Tag: Memo

  • Trump’s ‘domestic terrorism’ memo chillingly targets people by ideology

    Trump’s ‘domestic terrorism’ memo chillingly targets people by ideology

    On Thursday, the White House published a presidential memo — technically, a national security presidential memorandum — outlining its upcoming efforts to combat political violence.

    In the wake of Charlie Kirk’s assassination, a heightened attention to political violence makes sense. But this memo doesn’t focus on actual violence. It includes frequent references to constitutionally protected speech and ideas. 

    While there are quite a few pieces of this order that set off alarm bells, a few of the phrases struck me as especially troubling. Here they are. 

    ‘anti-Americanism, anti-capitalism, and anti-Christianity’

    The memo says: 

    There are common recurrent motivations and indicia uniting this pattern of violent and terroristic activities under the umbrella of self-described “anti-fascism.” [ . . . ] Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.

    This is the most troubling passage in the memo, and there’s stiff competition for that title. This is the White House directly identifying beliefs, pointing the finger at them, and saying, “These are the suspicious people we need to watch.” In America, we shouldn’t target people for their ideologies. We should target them for their actions, full stop. 

    Recent Democratic administrations have engaged in the same guilt-by-association tactics. During the Obama administration, the IRS targeted nonprofit groups with the words “Tea Party” or “Patriots” in their names, identifying groups by ideology and punishing them by subjecting them to extra processes. And its explanation was that this was just a “shortcut” — other organizations with similar profiles had violated IRS rules, so they jumped to targeting groups that used similar words.

    In 2023, the FBI distributed an internal memo linking “ethnically motivated violent extremists” to traditional Catholic ideology, a call for viewpoint-based targeting that was only exposed by a whistleblower and oversight from Congress. In 2022, an internal FBI memo linked the Gadsden flag and other patriotic symbols to violent extremism. And while such links do exist, and it makes sense for law enforcement to identify them, it also risks sweeping up ordinary Americans.

    A man carries a Gadsden flag at a Proud Boys rally in Portland, Oregon, 2019.

    It may well be that some people who engage in politically motivated violence have anti-American beliefs, oppose the traditional family, or dislike organized religion. They should be prosecuted. And if there’s evidence of conspiracy or concrete steps toward violence, that may warrant an investigation. But we cannot start investigating other people simply because they happen to share those beliefs. Doing so would open the door to investigations of any political movement or ideology if any one of its adherents happened to engage in violence. 

    ‘…designation as a ‘domestic terrorist organization’’

    The memo also says:

    [T]he Attorney General may recommend that any group or entity whose members are engaged in activities meeting the definition of “domestic terrorism” in 18 U.S.C. 2331(5) merits designation as a “domestic terrorist organization.”

    Designating something a domestic terrorist organization sounds like a parallel to the process we use for identifying foreign terrorist organizations (FTO). That process was created by Congress in a statute. Being designated as an FTO triggers a number of legal effects, enabling the government to seize assets, revoke visas, bar entry of non-citizens, and prosecute people who provide any direct help to the organization. Congress has the ability to block or revoke FTO designation, and organizations themselves are entitled to judicial review of the decision to include them on a list.

    There is no such process for designating a domestic terrorist organization. In fact, the “domestic terrorist organization” definition proposed here has no legal safeguards and no clear significance. It’s completely made up. It seems an organization so designated will receive extra scrutiny from the federal government until it pleases the attorney general to remove them from the list. Donors, speakers, employees, and members of these organizations will all have their speech chilled for as long as the executive branch sees fit. 

    It’s hard not to compare this to the Hollywood blacklist during McCarthyism. There were, in fact, real Russian spies elsewhere in America, many of them motivated by their ideological commitment to communism. Some of them were passing nuclear secrets to our rival in the middle of a nuclear arms race, the stakes of which were, potentially, catastrophic beyond all human imagination. Many people on the blacklist did have ties to communism or communist sympathies, as well. But putting people on a list because the government didn’t like their politics violated the freedoms we claimed to be protecting. 

    ‘…politically motivated terrorist acts such as organized doxing…’

    “Organized doxing” is a strange phrase. 

    Doxing (or doxxing) is generally defined as publishing private information that makes someone online personally identifiable. It’s also legal in most places, as long as the information was lawfully obtained and isn’t otherwise part of harassment or incitement efforts. Whether you think that’s bad or not, I don’t know that organizing the effort makes it worse. If someone posts your personal information online, your first question isn’t likely to be, “How many people were involved and what was their political purpose?”

    However distasteful it might be in context, doxing is protected speech unless it violates some other existing law. After all, doxing describes much of the basic activity of news media, where otherwise unknown information is found and published, and frequently, that information is personally identifiable. That’s especially true when the “doxing” the government is upset about is information related to public employees in the course of their duties, such as the location of ICE agents.

    A missive from the most powerful man in the world carries so much force that it is, inevitably, a blunt instrument. When the president uses his pen to take aim at anything, it will cause a chilling effect.

    The administration itself has arguably been encouraging coordinated doxing efforts to identify people who said cruel things in the wake of Charlie Kirk’s assassination. When the vice president calls on the public to contact the employers of people who made unkind statements, and there have been groups soliciting submissions of those statements to catalog them, it would take exceptional care on the part of any future participants to avoid their efforts turning into doxing. 

    If organized doxing is a politically motivated terrorist act when an NGO encourages it, but it’s legal when the White House encourages it, the current administration should remember that it will be leaving that loaded gun on the desk of the next president — who may define “permissible doxing” much differently. 

    ‘Investigate institutional and individual funders, and officers and employees of organizations…’

    The memo directs that the National Joint Terrorism Task Force and its local offices shall investigate “institutional and individual funders, and officers and employees of organizations, that are responsible for, sponsor, or otherwise aid and abet the principal actors engaging in” political violence, intimidation, or obstruction of the rule of law. 

    To aid or abet criminal conduct requires knowledge of the conduct. To the extent officers and employees of organizations are knowingly breaking the law, I’d like to think that law enforcement is investigating them anyway. It’s been a few decades since I took criminal law, but I’m pretty sure “investigate people who know they’re breaking the law” was on the first page of the outline. Same with people who are “responsible for” it. 

    So what this memo is adding, then, is to investigate “institutional and individual funders” who “sponsor” the organizations that aid the principal actors engaged in political violence. That reading is also reflected in a call for the use of financial surveillance tools. It’s also consistent with a Justice Department push to investigate a group tied to billionaire investor and Democratic megadonor George Soros.

    If there is evidence that a donor was knowingly funding violence, they should be investigated, but the administration hasn’t actually shown such evidence. They simply assert there is a vast conspiracy on the left — going all the way up to its highest echelons — to fund and foment political violence, and so a sprawling investigation of the president’s ideological and political opponents is justified. 

    We have already seen orders like this get misused

    A missive from the most powerful man in the world carries so much force that it is, inevitably, a blunt instrument. When the president uses his pen to take aim at anything, it will cause a chilling effect.

    For example, when President Trump issued an executive order on gender ideology that prohibited federal funding to programs that suggest gender is a spectrum, Texas A&M cancelled an annual drag show and the National Endowment for the Arts reviewed applications for their consistency with the order. Neither of these outcomes were obvious on the face of the order. 

    What will the overreactions to this new memo look like? Donors ending their support because they don’t want to risk an investigation? Groups being denied bank loans or leases because they’re on a government list with no way to appeal that determination? Activists going underground because they want to challenge an orthodoxy, hiding their opinions from the places where they would otherwise be challenged in the marketplace of ideas? 

    If this is the plan to save American values, what’s the plan to destroy them look like?

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  • How to Read a Memo

    How to Read a Memo

    By now, the memo from the attorney general’s office outlining the administration’s interpretation of civil rights laws as they apply to higher education has made the rounds.

    It took me back to my grad school days. I took a seminar in literary theory—the ’90s were a different time—and remember being struck particularly by reader-response theory. As I understood it, it argued that the meaning of a text is determined by the reader rather than the writer. Meanings aren’t as random as that might make it sound; “interpretive communities” take shape around a host of sociological, as well as personal, variables. In other words, we learn how to interpret texts partially by modeling on how people around us do. The same text can be read differently depending on your social location.

    I’ve had personal experience of that in rewatching beloved movies or rereading beloved books from my teen years. In high school, Revenge of the Nerds struck me as funny and refreshing. As an adult, I can’t get past its sexism. The movie hasn’t changed, but I have.

    The assumptions that different interpretive communities make aren’t always conscious. They don’t work like geometric proofs. In my experience, the most frustrating conflicts happen when different unconscious assumptions (or givens) crash into each other. Having to defend something you take as obviously true feels like either a complete dismissal or a slap in the face; it quickly moves discussion from reasoned disagreement to exasperated incomprehension. (“How can you possibly say that?”)

    If you don’t recognize when those assumptions clash, it’s easy to get stuck in cycles of verbal shadowboxing. Is someone arguing against single-payer health insurance because they believe that a regulated market system would be more efficient? If so, a reasoned discussion may be worthwhile. Or are they arguing against it because they believe that poor people deserve to die? In that case, arguments around relative efficiency are pointless. Some folks are skilled at disingenuously using reasonable-sounding arguments to defend horrific assumptions; the tip-off is when they switch from one argument to a contradictory one as soon as they start to lose. The sooner you detect that move, the more time and emotional energy you can save.

    The AG’s memo offers a glimpse into the unconscious (or at least unspoken) assumptions animating the administration.

    Take, for instance, the assertion that “geographic or institutional targeting” is a proxy for discrimination. The only way that can make sense is if you assume the colleges and universities they had in mind are private ones that draw students from around the country. In the case of community colleges, most have a geographic boundary in their name and/or a defined service district. Monroe Community College, in Rochester, N.Y., is defined by its location in Monroe County. It gives a discount—economists call that price discrimination—to residents of its county. Students from out of county pay more.

    And that’s not unique to MCC; it’s the way most community colleges work. Even those that don’t have out-of-county or out-of-district price premiums usually have out-of-state premiums. The same is true of most public universities. I’ve personally had the experience of paying out-of-state tuition for two kids at public universities; it’s not fun. Is that illegal now? If so, I’ll apply for a refund from the Universities of Virginia and Maryland, posthaste.

    Of course, the vast majority of colleges and universities draw overwhelmingly from their own state. That’s a direct version of geographic targeting. A national higher ed policy based on the presumption that geographic targeting is the problem simply ignores the vast majority of the sector.

    The issues are also more granular than that. The memo ignores scholarships offered by donors for graduates of particular high schools. Are those illegal now? Private donors frequently favor graduates of their own high schools, or people from the towns in which they grew up. Do we have to turn those donors away now? Or only if the towns in which they grew up are too diverse? Are sports scholarships only OK if they don’t draw too diverse a group of students? If so, then sailing is fine and basketball is suspect. Hmm. I think there’s a word for that.

    I imagine the answer the attorney general would offer would be something like “as long as geographic preferences aren’t about increasing diversity, they’re OK.” But that presumes a lot. For example, New York City is more diverse than, well, just about anywhere; if a struggling small college on Long Island starts recruiting aggressively in New York City, is that about diversity or about enrollment? And how do you know?

    Discerning institutional intent isn’t straightforward. Mixed motives are entirely normal. For example, is the movement to improve graduation rates meant to help students, budgets or institutions’ public images? The answer is all of the above. Is making colleges more inclusive of people of different backgrounds for the benefit of the newly included, the folks already there or institutional budgets? Again, yes.

    A serious discussion would look less at intentions and more at incentives. If decades of public disinvestment force public institutions to behave more like private ones, basing more of their budgets on tuition, then we shouldn’t be surprised to see them compete for students. They’ll do what they have to do. If we want colleges to stop competing for students, we should insulate them from the economic need to do so. It has been done before.

    The universe assumed in the memo tells us a lot about the people behind it. It presumes a world in which economic issues don’t matter, intentions are obvious, people have only one motive at a time and elite institutions constitute the entire industry. It reflects the kid who thought Revenge of the Nerds was a breath of fresh air. But that kid eventually grew up and learned that there was more to the world than was dreamt of in his philosophy. The word for that process is education.

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  • DOJ Declares Slew of DEI Practices Unlawful in Memo

    DOJ Declares Slew of DEI Practices Unlawful in Memo

    Attorney General Pamela Bondi authored the memo declaring all race-conscious practices unlawful.

    Photo by Yasin Ozturk/Anadolu via Getty Images

    More than three months after a federal court struck down an Education Department directive that barred any practices that consider race at colleges across the country, the Department of Justice declared Wednesday that diversity, equity and inclusion practices are unlawful and “discriminatory.”

    But the agency’s memo goes even further than ED’s guidance, suggesting that programs that rely on what they describe as stand-ins for race, like recruitment efforts that focus on majority-minority geographic areas, could violate federal civil rights laws. The directive applies to any organization that receives federal funds, and DOJ officials warned that engaging in potentially unlawful practices could lead to a loss in grant funding.

    Other examples of “potentially unlawful proxies” include requirements that job applicants “demonstrate ‘cultural competence,’ ‘lived experience,’ or ‘cross-cultural skills’” or narratives about how the applicant has overcome obstacles, Attorney General Pamela Bondi wrote.

    This interpretation of federal law could present new challenges for colleges that have relied on tactics like place-based recruitment to create diverse student bodies since the Supreme Court banned affirmative action in 2023. For instance, some colleges have guaranteed admission to students who graduate in the top 10 percent of their high schools.

    “This highlights that every practice of colleges is under scrutiny, even ones that have been viewed as politically safe for years (such as top ten percent plans or even TRIO programs). The only truly safe ways to admit students right now are to admit everyone or only use standardized test scores,” Robert Kelchen, a professor in the University of Tennessee at Knoxville’s Department of Educational Leadership and Policy Studies, wrote in an email to Inside Higher Ed. “Being an enrollment management leader has always been tough, but now it’s even more challenging to meet revenue targets and satisfy stakeholders who have politically incompatible goals.”

    The document offers clearer guidance about what the Justice Department considers off-limits as it investigates DEI at colleges and universities. The DOJ is playing a greater role in investigating colleges as it enforces its position that DEI programs as well as efforts to boost diversity among faculty and staff violate federal antidiscrimination laws.

    Since President Trump took office in January, he’s targeted DEI programs, practices and personnel via executive orders and other efforts. However, higher ed experts have repeatedly said that the orders don’t change the underlying laws, so colleges that complied with the law before Jan. 20 remain in compliance. In response to the federal edicts, colleges have rolled back a number of their programs and closed centers that catered to specific student groups.

    Many of the practices declared unlawful in the nine-page memo echo those referenced in the Education Department’s February Dear Colleague letter, such as race-based scholarships. But it also explicitly states that “BIPOC-only study lounges” and similar facilities are unlawful. The Education Department’s guidance mentioned race-based facilities generally but not specifically study lounges.

    DEI advocates have long argued that these centers or lounges are open to all students. Some have persisted even after state DEI bans, but multiple colleges have in recent months closed centers that catered to specific student groups. Bondi argued that such spaces violate Title VI of the Civil Rights Act of 1964, which bars discrimination based on race and national origin.

    “Even if access is technically open to all, the identity-based focus creates a perception of segregation and may foster a hostile environment. This extends to any resource allocation—such as study spaces, computer labs, or event venues—that segregates access based on protected characteristics, even if intended to create ‘safe spaces,’” the order reads.

    Lynn Pasquerella, president of the American Association of Colleges and Universities, said that the memo is “another example of governmental overreach into academic freedom, institutional autonomy and shared governance that conditions federal funding on ideological alignment with the administration’s viewpoints.”

    She added that the guidelines in the document violate existing constitutional protections and erode federal civil rights law.

    “What is missing from the DOJ narrative on DEI is that treating people differently is not always unjust, especially when doing so corrects a broader pattern of systemic injustice. Considering race and gender in the context of historic unjust discrimination to inform policies and practices at colleges and universities doesn’t in and of itself constitute illegal discrimination, though the letter suggests otherwise.”

    Beyond race-based practices, the letter also addresses transgender student athletes, building on the Trump administration’s previous actions that advocates say deny the existence of trans individuals and roll back their rights. The memo states that it would “typically be unlawful” for someone assigned male at birth to compete on women’s sports teams or for an institution to “compel” individuals to share an intimate space, like a locker room, with someone of another sex.

    Pasquerella noted that the letter offers guidance, not legal mandates.

    “Nevertheless,” she said, “what are described as ‘best practices and nonbinding suggestions’ will likely cause another wave of anticipatory compliance and overcorrection given the climate of fear and intimidation created by the weaponization of research funds.”

    Katherine Knott contributed to this report.

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  • NLRB Issues Memo Outlining Higher Ed Institutions’ Disclosure Obligations under NLRA and FERPA – CUPA-HR

    NLRB Issues Memo Outlining Higher Ed Institutions’ Disclosure Obligations under NLRA and FERPA – CUPA-HR

    by CUPA-HR | August 7, 2024

    On August 6, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo, “Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act and the Family Educational Rights and Privacy Act.” The memo was issued to all NLRB regional offices and is meant to provide guidance to institutions of higher education clarifying their obligations “in cases involving the duty to furnish information where both statutes may be implicated.”

    The memorandum outlines how institutions can comply with requests by unions representing their student workers for information that may be covered under FERPA, the federal law that protects students’ privacy in relation to their education records and applies to institutions that receive federal education funds. Under the NLRA, employers are required to provide certain information to unions that may be relevant to their representational and collective bargaining obligations, but this requirement can come into conflict with institutions’ obligations under FERPA.

    In situations where the employer believes certain records requested by the union may be confidential and covered under FERPA, the memo outlines the steps institutions must take to comply with their disclosure obligations.

    1. “The institution must determine whether the request seeks education records or personally identifiable information contained therein.”

    Institutions must be prepared to “explain why and substantiate with documentary evidence, if available, that the student-employee is employed as a result of their status as a student to the union,” as opposed to a traditional employee whose records are not protected by FERPA. The memo specifies that, if the union’s request includes some documents not covered by FERPA, the employer must provide those documents to the union “without delay, even if FERPA applies to other parts of the request.”

    1. “If a request seeks information protected by FERPA, the institution must offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter.”

    The memo puts the burden to offer an alternative on the employer. The employer cannot “simply refuse to furnish the requested information,” but it must offer a “reasonable accommodation and bargain in good faith toward an agreement that addresses both parties’ interests.”

    1. “If the parties reach an agreement over an accommodation, the institution must abide by that agreement and furnish the records.”

    If an agreement is not reached, the memo specifies that the union can file an unfair labor practice charge against the institution. The memo then gives the NLRB the authority to find an appropriate accommodation “in light of the parties’ bargaining proposals.”

    Abruzzo also provided a “FERPA consent template” that she advocates institutions provide to student-employees during the onboarding process. The template, if signed by the student employee, “would permit an institution covered by FERPA to disclose to a union, consistent with FERPA, any employment-related records of a student that are relevant and reasonably necessary for each stage of the representation process.” Abruzzo argues the template would help “reduce delay and obviate the need to seek students’ consent at the time a union seeks to represent employees or submits an information request to carry out its representative functions.”

    CUPA-HR will keep members apprised of updates following this guidance and other updates from the NLRB.



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  • NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    NLRB General Counsel Issues Memo on Recent Severance Agreement Ruling – CUPA-HR

    by CUPA-HR | March 27, 2023

    On March 22, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo to all field offices with guidance on the Board’s recent decision in McLaren Macomb, in which the Board decided that employers cannot offer employees severance agreements that require employees to waive rights under the National Labor Relations Act (NLRA), such as confidentiality and non-disparagement requirements. According to the NLRB’s press release, the memo is to be used as guidance to assist field offices responding to inquiries from workers, employers, labor unions and the public about implications stemming from McLaren Macomb.

    The memo offers guidance on the decision’s scope and effect of the McLaren Macomb decision. In the memo, Abruzzo stated that the decision has retroactive application, and she directed employers who may have previously offered severance agreements with “overly broad” non-disparagement or confidentiality provisions to contact employees to advise them that such provisions are now void and will not be enforced. Abruzzo also clarified that confidentiality clauses that are “narrowly tailored” to restricting dissemination of proprietary information or trade secrets may still be lawful “based on legitimate business justifications,” and that non-disparagement clauses that are limited to “employee statements about the employer that meet the definition of defamation as being maliciously untrue (…) may be found lawful.”

    With respect to supervisors, Abruzzo specified that supervisors are not generally protected by the NLRA, but she added that they are protected from retaliation if they refuse to offer a severance agreement with broad non-disparagement or confidentiality provisions to their employees.

    As a reminder, CUPA-HR will be hosting a webinar on the McLaren Macomb decision Thursday, March 30 at 1:00 p.m. ET. The webinar will cover the McLaren Macomb decision and this subsequent memo, and presenters will discuss how the decision may fundamentally change how and when colleges and universities may use confidentiality and non-disparagement provisions. Registration is required for participation, but free to all CUPA-HR members.



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  • NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    NLRB General Counsel Releases Memo on Employee Status for Student Athletes – CUPA-HR

    by CUPA-HR | September 29, 2021

    On September 29, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo released a memorandum stating her position that student athletes (or “Players at Academic Institutions,” as she refers to them in the memo) are employees under the National Labor Relations Act (NLRA) and are afforded all statutory protections as prescribed under the law. Abruzzo declares, “The broad language of Section 2(3) of the [NLRA], the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”

    Abruzzo also states that misclassifying such individuals as non-employees and leading them to believe they are not afforded protections under the NLRA has a “chilling effect” on Section 7 activity. She said she would consider this misclassification an independent violation of Section 8(a)(1) of the NLRA. Abruzzo further stated that the intent of the memo is to “educate the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA” about her position in future appropriate cases.

    The memo revives issues surrounding employment status of student athletes that the NLRB has previously ruled on. In March 2014, the NLRB’s Regional Director in Chicago ruled that Northwestern players receiving football scholarships are employees and have a right to organize under the NLRA. In August 2015, the NLRB released a unanimous decision dismissing the representation petition filed by a group of Northwestern football players seeking to unionize. In doing so, however, the board’s decision did not definitively resolve the issue of whether college athletes are employees and have a protected right to unionize under the NLRA. After considering arguments of both parties in the case and various amici, including CUPA-HR, the board declined to assert jurisdiction on the issue, stating that “asserting jurisdiction would not promote labor stability [because the] Board does not have jurisdiction over state-run colleges and universities, which constitute” the vast majority of the teams. The board noted, however, its “decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.” Another issue in the Northwestern decision was the board’s lack of jurisdiction over “walk-on” players who do not receive scholarships. It remains to be seen how Abruzzo will overcome in future cases the two jurisdictional obstacles identified in Northwestern.

    CUPA-HR will keep members apprised of NLRB actions and cases that may prompt the agency to rule on the issue regarding student athlete employment status.



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