On February 5, President Trump signed an executive order titled “Keeping Men Out of Women’s Sports.” The order aims to bar transgender women and girls from participating in women’s sports by directing agencies to withdraw federal funding from schools that refuse to comply with the order.
The EO claims that, in recent years, educational institutions and athletic associations have allowed men to compete in women’s sports, which the Trump administration believes denies women and girls equal opportunity to participate in competitive sports, thus violating Title IX. As a result, the EO sets policy to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities” and to “oppose male competitive participation in women’s sports more broadly.”
With respect to the specific actions ordered, the EO directs the secretary of education to ensure compliance with the court order to vacate the Biden administration’s Title IX rule and to take other actions to ensure that the 2024 regulations do not have effect. It also directs the secretary to take action to “protect all-female athletic opportunities” by setting forth regulations and policy guidance that clearly specifies and clarifies “that women’s sports are reserved for women.”
Notably, the EO further directs all federal agencies to review grants to educational programs and to rescind funding to programs that fail to comply with policy set forth in the EO. Institutions with grant programs deemed to be noncompliant with this order could, therefore, risk losing federal funding for that program.
The EO also seeks quick enforcement by federal agencies. The EO orders the Department of Education to prioritize Title IX enforcement actions against educational institutions and athletic associations that “deny female students an equal opportunity to participate in sports and athletic events.” The Department of Justice is also tasked with providing resources to relevant agencies to ensure “expeditious enforcement” of the policy set forth in the EO.
Finally, the EO directs the assistant to the president for domestic policy to convene both major athletic organizations and state attorneys general to promote policies consistent with Title IX and identify best practices in enforcing equal opportunities for women to participate in sports.
On February 6, the NCAA updated its policy regarding transgender student-athlete participation in response to the EO. According to the NCAA, the new policy limits competition in women’s sports to student-athletes assigned female at birth, but it allows student-athletes assigned male at birth to practice with women’s teams and receive benefits while practicing with them. For men’s sports, student-athletes may participate in practice and competition regardless of their sex assigned at birth or their gender identity, assuming all other eligibility requirements are met.
Institutions should review their policies and practices in light of the EO and the NCAA’s policy change. CUPA-HR will continue to monitor for Title IX updates and keep members apprised of new enforcement under the Trump administration.
To lift a line from the songwriter extraordinaire of our era, “the times they are a- changin’.” Indeed, they are — and this is certainly true in our own corner of the world, the world of free speech.
For better and worse, Donald Trump and his agents are rearranging the structure of free expression in America. Only a few weeks into his presidency, things are proceeding at a breakneck speed, with a flurry of executive orders flying out the windows of the White House. Even early on, there is a sense that what will follow may well mark one of those pinpoints in our history when that “experiment” of which Holmes spoke is tested. Whatever else happens, it is important that there is some record of these times and what happened in them. To that end, we will soon launch a new segment within FAN called “Executive Watch” to track it all: the President’s orders, the executive agencies’ actions, the activities of the President’s affiliates, and Mr. Trump’s personal undertakings.
Enter Professor Timothy Zick, the William and Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship.
WATCH VIDEO: Trump Calls For Changes To First Amendment, Demands “Mandatory One-Year In Jail” For U.S. Flag Burning.
By chronicling such information and then analyzing it, the hope is that our readers will have a more informed sense of the state of free speech at a time when so much is in flux. There is the hope that “Executive Watch” will prompt further discussion of that vital freedom that is at the core of constitutional government in America.
FBI agents file First Amendment class action
While FBI agents may be at-will employees who can, generally speaking, be fired for “any reason or no reason,” they can’t be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can’t fire all the African-American agents, or all the agents registered as Democrats).
The Complaint, filed in DC District Court, is posted here. Plaintiffs are “employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity.” They “intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest.”
Knight Institute on need for fact-checking platform
[Recently] Meta announced changes . . . to its content moderation policies, including that it’s replacing third-party fact checking with a Community Notes model that allows users to publicly flag content they believe to be incorrect or misleading.
The following can be attributed to Katherine Glenn Bass, the Knight Institute’s research director:
Katy Glenn Bass
“Mark Zuckerberg’s announcement today is a stark reminder that many of the biggest platforms we use to communicate about issues of public importance are owned by billionaires who are not accountable to us. Apart from the obvious effort to signal political allegiance, the impact of the announced changes will not be clear for some time. But if we have any hope of measuring or understanding what is happening on these platforms, we need strong protections for the independent researchers and journalists who study them, and better mechanisms for ensuring they can access platform data.”
In 2019, more than 200 researchers signed an open letter in support of the Knight Institute’s efforts to persuade Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research on the platform. Read more about that effort here.
Shibley on Harvard’s anti-Semitism settlement
Robert Shibley
Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza.
While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis.
FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.
Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothingnew. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus. . . . And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.)
As Stern predicted in that piece:
If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.
Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.
Forthcoming book: New edition of Neier’s ‘Defending My Enemy’
A new edition of the most important free speech book of the past half-century, with a new essay by the author on the ensuing fifty years of First Amendment controversies.
When Nazis wanted to express their right to free speech in 1977 by marching through Skokie, Illinois — a town with a large population of Holocaust survivors — Aryeh Neier, then the national director of the ACLU and himself a Holocaust survivor — came to the Nazis’ defense. Explaining what many saw as a despicable bridge too far for the First Amendment, Neier spelled out his thoughts about free speech in his 1977 book Defending My Enemy.
Now, nearly fifty years later, Neier revisits the topic of free speech in a volume that includes his original essay along with an extended new piece addressing some of the most controversial free speech issues of the past half-century. Touching on hot-button First Amendment topics currently in play, the second half of the book includes First Amendment analysis of the “Unite the Right” march in Charlotteville, campus protest over the Israel/Gaza war, book banning, trigger warnings, right-wing hate speech, the heckler’s veto, and the recent attempts by public figures including Donald Trump to overturn the long-standing Sullivan v. The New York Times precedent shielding the media from libel claims.
Including an afterword by longtime free speech champion Nadine Strossen, Defending My Enemy offers razor-sharp analysis from the man Muck Rack describes as having “a glittering civil liberties résumé.”
Praise for Defending My Enemy
“Aryeh Neier’s Defending My Enemy is as relevant today as it was when it was first published. The book is a powerful reminder of why free speech matters—not just for the voices we agree with, but for the voices we abhor. Neier’s story of defending Nazis’ rights to speak in Skokie underscores a timeless truth: If we want to preserve freedom for ourselves, we must be willing to defend it for others, no matter how deeply we disagree. At a time when censorship is on the rise globally, Defending My Enemy stands as a bold and principled call to action. Every advocate of free expression needs to read this book—and more importantly, live its lessons.” — Greg Lukianoff
Forthcoming scholarly article: ‘Output of machine learning algorithms isn’t entitled to First Amendment protection’
Machine learning algorithms increasingly mediate our public discourse – from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech.
This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” – the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech.
Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work – and how they have changed with the advent of machine learning.
Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence.
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 (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
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.
On January 29, President Trump signed an executive order titled “Additional Measures to Combat Anti-Semitism.” The order directs certain federal agencies to use appropriate legal tools to “prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
Background
The new EO directly connects to and expands upon Trump’s EO 13899, “Combating Anti-Semitism,” that was signed in December 2019. The 2019 EO tasks federal departments and agencies charged with enforcing Title VI of the Civil Rights Act to use the law to investigate potential cases of discrimination against Jewish individuals where such action does not run contrary to rights protected under other federal laws.
The Biden administration did not rescind EO 13899, and they pursued regulations at the Department of Education to amend Title VI for cases involving discrimination based on shared ancestry or ethnic characteristics. The proposed rule, which was not published during the Biden administration but was most recently included in the Fall 2024 Regulatory Agenda, indicated that the regulations were in part in response to EO 13899.
2025 Executive Order
The new EO states that it reaffirms EO 13899 and “directs additional measures to advance the policy thereof in the wake of the Hamas terrorist attacks of October 7, 2023.” It takes direct aim at institutions of higher education, stating that the attacks resulted in “an unprecedented wave of vile anti-Semitic discrimination, vandalism, and violence … especially in our schools and on our campuses.”
In response to these claims, the EO directs all federal agencies to submit a report within 60 days of the order that identifies “all civil and criminal authorities or actions within the jurisdiction of that agency, beyond those already implemented under Executive Order 13899, that might be used to curb or combat anti-Semitism.” Notably, the order directs these agency reports to include “an inventory and analysis of all pending administrative complaints … against or involving institutions of higher education alleging civil rights violations related to or arising from post-October 7, 2023, campus anti-Semitism.”
The EO provides additional requirements for the reports submitted by the U.S. attorney general and the secretary of education. Specifically, the order directs the attorney general’s report to include “an inventory and analysis of all court cases against or involving institutions of higher education alleging civil rights violations related to or arising from” antisemitism that potentially occurred after the October 2023 attacks. The attorney general is also required to indicate whether they intend to or have taken any action with respect to the cases at institutions of higher education. Moreover, the secretary of education is tasked with submitting additional inventory and analysis of Title VI complaints related to antisemitism that were filed to the Office for Civil Rights after the October 7 attacks.
Finally, the EO directs the secretaries of state, education and homeland security to report recommendations to familiarize “institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds” and to ensure “that such reports about aliens lead, as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove such aliens.”
Next Steps
As explained above, the EO directs agencies to promulgate reports for the president within the next 60 days. Additional information and guidance are needed from relevant agencies to determine next steps for institutions of higher education. CUPA-HR will keep members apprised of additional updates related to Title VI enforcement and public policy related to antisemitism on campus.
Since taking office for his second term on Jan. 20, President Trump has issued a flurry of executive orders, including several implicating the First Amendment and freedom of expression. Below, we highlight some of these orders and evaluate the potential ramifications for free speech.
Executive order on protecting freedom of speech is a good start — but more must be done
One of the first executive orders the president signed was titled “Restoring Freedom of Speech and Ending Federal Censorship.” This order aims to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” Specifically, the order notes the government has “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
FIRE welcomes this order’s call to end federal government censorship, including that which is hidden from public view. Leaks, court documents, and other disclosures have revealed instances of federal officials pressuring social media companies to limit controversial but constitutionally protected speech on vigorously disputed topics like the origins of Covid-19, the Hunter Biden laptop story, and election integrity.
We have writtenrepeatedly about the dangers of such government coercion, commonly referred to as “jawboning,” highlighting how this sneaky form of government censorship threatens freedom of expression.
A pledge by the executive branch to respect the free speech of all Americans is a good first step. But any executive order can be modified or reversed on the say-so of one person — the president. It will take actual legislation — such as FIRE’s model transparency bill — to create mechanisms that statutorily require disclosure and bring to light governmental efforts to strong-arm private social media companies into censoring protected speech.
In the meantime, FIRE will monitor the administration’s actions, just as we did during the Biden administration, and hold federal agencies to the standards set forth in the executive order.
Executive orders targeting DEI programs appear to avoid First Amendment pitfalls — but FIRE will be watching their implementation
President Trump also signed two executive orders with the aim of dismantling diversity, equity, inclusion, and accessibility programs. The first, signed on Jan. 20 and titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” calls for “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.”
DEI/DEIA programs and initiatives take many forms. FIRE has no position on the values DEI programs may seek to advance. But our experience defending student and faculty rights on campus demonstrates that DEI administrators and offices haveregularlybeen involved in threats to academic freedom and speech policing, functioning as a way to enforce preferred orthodoxy or ideology. And some DEI initiatives — such as mandatory DEI statements in faculty hiring or student admissions — flatly threaten free expression and academic freedom and should be prohibited. We have previously introduced model legislation designed to eliminate such use of political litmus tests in faculty hiring and student admission decisions.
FIRE has also seen legislation in which overbroad attempts to curtail DEI mandates threaten the very same speech rights of faculty and students they aim to protect. Overbroad restrictions can improperly limit classroom discussions — as we saw in West Virginia’s recent executive order prohibiting faculty from sharing any material that promotes or encourages certain DEI-related views, while at the same time permitting criticism of those views. This allows institutions to continue ideological litmus tests as long as such tests oppose DEI — which just recreates the same problem.
Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.
The president’s executive order appears to avoid these issues by targeting only the government’s own speech and initiatives, which it can constitutionally control. For instance, the Office of Management and Budget must provide a list of “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” This is different from prohibiting any federal grantees from promoting DEI, which would threaten speech. Instead, the order specifically targets federal grants made specifically for the purpose of advancing DEI, and the federal government is free to shut off that funding if it no longer wishes to advance those ideals or views.
A second DEI-related order, signed on January 21, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” aims to eliminate “affirmative action” and “illegal discrimination and illegal preferences” in line with the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which held race-based affirmative action programs in college admissions violated the Fourteenth Amendment. (FIRE takes no position on affirmative action.)
FIRE releases statement on the use of ‘diversity, equity, and inclusion’ criteria in faculty hiring and evaluation
News
FIRE’s statement provides guidance to universities to ensure they respect faculty members’ expressive freedom when seeking to advance DEI.
The order helpfully includes two provisions that make clear it does not reach into the college classroom or infringe upon academic freedom:
(b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
(c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.
While these orders avoid constitutional pitfalls on their face, implementation should proceed carefully. Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.
Executive order on “gender ideology” invites possible abuse
This executive order focuses on “[defending] women’s rights and [protecting] freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” The order requires federal government agencies to:
remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.
This aspect of the order is limited to the federal government’s own speech. However, there is a risk, similar to that presented by imprecise anti-DEI legislation, that the breadth of such an order could lead to direct or indirect censorship of private actors. The government has the power to control its speech when it is the speaker, such as in a training given to its employees. But its power is much more limited when the speaker is a private citizen.
Of particular concern is this clause: “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.”
While the government can choose to change its own messaging on gender issues, it cannot deny funds to grantees for exercising their own First Amendment rights. Further, the imprecise language could encourage government actors to withhold otherwise available grants from those with opinions that do not align with the views expressed in this executive order — chilling constitutionally protected speech. Grantees who would otherwise espouse views agreeing with “gender ideology” may refrain for fear of losing their government grant, even if they do not use the grant itself to promote “gender ideology.”
Executive order intended to “protect” Americans from noncitizens who “espouse hateful ideology” is at odds with our culture of free speech
This executive order makes it federal policy to “protect [American] citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” In addition to requiring agencies to ensure their policies for screening aliens align with the executive order, it requires the secretary of state to:
Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens’ rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists.
The federal government has the authority to refuse entry to or deport people who genuinely present a national security threat. But the broad language of this order implies it may also be used to target people already in the U.S. for engaging in speech that is otherwise constitutionally protected. FIRE haspreviously expressed concern about denials of entry in cases where students and speakers were seemingly barred based on their speech. The ambiguous language of the order, including references to a “replacement of the culture,” suggests an intent to review and potentially punish foreign nationals for speech that would typically be protected.
To be clear, speech that calls for violence is generally protected by the First Amendment. As we have previously written, calls for genocide or chanting “From the river to the sea,” though listeners may be offended or deeply upset, are generally constitutionally protected. Denying visas or deporting anyone who engages in such speech will create a chilling effect, deterring foreign nationals from participating in lawful protests and demonstrations.
But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea.
While the driving force behind this executive order is the current Israel-Hamas conflict, there is no reason other than political whim that efforts to punish foreign nationals for their speech would stay confined to one side of that issue, or to the Israeli-Palestinian issue at all. If those targeted for “espousing hateful ideology” are today likely to be those supporting Hamas, a new government could aim such efforts at supporters of Israel’s military efforts in the coming years. Those from other nations experiencing ethnic or religious conflict, from Ukraine to Myanmar to Burkina Faso, could also face adverse immigration decisions for expressing their views.
Why (most) calls for genocide are protected speech
News
Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.
Because this executive order is directed at foreign nationals, the legal First Amendment issues (as distinct from the cultural free speech questions) are complicated. The Supreme Court noted in Bridges v. Wixon that the freedom of speech is accorded to resident aliens, but other precedent upholds immigration consequences based on viewpoint, and immigration officials have targeted foreign nationals for deportation for otherwise-protected speech.
In the 1904 caseUnited States Ex. Rel. John Turner v. Williams, the Court upheld a law that allowed the deportation of “anarchists.” In the 1954 case Galvan v. Press, the Court upheld a law that allowed the deportation of non-citizens for belonging to the Communist Party. (Interestingly, statutory prohibitions on the naturalization of anarchists and members of the Communist Party still exist.)
But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea. Establishing a system that allows for the routine deportation of foreign nationals based solely on their otherwise protected speech would erode our national commitment to freedom of expression as a uniquely American cultural value.
In the wake of the recent Executive Orders on DEI, gender identity and immigration, higher ed institutions, like so many other organizations, are assessing the impacts and formulating next steps.
Amid the inevitable changes that lie ahead, it’s important to remember that the role of HR in creating and sustaining a higher ed workplace that provides access and opportunity for all employees hasn’t changed. The programs, policies, processes and language we use to support this work may need to evolve, but the work and the institutional values it supports remain the same.
We can still:
Promote equitable work and career pathing opportunities and pay for all employees.
Cultivate inclusive learning and working communities.
Create a workplace culture that embraces respect and civil discourse.
Level the playing field for everyone by working to remove bias, reviewing outdated policies, and creating transparency.
Reinforce institutional values by ensuring that all employees feel connected and supported.
However, as we review and evaluate the work we’re doing, we have the opportunity to do so with fresh eyes, reframing it in ways that are both purpose-driven and inclusive. For example:
Communities of people with diverse backgrounds and life experiences create opportunities for community members to grow, both personally and professionally. To support a diverse workforce, institutions must explore ways to generate a more diverse applicant pool.
Access, opportunity and equitable pay for all employees promote job satisfaction, recruitment and retention. To support access and opportunity, institutions must identify and remove roadblocks to opportunity. To support equity in pay, institutions must ensure their compensation structures support these efforts.
A safe and welcoming work environment fosters community and collaboration. To create a work environment that’s welcoming and psychologically safe, institutions must ensure that systems, policies and processes are free from discriminatory practices.
If you have resources or ideas to share with other CUPA-HR members regarding ways that you and your HR colleagues are refining your approach to creating and sustaining an inclusive campus community, please email them to [email protected]. Your submission will be treated as confidential and, if shared, will be described in terms that will not identify your institution.
You’re Not Alone
We know that HR leaders are often caught in the middle as different groups of employees and administrators express strong opinions and feelings regarding changes we must implement. In the coming weeks, CUPA-HR will share guidance and support to help you make changes to programs, policies and procedures and communicate these changes to the campus community.
We are also hosting webinars focused on the recent Executive Orders, as well as the rollback of the Title IX regulations. And we’ll continue to keep you informed about future Executive Orders and legislation, as well as potential actions we should take as higher education HR leaders.
The higher ed HR community has proved time and again how strong and resilient it is. Thanks for all the ways you lead and support your organizations, your employees and your CUPA-HR community.
President Donald Trump is expected to sign an executive order today threatening action against international students in the United States for their involvement in campus protests related to Israel and Hamas.
Per reports, President Trump promises to “quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before,” and to deport students who joined “pro-jihadist protests.”
The revocation of student visas should not be used to punish and filter out ideas disfavored by the federal government. The strength of our nation’s system of higher education derives from the exchange of the widest range of views, even unpopular or dissenting ones.
Students who commit crimes — including vandalism, threats, or violence — must face consequences, and those consequences may include the loss of a visa. But if today’s executive order reaches beyond illegal activity to instead punish students for protest or expression otherwise protected by the First Amendment, it must be withdrawn.
Along with several immigration-related executive orders and actions issued on Inauguration Day, President Trump signed an executive order titled “Protecting the American People Against Invasion.” The EO sets several directives for U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to enforce immigration law against immigrants without permanent legal status in the U.S. and could implicate employers the government deems as “facilitating” the presence of such individuals.
Sections 4 and 5 of the EO establish civil and criminal enforcement priorities for relevant federal agencies. Specifically, the EO directs the secretary of Homeland Security to enable ICE and USCIS to set priorities for their agencies that would ensure successful enforcement of final orders of removal. Additionally, Section 8 of the EO directs increased enforcement action in the form of civil fines and penalties. The EO directs the secretary of Homeland Security to ensure assessment and collection of all fines and penalties from individuals unlawfully present in the U.S. and, notably, those who facilitate such individuals’ presence in the U.S.
Depending on how the agencies respond to this order, these three sections of the EO could lead to an uptick in worksite enforcement action. As a result of this EO, agencies could take increased enforcement action for employment-related immigration law, which could lead to agency actions such as Form I-9 audits and potential investigations and worksite visits related to immigration compliance. Employers who are not in compliance with federal immigration laws could be considered as entities that potentially “facilitate” the presence of immigrants without permanent legal status, which could lead to significant fines and other penalties for the employers.
Next Steps for HR Leaders
CUPA-HR has always worked to help you ensure that your institution’s Form I-9 processes are in compliance with federal requirements, and we’ve partnered with USCIS for many years to provide periodic guidance, support and resources. We also understand that it is sometimes a challenge to ensure total compliance for large, sprawling campuses and that some of you have employees at worksites across your state, the country and the globe. Through speeches and actions like this executive order, the Trump administration has made it clear that they intend to focus enforcement efforts on immigrants without permanent legal status and businesses employing them. As noted above, it is possible that there could be I-9 audits and site visits to ensure compliance. Penalties for noncompliance could include very large fines and loss of federal funding.
In light of this EO, it is vital for institutions to review their compliance with immigration laws regarding employment eligibility and work authorization. There are several questions HR leaders should ask themselves when reviewing compliance:
If you were notified tomorrow that your institution’s Form I-9 records were going to be audited in the coming weeks, where would your institution be most vulnerable?
What actions do you need to take today to address any potential vulnerabilities?
Do your presidents, provosts and other campus leaders understand and appreciate the magnitude of this potential challenge?
What changes do you need to make to your institution’s hiring and onboarding practices now to ensure compliance moving forward?
CUPA-HR will continue to monitor for any additional updates related to the Form I-9 and other hiring processes related to work authorization. If you need additional guidance or resources, please review the CUPA-HR I-9/E-Verify Toolkit.
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Dive Brief:
President Donald Trump signed an executive order Tuesday targeting diversity, equity and inclusion programs at colleges and other “influential institutions of American society,” escalating the Republican-led crusade against DEI.
The executive order declares that DEI policies and programs adopted by colleges and others can violate federal civil rights laws and directs federal agencies to “combat illegal private sector DEI preferences, mandates, policies, and activities.”
Trump’s order also directs each federal agency to identify up to nine corporations or associations, large foundations, or colleges with endowments over $1 billion as potential targets for “civil compliance investigations.”
Dive Insight:
Republicans have railed against diversity and inclusion programming on college campuses for years, with state lawmakers enacting 14 pieces of legislation that restrict or bar DEI since 2023, according to a tally from The Chronicle of Higher Education.
Federal lawmakers have likewise targeted DEI programs at colleges in hearings and proposed bills. With Trump’s flurry of recent executive orders, however, the newly sworn-in president has made clear that his administration will ramp up the fight against DEI at the federal level.
“Institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion,’” the order states.
Jeremy Young, director of state and higher education policy at PEN America, a free expression organization, voiced concerns about the executive order.
“It launches a series of investigations into universities for merely having a DEI office or promoting DEI, diversity work on their campus,” Young said. “That, to us, is a pretty straightforward violation of the intellectual freedom of a university to promote ideas of all kinds on its campus.”
At minimum, government investigations could amount to a nuisance, but at maximum, they could lead to lawsuits and actions against colleges, Young added.
Young also said the order is designed to sow division in the higher education sector by targeting colleges with endowments worth $1 billion or more.
“My hope is that higher education institutions will see this attack on a subset of their members as an attack on everyone,” Young said.
Trump’s new order also lacks a clear definition of what it deems as DEI programs or policies, Young said, raising concerns about unconstitutionally vague language.
State bills banning DEI similarly don’t have clear definitions, Young said.
“They become effectively a license to censor,” Young said. “Any government agency looking at them can claim that something is DEI because there is no actual definition in the order.”
Trump’s order directs the nation’s attorney general, in consultation with federal agencies, to propose potential litigation against the private sector to enforce civil rights laws. It also orders agencies to identify “potential regulatory action and sub-regulatory guidance.”
Trump also directed the U.S. education secretary to work with the nation’s attorney general to issue guidance to federally funded colleges within the next 120 days regarding how they can comply with the landmark 2023 Supreme Court decision that struck down race-conscious admissions. Trump’s nominee for education secretary, former World Wrestling Entertainment president and CEO Linda McMahon, is awaiting Senate confirmation hearings for the post.
Tuesday’s executive order comes after he signed several other directives on the first day of his presidency meant to dismantle DEI efforts within the federal workforce.
Tim Walberg, the Michigan Republican who chairs the House Committee on Education and Workforce, lauded the executive actions against DEI.
“DEI has bloated education budgets while telling students what to think instead of how to think,” Walberg said in a Wednesday statement. “I commend the Trump administration for dismantling DEI.”
Tuesday’s executive order clarifies that instructors at colleges that get federal aid are not prohibited from “advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order” in their academic courses.
But Young said he hasn’t seen any legislation or executive order claiming to restrict DEI that doesn’t also restrict faculty instruction or roles in some way. “We have come to the conclusion that it may be impossible to do that,” Young said.
Trump’s order also says it does not prevent colleges from engaging in speech protected by the First Amendment.
Young, however, said language like this amounts to a meaningless statement, as the First Amendment supersedes an executive order.
“The problem is that the language plainly does violate the First Amendment, and therefore it’s going to be years before the courts adjudicate it and, meanwhile, people have to live under these executive orders,” Young said.
Let’s begin with President Donald Trump’s second inaugural address (Jan. 20), if only to contrast it with last week’s condemnation of his lawsuit against J. Ann Selzer, the Des Moines Register, and its parent company Gannett (see also FAN 451, 449 and 436).
Ready? Here it goes:
After years and years of illegal and unconstitutional federal efforts to restrict free expression, I will also sign an executive order to immediately stop all government censorship and bring back free speech to America.
Never again will the immense power of the state be weaponized to persecute political opponents, something I know something about. We will not allow that to happen. It will not happen again. Under my leadership, we will restore fair, equal, and impartial justice under the constitutional rule of law.
Never again! It will not happen again! Stop all government censorship!
And there’s more: When it comes to free speech, all views will be treated with “impartial justice.” Against that promissory note, let us turn to his unprecedented executive order as discussed below.
Executive Order: Jan. 20, 2025
By the authority vested in me as President by the Constitution and the laws of the United States of America, and section 301 of title 3, United States Code, it is hereby ordered as follows:
What follows is a brief description of the Executive Order along with some preliminary comments.
Section 1. Purpose
This section opens with an attack on the Biden administration’s alleged “trampl[ing of] free speech rights” when it comes to “online platforms.” Such abridgments, it is asserted, were done in the name of combating “misinformation,” “disinformation,” and “malinformation” in order to advance the Biden administration’s “preferred narrative.”
Note at the outset that this section is primarily addressed to reversing the Biden administration’s apparent censorship of online expression. Even so, there is a generalized statement: “Government censorship of speech is intolerable in a free society.”
Keep that in mind when it comes to what is set out in Section 4 below.
Section 2. Policy
This section focuses on four commitments: (i) securing free speech rights of all “American[s]”; (ii) mandating that “no [federal] agent engages in or facilitates” abridgments of free speech; (iii) ensuring that no “taxpayer resources” are used to abridge free speech; and (iv) identify and correct any past federal abridgments of free speech.
Unlike Section 1, the explicit focus of this section is not confined to any free speech abridgments committed by the previous administration. The focus is on securing free speech rights of “citizens.” Hence, the policy is directed to an affirmative obligation of the Executive branch to protect free speech rights. The operative action words are “secur[ing],” “ensur[ing],”and“identify[ing].”
Thus, there is a duty to ensure that no federal officers are used or taxpayer dollars expended in violation of the Speech Clause of the First Amendment. Also, unlike Section 1, much of Section 2 applies to all free speech rights and not those confined to social media. There is also a promise to investigate for any and all existing abridgments of free speech committed by “past misconduct by the Federal Government.”
Section 3. Ending Censorship of Protected Speech
Like Section 1, this section focuses on the actions of the past administration (i.e., abridgments committed “over the past four years”). This section, unlike section 2, explicitly applies to federal departments and agencies, though it also applies to federal officers, agents and employees. Such agencies and departments must comply with the requirements of Section 2.
The second portion of this section deals with the investigative powers of the attorney general working “in consultation with the heads of executive departments and agencies.” Again, this investigation is confined to wrongs committed by the past administration. Following such investigations, a “report” shall be submitted to the President suggesting “remedial actions.”
Much of this section seems repetitive of what is set out in Section 2, save for the references to federal departments and agencies and the need for investigation followed by a report to the President. Note that under Section 3, remedial action is suggested, whereas under Section 4, per this Executive Order, remedial action against the United States and its officers is prohibited.
Section 4. General Provisions
In order to appreciate the import of this clause, it is best to quote the final provision (sub-section (c) it in its entirety (with emphasis added):
This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The opening provisions of this Section refer to authorizations of grants of executive power. The Order is to be implemented consistent with the “applicable law and subject to the availability of appropriations.”
Importantly, While the First Amendment is a prohibition against the federal government and all its officers, this Executive Order:
applies to free speech wrongs committed during “the last 4 years” or “past misconduct by the Federal Government” or abridgments occurring “over the last 4 years,” though there is a passing mention of securing the free speech rights of all “American[s].”
Yet even as against such past alleged free speech wrongs, the sole remedy is by way of corrective action taken by the Executive Branch.
If such corrective action, or any other actions taken by Executive officials in pursuance of this Executive Order, themselves abridge First Amendment rights, there is no independent remedy secured by the Order.
FIRE weighs in with its own free speech recommendations to the President
Below are the four general categories of recommendations made (see link above for specifics):
Support the Respecting the First Amendment on Campus Act
Address the abuse of campus anti-harassment policies
Rein in government jawboning
Protect First Amendment rights when it comes to AI
“As president, Trump inherits the privilege and the obligation to defend the First Amendment rights of all Americans, regardless of their viewpoint — and FIRE stands ready to help in that effort.”
Justice Ketanji Brown Jackson in free expression mode at the Inauguration?
Justice Ketanji Brown Jackson at the inauguration of Donald Trump on Jan. 20, 2024. (Imagn Images)
Excerpts from Virginia Court of Appeals decision in Patel v. CNN, Inc.
Kash Patel, seen here at the 2023 Conservative Political Action Conference, is President Donald Trump’s nominee to head the FBI. (Consolidated News Photos / Shutterstock.com)
An excerpt from today’s Virginia Court of Appeals decision in Patel v. CNN, Inc., decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages).
Abortion picketing case lingers on docket
The cert. petition in the abortion picketing case, with Paul Clement as lead counsel, has been on the Court’s docket since July 16 of last year. It has been distributed for conferences seven times, the last being Jan. 21. In his petition, Mr. Clement (joined by Erin Murphy) explicitly called on the Court to “overrule Hill v. Colorado.” (See FAN 433, July 31, 2024))
Paul Clements and Erin Murphy
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 (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
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.
On January 20, the Trump administration issued an executive order (EO) titled, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The EO was one of several executive orders and actions published by the Trump administration on its first day in office.
The EO states that the United States government will recognize only two sexes — male and female — and defines sex as “an individual’s immutable biological classification as either male or female.” The definition continues to say that sex is “not a synonym for and does not include the concept of ‘gender identity.’” The executive order also defines “woman” and “girl” and “man” and “boy” to be adult and juvenile human females and males, respectively.
The EO orders the secretary of health and human services to provide guidance expanding on the definitions established in the EO. It also directs all federal agencies to use the definitions set forth in the order “when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.” All federal agencies will also be directed to use the term “sex” and not “gender” when administering or enforcing sex-based distinctions in applicable federal policies and documents.
It also appears that the Trump administration hopes to codify these definitions into law through Congressional action. Specifically, the EO directs the assistant to the president for legislative affairs to provide the president proposed bill text to codify the definitions set in the order within 30 days.
The EO also discusses the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation or gender identity. The EO states that the Biden administration argued that the Bostock decision “requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act,” which the Trump administration states is “legally untenable.” As such, the EO directs the U.S. attorney general to issue guidance to federal agencies to “correct the misapplication” of Bostock to “sex-based distinctions in agency activities.” The EO also directs the attorney general to issue guidance and assist federal agencies in protecting sex-based distinctions.
The EO directs all federal agencies to submit an update to the Trump administration on implementation of this order within 120 days. The update is required to include information on changes to agency documents and agency-imposed requirements on federally funded entities, including federal contractors, that were implemented to comply with the order. The head of each federal agency is also directed to rescind all guidance documents inconsistent with the requirements of the order, and the EO includes a partial list of documents that the administration deems as inconsistent, including several Department of Education guidance documents on Title IX and the Equal Employment Opportunity Commission’s 2024 Enforcement Guidance on Harassment in the Workplace.
Finally, the EO directs agencies to take “all necessary steps, as permitted by law, to end the federal funding of gender ideology” and to “assess grant conditions and grantee preferences” to “ensure grant funds do not promote gender ideology.”
Federal agencies will soon begin to take action and announce guidance to comply with the EO requirements. Institutions should therefore be aware of forthcoming guidance from the Department of Education on Title IX as a result of this EO. There could also be future ramifications for institutions that receive federal funds, including grants and contracts. CUPA-HR will continue to monitor for agency actions as well as any additional updates from the Trump administration as it relates to sex and gender-related policy.
