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The U.S. Supreme Court on Monday allowed the Trump administration to proceed with laying off nearly half the U.S. Department of Education’s staff — a significant victory for the administration’s mission to dissolve the department to the greatest extent possible.
The decision in New York v. McMahongreen-lights the department’s reduction in force initiated in March as the original question of the layoffs’ legality works its way through the lower courts. The layoffs closed department offices and spurred concerns from public school advocates that the education system would descend into chaos with little federal oversight.
The Monday order allowing the reduction in force to continue was met with dissent from liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, who called the majority’s decision “indefensible” in their 18-page dissent.
“When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it,” they said.
U.S. Secretary of Education Linda McMahon, who was tasked with shutting down the department to the greatest extent “permitted by law,” celebrated the decision.
“Today, the Supreme Court again confirmed the obvious: the President of the United States, as the head of the Executive Branch, has the ultimate authority to make decisions about staffing levels, administrative organization, and day-to-day operations of federal agencies,” McMahon said in a statement.
Until now, the department’s RIF had left staff — who were technically still employed but had been on administrative leave since March — in limbo. The Trump administration had planned to lay off employees June 9, but U.S. District Judge Myong Joun ruled in May that the layoffs left the department as “a shell of itself” and required that staff remain employed in a preliminary injunction.
The layoffs leave the department with only about 2,183 employees out of its previous approximately 4,133.
“A department without enough employees to perform statutorily mandated functions is not a department at all,” Joun wrote. In a separate case, the same judge last month also ordered that the department’s Office for Civil Rights be restored to its former self.
Joun’s May order required the department to routinely report to the district court the steps it was taking to restore its staff — which it did by sending out multiple surveys to employees on administrative leave as a way of “actively assessing how to reintegrate you back to the office in the most seamless way possible.” At the same time, the department was appealing its case to the Supreme Court, hoping its RIF would be allowed through.
The Monday order from the Supreme Court means those employees can be terminated even as the case over the legality of the layoffs proceeds in the lower court.
The Supreme Court’s decision to allowthe layoffs was preceded by another decision from the high court in April that also bolstered the Trump administration’s attempts to close the department. That ruling maintained a freeze on over $600 million in teacher training grants that the administration called “divisive.”
It also follows a Supreme Court decision last week allowing mass terminations to move forward across other federal agencies.
Are statutory obligations impacted?
The department argued that depleting its staff by almost half — including closing down civil rights offices and leaving only a handful of employees in the office that administers the National Assessment of Educational Progress — does not impact its statutory obligations. McMahon has told concerned lawmakers that NAEP is administered through contracts that remain in place.
In the meantime, however, former employees and Democratic lawmakers allege the department has already missed key deadlines on tasks that are required by law, and that no one remains in place to oversee the contracts and ensure the quality of the work.
The annual Condition of Education report, for example, was due to Congress by June 1 — an obligation that the department missed “for the first time ever,” according to Sen. Patty Murray, D-Wash.
In place of fresh data analysis that the National Center for Education Statistics released each year on over 20 topics — including those relevant to current events such as the COVID-19 pandemic and school shootings — the department repurposed already-released analysis on a handful of topics, former NCES employees said.
The department said on its website it would be ”updating indicators on a rolling basis” due to its “emphasis on timeliness” and would determine “which indicators matter the most.” More than a month after the missed June 1 deadline, however, the report still only includes a highlights page with five topics linking to data tables.
Democratic lawmakers also sounded alarm bells over the agency’s delay in distributing grant funding, including Title I-A grant funds, saying it took three times as long to distribute the money than under the Biden administration’s fully staffed department.
The Title I-A program provides $18.4 billion by formula to more than 80% of the nation’s school districts.
As a result of the delay, lawmakers said, states and districts would have less time to allocate funds meant to help students experiencing homelessness and other underserved students.
Decision sparks outcry
The order sparked outcry on Monday from the American Federation of Government Employees Local 252, the union representing the more than 1,000 Education Department employees laid off.
“This effort from the Trump administration to dismantle the Department of Education is playing with the futures of millions of Americans, and after just four months, the consequences are already evident across our education system,” said Sheria Smith, the union’s president, in a statement. Smith called the Supreme Court decision “deeply disappointing.”
A union official said the decision could also negatively impact federal education funding and services, a concern shared by the American Federation of Teachers, which is part of a coalition of parties in the lawsuit challenging the layoffs.
“This unlawful plan will immediately and irreparably harm students, educators and communities across our nation,” the coalition said in a statement.
However, the U.S. Department of Education said in a Monday statement that it “will now deliver on its mandate to restore excellence in American education.”
“As we return education to the states, this Administration will continue to perform all statutory duties while empowering families and teachers by reducing education bureaucracy,” the department said.
In Free Speech Coalition v. Paxton, the U.S. Supreme Court broke new ground in applying relaxed First Amendment scrutiny to state-imposed burdens on lawful adult access to obscene-for-minors content. The decision appeared outcome-driven to uphold laws that require websites with specified amounts of sexually explicit material to verify users’ ages. However, the Court indicated the holding applies only “to the extent the State seeks only to verify age,” such that, if handled in a principled manner, FSC v. Paxton should have relevance only for speech to which minors’ access may be constitutionally restricted.
FSC v. Paxton involved Texas HB 1181’s mandate that online services use “reasonable age verification methods” to ensure those granted access are adults if more than a third of the site’s content is “sexual material harmful to minors,” which the Court treated as content First Amendment law defines as “obscene for minors.” If an adult site knowingly fails to age-verify, Texas’ attorney general may recover civil penalties of up to $10,000 per day, and $250,000 if a minor actually accesses pornographic content. HB 1811 is one of over 20 state adult-content age-verification laws recently passed or enacted.
Obscenity is among the few categories of speech the First Amendment doesn’t protect. In 1973’s Miller v. California, the Court defined obscenity as speech that (1) taken as a whole appeals primarily to a “prurient interest” in sex (i.e., morbid, unhealthy fixation with it); (2) depicts or describes sexual or excretory conduct in ways patently offensive under contemporary community standards; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court has limited the test’s scope to what it calls “hardcore pornography.” Material that is “obscene for minors” is that which satisfies the Miller test as adjusted to minors. Sexually explicit material can thus be obscene for minors but fully protected for adults.
Under these tests, the government may ban obscene speech and restrict access by those under 18 to speech that is “obscene for minors,” but it cannot cut off adults’ access to non-obscene sexual material.
It’s long been accepted that, to access adult, potentially obscene-for-minors material in the physical world, showing identification to prove age may be required. So, a law requiring ID to access such content online might seem analogous on its face.
But online age-verification imposes risks physical ID checks do not. An adult bookstore clerk doesn’t save a photocopy of your license or track the content you access. Nor will hackers, therefore, try to access the ID. These are just some of the reasons surveys consistentlyshow a majority of Americans do not want to provide ID to access online speech — whether adult material or other content, like social media.
Texas’ HB 1181 is similar to two federal statutes the Supreme Court invalidated around the turn of the millennium. In 1997, the Court in Reno v. ACLU unanimously struck down portions of the Communications Decency Act that criminalized transmitting “obscene or indecent” content. And in 2002’s Ashcroft v. ACLU, it considered whether the Child Online Protection Act violated the First Amendment in seeking to prevent children’s access to “material harmful to minors” in a way that incorporated age verification.
For decades, the Court has held statutes that regulate speech based on its content must withstand judicial review under strict scrutiny, which requires the government to demonstrate that the law is necessary to serve a compelling government interest and is narrowly tailored to achieve it using the “least restrictive means.” For laws restricting access to online speech, the Court held the laws in Reno and Ashcroft unconstitutional because they failed strict scrutiny. These cases followed in the footsteps of Sable Communications vs. FCC (1989) and United States v. Playboy (2000), in which the Court applied strict scrutiny to invalidate laws governing adult material transmitted by phone and on cable television stations, respectively.
But in FSC v. Paxton, the Court subjected Texas’ age-verification law for online adult content to only intermediate scrutiny. Under this standard of review, a speech regulation survives if it addresses an important government interest unrelated to suppression of speech, directly advances that interest in a direct and material way, and does not burden substantially more speech than necessary. The Court justified applying a lower level of scrutiny on the ground that minors have no First Amendment right to access speech that is obscene to them. Accordingly, it reasoned, even if adults have the right to access “obscene for minors” material, it is “not fully protected speech.” From there, the Court concluded that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” And it upheld the Texas law under intermediate scrutiny, concluding the regulations only incidentally restrict speech that can be accessed by adults.
The upshot is, going forward, it will be easier to justify laws restricting minors’ access to off-limits expression even if the law burdens adults’ access to material that is otherwise lawful for them.
At the same time, the majority opinion sought to limit the type of content that can be restricted only to material that meets the legal definition of “obscene-for-minors” material, and not anything that might be considered generally inappropriate.
As the Court held in Brown v. Entertainment Merchants Assn. (2011), “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” And in Reno, which involved similar attempts to limit provision of online content to minors, the Court held the government could not ban “patently offensive” and “indecent” (but not obscene) material for everyone in the name of protecting children.
Free Speech Coalition should not be read as approving age verification laws for online speech generally that do not specifically target “obscene for minors” material. Its narrow focus will not support the recent spate of social media age-verification laws that have met significant judicial disapproval. Such laws have been enjoined in Arkansas, Mississippi, California, Utah, Texas, Ohio, Indiana, Florida, and most recently last week, when a federal court held Georgia’s version “highly likely [to] be unconstitutional” because it interferes with minors’ rights “to engage in protected speech activities.”
The risk, of course, is that governments will seek to leverage FSC v. Paxton decision beyond its limited holding, and/or that lower courts will misuse it, to justify prohibiting or regulating protected speech other than that obscene as to minors. In defending laws that implicate the First Amendment, the government often argues it is regulating only conduct, or unprotected speech, or speech “incidental” to criminal conduct.
Courts for the most part have seen through these attempts at evasion, and where a speech regulation applies based on topic discussed or idea or message expressed, or cannot be justified without reference to its function or content, courts apply strict scrutiny. Under FSC, however, would-be regulators have another label they can use — “partially protected speech” — and the hope that invoking it will lead to intermediate scrutiny.
Only time will tell if the Court will keep the starch in its First Amendment standards notwithstanding what should be the purple cow of FSC v. Paxton.
When a white teacher at Decatur High School used the n-word in class in 2022, students walked out and marched in protest. But Reyes Le wanted to do more.
Until he graduated from the Atlanta-area school this year, he co-led its equity team. He organized walking tours devoted to Decatur’s history as a thriving community of freed slaves after the Civil War. Stops included a statue of civil rights leader John Lewis, which replaced a Confederate monument, and a historical marker recognizing the site where Rev. Martin Luther King, Jr. was jailed for driving with an out-of-state license.
Reyes Le, a Decatur High graduate, sits at the base of Celebration, a sculpture in the town’s central square that honors the city’s first Black commissioner and mayor. (Linda Jacobson/The 74)
But Le feared his efforts would collapse in the face of the Trump administration’s crackdown on diversity, equity and inclusion. An existing state law against “divisive concepts” meant students already had to get parent permission to go on the tour. Then the district threw out two non-discrimination policies April 15.
“I felt that the work we were doing wouldn’t be approved going into the future,” Le said.
Decatur got snared by the U.S. Department of Education’s threat to pull millions of dollars in federal funding from states and districts that employed DEI policies. In response, several organizations sued the department, calling its guidance vague and in violation of constitutional provisions that favor local control. Within weeks, three federal judges, including one Trump appointee, blocked Education Secretary Linda McMahon from enforcing the directives, and Decatur promptly reinstated its policies.
The reversal offers a glimpse into the courts’ role in thwarting — or at least slowing down — the Trump education juggernaut. States, districts, unions, civil rights groups and parents sued McMahon, and multiple courts agreed the department skirted the law in slashing funding and staff. But some observers say the administration is playing a long game and may view such losses as temporary setbacks.
“The administration’s plan is to push on multiple fronts to test the boundaries of what they can get away with,” said Jeffrey Henig, a professor emeritus of political science and education at Teachers College, Columbia University. “Cut personnel, but if needed, add them back later. What’s gained? Possible intimidation of ‘deep state’ employees and a chance to hire people that will be ‘a better fit.’ ”
A recent example of boundary testing: The administration withheld nearly $7 billion for education the president already approved in March.
But the move is practically lifted from the pages of Project 2025, the right-wing blueprint for Trump’s second term. In that document, Russ Vought, now Trump’s director of the Office of Management and Budget, argues that presidents must “handcuff the bureaucracy” and that the Constitution never intended for the White House to spend everything Congress appropriated.
The administration blames Democrats for playing the courts. White House Deputy Chief of Staff Stephen Miller accused “radical rogue judges” of getting in the president’s way.
The end result is often administrative chaos, leaving many districts unable to make routine purchases and displaced staff unsure whether to move on with their lives.
While the outcome in the lower courts has been mixed, the Supreme Court — which has looked favorably on much of Trump’s agenda — is expected any day to weigh in on the president’s biggest prize: whether McMahon can permanently cut half the department’s staff.
In that case, 21 Democratic attorneys general and a Massachusetts school district sued to prevent the administration from taking a giant step toward eliminating the department.
“Everything about defunding and dismantling by the administration is in judicial limbo,” said Neal McCluskey, director of the libertarian Cato Institute’s Center for Educational Freedom. As a supporter of eliminating the department, he lamented the slow pace of change. “If the Supreme Court allows mass layoffs, though, I would expect more energy to return to shrinking the department.”
The odds of that increased last week when the court ruled that mass firings at other agencies could remain in effect as the parties argue the case in the lower courts.
While the lawsuits over the Education Department are separate, Johnathan Smith, chief of staff and general counsel at the National Center for Youth Law, said the ruling is “clearly not a good sign.” His case, filed in May, focuses on cuts specifically to the department’s Office for Civil Rights, but the argument is essentially the same: The administration overstepped its authority when it gutted the department without congressional approval.
Solicitor General John Sauer, in his brief to the Supreme Court, said the states had no grounds to sue and called any fears the department couldn’t make do with a smaller staff merely “speculative.”
Education Secretary Linda McMahon defended her cuts to programs and staff before a House education committee June 4. (Sha Hanting/China News Service/VCG via Getty Images)
Even if the Supreme Court rules in McMahon’s favor, its opinion won’t affect previous rulings and other lawsuits in progress against the department.
Here’s where some of those key legal battles stand:
COVID relief funds
McMahon stunned states in late March when she said they would no longer receive more than $2 billion in reimbursements for COVID-related expenses. States would have to make a fresh case for how their costs related to the pandemic, even though the department had already approved extensions for construction projects, summer learning and tutoring.
On June 3, a federal judge in Maryland blocked McMahon from pulling the funds.
Despite the judicial order, not all states have been paid.
The Maryland Department of Education still had more than $400 million to spend. Cherie Duvall-Jones, a spokeswoman, said the agency hasn’t received any reimbursements even though it provided the “necessary documentation and information” federal officials requested.
The cancellation forced Baltimore City schools to dip into a reserve account to avoid disrupting tutoring and summer school programs.
Madison Biedermann, a spokeswoman for the department, declined to comment on why it had yet to pay Maryland or how much the department has distributed to other states since June.
Mass firings
In the administration’s push to wind down the department, McMahon admits she still needs staff to complete what she calls her “final mission.” On May 21, she told a House appropriations subcommittee that she had rehired 74 people. Biedermann wouldn’t say whether that figure has grown, and referred a reporter to the hearing video.
“You hope that you’re just cutting fat,” McMahon testified. “Sometimes you cut a little in the muscle.”
The next day, a federal district court ordered her to also reinstate the more than 1,300 employees she fired in March, about half of the department’s workforce. Updating the court on progress, Chief of Staff Rachel Oglesby said in a July 8 filing that she’s still reviewing survey responses from laid off staffers and figuring out where they would work if they return.
Student protestors participate in the “Hands Off Our Schools” rally in front of the U.S. Department of Education on April 4 in Washington, D.C. (Getty Images)
But some call the department’s efforts to bring back employees lackluster, perhaps because it’s pinning its hopes on a victory before the Supreme Court.
“This is a court that’s been fairly aggressive in overturning lower court decisions,” said Smith, with the National Center for Youth Law.
His group’s lawsuit is one of two challenging cuts to the Office for Civil Rights, which lost nearly 250 staffers and seven regional offices. They argue the cuts have left the department unable to thoroughly investigate complaints. Of the 5,164 civil rights complaints since March, OCR has dismissed 3,625, Oglesby reported.
In a case brought by the Victim Rights Law Center, a Massachusetts-based advocacy organization, a federal district court judge ordered McMahon to reinstate OCR employees.
Even if the case is not reversed on appeal, there’s another potential problem: Not all former staffers are eager to return.
“I have applied for other jobs, but I’d prefer to have certainty about my employment with OCR before making a transition,” said Andy Artz, who was a supervising attorney in OCR’s New York City office until the layoffs. “I feel committed to the mission of the agency and I’d like to be part of maintaining it if reinstated.”
DEI
An aspect of that mission, nurtured under the Biden administration, was to discourage discipline policies that result in higher suspension and expulsion rates for minority students. A 2023 memo warned that discrimination in discipline could have “devastating long-term consequences on students and their future opportunities.”
But according to the department’s Feb. 14 guidance, efforts to reduce those gaps or raise achievement among Black and Hispanic students could fall under its definition of “impermissible” DEI practices. Officials demanded that states sign a form certifying compliance with their interpretation of the law. On April 24, three federal courts ruled that for now, the department can’t pull funding from states that didn’t sign. The department also had to temporarily shut down a website designed to gather public complaints about DEI practices.
The cases, which McMahon has asked the courts to dismiss, will continue through the summer. In court records, the administration’s lawyers say the groups’ arguments are weak and that districts like Decatur simply overreacted. In an example cited in a complaint brought by the NAACP, the Waterloo Community School District in Iowa responded to the federal guidance by pulling out of a statewide “read-In” for Black History Month. About 3,500 first graders were expected to participate in the virtual event featuring Black authors and illustrators.
The department said the move reflected a misunderstanding of the guidance. “Withdrawing all its students from the read-In event appears to have been a drastic overreaction by the school district and disconnected from a plain reading of the … documents,” the department said.
Desegregation
The administration’s DEI crackdown has left many schools confused about how to teach seminal issues of American history such as the Civil Rights era.
It was the Civil Rights Act of 1964 that established “desegregation centers” across the country to help districts implement court-ordered integration.
In 2022, the Biden administration awarded $33 million in grants to what are now called equity assistance centers. But Trump’s department views such work as inseparable from DEI. When it cancelled funding to the centers, it described them as “woke” and “divisive.”
Judge Paul Friedman of the U.S. District Court for the District of Columbia, a Clinton appointee, disagreed. He blocked McMahon from pulling roughly $4 million from the Southern Education Foundation, which houses Equity Assistance Center-South and helped finance Brown v. Board of Education over 70 years ago. His order referenced President Dwight Eisenhower and southern judges who took the ruling seriously.
“They could hardly have imagined that some future presidential administration would hinder efforts by organizations like SEF — based on some misguided understanding of ‘diversity, equity, and inclusion’ — to fulfill Brown’s constitutional promise to students across the country to eradicate the practice of racial segregation.”
He said the center is likely to win its argument that canceling the grant was “arbitrary and capricious.”
Raymond Pierce, Southern Education Foundation president and CEO, said when he applied for the grant to run one of the centers, he emphasized its historical significance.
“My family is from Mississippi, so I remember seeing a ‘colored’ entrance sign on the back of the building as we pulled into my mother’s hometown for the holidays,” Pierce said.
Trump’s Justice Department aims to dismiss many of the remaining 130 desegregation orders across the South. Harmeet Dhillon, assistant attorney general for civil rights, has said the orders force districts to spend money on monitoring and data collection and that it’s time to “let people off the hook” for past discrimination.
But Eshé Collins, director of Equity Assistance Center-South, said the centers are vital because their services are free to districts.
“Some of these cases haven’t had any movement,” she said. “Districts are like ‘Well, we can’t afford to do this work.’ That’s why the equity assistance center is so key.”
Eshé Collins, director of Equity Assistance Center-South and a member of the Atlanta City Council, read to students during a visit to a local school. (Courtesy of Eshé Collins)
Her center, for example, works with the Fayette County schools in Tennessee to recruit more Black teachers and ensure minority students get an equal chance to enroll in advanced classes. The system is still under a desegregation order from 1965, but is on track to meet the terms set by the court next year, Collins said. A week after Friedman issued the injunction in the foundation’s case, Ruth Ryder, the department’s deputy assistant secretary for policy and programs, told Collins she could once again access funds and her work resumed.
Research
As they entered the Department of Education in early February, one of the first moves made by staffers of the Department of Government Efficiency was to terminate nearly $900 million in research contracts awarded through the Institute for Education Sciences. Three lawsuits say the cuts seriously hinder efforts to conduct high-quality research on schools and students.
Kevin Gee from the University of California, Davis, was among those hit. He was in the middle of producing a practice guide for the nation on chronic absenteeism, which continues to exceed pre-pandemic levels in all states. In a recent report, the American Enterprise Institute’s Nat Malkus said the pandemic “took this crisis to unprecedented levels” that “warrant urgent and sustained attention.” Last year’s rate stood at nearly 24% nationally — still well above the 15% before the pandemic.
Gee was eager to fully grasp the impact of the pandemic on K-3 students. Even though young children didn’t experience school closures, many missed out on preschool and have shown delays in social and academic skills.
Westat, the contractor for the project, employed 350 staffers to collect data from more than 860 schools and conduct interviews with children about their experiences. But DOGE halted the data collection midstream — after the department had already invested about $44 million of a $100 million contract.
Kevin Gee, an education researcher at the University of California, Davis, had to stop his research work when the Trump administration cancelled grants. (Courtesy of Kevin Gee)
“The data would’ve helped us understand, for the first time, the educational well-being of our nation’s earliest learners on a nationwide scale in the aftermath of the pandemic,” he said.
The department has no plans to resurrect the project, according to a June court filing. But there are other signs it is walking back some of DOGE’s original cuts. For example, it intends to reissue contracts for regional education labs, which work with districts and states on school improvement.
“It feels like the legal pressure has succeeded, in the sense that the Department of Education is starting up some of this stuff again,” said Cara Jackson, a past president of the Association for Education Finance and Policy, which filed one of the lawsuits. “I think … there’s somebody at the department who is going through the legislation and saying, ‘Oh, we actually do need to do this.’ ”
Mental health grants
Amid the legal machinations, even some Republicans are losing patience with McMahon’s moves to freeze spending Congress already appropriated.
In April, she terminated $1 billion in mental health grants approved as part of a 2022 law that followed the mass school shooting in Uvalde, Texas. The department told grantees, without elaboration, that the funding no longer aligns with the administration’s policy of “prioritizing merit, fairness and excellence in education” and undermines “the students these programs are intended to help.”
The secretary told Oregon Democratic Sen. Jeff Merkley in June that she would “rebid” the grants, but some schools don’t want to wait. Silver Consolidated Schools in New Mexico, which lost $6 million when the grant was discontinued, sued her on June 20th. Sixteen Democrat-led states filed a second suit later that month.
The funds, according to Silver Consolidated’s complaint, allowed it to hire seven mental health professionals and contract with two outside counseling organizations. With the extra resources, the district saw bullying reports decline by 30% and suspensions drop by a third, according to the district’s complaint. Almost 500 students used a mental health app funded by the grant.
A judge has yet to rule in either case, but Republican Rep. Brian Fitzpatrick of Pennsylvania and other members of a bipartisan task force are holding McMahon to her word that she’ll open a new competition for the funds.
“These funds were never intended to be a theoretical exercise — they were designed to confront an urgent crisis affecting millions of children,” Fitzpatrick said in a statement. “With youth mental health challenges at an all-time high, any disruption or diversion of resources threatens to reverse hard-won progress and leave communities without critical supports.”
The first Italo-American to serve on the Supreme Court, Scalia had been appointed by Ronald Reagan, a Republican president. Of the eight remaining justices, four were appointed by Republican presidents and four by Democrats.
Both parties recognize that Scalia’s successor could tip the scales in close votes. Cases currently before the Court involve climate change, affirmative action, abortion, unions, immigrants and contraception — issues where the electorate is deeply divided.
Although the Constitution stipulates that the president nominates Supreme Court justices, Republican candidates for the presidency have said the choice of Scalia’s successor should be left to whoever succeeds Barack Obama in the White House next January. Obama, a Democrat, has said he will send a nomination to the Senate in due course.
That partisan split can be explained by the weight of the Court’s decisions and the polarization of the U.S. electorate.
Whereas historically the two major parties have been able to agree, sometimes begrudgingly, on the choice of justices, the process has become far more partisan and divisive in recent decades.
Unfavorable opinions
The gaping ideological split in the current Congress and an increasingly vitriolic presidential campaign ensure a bitter fight in coming months.
The political acrimony was reflected in a nationwide poll conducted last year by the Pew Research Center.
Following recent Supreme Court rulings on Obamacare and same-sex marriage, unfavorable opinions of Court have reached a 30-year high, the survey found. And opinions about the court and its ideology have never been more politically divided.
“Republicans’ views of the Supreme Court are now more negative than at any point in the past three decades,” it said. Little wonder that Republican presidential candidates are keen to put a conservative in the vacant seat.
While the Supreme Court is an independent branch of government, its composition is not — and has never been — immune from politics. The nomination of justices is part of the system of checks and balances.
But at the end of the day, the system requires the willingness of voters and their representatives to adhere to laws, executive orders and court rulings, however deep the political divide. If that faith ever crumbled, the U.S. experiment in democracy would be under threat.
For years, Priscilla Villarreal has fought to hold officials accountable when they violate Americans’ First Amendment rights, including the Laredo officials who threw her in jail just for asking police to verify facts as part of her everyday news reporting.
Priscilla sued, and last fall, the Supreme Court gave her a shot at justice, granting her petition and ordering the U.S. Court of Appeals for the Fifth Circuit to reconsider Priscilla’s case against the officials who tried to turn routine journalism into a felony.
But in April, a divided Fifth Circuit doubled down, holding the Laredo officials had qualified immunity, a doctrine that often shields government officials from lawsuits even when they violate the Constitution. In his dissent, one judge lamented that the court had simply reinstated what it “mistakenly said before, just in different packaging.”
So Priscilla and FIRE are doubling down, too. We’re heading back to the Supreme Court, asking it to make crystal clear that Americans have every ability to hold officials accountable for violating core First Amendment rights — like the right to ask government officials questions, and publish what they share.
That’s exactly what Priscilla has been doing for years, reporting on local crime, traffic, and other news for her 200,000 Facebook followers. She’s made a name for herself too. The New York Timesdescribes her as “arguably the most influential journalist in Laredo.” But despite her experience, her journey from Laredo, a city on the Mexican border, to the Supreme Court has been a long one.
In 2017, she reported on a high-profile suicide and a fatal car accident. For both stories, Priscilla received tips from private citizens and verified those facts by asking a Laredo police officer. The First Amendment squarely protects this routine journalistic practice. After all, at the heart of the First Amendment is the freedom to ask government officials and institutions questions, even tough ones.
Angered by Priscilla’s reporting on these incidents, Laredo officials tried to bully her into silence by arresting her. But with no legitimate basis on which to charge her with a crime, police and prosecutors turned to a decades-old statute that no local official had ever enforced.
That law makes it a felony to ask for or receive non-public information from a government official with the intent to benefit from that information. Laredo police and prosecutors pursued two warrants for Priscilla’s arrest under the statute. In short, Priscilla went to jail for basic journalism.
So in 2019, she sued the officials for violating her First and Fourth Amendment rights. As Judge James Ho later remarked in his dissent at the Fifth Circuit, it “should’ve been an easy case for denying qualified immunity.”
But it hasn’t been. A Texas federal district court dismissed her claims on the basis of qualified immunity. A three-judge panel of the Fifth Circuit reversed that decision, denying qualified immunity. But when the whole Fifth Circuit reheard the case at the government’s request, it reversed the panel ruling in a splintered 9-7 decision.
In 2024, Priscilla and FIRE took her fight to the Supreme Court for the first time. The Court granted Priscilla’s petition to review the Fifth Circuit’s decision and ordered it to reconsider her case in light of the Supreme Court’s 2024 decision, Gonzalez v. Trevino. That decision affirmed the ability to sue government officials when they retaliate against protected speech by selectively enforcing statutes.
But last April, a splintered Fifth Circuit decided against Priscilla again, granting qualified immunity to the officials who defied longstanding Supreme Court precedent and core principles of American liberty by orchestrating her arrest.
The Fifth Circuit’s ruling not only denies Priscilla justice, but gives police and prosecutors a free pass to turn core First Amendment rights into a crime. That result cannot stand. And that’s why Priscilla and FIRE are going back to the Supreme Court.
Priscilla’s fearless reporting has made her a local “folk hero.” Now, she’s channeling the same grit into defending not just her own rights, but the First Amendment rights of all Americans.
This week, FIRE filed a “friend-of-the-court” brief in Garcia v. Character Technologies urging immediate review of a federal court’s refusal to recognize the First Amendment implications of AI-generated speech.
The plaintiff in the lawsuit is the mother of a teenage boy who committed suicide after interacting with an AI chatbot modeled on the character Daenerys Targaryen from the popular fantasy series Game of Thrones. The suit alleges the interactions with the chatbot, one of hundreds of chatbots hosted on defendant Character Technologies’ platform, caused the teenager’s death.
Character Technologies moved to dismiss the lawsuit, arguing among other things that the First Amendment protects chatbot outputs and bars the lawsuit’s claims. A federal district court in Orlando denied the motion, and in doing so stated it was “not prepared to hold that the Character A.I. LLM’s output is speech.”
FIRE’s brief argues the court failed to appreciate the free speech implications of its decision, which breaks with a well-established tradition of applying the First Amendment to new technologies with the same strength and scope as applies to established communication methods like the printing press or even the humble town square. The significant ramifications of this error for the future of free speech make it important for higher courts to provide immediate input.
Contrary to the court’s uncertainty about whether “words strung together by an LLM” are speech, assembling words to convey messages and information is the essence of speech. And, save for a limited number of carefully defined exceptions, the First Amendment protects speech — regardless of the tool used to create, produce, or transmit it.
As we told the court, it’s important to answer questions about the First Amendment’s application quickly and fully. Not just to minimize the impact on the parties to the case, but to avoid uncertainty about the First Amendment’s reach that would chill expression more broadly.
That clarity is especially important when the case presents novel issues about an emerging technology. Early decisions in cases about new expressive technologies influence the development of jurisprudence, sometimes becoming accepted “defaults” for decades. For example, the development of Section 230 jurisprudence was heavily influenced by the early Zeran v. America Online case, which still provides the generally accepted interpretation of that law nearly two decades later. Fortunately, the Zeran court got it right. But if the decision in Garcia has a similar impact, expressive rights are in serious trouble.
Delaying review of the district court’s decision will chill a great deal of expression while the case otherwise winds toward an appealable decision — particularly given the implications of holding AI outputs are not speech. If that endures, the government would have vast power, without any constitutional limit, to regulate what we may say, how (and how effectively) we may say it, and even what we know and how we may learn it.
Whether AI output is speech is a question with profound implications. If it is not speech, plaintiffs will be able to impose liability for the distribution of ideas in a way that courts have steadfastly rejected for other forms of media.
The district court’s analysis bypassed these issues and gave the First Amendment question far less consideration than it deserved. This warrants the immediate intervention of an appellate court to approach this issue with a level of rigor befitting the paramount constitutional principle at stake.
FIRE helped secure a victory this week for two educators in Oregon when the U.S. Court of Appeals for the Ninth Circuit sent Damiano v. Grants Pass School District back down to the federal district court, as FIRE had asked it to in our amicus brief.
When their school district passed a policy requiring teachers to address transgender students by their preferred names and pronouns, the plaintiffs, Oregon assistant principal Rachel Sager and teacher Katie Medart, started the grassroots campaign “I Resolve” to voice their opposition to the policy. Following complaints by students, parents, and community members, their local school district fired the teachers but later reinstated them to different roles.
The teachers sued. But the lower court ruled the school district was entitled to fire the teachers and granted summary judgment, meaning it did not see a need to go to trial.
FIRE saw things differently. And now, so has the appellate court. Our brief to the Ninth Circuit argued that Sager and Medart’s speech on a matter of public concern — as speech on the debate around gender issues undoubtedly is — must be properly balanced against the school district’s interest in providing services to the public. FIRE wrote:
Almost twenty years ago, this Court held “it is well-settled that a teacher’s public employment cannot be conditioned on her refraining from speaking out on school matters.” … Yet the district court here held that, under Pickering, Grants Pass School District could do exactly that. The court incorrectly concluded that the district did not violate the First Amendment by firing an assistant principal (Rachel Sager, née Damiano) and teacher (Katie Medart) for speaking out against the District’s gender identity policy … because their actions—namely, publishing an alternative model gender-identity education policy and accompanying video called “I Resolve”—allegedly caused significant community disruption.
The lower court put too much weight on the discomfort and controversy the teachers caused with their advocacy, and too little weight on their First Amendment right to speak as private citizens on a matter of public concern.
On top of that, the court found a genuine dispute to be resolved over whether the teachers’ advocacy actually disrupted the school’s operation. As such, the Ninth Circuit reversed the lower court’s opinion — meaning the educators’ First Amendment claim can now proceed to trial.
With its ruling, the Ninth Circuit has sent a pointed reminder that public employees don’t surrender their constitutional rights just because they work for the government.
On June 6, a federal judge for the U.S. District Court for the Northern District of California approved a settlement in House v. NCAA, which will allow higher education institutions to share revenue with student-athletes directly.
The settlement creates a 10-year revenue-sharing model that will allow the athletic departments of the higher education institutions in the Power Five conferences (the ACC, Big 12, Big Ten, Pac-12, and SEC) and any other Division I institutions that opt in to distribute approximately $20.5 million in name, image, and likeness (NIL) revenue during the 2025-2026 season. The revenue-sharing cap will increase annually and be calculated as 22.5% of the Power Five schools’ average athletic revenue. The settlement also includes an enforcement arm to penalize institutions that exceed the $20.5 million cap, which will be overseen by a new regulatory body, the College Sports Commission. Institutions can start to share revenue beginning on July 1, 2025.
Additionally, the settlement requires the NCAA and Power Five conferences to pay approximately $2.8 billion in damages to Division I athletes who were barred from signing NIL deals. This covers athletes dating back to 2016. It also replaces scholarship limits with roster limits.
The settlement does not change college athletes’ ability to enter into NIL contracts with third parties, but under the settlement, all outside NIL deals valued at greater than $600 will have to go through a clearinghouse for approval. The clearinghouse will determine if the revenue is for a valid business purpose and if it reflects fair market value.
Prior to this settlement, college athletes could only earn NIL revenue through partnerships with outside parties, such as companies or donor groups. The original case, House v. NCAA, was brought by two former college athletes in June 2020. They challenged the NCAA’s then-policy that prohibited athletes from earning NIL compensation. The case was consolidated with Carter v. NCAA and Hubbard v. NCAA, two similar cases. None of the cases ever made it to trial. Instead, in an effort to avoid higher damages, the NCAA and Power Five conferences agreed to a settlement in May 2024, and the court granted preliminary approval in October 2024.
As NCAA President Charlie Baker explained in a letter, the settlement “opens a pathway to begin stabilizing college sports. This new framework that enables schools to provide direct financial benefits to student-athletes and establishes clear and specific rules to regulate third-party NIL agreements marks a huge step forward for college sports.”
CUPA-HR will keep members apprised of updates related to this settlement and the future of student-athletics.
The Trump administration asked the Supreme Court on Friday to allow it to move forward with its plan to lay off nearly half of the Education Department’s employees and dismantle the agency, USA Today reported.
In late May,a federal district court ruled that the reduction in force made it impossible for the executive branch to carry out congressionally mandated programs and services. An appeals court affirmed that ruling June 4.
President Trump and his Department of Justice, however, disagree with both rulings, and they hope the 6-to-3 conservative majority on the Supreme Court will, too.
“The Constitution vests the Executive Branch, not district courts, with the authority to make judgments about how many employees are needed to carry out an agency’s statutory functions, and whom they should be,” Solicitor General John Sauer wrote in the emergency appeal to the Supreme Court.
States, school districts and teachers’ unions involved in the case have until June 13 to respond to Trump’s appeal, the Supreme Court stated.
On June 5, the U.S. Supreme Court ruled unanimously that plaintiffs bringing employment discrimination claims under Title VII cannot be held to a higher evidentiary standard simply because they belong to a majority group. The decision in Ames v. Ohio Department of Youth Services resolves a long-standing split among federal appeals courts over how such “reverse discrimination” claims should be evaluated.
Background
Marlean Ames, a heterosexual woman, has worked at the Ohio Department of Youth Services since 2004. In 2019, after being passed over for a promotion in favor of a lesbian woman and later demoted from her existing role, Ames filed suit alleging that both decisions were based on her sex and sexual orientation — protected characteristics under Title VII of the Civil Rights Act of 1964.
Lower courts dismissed her claims. Applying a test used in the 6th U.S. Circuit Court of Appeals and several others, they held that Ames, as a member of a majority group, was required to present additional “background circumstances” — such as evidence that the employer had a pattern of discriminating against majority-group employees — in order to move forward with her case.
The Court’s Reasoning
Writing for the Supreme Court, Justice Ketanji Brown Jackson rejected that reasoning, emphasizing that Title VII’s protections apply equally to all individuals. She wrote that the law “draws no distinctions between majority-group plaintiffs and minority-group plaintiffs,” and instead “focuses on individuals rather than groups, barring discrimination against ‘any individual’ because of protected characteristics.”
The court found that the so-called “background circumstances” rule used by the lower courts added an impermissible hurdle for plaintiffs like Ames. In the ruling, the Supreme Court found that such an approach “cannot be squared with the text of Title VII or the Court’s precedents,” citing the court’s 1971 opinion in Griggs v. Duke Power Co., which held that “discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.”
The justices also noted that the rule adopted by the 6th Circuit conflicted with the court’s guidance to avoid rigid applications of Title VII’s burden-shifting framework, known as the McDonnell Douglas test. That framework is intended to provide a flexible method for proving discrimination based on circumstantial evidence — not to impose categorical rules based on a plaintiff’s demographic status.
Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote separately to question the broader use of the McDonnell Douglas framework altogether. He criticized the reliance on “judge-made rules and standards in the discrimination context” and suggested that the framework “lacks basis in the statutory text” of Title VII. While the court did not revisit that framework in the Ames decision, Justice Thomas’s opinion invites further litigation on its continued use.
What’s Next
The decision eliminates the requirement previously used in the 6th, 7th, 8th, 10th and D.C. Circuits that majority-group plaintiffs must meet an elevated evidentiary threshold to proceed with their claims. Instead, all Title VII plaintiffs must satisfy the same standard, regardless of their group status.
By aligning with the plain text of Title VII and affirming that its protections apply equally to all individuals, the decision in Ames may affect how courts approach other claims involving workplace diversity and inclusion efforts. CUPA-HR is continuing to review the decision and will provide additional updates as the implications for campus employers and HR professionals become clearer.
