher education.

We’ve become “the greatest university system in the world. But that requires independence. It requires the free expression of differing viewpoints,” she said. Trump’s demands are “so undemocratic, so against the norms and conventions of university life, that to comply would just destroy the heart of the institution.”

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March 14, 2025
Maine’s censure of lawmaker for post about trans student-athlete is an attack on free speech

Citizens elect representatives to advocate zealously on their behalf, empowering officials to vote according to their conscience and express themselves freely on controversial topics. That’s why the Maine House of Representatives’ recent actions are so alarming — withdrawing an elected representative’s right to speak or vote on the House floor for refusing to take down a Facebook post.

Three weeks ago, Representative Laurel Libby of Maine’s 64th District posted on Facebook that a high school athlete won first place in girls’ pole vaulting at the Class B state championship after having competed the year before in the boys’ event and finishing in a tie for fifth place.

Libby’s post is constitutionally protected. She was speaking out about the policy in her state, set by the Maine High School Principals Association, that a high school athlete may participate in competitions for the gender with which they identify. Her post was also part of a nationwide debate. Maine Governor Janet Mills and President Trump have publicly sparred over the president’s executive order proposing to cut off education funding if states do not ban transgender athletes from competing in girls’ sports.

But just days after Libby’s post, the Maine House speaker and majority leader demanded she take it down. When she refused, the majority leader introduced a censure resolution — to be heard in the House the next day — because Libby’s post had included photos and the first name of the student, who is a minor. Libby sought to defend herself in the hastily called House vote, but was repeatedly cut off. The censure resolution passed 75-70 on a party-line vote.

If all the censure did was express disapproval of Libby’s actions, that would be one thing.

A state legislative body is entitled to express displeasure with a member’s actions, which by itself does not violate the First Amendment, as the Supreme Court recently ruled.

But in Libby’s case, the Maine House went further, much further. When Libby refused to apologize for her protected speech, the House speaker declared she would be barred from speaking on the House floor or voting on any legislation until she capitulated. Thus, the House majority party has precluded Libby from doing her job and effectively disenfranchised her constituents, end-running Maine constitutional provisions that say a representative cannot be expelled absent a two-thirds vote or recall election.

These actions are a clear example of retaliation based on constitutionally protected speech and amount to removal of an elected representative essentially because the House majority disagrees with her views or how she chose to express them. Sixty-nine years ago the U.S. Supreme Court held that a state legislature could not refuse to seat a duly elected member because of his public statements about the Vietnam War: “The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.”

This is still the law. Under the constitution, the Maine House cannot censor Libby as it has done.

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March 7, 2025
Dismantling DEI Is a Direct Attack on Women in STEM

Science, technology, engineering, and mathematics (STEM) are the center of innovation, fueling advancements that drive economic growth and improve lives. Yet, despite decades of progress, the gender gap in STEM remains a barrier.

Gloria L. Blackwell

CEO, American Association of University Women (AAUW)

Women, particularly women of color, are still underrepresented in these critical fields, and recent efforts to dismantle diversity, equity, and inclusion (DEI) initiatives in higher education threaten to push us back even further. If we are serious about securing America’s place as a global leader in innovation, we should be doubling down on investing in women — not gutting the very programs that support their success.

The data is clear: Diverse companies are 39% more likely to drive better solutions than those that are not. In fields like artificial intelligence, where racial and gender biases have led to flawed algorithms with real-world consequences, the need for a broad range of perspectives is undeniable. Diverse scientific teams are more likely to challenge assumptions, identify blind spots, and develop creative solutions that benefit everyone. Yet, despite these clear advantages, women continue to face systemic barriers that push them out of STEM careers.

Encouraging our women and girls

According to the National Center for Science and Engineering Statistics (NCSES), women, particularly women of color, leave STEM fields at significantly higher rates than men. In fact, 43% of women leave the STEM workforce after their first child. While the percentage of women in STEM occupations has grown modestly from 15% to 18% over the last decade, men’s participation continues to outpace them. This represents an enormous loss of talent, innovation, and economic opportunity.

The American Association of University Women (AAUW) has been on the front lines of this fight for over a century. Our commitment to supporting women in STEM is deeply rooted in our history, from raising $100,000 to buy a gram of radium for Marie Curie’s groundbreaking research — making her the only woman to win the Nobel Prize twice — to our present-day efforts funding the next generation of women scientists, engineers, and technologists. Through our Community Action Grants, we support organizations like Self-eSTEM, an Oakland-based nonprofit dedicated to empowering Black, Indigenous, and girls of color through hands-on STEM experiences. These programs are not just feel-good initiatives — they are essential pipelines ensuring that the brightest minds, regardless of gender or race, can contribute to the future of science and technology.

But today, our progress is under attack. Across the country, lawmakers are dismantling DEI programs in higher education, rolling back decades of hard-fought progress for women and marginalized communities. These efforts are not just misguided; they directly impact our nation’s ability to compete in a global economy. When we eliminate DEI initiatives, we don’t just shut doors on individual women — we close off entire avenues of discovery, limit our technological advancements, and stifle economic growth.

Doubling down on women in STEM

This is not the time to retreat; it’s time to fight. We should be doubling down on investments in women in STEM, expanding opportunities for historically excluded groups, and ensuring that STEM fields reflect the full diversity of our nation. Our economy, our national security, and our future depend on it.

AAUW will not stand by as decades of progress are dismantled. We will continue to advocate for policies and programs that support women and underrepresented communities in STEM. We call on policymakers, educators, and industry leaders to do the same. The future of American innovation depends on it.

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February 27, 2025
Dear Colleague letter is lawless attack on DEI (opinion)

On Valentine’s Day, the Trump administration surprised schools and colleges with its newest attack on DEI and student body diversity. The U.S. Department of Education’s Office for Civil Rights released a Dear Colleague letter that warned schools and colleges that they may lose federal funding if they discriminate on the basis of race.

This letter revealed novel, unsupported legal theories regarding the application of federal civil rights laws to schools and colleges. In fact, OCR’s letter sweeps so broadly that it claims to prohibit certain considerations of race that remain perfectly legal under well-established legal doctrine.

While the threat of losing federal funding has been a facet of Title VI of the Civil Rights Act since its passage in 1964, the letter specifically takes aim at DEI programming as well as the use of “race as a factor in admissions, financial aid, hiring, training, and other institutional programming.”

Although the letter includes some correct statements of nondiscrimination law, OCR makes assertions that are troubling and unsupported by sound legal reasoning. As part of the team that wrote OCR’s guidance on this very issue in the wake of the Supreme Court’s ruling in Students for Fair Admissions v. Harvard, I am disturbed by how politics is driving policy guidance that will hurt educational institutions and students from kindergarten through college.

In describing the scope of SFFA, OCR’s latest guidance attempts to smuggle in a legal standard that appears nowhere in the court’s opinion. The letter states, “Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law … It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”

Here, OCR baselessly claims that not only can colleges not consider race as a factor in admissions, they also cannot make race-neutral changes to admissions policies that help increase student body diversity—such as eliminating standardized testing. That claim falls firmly outside not only the bounds of SFFA but also the decades of Supreme Court case law that precede it.

In Grutter (2003), Justice Sandra Day O’Connor considers whether the University of Michigan Law School could use a lottery system for admissions. In Fisher (2016), Justice Anthony Kennedy implicitly approves of the Texas top 10 percent plan, perhaps the most well-known race-neutral strategy to increase racial diversity. And in SFFA (2023), the plaintiff’s briefs themselves include endorsements of possible race-neutral alternatives Harvard could have legally pursued such as adopting socioeconomic preferences in admissions.

Yet in its most recent letter, OCR attempts quite the head fake in its declaration that SFFA dictates that schools and colleges must abandon race-neutral strategies meant to increase student body diversity. While in reality SFFA says nothing about the permissibility of these race-neutral strategies, a separate line of cases tackles these legal questions head-on—and contradicts the Trump administration’s unfounded guidance.

In Coalition for TJ, Boston Parent Coalition and other recent cases, groups similar to Students for Fair Admissions have challenged changes to admissions policies of prestigious, selective high schools that were adopted in part to increase student body diversity. In some cases, the schools reconfigured weighting for standardized tests; in others, schools guaranteed that each feeding middle school gets a certain number of seats. In all of the cases, the school districts won. The position now advanced by OCR in its recent letter has failed to find footing in two courts of appeal. And just last year, the Supreme Court declined to further review the decisions in TJ and Boston.

What OCR attempts to do with its letter is extraordinary. It tries to advance a legal theory with support from a Supreme Court case that says nothing about the matter. At the same time, OCR ignores recent judicial opinions in cases that directly address this question.

Regardless of how legally infirm OCR’s proclamations are, schools and colleges will likely feel forced to comply. This could mean that the threat alone will lead schools and colleges to cut efforts to legally pursue racially diverse student bodies and racially inclusive campus environments. As a result, our nation’s classrooms and campuses will unfortunately look less like the communities that they sit in and serve, all because of shoddy policymaking and legal sleight of hand.

Ray Li is a civil rights attorney focusing on education policy. He recently left the Department of Education’s Office for Civil Rights after serving as a career attorney from 2021 to 2025. In that role, he worked on more than a dozen policy documents for OCR, including guidance issued after the Supreme Court’s decision in SFFA. He also served as OCR’s lead staff attorney on appellate and Supreme Court litigation matters, including for the SFFA, Coalition for TJ and Boston Parent Coalition cases. Prior to joining OCR, he advised schools, colleges and universities on legal regulatory issues, including civil rights issues, at Hogan Lovells’ education practice.

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February 27, 2025
Trump’s threat to deport anti-Israel protesters is an attack on free speech

This article originally appeared in MSNBC on Jan. 31, 2025.

The campus controversies inflamed by the Oct. 7, 2023, Hamas attack against Israel and Israel’s subsequent war in Gaza have reached a worrying conclusion. Now, with President Donald Trump’s promise to deport those he deems “pro-jihadist” protesters, we’re facing questions not just about which ideas and speech should be allowed on campus, but whether foreign students should be deported for expressing disfavored views.

On Wednesday, Trump signed an executive order on antisemitism that directs leaders of agencies, including the secretary of homeland security, to familiarize universities with grounds for inadmissibility for foreign nationals “so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds.” Those reports will then lead “to investigations and, if warranted, actions to remove such aliens.”

This development should worry all Americans, regardless of their position on the Israel-Hamas war.

The order implies that universities should be monitoring and reporting students for scrutiny by immigration officials, including for speech that is protected by the First Amendment. It follows last week’s executive order threatening denial of entry to foreign nationals, or even deportation of those currently in the country, who “espouse hateful ideology.”

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Student visa holders in the U.S. already risk deportation by engaging in criminal activity, and did so long before the enactment of this order. Students who commit crimes — including vandalism, threats or violence — must face consequences, including potential revocation of visas when appropriate.

The First Amendment does not protect violence, for visitors and citizens alike, and an executive order narrowly confined to targeting illegal acts would not implicate First Amendment rights.

But a fact sheet released by the White House alongside the executive order goes well beyond criminal grounds for removal of foreign nationals to instead threaten viewpoint-motivated deportations. “To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you,” Trump said. “I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”

If that’s what the Trump White House expects agencies to read into its formal orders, this development should worry all Americans, regardless of their position on the Israel-Hamas war.

Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.

Our nation’s campuses are intended to be places of learning and debate that facilitate a wide range of views, even ones that some consider hateful or offensive.

This openness, albeit unpleasant or controversial at times, is a defining strength of American higher education. It’s one of the features attractive to students traveling from abroad who may hope to take part in the speech protections Americans have worked so hard to preserve. These are protections that they may very well be denied in their home countries.

We won’t protect freedom on campus by making it inaccessible to the international students who study there. But, given the warning accompanying the order, international students will now be rightfully afraid that their words — not just their conduct — are under a microscope.

There are already signs that critics of campus demonstrations expect the administration will expel protesters from the country. In the lead-up to the signing of this latest order, pro-Israel advocates claimed to be in contact with officials in the incoming Trump administration concerning lists of student protesters they hope to see deported. One group, Betar, told the New York Post it’s “using a combination of facial recognition software and ‘relationship database technology’” to identify protest attendees who are foreign nationals.

Freedom of speech was never meant to be easy.

At the Foundation for Individual Rights and Expression (FIRE), where I work, we have seen firsthand the many speech-related controversies that have plagued higher education over the decades. In every case, adhering to viewpoint-neutral principles, rather than censorship, has been the proper solution.

If we open the door to expelling foreign students who peacefully express ideas out of step with the current administration about the Israeli-Palestinian conflict, we should expect it to swing wider to encompass other viewpoints too. Today it may be alleged “Hamas sympathizers” facing threats of deportation for their political expression. Who could it be in four years? In eight?

Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.

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Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.

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In Bridges v. Wixon, the Supreme Court’s 1945 decision rejecting the deportation of Australian immigrant Harry Bridges over alleged Communist Party connections, Justice William Douglas wrote, “Freedom of speech and of press is accorded aliens residing in this country.”

Later decisions from the court complicate the question. The federal government retains significant authority over those who may enter and stay in the country. But the court’s reasoning in Wixon should provide lasting guidance.

In his concurring opinion, Justice Frank Murphy stated that he “cannot agree that the framers of the Constitution meant to make such an empty mockery of human freedom” by allowing the government to deport an alien over speech for which it could not imprison him.

Freedom of speech was never meant to be easy. But it allows us the space we need to work through thorny social and political challenges, even when it’s fraught with friction and discomfort. The United States should preserve this freedom on our campuses — spaces for free learning that set us apart from more authoritarian nations around the world — not make an “empty mockery” of it.

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January 31, 2025