Tag: Executive

  • New Program for College Students’ Executive Functioning Skills

    New Program for College Students’ Executive Functioning Skills

    Since the COVID-19 pandemic forced many schools to move instruction online, some students have struggled to regain or even learn the interpersonal and organizational skills they need to succeed in college.

    To rectify that, the University of Mary Washington created a new four-week program this fall to help incoming students hone their planning and social skills. Called LaunchPad, the program aims to help ease students’ transition into higher education, provide them with life-management skills and connect them with peers and supportive staff.

    What’s the need: Data shows that current traditional-aged college students are less likely than previous cohorts of students to be prepared for postsecondary education. A 2024 report from ed-tech provider EAB found that students increasingly struggle with resiliency and conflict resolution and are less likely to be involved in campus organizations or social opportunities.

    Surveys show that students are interested in receiving additional support to help them get organized and learn to manage their time. A study from Anthology, also published in 2024, found that 40 percent of students feel overwhelmed and anxious about their academic workload, and a quarter say they lack time-management skills. Similarly, a 2023 survey by Inside Higher Ed found that one-third of respondents want help planning their schedules and managing their time, such as a through a deadline organizer.

    At the University of Mary Washington, “many students struggle with organization, time management and involvement, especially post-pandemic,” said April Wynn, director of the first-year experience. “LaunchPad provides structured support in these areas.”

    How it works: LaunchPad teaches students executive functioning and socialization skills, including how to maintain a schedule, track deadlines, employ technology, communicate effectively and respond to adversity, according to a university press release.

    Starting the first week of class, students are invited to participate in a LaunchPad session, beginning with syllabus organization and then in subsequent week moving on to Microsoft basics, campus involvement and time management.

    Each week, students could opt in to a LaunchPad activity to help them develop practical life skills.

    University of Mary Washington

    Teaching the tech tools is essential because students often enroll with more experience using Chromebooks than Microsoft products, Wynn noted. Students also received a physical planner during the syllabus session, marking upcoming deadlines at the start of the term to help them prepare.

    The initiative is supported by a Fund for Mary Washington Impact Grant, which provides donor-funded grants, ranging from $500 to $5,000, to students, faculty and staff for projects. Wynn and Dean of Students Melissa Jones applied for the grant and received $5,000 to fund peer-mentor stipends, day planners, workshops and more.

    LaunchPad involves representatives from a variety of campus offices, including the career center, student activities, new student programs, the writing center, campus recreation, housing and residence life, and the Office of Disability Resources.

    The impact: The fall 2025 pilot offered 51 hours of programming over four weeks, with 378 student participants and 466 hours of work by staff, faculty and peer mentors, Wynn said. “Student and facilitator feedback was collected at each session, with additional student survey feedback scheduled for December, after they’ve had time to test out what they learned in the program,” she said.

    The university is considering a shorter program in the spring semester to capture transfer and other new students, as well as expanding the fall program to six weeks to include major and career advising, Wynn said. “While LaunchPad is geared toward first-year students, we hope to plan it around the fall senior class meeting in the future to provide a refresher for soon-to-be graduates,” Wynn said.

    Getting Students Organized

    Several other colleges have implemented new programs to help students build executive-functioning skills.

    • Faculty at DePaul University created a short course in the College of Communication to help students set goals and reflect on their academic progress.
    • Wake Forest University’s Center for Learning Access and Student Success established a digital syllabus that outlines all assignments and assessments for each class a student is enrolled in, creating a centralized depot for organization.
    • Dartmouth College created regular programming to help students build time management and organization skills, led by peers to normalize challenges.

    How does your college encourage students to be organized and improve their life skills? Tell us more.

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  • ‘End of an era’: Experts warn research executive order could stifle scientific innovation

    ‘End of an era’: Experts warn research executive order could stifle scientific innovation

    An executive order that gives political appointees new oversight for the types of federal grants that are approved could undercut the foundation of scientific research in the U.S., research and higher education experts say. 

    President Donald Trump’s order, signed Aug. 7, directs political appointees at federal agencies to review grant awards to ensure they align with the administration’s “priorities and the national interest.

    These appointees are to avoid giving funding to several types of projects, including those that recognize sex beyond a male-female binary or initiatives that promote “anti-American values,” though the order doesn’t define what those values are.   

    The order effectively codifies the Trump administration’s moves to deny or suddenly terminate research grants that aren’t in line with its priorities, such as projects related to climate change, mRNA research, and diversity, equity and inclusion.

    The executive order’s mandates mark a big departure from norms before the second Trump administration. Previously, career experts provided oversight rather than political appointees and peer review was the core way to evaluate projects.

    Not surprisingly, the move has brought backlash from some quarters.

    The executive order runs counter to the core principle of funding projects based on scientific merit — an idea that has driven science policy in the U.S. since World War II, said Toby Smith, senior vice president for government relations and public policy at the Association of American Universities. 

    “It gives the authority to do what has been happening, which is to overrule peer-review through changes and political priorities,” said Smith. “This is really circumventing peer review in a way that’s not going to advance U.S. science and not be healthy for our country.”

    That could stifle scientific innovation. Trump’s order could prompt scientists to discard their research ideas, not enter the scientific research field or go to another country to complete their work, research experts say. 

    Ultimately, these policies could cause the U.S. to fall from being one of the top countries for scientific research to one near the bottom, said Michael Lubell, a physics professor at the City College of New York.

    “This is the end of an era,” said Lubell. “Even if things settle out, the damage has already been done.”

    A new approach to research oversight

    Under the order, senior political appointees or their designees will review new federal awards as well as ongoingl grants and terminate those that don’t align with the administration’s priorities.

    This policy is a far cry from the research and development strategy developed by Franklin D. Roosevelt’s administration at the end of World War II. Vannevar Bush, who headed the U.S. Office of Scientific Research and Development at the time, decided the U.S. needed a robust national program to fund research that would leave scientists to do their work free from political pressure. 

    Bush’s strategy involved some government oversight over research projects, but it tended to defer to the science community to decide which projects were most promising, Lubell said. 

    “That kind of approach has worked extremely well,” said Lubell. “We have had strong economic growth. We’re the No. 1 military in the world, our work in the scientific field, whether it’s medicine, or IT — we’re right at the forefront.”

    But Trump administration officials, through executive orders and in public hearings, have dismissed some federal research as misleading or unreliable — and portrayed the American scientific enterprise as one in crisis. 

    The Aug. 7 order cited a 2024 report from the U.S. Senate Commerce, Science, and Transportation Committee, led by its then-ranking member and current chairman, Sen. Ted Cruz, R-Texas, that alleged more than a quarter of National Science Foundation spending supported DEI and other “left-wing ideological crusades.” House Democrats, in a report released in April, characterized Cruz’s report as “a sloppy mess” that used flawed methodology and “McCarthyistic tactics.”

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  • Free speech and ‘the executive power’ with Advisory Opinions

    Free speech and ‘the executive power’ with Advisory Opinions

    What are the limits of presidential power? How many
    days has it been since President Trump’s TikTok ban moratorium went
    into place? What is the state of the conservative legal movement?
    And where did former FIRE president David French
    go on his first date?

    French and Sarah Isgur
    of the popular legal podcast “Advisory
    Opinions
    ” join the show to answer these questions and
    discuss the few free speech issues where they disagree with
    FIRE.

    Timestamps:

    00:00 Intro

    02:18 Origin story of “Advisory Opinions”

    08:15 Disagreements between FIRE and AO

    15:04 Why FIRE doesn’t editorialize on the content of
    speech

    24:27 Limits of presidential power

    43:30 Free speech, the dread of tyrants

    51:01 The prosecution of political figures

    58:01 Cracker Barrel

    01:00:09 State of the conservative legal movement

    Enjoy listening to the podcast? Donate to FIRE today and
    get exclusive content like member webinars, special episodes, and
    more. If you became a FIRE Member
    through a donation to FIRE at thefire.org and would like access to
    Substack’s paid subscriber podcast feed, please email [email protected].

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  • FIRE statement on President Trump’s executive order to outlaw flag burning

    FIRE statement on President Trump’s executive order to outlaw flag burning

    On Aug. 25, President Donald Trump issued an executive order cracking down on flag burning, which is protected expressive activity under the First Amendment. During the signing, Trump remarked, “If you burn a flag, you get one year in jail.” The following statement can be attributed to FIRE Chief Counsel Bob Corn-Revere.


    President Trump may believe he has the power to revise the First Amendment with the stroke of a pen, but he doesn’t.

    Flag burning as a form of political protest is protected by the First Amendment. That’s nothing new. While people can be prosecuted for burning anything in a place they aren’t allowed to set fires, the government can’t prosecute protected expressive activity — even if many Americans, including the president, find it “uniquely offensive and provocative.”

    You don’t have to like flag burning. You can condemn it, debate it, or hoist your own flag even higher. The beauty of free speech is that you get to express your opinions, even if others don’t like what you have to say. 

    Your burning questions on flag burning

    The right to burn the American flag sparks heated debate, but the First Amendment protects flag burning in most cases.


    Read More

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  • Trump Aims to Save College Sports with Executive Order

    Trump Aims to Save College Sports with Executive Order

    The Trump administration threw its hat in the ring Thursday amid growing debates over how best to manage compensation for college athletes, issuing an executive order titled Saving College Sports.

    It comes just over 24 hours after House Republicans in two separate committees advanced legislation concerning the same topic.

    “The future of college sports is under unprecedented threat,” the order stated. “A national solution is urgently needed to prevent this situation from deteriorating beyond repair and to protect non-revenue sports, including many women’s sports, that comprise the backbone of intercollegiate athletics, drive American superiority at the Olympics … and catalyze hundreds of thousands of student-athletes to fuel American success in myriad ways.”

    Ever since legal challenges and new state laws drove the National Collegiate Athletic Association to allow student-athletes to profit off their own name, image and likeness in 2021, America has entered a new era that many refer to as the wild west of college sports.

    Lawmakers have long scrutinized this unregulated market, arguing that it allows the wealthiest colleges to buy the best players. But a recent settlement, finalized in June, granted colleges the power to directly pay their athletes, elevating the dispute to a new level. Many fear that disproportionate revenue-sharing among the most watched sports, namely men’s football and basketball, will hurt women’s athletics and Olympic sports including soccer and track and field.

    By directing colleges to preserve and expand scholarships for those sports and provide the maximum number of roster spots permitted under NCAA rules, the Trump administration hopes to prevent such a monopolization.

    The order also disallows third-party, pay-for-play compensation that has become common among the wealthiest institutions and booster clubs, and mandates that any revenue-sharing permitted between universities and collegiate athletes should be implemented in a manner that protects women’s and nonrevenue sports.

    Many sports law experts are skeptical about the order, suggesting it’s unlikely to move the needle and might create new legal challenges instead.

    However, Representative Tim Walberg, a Michigan Republican and chair of the Education and Workforce Committee, thanked the president for his commitment to supporting student-athletes and strengthening college athletics.

    “The SCORE Act, led by our three committees, will complement the President’s executive order,” Walberg said. “We look forward to working with all of our colleagues in Congress to build a stronger and more durable college sports environment.”

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  • What does Trump’s executive order on foreign gift reporting mean for colleges?

    What does Trump’s executive order on foreign gift reporting mean for colleges?

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    Since President Donald Trump retook office, the U.S. Department of Education has launched investigations into several high-profile colleges over their compliance with Section 117, a decades-old law that was largely ignored until 2018. 

    The law — part of the reauthorization of the Higher Education Act in 1986 — requires colleges that receive federal financial assistance to disclose contracts and gifts from foreign sources worth $250,000 or more in a year to the U.S. Department of Education. 

    In late April, Trump signed an executive order charging U.S. Education Secretary Linda McMahon to work with other executive agencies, including the U.S. Department of Justice, to open investigations and enforce Section 117. The order also explicitly ties compliance with Section 117 to eligibility for federal grant funding and directs McMahon to require colleges to disclose more specific details about their foreign gifts and contracts. 

    However, complying with the law is difficult and time-consuming for colleges given the challenges they face collecting the needed data and uploading it to the Education Department’s system, according to higher education experts. That means universities must take steps to ensure they are complying, such as dedicating a staff member to meet the law’s requirements, they said.

    Failing to properly do so could put colleges in the crosshairs of the Trump administration and potentially cause them to miss out on federal grants, as higher education experts speculate the executive order will be used as another tool to target institutions’ funding. 

    “The Trump administration has it out for American higher education, particularly those they have branded elite institutions,” said Jeremy Bauer-Wolf, investigations manager on the higher education program at New America, a left-leaning think tank. “Section 117 is another cudgel for them.”

    The history of Section 117

    After Section 117 was enacted nearly 40 years ago over concerns about foreign donations to colleges, it was never really implemented by the Education Department and went largely ignored, said Sarah Spreitzer, vice president and chief of staff for government relations at the American Council on Education. People just stopped thinking about the issue and didn’t pay attention to it, she said. 

    However, concerns in Congress grew in 2018 when then-Federal Bureau of Investigations Director Christopher Wray testified before a Senate panel that China was exploiting the open research and development environment in the U.S. and universities were naive to the threat. 

    Proactively monitoring Section 117 and investigating disclosures was seen at the time as a way to “mitigate malign and undue foreign influence,” a Congressional Research Service report released this past February stated. 

    Following the hearing, the first Trump administration “really started making a show of Section 117,” said Bauer-Wolf

    Between 2019 and 2021, the Trump administration opened investigations into prominent institutions such as Harvard University, Georgetown University, Cornell University, the Massachusetts Institute of Technology and Yale University. The administration was more focused on enforcing compliance through investigations than working with colleges to help them understand what the law required, said Spreitzer

    That had a “chilling impact on our institutions,” said Spreitzer. Colleges had a lot of questions about Section 117 reporting that went unanswered because they “were worried that if they called the Department of Education, they would be hit with an investigation.” 

    The investigations led colleges to report $6.5 billion in “previously undisclosed foreign funds,” according to Trump’s executive order. 

    When the Biden administration took over, Education Department officials moved enforcement of Section 117 from the Office of the General Counsel to Federal Student Aid. The Biden Education Department also closed several investigations launched under the Trump administration, and it did not open any new ones. 

    Trump, in his executive order, alleged the Biden administration “undid” the investigatory work completed during his first term. But those investigations had been going on for several years, so it’s unclear whether those probes should or should not have been closed, said Spreitzer.

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  • NEA Executive Committee Reverses Member Vote to Boycott ADL Educational Materials

    NEA Executive Committee Reverses Member Vote to Boycott ADL Educational Materials

    ADL CEO Jonathan GreenblattThe National Education Association’s (NEA) executive committee has rejected a resolution passed by union members that would have severed ties with the Anti-Defamation League (ADL), preserving access to educational materials on antisemitism and Holocaust education amid rising campus tensions.

    The decision, announced Friday by NEA President Becky Pringle, came after the union’s Representative Assembly voted last week in Portland, Oregon, to cut ties with the civil rights organization over its characterization of campus protests related to the Gaza conflict as antisemitic.

    “Following the culmination of a thorough review process, it was determined that this proposal would not further NEA’s commitment to academic freedom,” Pringle said in a statement. The rejection preserves educators’ access to ADL curricula and professional development programs that address antisemitism in educational settings.

    The controversy highlights the complex challenges facing educational institutions as they navigate discussions about antisemitism, campus climate, and academic freedom in the aftermath of increased tensions following the October 7, 2023 Hamas attacks and subsequent Gaza conflict.

    The executive committee’s decision followed an unprecedented coalition effort, with nearly 400 Jewish organizations and dozens of elected officials urging the NEA to reject the boycott proposal. The coalition argued that excluding ADL materials would harm efforts to combat antisemitism in schools and marginalize Jewish educators and students.

    “This resolution was not just an attack on the ADL, but a larger attack against Jewish educators, students, and families,” said a joint statement from ADL CEO Jonathan Greenblatt, American Jewish Committee CEO Ted Deutch, Conference of Presidents of Major American Jewish Organizations COO Stephanie Hausner, and Jewish Federations of North America Executive Vice President Shira Hutt.

    The Jewish leaders emphasized that the proposed boycott would have normalized “antisemitic isolation, othering, and marginalization of Jewish teachers, students and families in our schools,” even as teachers’ unions have limited power to dictate curriculum.

    The debate reflects broader tensions on college and K-12 campuses nationwide, where Jewish students and faculty have reported increased incidents of antisemitism alongside pro-Palestinian advocacy efforts. The ADL’s annual reporting on antisemitic incidents has itself become a point of contention, with some progressive Jewish leaders questioning whether the organization conflates legitimate criticism of Israeli government policies with antisemitism.

    Amy Spitalnick, CEO of the Jewish Council for Public Affairs, offered a nuanced perspective: “It’s possible to disagree with ADL without cutting off all engagement — which would undercut our shared goals of countering antisemitism and broader hate and bias.”

    Pringle clarified that rejecting the boycott proposal was not an endorsement of “the ADL’s full body of work” but acknowledged the organization’s role in addressing rising antisemitism. She met with ADL CEO Greenblatt to discuss the union’s processes and reaffirm the NEA’s commitment to combating antisemitism.

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  • Trump’s executive orders: Due process, ‘breathtaking sweeps,’ and the evils of intentional vagueness — First Amendment News 472

    Trump’s executive orders: Due process, ‘breathtaking sweeps,’ and the evils of intentional vagueness — First Amendment News 472

    Beginning next week, First Amendment News (FAN) will be moving to Substack. Be sure to sign up and follow us there for future installments!


    “No American President has ever before issued executive orders like the one at issue in this lawsuit . . . The instant case presents an unprecedented attack on . . . foundational principles. . . . Here, deciding what process was due to plaintiff is unnecessary, because no process was provided.” — Perkins Coie LLP v. Department of Justice (Dist. Ct., D.C., May 2)

    “[T]he Court found that Ms. Rumeysa Ozturk has demonstrated a substantial claim of a violation of due process.” — Ozturk v. Hyde (Dist. Ct., VT, May 16)

    “[T]his directive has a breathtaking sweep . . .” — Jenner & Block v. U.S. Dept. of Justice (Dist. Ct., D.C., May 23)

    Maxim#1: Vagueness and due process cannot coexist, at least not in any system of constitutional justice worthy of the name. 

    Maxim #2: The broader the law’s sweep, the greater the likelihood that it was designed to be arbitrarily punitive.

    It is undeniable: Many of Donald Trump’s executive orders run wildly afoul of basic tenets of fairness. Time and again, he has ordered his subordinates to enforce orders that are shockingly vague and disturbingly broad. Both in their conception and execution, such orders patently violate the commands of the First, Fifth, and Fourteenth Amendments. And yet, the public and the courts are asked to countenance such abridgments of law in the name of unfettered executive prerogative.

    Clarity and precision in lawmaking are fundamental to any system of justice. That call for clarity, which traces back at least to Roman law, finds expression in Montesquieu’s “Spirit of Laws” and William Blackstone’s “Commentaries on the Laws of England.” Laws must be “plainly and perspicuously penned,” is how Blackstone tagged it.

    In “Federalist No. 62,” James Madison condemned those laws that were “incoherent that they cannot be understood.” The idea is rooted in basic fairness, in due process of law. Such a process is especially important in the First Amendment context.

    Whether it be in executive orders directed at DEI practices, law firms, universities, libraries, or immigrants, among others, the basic problem of vagueness is the constitutional cancer present in all of them. 

    As Justice Thurgood Marshall made clear in 1972’s Grayned v. City of Rockford, vagueness offends fairness because (i) it provides no meaningful warning to ordinary persons as to “what is prohibited,” (ii) it provides no “explicit standards” to law enforcement officials, judges, and juries necessary to avoid “arbitrary and discriminatory application,” and (iii) vague laws chill protected speech insofar as the “boundaries of the forbidden areas [are not] clearly marked.” 

    Justice William Brennan explained the First Amendment importance of that principle in 1963’s NAACP v. Button: “Standards of permissible . . . vagueness are strict in the area of free expression. . . [I]n the area of First Amendment freedoms, the existence of a [vague mandate is] susceptible of sweeping and improper application.”

    In the unconstitutional process, lawyers, scientists, librarians, universities, law firms and others are chilled into silence — and that is precisely the point.

    The evils of vagueness, among other constitutional wrongs, were thoughtfully identified by federal district court Judge Adam B. Abelson in the recent Maryland District Court case National Association of Diversity Officers in Higher Education v. Trump. In relevant part, Judge Abelson began: 

    This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of “deter[ring]” such “programs or principles.” 

    Judge Adam B. Abelson

    Thereafter, he emphasized that the Court was 

    …deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.

    To elucidate that point, he added:

    Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity. ” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, and values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.

    Such are but some of the evils rooted in many of Trump’s executive orders. Those affronts to due process and First Amendment principles are so obvious as to render their design intentional (see “Trump’s ‘So what?’ stratagem,” FAN 470).

    Trump’s Justice Department defends such lawlessness by procedural obfuscation coupled with political rhetoric and claims of unrestrained executive prerogative. When that fails they take cover by being evasive, as revealed in oral arguments in the Second Circuit case of Ozturk v. Hyde

    The appeals court judges pushed . . . [Department of Justice attorney Drew] Ensign on whether or not the Trump administration believed that both students’ speech was lawful speech.

    “We have not taken a position on that,” Ensign told the panel of three judges, saying concerns over where the students’ cases should be heard were more important.

    “Help my thinking along,” Judge Barrington D. Parker then said. “Take a position.”

    “Your honor, I don’t have authority to take a position on that right now,” Ensign replied.

    Drew Ensign Former Arizona Deputy Solicitor General

    Drew Ensign

    In the unconstitutional process, lawyers, scientists, librarians, universities, law firms and others are chilled into silence — and that is precisely the point. 

    Consider as well this from an article in The New York Times by Stephanie Saul:

    The Trump administration is set to cancel the federal government’s remaining federal contracts with Harvard University — worth an estimated $100 million, according to a letter that is being sent to federal agencies on Tuesday. The May 27 letter [from the U.S. General Services Administration] also instructs agencies to “find alternative vendors” for future services.

    The additional planned cuts, outlined in a draft of the letter obtained by The New York Times, represented what an administration official called a complete severance of the government’s longstanding business relationship with Harvard.

    The letter is the latest example of the Trump administration’s determination to bring Harvard — arguably the country’s most elite and culturally dominant university — to its knees, by undermining its financial health and global influence. Since last month, the administration has frozen about $3.2 billion in grants and contracts with Harvard. And it has tried to halt the university’s ability to enroll international students.

    Related

    A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

    This episode features a conversation with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and former administrator of the White House Office of Information and Regulatory Affairs. His recent working paper, ‘Our Money or Your Life!’ Higher Education and the First Amendment,’ explores the First Amendment constraints on federal funding to American universities.

    In the last few weeks, the Trump administration has made several announcements that it is withholding a significant amount of federal funds from specific universities, notably Columbia University and Harvard University, and that those funds will not be released until those universities comply with a set of demands. Harvard received a letter on April 11 demanding changes in Harvard’s governance, faculty hiring practices, student admissions practices, viewpoint diversity among the faculty, and student disciplinary policies, among other things. On May 5, the Secretary of Education sent a letter to Harvard informing the university that the federal government will award it no grants for scholarly research in the future. Reportedly, there is more than $2 billion dollars at stake.

    On the podcast we talk through what the Trump administration is doing, what the consequences are for Harvard and other affected universities, and what constitutional issues are raised by the administration’s actions in denying Harvard access to federal research funds. In the process, we get a short course on First Amendment doctrine relating to viewpoint discrimination and unconstitutional conditions.

    Trump’s lackey: FCC Chairman Brendan Carr

    Commissioner of Federal Communications Commission Brendan Carr discusses how FCC funding has helped expand patient care at the University of Mississippi Medical Center's Center for Telehealth, during a news conference at the telehealth center in Ridgeland, Mississippi, on April 1, 2021.

    FCC Commissioner Brendan Carr

    “He has . . . abandoned the FCC’s posture as an independent regulator in favor of an openly personal embrace of Trump.”

    Four months into his tenure as head of America’s top communications regulator, Brendan Carr appears to be running a Trumpian playbook to transform a long-independent agency.

    Immediately after being promoted by President Donald Trump to chair the Federal Communications Commission, on Jan. 20, Carr launched investigations into top media companies, including NPR, PBS and Comcast.

    Related

    Latest update of Zick’s Executive Orders repository 

    SCOTUS denies review in middle school ‘two genders’ shirt case 

    This past Monday the Supreme Court denied review (7-2) in L.M. v. Town of Middleborough. The issue raised in that case was whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.

    Summary of facts: “In this case, L.M.’s [middle] school prohibited him from wearing a non-obscene, non-vulgar shirt stating, ‘There Are Only Two Genders,’ because the message ‘would cause students in the LGBTQ+ community to feel unsafe.’. The school even banned him from wearing the same shirt on which he covered the words ‘Only Two’ with a piece of tape on which he wrote “CENSORED” so that the message read, ‘There Are [CENSORED] Genders.’”

    The petition had been distributed for conference twelve times.

    Justice Clarence Thomas wrote a dissent. Justice Samuel Alito also wrote a separate dissent, which in part read:

    This case presents an issue of great importance for our Nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L. M., a seventh grader, wore a t-shirt that said “There Are Only Two Genders,” he was barred from attending class. And when he protested this censorship by blocking out the words “Only Two” and substituting “CENSORED,” the school prohibited that shirt as well.

    The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969).

    FBI reopens probe into Dobbs Supreme Court leak

    The FBI will launch new probes into the 2023 discovery of cocaine at the White House during President Joe Biden’s term and the 2022 leak of the Supreme Court’s draft opinion overturning Roe v. Wade, a top official announced on Monday. Dan Bongino, a rightwing podcaster-turned-FBI deputy director, made the announcement on X, saying that he had requested weekly briefings on the cases’ progress. . . .

    ‘So to Speak’ podcast: Heather Mac Donald on Trump & free speech


    “[M]y reaction to everything that Trump is doing, and I agree almost across the board with his substantive aims whether it’s with regards to the universities, whether it’s regards to immigration, is what would we feel if the democratic administrations were doing this exact same thing in favor of their values? Everything we’re doing sets a precedent. Again, I acknowledge the precedent has already been set. . . . I’m still very nervous about the government using power because even though I’m not deeply libertarian, I do think that the hope of a neutral arbiter of a government that is restrained by rules that are content-free that are politics-free is one of the biggest yearnings of humanity, at least in the west.” — Heather Mac Donald

    Heather Mac Donald discusses the Trump administration’s free speech record amidst its battles with higher ed, mainstream media, law firms, and more.

    Mac Donald is a Thomas W. Smith Fellow at the Manhattan Institute. Her most recent book is “When race trumps merit: How the pursuit of equity sacrifices excellence, destroys beauty, and threatens lives.”

    Related

    • Heather Mac Donald, “The White House’s Clumsy Attack on Harvard,” City Journal (April 15) (“The administration is growing ever bolder in its crusade against the institutions responsible for left-wing ideology — whether elite law firms or universities. That crusade is unquestionably justified. Its targets deserve little sympathy. . .”)

    More in the news

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions 

    Petitions denied

    Emergency Applications 

    • Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

    Free speech related

    • Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
    • Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)

    Beginning next week, First Amendment News (FAN) will be moving to Substack. Be sure to sign up and follow us there for future installments!

    Last scheduled FAN

    FAN 471: “Seven free speech groups issue a call to oppose Trump’s First Amendment violations… Why aren’t there more?

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE.

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  • Federal Judge Blocks Trump’s Executive Order to Close Education Department

    Federal Judge Blocks Trump’s Executive Order to Close Education Department

    A federal judge in Massachusetts has issued a preliminary injunction halting President Donald Trump’s executive order to dismantle the U.S. Department of Education, dealing a significant blow to the administration’s efforts to eliminate the federal agency.

    District Court Judge Myong J. Joun on last Thursday blocked Trump and Education Secretary Linda McMahon from carrying out the executive order and ordered the administration to reinstate approximately 1,300 Education Department employees who were terminated in March as part of a sweeping reduction-in-force.

    The ruling comes in response to consolidated lawsuits filed by a coalition of 20 states, the District of Columbia, educator unions, and school districts challenging the administration’s moves to shrink and eventually close the department.

    When Trump took office in January, the Education Department employed 4,133 workers. The reduction-in-force announced March 11 terminated more than 1,300 positions, while nearly 600 additional employees chose to resign or retire, leaving roughly 2,180 remaining staff—approximately half the department’s original size.

    In his ruling, Judge Joun wrote that “a department without enough employees to perform statutorily mandated functions is not a department at all,” adding that the court “cannot be asked to cover its eyes while the Department’s employees are continuously fired and units are transferred out until the Department becomes a shell of itself.”

    The judge also prohibited Trump from transferring management of the federal student loan portfolio and special needs programs to other federal agencies, as the president had pledged to do from the Oval Office.

    Judge Joun determined that the Trump administration likely violated the separation of powers by taking actions that conflicted with congressional mandates. He noted the administration had failed to demonstrate that the staff reductions actually improved efficiency, writing that “the record is replete with evidence of the opposite.”

    The plaintiffs argued that the department could no longer fulfill critical duties, including managing the $1.6 trillion federal student loan portfolio serving roughly 43 million borrowers and ensuring colleges comply with federal funding requirements.

    The American Association of University Professors (AAUP), which joined the legal challenge alongside other educator groups, praised the ruling as a crucial victory for higher education access.

    “The AAUP is thrilled that District Judge Joun has blocked Trump’s illegal attempt to gut the Department of Education and lay off half of its workforce,” said AAUP President Dr. Todd Wolfson. “Eliminating the ED would hurt everyday Americans, severely limit access to education, eviscerate funding for HBCUs and TCUs while benefiting partisan politicians and private corporations looking to extract profit from our nation’s higher education system.”

    American Federation of Teachers President Randi Weingarten called the decision “a first step to reverse this war on knowledge and the undermining of broad-based opportunity.”

    The Education Department’s deputy assistant secretary for communications, Madi Biedermann, criticized the ruling in a statement, calling Judge Joun a “far-left Judge” who “dramatically overstepped his authority” and vowed to “immediately challenge this on an emergency basis.”

    The case, Somerville Public Schools v. Trump, represents the consolidation of two separate lawsuits filed in March. Democracy Forward is representing the coalition of plaintiffs, which includes the AAUP, Somerville Public School Committee, Easthampton School District, Massachusetts AFT, AFSCME Council 93, and the Service Employees International Union.

    The ruling temporarily halts one of the Trump administration’s most ambitious efforts to reshape federal education policy, though the legal battle is expected to continue as the administration pursues its appeal.

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  • Zick on executive orders and official orthodoxies — First Amendment News 469

    Zick on executive orders and official orthodoxies — First Amendment News 469

    “It was nearly impossible to get anyone on camera for this story [on Trump’s attacks on lawyers and law firms], because of the fear now running through our system of justice.” — Scott Pelle, “60 Minutes” (May 4)

    That observation prompted my colleague, Angel Eduardo, to caution that we are now in “uncharted and horrifying territory” — a territory governed by coerced compliance. Against that backdrop comes the latest installment of Executive Watch, authored by Professor Timothy Zick

    Previous installments are listed below:

    Last week, our colleagues over at First Amendment Watch posted Zick’s “Executive Power and the First Amendment,” an invaluable, comprehensive, and detailed account of the Trump administration’s actions affecting free expression. 

    In the weeks and months ahead, more FAN posts will appear discussing yet other First Amendment issues related to the Trump administration, its executive orders, and related matters. If this seems excessive, it is because (as Zick and I discuss in a forthcoming scholarly article) the suppressive actions taken by this administration are unprecedented in both their breadth and depth. 

    To recast an old catchphrase, the free speech takeaway is:

    Vigilance in the service of freedom is no vice, and
    apathy in response to despotism is no virtue.

    Related

    Professor Zick’s post is set out below followed by a few news items, including two new federal district court rulings involving First Amendment challenges to anti-DEI executive orders and a NYU Law School item about punishing protestors. — rklc


    During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects. 

    As we have seen, these edicts are not merely symbolic. The executive orders call for agency actions and criminal investigations, and place hundreds of millions of dollars in federal funding at risk. The orders have affected what universities teach, which immigrants can migrate to or remain in the United States, which books students and soldiers can read, which version of American history is considered acceptable, which clients law firms can represent, who can serve in the U.S. military, and what kind of scientific research will be allowed. 

    Ideological purging and authoritarian orthodoxy

    My previous post explained how Trump has used executive orders to instigate a whole-of-government assault on free speech, and how that campaign has affected nearly every corner of American life. This post focuses on how Trump has used executive orders to try to purge concepts and ideas from public and private realms and to dictate what is orthodox when it comes to matters Americans sharply disagree on. 

    Many of Trump’s orders are not only viewpoint discriminatory; their expressly stated purpose is to eradicate certain ideas or ideologies and replace them with officially approved alternatives. Although they seek to impose official ideologies by striking disfavored ideas or concepts, many of the Orders utterly fail to define key concepts, including “diversity, equity, and inclusion (DEI),” “discriminatory equity ideology,” “radical gender ideology,” and “hateful ideology.” 

    As I explained in my previous installment, such glaring vagueness has a real chilling effect. Faced with losses of many billions in funding or revenue, or with ruinously expensive investigations or prosecutions, many have decided to capitulate or over-comply, scrubbing any potentially offending terms and concepts from trainings, lectures, websites, and other fora. 

    In 1943, the Supreme Court decided West Virginia State Board of Education v. Barnette, which invalidated a state law mandating that students salute the flag and recite the Pledge of Allegiance at the beginning of each school day. In an iconic and justly famous opinion, Justice Robert H. Jackson wrote: 

    If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

    Trump’s use of executive orders to impose or coerce adoption of official orthodoxies or views is contrary to a foundational First Amendment principle: The government cannot dictate to Americans what ideas they can support or promote or what they believe.

    President Trump’s orthodoxies

    Presidents have historically used executive orders to change policies and priorities regarding a wide range of matters, from the scope of anti-discrimination laws, to matters relating to service in the military, to the protection of religious or other liberties. For example, a president might instruct executive agencies to adopt specific legal or policy positions on enforcement of anti-discrimination laws or the protection of Second Amendment rights. And, of course, presidents can engage in their own speech about these and other matters, including through executive orders. 

    Trump has utilized executive orders for some of these purposes, though in novel ways (and for far more trivial ones, such as dictating what kind of straw can be used in federal buildings). But many of his orders do not merely change enforcement policies or call for agencies to regulate the actions of those who are subject to agency jurisdiction. The First Amendment “tell” in the orders is that they direct agencies to root out and censor the “promotion” of disfavored ideas or concepts.

    Many of the president’s executive orders reflect his own personal frustrations and grievances, including the promotion of ideas he believes should never have been expressed, and that the federal government should now use its vast powers to suppress. Thus, a central purpose of the orders is to purge disfavored ideas and concepts from schools, companies, libraries, museums, foundations, and scientific research. 

    The following examples illustrate these points: 

    Race

    • An executive order describes DEI programs as “radical” and “wasteful.” It instructs agencies to coordinate the termination of “all discriminatory programs, including illegal DEI and diversity, equity, inclusion, and accessibility (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.” Further, Trump ordered all federal agencies and commissions to provide the director of the Office of Management and Budget with lists of “[f]ederal contractors who have provided DEI training or DEI training materials to agency or department employees” and “[f]ederal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since Jan. 20, 2021.”
    • Here as elsewhere, and absent any definitional guidelines, a second order also targets DEI. It requires an office within the Department of Labor to “immediately cease . . . [p]romoting diversity.” What’s more, the president orders federal agencies to “[e]xcise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures.”
    • “Radical DEI,” an executive order proclaims, must be replaced by “individual dignity, hard work, and excellence,” which are identified as “fundamental to American greatness.”
    • Promoting, advocating, or even mentioning “DEI” is also forbidden in the private sector. The president orders agencies to root out DEI and in its place “advance in the private sector the policy of individual initiative, excellence, and hard work.” To that end, the president orders agencies to identify the “most egregious and discriminatory DEI practitioners” within their jurisdictions and to propose investigations of private sector companies to investigate their use of “DEI.”

    Gender and gender identity

    • In an executive order, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” Trump chastised “ideologues who deny the biological reality of sex.”
    • “Basing Federal policy on truth,” the order proclaims, “is critical to scientific inquiry, public safety, morale, and trust in government itself.” The order criticizes understandings of sex or gender that go beyond biology for “[i]nvalidating the true and biological category of ‘woman.’”
    • The president rejected “the false claim that males can identify as and thus become women and vice versa” and proclaimed the administration’s intent not to “regard this false claim as true.”
    • Trump decreed that “every agency and all Federal employees acting in an official capacity on behalf of their agency shall use the term ‘sex’ and not ‘gender’ in all applicable Federal policies and documents.”
    • The order required agency heads to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex,” as defined in the order. Further, it requires that “[a]gencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”
    • In a guidance document sent to all agencies, the acting director of the Office of Personnel Management instructed agency heads to review any programs that “promote or inculcate gender ideology,” place on immediate leave any employees whose job descriptions involve “inculcating or promoting gender ideology,” remove “all outward facing media . . . that inculcate or promote gender ideology,” disable any email features that “prompt users for their pronouns,” cancel trainings and end “resource groups” that “inculcate or promote gender ideology,” and ensure that any agency forms use “sex” instead of “gender” and list only “male” or “female” as options.
    • In another order relating to gender, the president characterizes service in the Armed Forces by transgender individuals as a form of “radical gender ideology” that harms the military. The order declares that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyleeven in one’s personal life.” Further, it declares that “a man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” The Order directs the Secretary of Defense to end all pronoun use in the U.S. Armed Forces and take steps to ban transgender individuals from entering or remaining in service.
    • Official views about gender and gender identity are reflected in other executive orders. For example, an order concerning federal funding for K-12 schools tasks multiple agencies with recommending ways to “rescind Federal funds, to the maximum extent consistent with applicable law” that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology.” Regarding federal funding, the order states “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.” 

    Patriotism

    • The executive order “Ending Radical Indoctrination in K-12 Schooling” conditions federal funding on the adoption by K-12 schools of “patriotic” curricula and threatens to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.
    • The order defines “patriotic education” to mean “a presentation of the history of America” that is “inspiring” and “ennobling,” that emphasizes “how the United States has admirably grown closer to its noble principles, and that embraces “the concept that celebration of America’s greatness and history is proper.”
    • Trump’s personal conceptions of patriotism are also reflected in executive orders pertaining to immigration and deportation. One order provides that resident aliens who express “hatred for America,” “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles,” or “espouse hateful ideology” will be subject to deportation — a threat the administration has now made good on by deporting international students who have engaged in pro-Palestine protests and expression. The order instructs the Secretary of State and other agencies to “recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States.”

    American history

    • In an executive order titled “Restoring Truth and Sanity to American History,” Trump declares, “It is the policy of my administration to restore Federal sites dedicated to history, including parks and museums, to solemn and uplifting public monuments that remind Americans of our extraordinary heritage, consistent progress toward becoming a more perfect Union, and unmatched record of advancing liberty, prosperity, and human flourishing.” Without even a hint of irony, the order then states, “Museums in our Nation’s capital should be places where individuals go to learn — not to be subjected to ideological indoctrination or divisive narratives that distort our shared history.”
    • The “Truth and Sanity” order tasks the vice president and other administration officials with “seeking to remove improper ideology from such properties.” An accompanying “Fact Sheet” boasts that the president has ordered officials “to work to eliminate improper, divisive, or anti-American ideology from the Smithsonian and its museums, education and research centers, and the National Zoo.” Further, Trump vows to remove “divisive ideology” he claims the prior administration adopted — apparently by imposing an ideology that portrays American history only in the most positive light.

    Declaring (and leveraging) official ‘Truths’ 

    As the highlighted language above shows, Trump’s executive orders could not be more transparent about their intent: to declare official “truth” and “falsity” regarding race, gender, and other matters and to punish the “promotion,” advocacy, or even references to competing ideas or ideologies. The orders call on agencies to ban or punish the “promotion” of “diversity” and “radical gender ideology,” instruction that is not “patriotic,” and speech that communicates “hostile attitudes” toward American culture or institutions. The orders declare the “truth” of biological sex and forbid the “promotion” of any other conception, while also banning pronouns and the word “gender” in federal programs. The Trump administration seeks to remove so-called “anti-American ideology” from museums.

    As I explained in my previous installment, the effect of the administration’s purported “truth-declaring” on expression has been nothing short of extraordinary. Executive agencies have responded, sometimes with absurd results — including removing exhibits about Jackie Robinson, cancelling celebrations of prominent black or female figures, removing books by black authors from libraries, and scrubbing information about the “Enola Gay” from the Department of Defense website. 

    Similar effects have occurred outside the government. Corporations, universities, and other federal funding recipients have likewise reacted to the president’s orders by removing disfavored words or concepts from websites and other public-facing documents. Universities have cancelled presentations based on concerns that the content of lectures will run afoul of the orders, broadcast stations have been warned that their licenses may be revoked based on DEI policies, and nonprofits have been instructed to remove potentially offending words and phrases from their grant documents

    The effort to punish expression the administration dislikes or disagrees with extends beyond the areas discussed. For example, a Trump executive order targets a former official who served in his first administration for publicly declaring that the 2020 presidential election was not affected by election fraud — a position contrary to Trump’s own oft-repeated (and oft-debunked) “stolen” election narrative.

    The administration has defended the orders by claiming that they merely announce new policies and target unlawfully discriminatory actions by funding grantees and others. Some even purport to preserve protection for speech that promotes or advocates what the orders define as “unlawful employment or contracting practices.” But these claims are belied by the orders themselves, which again repeatedly declare “truth” and “falsity” regarding ideas, ban “promotion” or “advocacy” of forbidden ideologies, and purport to dictate which ideas are and are not “anti-American.” 

    Despite their questionable validity, the orders have been exceptionally successful in terms of censoring and controlling speech. One of the principal reasons for this success is that the orders are generally vague or unclear about what is allowed and forbidden. Thus, although the concept of DEI is critical to determining whether a grantee is entitled to federal funds, none of the executive orders to date have bothered to provide any official and meaningful definition of the concept. Nor is it clear what to them constitutes “hateful ideology,” “anti-American ideology,” “unpatriotic” instruction, or other forbidden expression. To further illustrate the point, the Trump administration has been clear that it views gender as solely a biological concept; however, it has not been clear about what might constitute “radical gender ideology” or what actions will be treated as “promoting” it. 

    By design, such ambiguity fosters ideological suppression. As Clint Smith observed in an Atlantic article concerning the administration’s insistence that museums not display “divisive” or “anti-American ideology”: 

    What does it mean for something to be improper if the administration’s understanding of what is acceptable excludes anything that might make white Americans feel bad? Is the statue of Thomas Jefferson surrounded by bricks inscribed with the names of people he enslaved improper? Is a slave cabin that once sat on the grounds of a plantation in South Carolina improper? Are the shackles that were once locked around the feet of enslaved children improper? Is Harriet Tubman’s silk shawl improper? Is Nat Turner’s Bible improper? Is Emmett Till’s casket improper? Are the photographs of men and women who were lynched as white audiences looked on improper?

    This kind of vagueness and uncertainty stifles legitimate speech activity. Faced with ambiguity backed by agency enforcement, many grantees will err on the side of avoiding or excising what government officials might view as “false” ideas, forbidden “promotion,” or disfavored language. 

    The administration has used the pronouncement of its purported “truths” and forbidden “promotion” as leverage — to threaten investigations, agency actions, and funding denials. Thus, the orders state that any grantee who engages in forbidden DEI or promotes “gender ideology” is subject to an Equal Employment Opportunity Commission investigation and substantial funding loss. Charges of engaging in DEI and promoting “radical gender ideology” have provided a pretextual basis for governmental investigations and sanctions against law firms, universities, corporations, broadcasters, and others. For the administration, the lack of clear standards allows it to declare that grantees and others are in default, hence triggering lengthy and invasive investigations. To avoid the sanctions, some targeted entities and individuals have simply folded. The administration has similarly relied on vague definitions or standards regarding so-called “anti-Semitism” to intimidate and coerce universities into “settling” unproven claims. 

    The undemocratic benefits of vagueness 

    Thus far, the administration’s lack of clarity has worked in its favor. Given the ambiguity, it can be difficult to demonstrate that the government’s funding decisions are based on disagreement with viewpoints as opposed to responses to what it considers discriminatory practices or shifting policy positions. 

    Trump’s reliance on vague directives and implicit threats requires that courts treat “jawboning” and other informal means of coercion as just as problematic as more direct forms of suppression. The Supreme Court held in a recent decision that New York officials could not coerce financial institutions to cease dealings with the National Rifle Association. Likewise, the Trump administration is allowed to seek to persuade funding grantees and the Nation that its conceptions of race, gender, patriotism, and history are “true.” But it cannot coerce grantees to accept those “truths” through sanction or suppression of speech. 

    However this issue is resolved in courts, we should be aware that much of the damage has already been done. As Justice Jackson explained in Barnette, coercing individuals and institutions to accept official orthodoxies “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” More ominously, Jackson warned, allowing officials to dictate what is “true” or “false” in the field of contested ideas leads only to “the unanimity of the graveyard.” 

    Elections have consequences . . . but imposing orthodoxies cannot be one of them

    Governments are entitled to communicate their views about race, gender, patriotism, and other subjects. Further, no one has a legal or constitutional right to federal funding. However, if the government is going to make federal funding available, it cannot deny or remove it based on a grantee’s promotion or advocacy of disfavored ideas or concepts. It cannot punish instructors for teaching or discussing DEI, scientists for conducting research focused on “diverse” or “disadvantaged” patient populations, or museums for communicating “divisive” viewpoints about American culture and history. 

    One of the key tenets of our First Amendment freedoms is that sometimes minority rights must trump majoritarian will. This is especially true when certain viewpoints are protected while others are prosecuted. By that measure, compelled orthodoxy is an affront to those free speech principles that distinguish our Madisonian democracy from other regimes that give lip service, if that, to such worthy principles.


    Court denies First Amendment challenge in anti-DEI case

    The case is National Urban League v. Trump (May 2). The Judge was Timothy Kelly (D.D.C.). Excerpt below:

    Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment — or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.

    But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties — or at least not on these parties — do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs’ constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.

    Preliminary injunction remains in force in challenge to anti-DEI order

    The case is National Association of Diversity Officers in Higher Education v. Trump (May 1). The Judge is Adam B. Abelson (Dist. Ct., MD). Excerpt below:

    Judge Adam B. Abelson

    Judge Adam B. Abelson

    This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims, as this Court previously explained. . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of ‘deter[ring]’ such ‘programs or principles.’ . . . This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.

    Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.

    The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, see ECF No. 44 at 36-44, 53-55, there can be no serious question that the direct and necessary impact of those provisions — and purposeful, to the extent that matters — is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.

    [ . . . ]

    Upon consideration of the motion to vacate the preliminary injunction, ECF No. 77, and the response and reply thereto, and after oral argument on April 10, 2025, and for the reasons provided above, it is ORDERED that the motion is DENIED.

    NYU Law School saga — right to take exams and lawfully protest reinstated

    Pro-Palestine law students at New York University have secured a major victory against the university administration’s attempts to silence protests. On May 4, the NYU administration confirmed that 31 law students who had been barred from campus and prohibited from sitting for final exams, unless they sign away their right to protest, are now permitted to take their exams.

    “This type of public pressure, the backlash that [the administration] got from not allowing students to sit for exams, was not something that they expected,” said one of the affected NYU law students, who spoke to Peoples Dispatch about this latest decision. 

    The NYU administration had sent a message out to 31 law students, barring them from campus including to take exams, unless they signed a “Use of Space Agreement” which included the language “you may not participate in any protest activity or disruptive activity on Law School property.” The law students who received the message are accused of participating in peaceful sit-in protests on March 4 and April 29, at NYU’s library and outside the office of the dean of the law school. 

    These student activists have pointed out that this is a form of protest permitted by the school’s own outlined policies. NYU’s Guidance and Expectations on Student Conduct explicitly states that “peacefully protesting on University property” is a type of “permitted” protest.

    Tinker-type case distributed for conference nine times

    The case is L.M. v. Town of Middleborough. The issue raised in the case is whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.

    The case has been on the docket since early October of last year. Since then it has been distributed for conference eight times between Dec. 6, 2024 and May 2, 2025. Eighteen states have filed an amicus brief in support of the petitioner.

    More in the news

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions 

    Petitions denied

    Emergency Applications 

    • Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

    Free speech related

    • Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
    • Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re: “false statements”)

    Last scheduled FAN

    FAN 468: “Day 100! Abridging the First Amendment: Zick releases major resource report on Trump’s executive orders

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.



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