On Nov. 24, the Pentagon announced it would initiate a review of Sen. Mark Kelly, a retired Navy captain. The announcement comes six days after Kelly and other elected officials released a video calling on U.S. troops to refuse illegal orders. The group did not identify any specific illegal orders. Notably, service members already take an oath to uphold the Constitution.
The Pentagon’s decision follows a Truth Social post from President Trump, saying that the video was “SEDITIOUS BEHAVIOR, punishable by DEATH.” He later walked back the post, saying, “I would say they’re in serious trouble. I’m not threatening death, but I think they’re in serious trouble. In the old days, it was death. That was seditious behavior.”
The following statement can be attributed to Greg Lukianoff, president and CEO of the Foundation for Individual Rights and Expression:
The Pentagon’s actions are clear retaliation for something Sen. Kelly is entirely within his rights to say. America’s servicemembers already take an oath to uphold the Constitution, which includes not following illegal orders. The argument that the video’s message is sedition, or otherwise unprotected by the First Amendment, is flatly wrong.
A federal judge in Boston ruled in favor of Harvard University Wednesday.
Photo illustration by Justin Morrison/Inside Higher Ed | Mandel Ngan and Joseph Prezioso/AFP/Getty Images
A judge ruled Wednesday that the Trump administration illegally froze more than $2 billion in research funding at Harvard University over how officials handled alleged campus antisemitism.
Judge Allison Burroughs of the U.S. District Court in Boston found that the federal government violated Harvard’s First Amendment rights and the U.S. Civil Rights Act in her 84-page opinion, writing, “We must fight against antisemitism, but we equally need to protect our rights, including our right to free speech, and neither goal should nor needs to be sacrificed on the altar of the other.” She added that Harvard is “currently, even if belatedly” taking action against antisemitism.
Harvard sued the Trump administration in April after the federal government froze $2.2 billion in funding when the Ivy League university rejected demands to enact a far-reaching slate of changes that would have overhauled admissions, governance, hiring and much more.
Burroughs, an Obama appointee, appeared skeptical of the Trump administration’s claims in a July hearing, telling government lawyers that they failed to back up claims Harvard did not appropriately address antisemitism. She also ruled against the administration in another case in June, temporarily blocking the government from halting Harvard’s ability to host international students.
Burroughs wrote Wednesday that “Harvard was wrong to tolerate hateful behavior for as long as it did,” but “the record … does not reflect that fighting antisemitism” was the “true aim” of the defendants and such efforts “cannot be accomplished on the back of the First Amendment.”
The ruling comes as rumors of a Harvard settlement with the federal government continue to swirl. The Trump administration has demanded a $500 million settlement that would force other changes to admissions and discipline policies, similar to agreements made by its Ivy League peers Columbia University and Brown University.
Harvard President Alan Garber said in a statement Wednesday that “the ruling affirms Harvard’s First Amendment and procedural rights, and validates our arguments in defense of the University’s academic freedom, critical scientific research, and the core principles of American higher education.”
Wednesday’s legal ruling also prompted celebration from free speech groups and others.
“Today, a federal court echoed what [the Foundation for Individual Rights and Expression] has said all along: The Trump administration trampled Harvard University’s First Amendment rights and broke civil rights law when it yanked billions in federal grants and contracts over alleged Title VI violations,” FIRE wrote in a statement.
“This is a huge win for all of American higher education, for science, and for free and critical thought in this country,” said Todd Wolfson, president of the American Association of University Professors. “Time and again, Trump has tried to restrict speech and cripple lifesaving university research. As today’s victory shows, Trump’s war on higher education is unconstitutional. We will continue to stand up and fight back against these attempts to dismantle our universities, terrify students and faculty, and punish hospitals and scientists for not bowing to authoritarianism. And we will win.”
The American Council on Education praised Burroughs’s ruling.
“We are pleased to see a federal court affirm what we always knew to be true: The Trump administration has ignored the law in pursuing politically motivated attacks on Harvard and other institutions,” said Peter McDonough, general counsel for ACE. “We urge the administration to abandon these harmful attacks and instead work to restore the partnership that has made colleges and universities the engine of American innovation for decades.”
Judging from the Department of Education’s response to the ruling, that seems unlikely.
“In an unsurprising turn of events, the same Obama-appointed judge that ruled in favor of Harvard’s illegal race-based admissions practices—which was ultimately overturned by the Supreme Court—just ruled against the Trump Administration’s efforts to hold Harvard accountable for rampant discrimination on campus,” spokesperson Madi Biedermann wrote in an emailed statement. “Cleaning up our nation’s universities will be a long road, but worth it.”
In a post on X, Education Secretary Linda McMahon added, “The Trump Administration is fully committed to appealing this erroneous decision and will ensure that new taxpayer funding is not invested at any university that steadfastly refuses to uphold civil rights for all students.”
The Trump administration on Friday released a proposed rule that would exclude organizations deemed to have a “substantial illegal purpose” from the Public Service Loan Forgiveness program, a move that could disqualify thousands of borrowers working for advocacy and legal aid organizations from having their student debt canceled.
The Notice of Proposed Rulemaking, published in the Federal Register and scheduled to take effect July 1, 2026, follows President Trump’s March executive order directing the Department of Education to revise PSLF eligibility criteria. The proposed changes would give the Secretary of Education broad authority to determine which employers qualify for the program that has provided loan forgiveness to more than one million public servants.
Under the proposed rule, organizations could lose PSLF eligibility for activities including “aiding or abetting violations of Federal immigration laws,” “engaging in a pattern of aiding and abetting illegal discrimination,” or “engaging in violence for the purpose of obstructing or influencing Federal Government policy.” The Department would use a “preponderance of evidence” standard to make determinations, and employers found ineligible would face a 10-year waiting period before they could regain qualifying status.
The rule specifically targets several types of activities the administration considers problematic, including providing certain medical treatments to transgender minors, assisting with immigration cases, and various forms of protest activity that result in state law violations such as trespassing or disorderly conduct.
Kristin McGuire, President and CEO of Young Invincibles, characterized the proposal as “continuing its attacks on education, deliberately targeting advocacy organizations whose work doesn’t align with its ideological agenda.”
“By using a distorted and overly broad definition of ‘illegal activities,’ the Trump administration is exploiting the student loan system to attack political opponents,” McGuire said. “This is an illegal move by the administration; eligibility for Public Service Loan Forgiveness (PSLF) is defined by law, not political ideology.”
The proposed rule emerged from a contentious negotiated rulemaking process that concluded in July without consensus. According to the Department’s documentation, the negotiator representing civil rights organizations dissented from the draft regulations, preventing the committee from reaching agreement.
The Department of Education estimates the rule would result in budget savings of $1.537 billion over 10 years by reducing the number of borrowers who achieve loan forgiveness. Administrative documents suggest the changes could affect borrowers in multiple sectors, including legal services, healthcare, social work, and education.
Organizations operating under shared federal tax identification numbers could see entire agencies lose eligibility if one component is found to engage in disqualifying activities. The rule includes provisions allowing the Secretary to separate organizations under shared identifiers, but grants ultimate authority to the Department to make such determinations.
The proposed rule draws heavily on the Internal Revenue Service’s “illegality doctrine,” which denies tax-exempt status to organizations with substantial illegal purposes. The Department argues this approach ensures consistency across federal agencies and prevents taxpayer funds from subsidizing activities the government aims to prevent.
Employers would be required to certify on PSLF application forms that they do not engage in activities with substantial illegal purpose. Those who fail to provide such certification would immediately lose qualifying status.
The rule includes safeguards requiring notice and opportunity to respond before final determinations, and allows employers to maintain eligibility if they submit approved corrective action plans before losing qualification.
According to the Department’s regulatory impact analysis, implementation would cost between $1.5 million and $3 million annually during the first two years. The analysis acknowledges that compliance costs for employers would vary significantly, with larger organizations potentially facing higher expenses for legal consultation and operational adjustments.
The Department projects reduced confusion among borrowers due to clearer eligibility criteria, though it acknowledges potential disruptions during the transition period. The analysis notes that borrowers working for disqualified employers would need to find new positions with qualifying organizations to continue progress toward loan forgiveness.
The proposed rule will undergo a 30-day public comment period following publication in the Federal Register on August 18. The Department must review all submitted comments before issuing a final rule.
If implemented as proposed, the new eligibility requirements would apply only to activities occurring on or after July 1, 2026. Borrowers whose employers lose qualifying status would receive notification from the Department and would no longer earn qualifying payment credit while employed by those organizations.
The Public Service Loan Forgiveness program, established in 2007, allows borrowers to have remaining federal student loan balances canceled after making 120 qualifying monthly payments while working full-time for eligible government agencies or qualified nonprofit organizations. The program has faced criticism and administrative challenges since its inception, with many borrowers initially denied forgiveness due to complex eligibility requirements.
Young Invincibles and other advocacy organizations indicated they plan to submit detailed comments opposing the rule and may pursue legal challenges if the final version proceeds as proposed.
The Education Department said Thursday that federal money shouldn’t fund dual enrollment, adult education and certain career and technical education for “illegal alien” students, whether they’re adults or K–12 pupils who are accessing postsecondary education.
Department officials said in a news release that they are rescinding parts of a 1997 Dear Colleague letter that had allowed undocumented students to access those programs.
In the interpretative rule published on the Federal Register, the department declared that “non-qualified alien adults are not permitted to receive education benefits (postsecondary education benefits or otherwise) and non-qualified alien children are not eligible to receive postsecondary education benefits and certain other education benefits, so long as such benefits are not basic public education benefits. Postsecondary education benefits include dual enrollment and other similar early college programs.”
Education Secretary Linda McMahon said in the release that “under President Trump’s leadership, hardworking American taxpayers will no longer foot the bill for illegal aliens to participate in our career, technical, or adult education programs or activities. The department will ensure that taxpayer funds are reserved for citizens and individuals who have entered our country through legal means who meet federal eligibility criteria.”
Augustus Mays, vice president of partnerships and engagement at EdTrust, an education equity group, said in a statement that the change “derails individual aspirations and undercuts workforce development at a time when our nation is facing labor shortages in critical fields like healthcare, education, and skilled trades. This decision raises barriers even higher for undocumented students who are already barred from accessing federal financial aid like Pell Grants and student loans.
“Across the country, we’re seeing migrant communities targeted with sweeping raids, amplified surveillance, and fear-based rhetoric designed to divide and dehumanize,” Mays said. “Policies like this don’t exist in a vacuum. They are rooted in a political agenda that scapegoats immigrants and uses fear to strip rights and resources from the most vulnerable among us.”
The Trump administration’s directives on diversity, equity and inclusion have wreaked havoc across the higher education landscape. Confusion persists about whether all DEI activities are forbidden or just ones that are officially illegal. To top it off, there’s much bewilderment about what exactly constitutes an “illegal DEI” activity.
The ambiguity is a feature, not a bug. When people are confused about what’s legal or not, they’ll overcorrect out of fear. As a result, we see colleges and universities scrubbing DEI websites and cutting diversity-related programming. The outcome? A hasty, often over-the-top retreat from efforts that serve students and faculty alike.
Critically, some of the programs deemed illegal by the Trump administration have not been ruled unlawful in the courts, such as scholarships and prizes that consider race or ethnicity in the selection process. The more accurate term to describe them is “vulnerable” rather than “illegal.” In Students for Fair Admissions v. Harvard, the Supreme Court specifically struck down a form of race-conscious admissions. While a court technically could apply SFFA in the future to render consideration of race in scholarships and recruitment efforts illegal, that day has yet to come, despite the current administration’s faulty interpretation of the ruling.
Even Ed Blum, who organized the SFFA lawsuits, acknowledges this distinction, as reported in Inside Higher Ed: “Blum doesn’t actually believe the [SFFA] decision itself extends to those programs [e.g., race-conscious scholarships, internships or pre-college programs]. He does think they’re illegal—there just hasn’t been a successful case challenging them yet.”
“I haven’t really made myself clear on this, which is my fault,” Blum told Inside Higher Ed in February, “but the SFFA opinion didn’t change the law for those policies.”
So what does that mean for colleges and universities? The fuzziness over the legality of traditional race-conscious scholarships and recruitment programs will remain until the question is decided by the courts. While the majority ruling in SFFA led some to assume that all race-conscious programs will be deemed unconstitutional, the outcome is unknown. Courts could view the stakes or dynamics of nonadmissions programs (e.g., scholarships, outreach) as differing enough from the hypercompetitive context of selective college admissions to allow continued consideration of race. Institutions and organizations could also argue that race-conscious programs are needed to address specific, documented historic discrimination. This argument is different from defending race-conscious initiatives due to broad societal discrimination, as noted by the nonpartisan Congressional Research Service.
Likely, many institutions and organizations will move away from using race/ethnicity in the selection process for scholarships and other nonadmissions programs, out of fear of litigation and threats of federal funding being withdrawn. However, they may retool selection processes to consider factors related to their missions and goals, such as prioritizing those who show a commitment to supporting historically underserved populations. Further, if the ruling in SFFA is going to be used to attack nonadmissions programs, we can’t forget that it also affirms the right of programs to consider individuals’ experiences related to race. As Chief Justice John Roberts wrote, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
The Ph.D. Project, the focus of Title VI investigations by the Department of Education, is an example of a program that was, in prior iterations, vulnerable but not necessarily illegal. The department announced last month that it had launched investigations of 45 universities over their partnerships with the Ph.D. Project, alleging that the nonprofit, which offers mentorship, networking and support for prospective Ph.D. candidates in business, “limits eligibility based on the race of participants.”
The Ph.D. Project has already said that it changed its eligibility criteria earlier this year to be open to anyone who “is interested in helping to expand and broaden the pool of [business] talent”—so what will become of the investigations? Quite possibly, the Education Department will accuse institutions of breaking the law for partnering with an outreach program that in prior iterations considered race in its selection process—which is how the department likes to interpret SFFA, but that is still unsettled legal territory. Courts likely won’t hear a case on the Ph.D. Project because the program has already changed its selection criteria, so we still won’t know whether it’s legal or not to consider race in outreach programs. Until that question goes to court, we’ll probably have institutional decision-making driven more by the chilling effects of the Title VI investigations as opposed to actual law.
While programs that consider race in selection criteria are vulnerable, there are plenty of diversity-related programs and initiatives that are not, or should not be as long as they are open to all students. Programs like speaker series, workshops, lunch and learns, training programs, cultural events, resource websites, racial/ethnic or culturally focused student organizations, administrative infrastructure, and task forces related to advancing a more supportive and inclusive environment—all of these can continue to play a critical part in advancing an institution’s mission and goals.
In spite of this, the Trump administration recently proclaimed that DEI programs fuel “division and hatred” and ordered Harvard to “shutter such programs.” However, in previous communications, even the Trump administration has recognized that common DEI initiatives “do not inherently violate federal civil rights laws,” as noted by a group of leading law faculty. The directive to Harvard is serious overreach on multiple levels. We can only hope that Harvard will not capitulate to the administration’s demands and will defend its rights as an institution.
Over all, institutions must resist panic-driven overcorrections. When vulnerable programs are threatened, institutions with the resources to do so should defend them in court. In other circumstances, retooling programs, rather than eliminating them, may be necessary. Institutions should not abandon diversity, equity and inclusion efforts out of fear; instead, they should seek to support diversity both lawfully and well.
The Trump administration’s strategy is clear: sow doubt and encourage institutions to retreat. Instead of gutting diversity-related efforts wholesale, institutions need to take a more thoughtful approach. Our students depend on it, and so does the future of education.
Julie J. Park is a professor of education at the University of Maryland, College Park, and served as a consulting expert on the side of Harvard College in SFFA v. Harvard. She is the author of the upcoming book Race, Class, and Affirmative Action: A New Era in College Admissions, as well as two other books on race-conscious admissions.
President Trump posted a message on Truth Social this morning that put social media and college campuses on high alert. He wrote:
Colleges can and should respond to unlawful conduct, but the president does not have unilateral authority to revoke federal funds, even for colleges that allow “illegal” protests.
If a college runs afoul of anti-discrimination laws like Title VI or Title IX, the government may ultimately deny the institution federal funding by taking it to federal court, or via notice to Congress and an administrative hearing. It is not simply a discretionary decision that the president can make.
President Trump also lacks the authority to expel individual students, who are entitled to due process on public college campuses and, almost universally, on private campuses as well.
Today’s message will cast an impermissible chill on student protests about the Israeli-Palestinian conflict. Paired with President Trump’s 2019 executive order adopting an unconstitutional definition of anti-Semitism, and his January order threatening to deport international students for engaging in protected expression, students will rationally fear punishment for wholly protected political speech.
As FIRE knows too well from our work defending student and faculty rights under the Obama and Biden administrations, threatening schools with the loss of federal funding will result in a crackdown on lawful speech. Schools will censor first and ask questions later.
Even the most controversial political speech is protected by the First Amendment. As the Supreme Court reminds us, in America, we don’t use the law to punish those with whom we disagree. Instead, “[a]s a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Misconduct or criminality — like true threats, vandalism, or discriminatory harassment, properly defined — is not protected by the First Amendment. In fact, discouraging and punishing such behavior is often vital to ensuring that others are able to peacefully make their voices heard.
However, students who engage in misconduct must still receive due process — whether through a campus or criminal tribunal. This requires fair, consistent application of existing law or policy, in a manner that respects students’ rights.
President Trump needs to stand by his past promise to be a champion for free expression. That means doing so for all views — including those his administration dislikes.
On February 14, the Department of Education’s Office for Civil Rights (OCR) published a “Dear Colleague” letter “to clarify and reaffirm the nondiscrimination obligations of schools … that receive federal financial assistance” from the department. The letter specifically states that “Federal law … prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life” (emphasis added).
The department warns that “institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding,” and cites the government’s authority to do so under “Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution, and other relevant authorities.”
The letter reiterates institutions’ existing legal requirements under federal antidiscrimination laws and is intended to provide clarity to institutions of their nondiscrimination obligations. However, in addition to pointing to existing federal antidiscrimination laws, OCR expands upon the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA) — which banned the use of race-conscious admissions practices at institutions of higher education — to apply more broadly to programs and practices at institutions. Specifically, OCR states that the court’s decision and applicable federal law prohibits covered entities “from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”
OCR provides a few examples of practices that would be illegal under federal antidiscrimination law. One example, which was prohibited in the text of the SFFA decision, is using “students’ personal essays, writing samples, participation in extracurriculars, or other cues” as a means to determine a student’s race to grant preferences to that individual. Additionally, the letter states that using proxies like the one just described is illegal on the systematic level, stating that it is unlawful for institutions to eliminate standardized testing to “achieve a desired racial balance or to increase racial diversity.” In both examples, OCR appears focused on the motive for the action rather than the action itself. Thus, an institution can choose to use or not use standardized tests or focus on certain criteria in applications as long it is not doing so for an impermissible reason.
The letter also says that other programs violate antidiscrimination laws in less direct ways. Specifically, the letter states that “DEI programs … frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not” and that “such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes.” They assert that these programs ultimately deny students the ability to fully participate in “the life of a school.”
The letter states that the Department of Education will begin to assess institutional compliance with antidiscrimination law and regulations no later than 14 days after of the date of publication of the letter. In the letter, OCR advises schools to:
Ensure that their policies and actions comply with existing civil rights law.
Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends.
Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.
Possible Implications for Higher Education HR Professionals
As noted above, the letter specifies using race in hiring, promotion and compensation decisions is prohibited under federal law, though the Department of Education does not provide examples of hiring and compensation practices that could be violations of such laws. While the primary federal laws prohibiting discrimination in employment are Title VII of the Civil Rights Act of 1964 and similar equal employment opportunity laws enforced by the Equal Employment Opportunity Commission (EEOC), Title VI can apply to employment decisions. It is unclear how the department intends to enforce this letter with respect to hiring, promotion and compensation practices and whether the Department of Labor or the EEOC will provide further guidance. CUPA-HR intends to seek clarification from the Education Department and the other agencies.
CUPA-HR is assessing the impact that this enforcement letter will have on institutions and will keep members apprised of further developments related to the Trump administration’s DEI orders.
