On Thursday a judge ordered more than 2,000 fired employees of the Education Department reinstated.
Photo illustration by Justin Morrison/Inside Higher Ed | Tierney L. Cross/Getty Images | Matveev_Aleksandr and raweenuttapong/iStock/Getty Images
A federal judge blocked the Trump administration from firing thousands of employees at the Department of Education in a decisive rebuke of this spring’s sweeping reduction in force and the executive branch’s efforts to weaken the Education Department.
Judge Myong Joun rejected the administration’s argument that the layoffs, which affected half of the department’s workforce, were part of a “reorganization” aimed at improving efficiency and said evidence showed the administration’s “true intention is to effectively dismantle the Department without an authorizing statute.” His order also prevents the department from implementing President Donald Trump’s March directive to dismantle the agency.
Joun of the District of Massachusetts also said the injunction to rehire the fired staffers was necessary in order to restore the department’s ability to accomplish its core functions and statutorily mandated responsibilities.
“Not only is there no evidence that Defendants are pursuing a ‘legislative goal’ or otherwise working with Congress to reach a resolution, but there is also no evidence that the RIF has actually made the Department more efficient,” Joun wrote in his 88-page ruling. “Plaintiffs have demonstrated that the Department will not be able to carry out its statutory functions—and in some cases, is already unable to do so.”
Reports of systemic failings and overloaded staff have streamed out of the beleaguered department ever since the March layoffs, from an untouched backlog of complaints at the Office for Civil Rights to the piling up of applications for student loan repayment and forgiveness plans.
The injunction, handed down Thursday morning, means the administration must reinstate more than 2,000 Education Department employees and reopen regional offices that were shuttered during the reduction in force.
The administration has already said it has issued a challenge to the ruling. Madi Biedermann, the department’s deputy assistant secretary for communication, said the administration has already appealed.
In an email to Inside Higher Ed, Biedermann decried the decision, calling Joun a “far-left judge” who “dramatically overstepped his authority” and maintaining that the layoffs were “lawful efforts to make the Department of Education more efficient and functional.”
“President Trump and the Senate-confirmed Secretary of Education clearly have the authority to make decisions about agency reorganization efforts, not an unelected Judge with a political axe to grind,” she wrote.
A spokesperson for the Association of American University Professors, one of the plaintiffs in the case, wrote in a statement that they were “thrilled” with the decision.
“Eliminating the [Education Department] would hurt everyday Americans, severely limit access to education, eviscerate funding for HBCUs and [tribal colleges and universities] while benefiting partisan politicians and private corporations,” they wrote.
Education Secretary Linda McMahon defended the layoffs at a budget hearing just a day prior to the ruling. She said the goal was to “wind down the bureaucracy” of the department, and that while she hoped to have congressional support to dismantle it eventually, the administration did not intend to so on its own.
Joun’s decision undercuts that defense. In the budget hearing, Rep. Rosa DeLauro, a Democrat of Connecticut, told McMahon that the cuts were “unlawful” and a usurpation of congressional authority.
“As long as you continue to deliberately and flagrantly defy the law, you will continue to lose in court,” DeLauro said.
The injunction is the latest in a string of court orders challenging the Trump administration’s rapid cuts to federal agencies in its first 100 days, often under the supervision of Elon Musk’s Department of Government Efficiency. DOGE was responsible for the vast majority of the Education Department layoffs, according to McMahon’s House testimony Wednesday.
Joun’s ruling wasn’t the only one aimed at undoing the administration’s Education Department cuts. Judge Paul Friedman of the U.S. District Court for the District of Columbia also ordered that the department restore grant funding to a Southern nonprofit that has helped further school desegregation efforts since the 1960s. The grant had been defunded as part of the administration’s push to eliminate spending on diversity, equity and inclusion.
A federal judge has ordered the immediate release of Tufts student Rümeysa Öztürk, who faces deportation for writing an op-ed critical of Israel.
“Her continued detention cannot stand,” said Judge William Sessions III.
Judge Sessions explained the government provided no evidence Öztürk engaged in violence or any other crimes. “The reason she’s been detained is simply and purely the expression she made,” he said. The judge also warned her detention chills millions of noncitizens from expressing their views “for fear of being whisked away from their home.”
Below is a statement from FIRE Supervising Senior Attorney Conor Fitzpatrick, praising the order:
The court rightly found Öztürk’s detention unlawful and an affront to the First Amendment. No one in America — citizen or not — should fear the government’s wrath for speaking their mind.
Last week, FIRE was joined by a nonpartisan coalition that included the National Coalition Against Censorship, Cato, PEN America, and the Rutherford Institute calling for the release of Ms. Öztürk and all others detained and targeted for deportation based on protected speech.
“It was nearly impossible to get anyone on camera for this story [on Trump’s attacks on lawyers and law firms], because of the fear now running through our system of justice.” — Scott Pelle, “60 Minutes” (May 4)
That observation prompted my colleague, Angel Eduardo, to caution that we are now in “uncharted and horrifying territory” — a territory governed by coerced compliance. Against that backdrop comes the latest installment of Executive Watch, authored by Professor Timothy Zick.
In the weeks and months ahead, more FAN posts will appear discussing yet other First Amendment issues related to the Trump administration, its executive orders, and related matters. If this seems excessive, it is because (as Zick and I discuss in a forthcoming scholarly article) the suppressive actions taken by this administration are unprecedented in both their breadth and depth.
Vigilance in the service of freedom is no vice, and apathy in response to despotism is no virtue.
Related
Professor Zick’s post is set out below followed by a few news items, including two new federal district court rulings involving First Amendment challenges to anti-DEI executive orders and a NYU Law School item about punishing protestors. — rklc
During his first term as president, Donald Trump signaled that he was not committed to pluralism and expressive liberty when it came to matters like patriotism, public protest, and other forms of dissent. During his second term, Trump has issued multiple executive orders that attempt to impose official orthodoxies or understandings regarding race, gender, patriotism, and other subjects.
My previous post explained how Trump has used executive orders to instigate a whole-of-government assault on free speech, and how that campaign has affected nearly every corner of American life. This post focuses on how Trump has used executive orders to try to purge concepts and ideas from public and private realms and to dictate what is orthodox when it comes to matters Americans sharply disagree on.
Many of Trump’s orders are not only viewpoint discriminatory; their expressly stated purpose is to eradicate certain ideas or ideologies and replace them with officially approved alternatives. Although they seek to impose official ideologies by striking disfavored ideas or concepts, many of the Orders utterly fail to define key concepts, including “diversity, equity, and inclusion (DEI),” “discriminatory equity ideology,” “radical gender ideology,” and “hateful ideology.”
As I explained in my previous installment, such glaring vagueness has a real chilling effect. Faced with losses of many billions in funding or revenue, or with ruinously expensive investigations or prosecutions, many have decided to capitulate or over-comply, scrubbing any potentially offending terms and concepts from trainings, lectures, websites, and other fora.
In 1943, the Supreme Court decided West Virginia State Board of Education v. Barnette, which invalidated a state law mandating that students salute the flag and recite the Pledge of Allegiance at the beginning of each school day. In an iconic and justly famous opinion, Justice Robert H. Jackson wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Trump’s use of executive orders to impose or coerce adoption of official orthodoxies or views is contrary to a foundational First Amendment principle: The government cannot dictate to Americans what ideas they can support or promote or what they believe.
President Trump’s orthodoxies
Presidents have historically used executive orders to change policies and priorities regarding a wide range of matters, from the scope of anti-discrimination laws, to matters relating to service in the military, to the protection of religious or other liberties. For example, a president might instruct executive agencies to adopt specific legal or policy positions on enforcement of anti-discrimination laws or the protection of Second Amendment rights. And, of course, presidents can engage in their own speech about these and other matters, including through executive orders.
Trump has utilized executive orders for some of these purposes, though in novel ways (and for far more trivial ones, such as dictating what kind of straw can be used in federal buildings). But many of his orders do not merely change enforcement policies or call for agencies to regulate the actions of those who are subject to agency jurisdiction. The First Amendment “tell” in the orders is that they direct agencies to root out and censor the “promotion” of disfavored ideas or concepts.
Many of the president’s executive orders reflect his own personal frustrations and grievances, including the promotion of ideas he believes should never have been expressed, and that the federal government should now use its vast powers to suppress. Thus, a central purpose of the orders is to purge disfavored ideas and concepts from schools, companies, libraries, museums, foundations, and scientific research.
The following examples illustrate these points:
Race
An executive order describes DEI programs as “radical” and “wasteful.” It instructs agencies to coordinate the termination of “all discriminatory programs, including illegal DEI and diversity, equity, inclusion, and accessibility (DEIA) mandates, policies, programs, preferences, and activities in the federal government, under whatever name they appear.” Further, Trump ordered all federal agencies and commissions to provide the director of the Office of Management and Budget with lists of “[f]ederal contractors who have providedDEI training or DEI training materials to agency or department employees” and “[f]ederal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since Jan. 20, 2021.”
Here as elsewhere, and absent any definitional guidelines, a second order also targets DEI. It requires an office within the Department of Labor to “immediately cease . . . [p]romotingdiversity.” What’s more, the president orders federal agencies to “[e]xcise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures.”
“Radical DEI,” an executive order proclaims, must be replaced by “individual dignity, hard work, and excellence,” which are identified as “fundamental to American greatness.”
Promoting, advocating, or even mentioning “DEI” is also forbidden in the private sector. The president orders agencies to root out DEI and in its place “advance in the private sector the policy of individual initiative, excellence, and hard work.” To that end, the president orders agencies to identify the “most egregious and discriminatory DEI practitioners” within their jurisdictions and to propose investigations of private sector companies to investigate their use of “DEI.”
“Basing Federal policy on truth,” the order proclaims, “is critical to scientific inquiry, public safety, morale, and trust in government itself.” The order criticizes understandings of sex or gender that go beyond biology for “[i]nvalidating the true and biological category of ‘woman.’”
The president rejected “the false claim that males can identify as and thus become women and vice versa” and proclaimed the administration’s intent not to “regard this false claim as true.”
Trump decreed that “every agency and all Federal employees acting in an official capacity on behalf of their agency shall use the term ‘sex’ and not ‘gender’ in all applicable Federal policies and documents.”
The order required agency heads to “implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex,” as defined in the order. Further, it requires that “[a]gencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology.”
In a guidance document sent to all agencies, the acting director of the Office of Personnel Management instructed agency heads to review any programs that “promoteor inculcategender ideology,” place on immediate leave any employees whose job descriptions involve “inculcatingor promotinggender ideology,” remove “all outward facing media . . . that inculcate or promotegender ideology,” disable any email features that “prompt users for their pronouns,” cancel trainings and end “resource groups” that “inculcate or promotegender ideology,” and ensure that any agency forms use “sex” instead of “gender” and list only “male” or “female” as options.
In another order relating to gender, the president characterizes service in the Armed Forces by transgender individuals as a form of “radical gender ideology” that harms the military. The order declares that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.” Further, it declares that “a man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.” The Order directs the Secretary of Defense to end all pronoun use in the U.S. Armed Forces and take steps to ban transgender individuals from entering or remaining in service.
Official views about gender and gender identity are reflected in other executive orders. For example, an order concerning federal funding for K-12 schools tasks multiple agencies with recommending ways to “rescind Federal funds, to the maximum extent consistent with applicable law” that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology.” Regarding federal funding, the order states “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
Patriotism
The executive order “Ending Radical Indoctrination in K-12 Schooling” conditions federal funding on the adoption by K-12 schools of “patriotic” curricula and threatens to withhold funding from any schools that teach that the United States is “fundamentally racist, sexist or otherwise discriminatory.”
The order defines “patriotic education” to mean “a presentation of the history of America” that is “inspiring” and “ennobling,” that emphasizes “how the United States has admirably grown closer to its noble principles, and that embraces “the concept that celebration of America’s greatness and history is proper.”
Trump’s personal conceptions of patriotism are also reflected in executive orders pertaining to immigration and deportation. One order provides that resident aliens who express “hatred for America,” “bear hostile attitudes toward [American] citizens, culture, government, institutions, or founding principles,” or “espouse hateful ideology” will be subject to deportation — a threat the administration has now made good on by deporting international students who have engaged in pro-Palestine protests and expression. The order instructs the Secretary of State and other agencies to “recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States.”
American history
In an executive order titled “Restoring Truth and Sanity to American History,” Trump declares, “It is the policy of my administration to restore Federal sites dedicated to history, including parks and museums, to solemn and uplifting public monuments that remind Americans of our extraordinary heritage, consistent progress toward becoming a more perfect Union, and unmatched record of advancing liberty, prosperity, and human flourishing.” Without even a hint of irony, the order then states, “Museums in our Nation’s capital should be places where individuals go to learn — not to be subjected to ideologicalindoctrination or divisivenarratives that distort our shared history.”
The “Truth and Sanity” order tasks the vice president and other administration officials with “seeking to remove improper ideology from such properties.” An accompanying “Fact Sheet” boasts that the president has ordered officials “to work to eliminate improper, divisive, or anti-American ideology from the Smithsonian and its museums, education and research centers, and the National Zoo.” Further, Trump vows to remove “divisiveideology” he claims the prior administration adopted — apparently by imposing an ideology that portrays American history only in the most positive light.
Declaring (and leveraging) official ‘Truths’
As the highlighted language above shows, Trump’s executive orders could not be more transparent about their intent: to declare official “truth” and “falsity” regarding race, gender, and other matters and to punish the “promotion,” advocacy, or even references to competing ideas or ideologies. The orders call on agencies to ban or punish the “promotion” of “diversity” and “radical gender ideology,” instruction that is not “patriotic,” and speech that communicates “hostile attitudes” toward American culture or institutions. The orders declare the “truth” of biological sex and forbid the “promotion” of any other conception, while also banning pronouns and the word “gender” in federal programs. The Trump administration seeks to remove so-called “anti-American ideology” from museums.
As I explained in my previous installment, the effect of the administration’s purported “truth-declaring” on expression has been nothing short of extraordinary. Executive agencies have responded, sometimes with absurd results — including removing exhibits about Jackie Robinson, cancelling celebrations of prominent black or female figures, removing books by black authors from libraries, and scrubbing information about the “Enola Gay” from the Department of Defense website.
Similar effects have occurred outside the government. Corporations, universities, and other federal funding recipients have likewise reacted to the president’s orders by removing disfavored words or concepts from websites and other public-facing documents. Universities have cancelled presentations based on concerns that the content of lectures will run afoul of the orders, broadcast stations have been warned that their licenses may be revoked based on DEI policies, and nonprofits have been instructed to remove potentially offending words and phrases from their grant documents.
The effort to punish expression the administration dislikes or disagrees with extends beyond the areas discussed. For example, a Trump executive order targets a former official who served in his first administration for publicly declaring that the 2020 presidential election was not affected by election fraud — a position contrary to Trump’s own oft-repeated (and oft-debunked) “stolen” election narrative.
The administration has defended the orders by claiming that they merely announce new policies and target unlawfully discriminatory actions by funding grantees and others. Some even purport to preserve protection for speech that promotes or advocates what the orders define as “unlawful employment or contracting practices.” But these claims are belied by the orders themselves, which again repeatedly declare “truth” and “falsity” regarding ideas, ban “promotion” or “advocacy” of forbidden ideologies, and purport to dictate which ideas are and are not “anti-American.”
Despite their questionable validity, the orders have been exceptionally successful in terms of censoring and controlling speech. One of the principal reasons for this success is that the orders are generally vague or unclear about what is allowed and forbidden. Thus, although the concept of DEI is critical to determining whether a grantee is entitled to federal funds, none of the executive orders to date have bothered to provide any official and meaningful definition of the concept. Nor is it clear what to them constitutes “hateful ideology,” “anti-American ideology,” “unpatriotic” instruction, or other forbidden expression. To further illustrate the point, the Trump administration has been clear that it views gender as solely a biological concept; however, it has not been clear about what might constitute “radical gender ideology” or what actions will be treated as “promoting” it.
By design, such ambiguity fosters ideological suppression. As Clint Smith observed in an Atlantic article concerning the administration’s insistence that museums not display “divisive” or “anti-American ideology”:
What does it mean for something to be improper if the administration’s understanding of what is acceptable excludes anything that might make white Americans feel bad? Is the statue of Thomas Jefferson surrounded by bricks inscribed with the names of people he enslaved improper? Is a slave cabin that once sat on the grounds of a plantation in South Carolina improper? Are the shackles that were once locked around the feet of enslaved children improper? Is Harriet Tubman’s silk shawl improper? Is Nat Turner’s Bible improper? Is Emmett Till’s casket improper? Are the photographs of men and women who were lynched as white audiences looked on improper?
This kind of vagueness and uncertainty stifles legitimate speech activity. Faced with ambiguity backed by agency enforcement, many grantees will err on the side of avoiding or excising what government officials might view as “false” ideas, forbidden “promotion,” or disfavored language.
The administration has used the pronouncement of its purported “truths” and forbidden “promotion” as leverage — to threaten investigations, agency actions, and funding denials. Thus, the orders state that any grantee who engages in forbidden DEI or promotes “gender ideology” is subject to an Equal Employment Opportunity Commission investigation and substantial funding loss. Charges of engaging in DEI and promoting “radical gender ideology” have provided a pretextual basis for governmental investigations and sanctions against law firms, universities, corporations, broadcasters, and others. For the administration, the lack of clear standards allows it to declare that grantees and others are in default, hence triggering lengthy and invasive investigations. To avoid the sanctions, some targeted entities and individuals have simply folded. The administration has similarly relied on vague definitions or standards regarding so-called “anti-Semitism” to intimidate and coerce universities into “settling” unproven claims.
The undemocratic benefits of vagueness
Thus far, the administration’s lack of clarity has worked in its favor. Given the ambiguity, it can be difficult to demonstrate that the government’s funding decisions are based on disagreement with viewpoints as opposed to responses to what it considers discriminatory practices or shifting policy positions.
Trump’s reliance on vague directives and implicit threats requires that courts treat “jawboning” and other informal means of coercion as just as problematic as more direct forms of suppression. The Supreme Court held in a recent decision that New York officials could not coerce financial institutions to cease dealings with the National Rifle Association. Likewise, the Trump administration is allowed to seek to persuade funding grantees and the Nation that its conceptions of race, gender, patriotism, and history are “true.” But it cannot coerce grantees to accept those “truths” through sanction or suppression of speech.
However this issue is resolved in courts, we should be aware that much of the damage has already been done. As Justice Jackson explained in Barnette, coercing individuals and institutions to accept official orthodoxies “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” More ominously, Jackson warned, allowing officials to dictate what is “true” or “false” in the field of contested ideas leads only to “the unanimity of the graveyard.”
Elections have consequences . . . but imposing orthodoxies cannot be one of them
Governments are entitled to communicate their views about race, gender, patriotism, and other subjects. Further, no one has a legal or constitutional right to federal funding. However, if the government is going to make federal funding available, it cannot deny or remove it based on a grantee’s promotion or advocacy of disfavored ideas or concepts. It cannot punish instructors for teaching or discussing DEI, scientists for conducting research focused on “diverse” or “disadvantaged” patient populations, or museums for communicating “divisive” viewpoints about American culture and history.
One of the key tenets of our First Amendment freedoms is that sometimes minority rights must trump majoritarian will. This is especially true when certain viewpoints are protected while others are prosecuted. By that measure, compelled orthodoxy is an affront to those free speech principles that distinguish our Madisonian democracy from other regimes that give lip service, if that, to such worthy principles.
Court denies First Amendment challenge in anti-DEI case
Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump’s executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment — or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.
But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties — or at least not on these parties — do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs’ constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.
Preliminary injunction remains in force in challenge to anti-DEI order
This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims, as this Court previously explained. . . . The Challenged Provisions forbid government contractors and grantees from engaging in “equity-related” work and from “promoting DEI” in ways the administration may consider to violate antidiscrimination laws; they demand that the “private sector” “end . . . DEI” and threaten “strategic enforcement” to effectuate the “end[ing]” of “DEI”; and they threaten contractors and grantees with enforcement actions with the explicit purpose of ‘deter[ring]’ such ‘programs or principles.’ . . . This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.
Historically, the metaphor used to describe the effect of laws that restrict speech is “chill.” The more apt metaphor here is “extinguish.” Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate — to silence selected viewpoints, selected discourse — on matters of public concern. They forbid government contractors and grantees from engaging in discourse — including speech such as teaching, conferences, writing, speaking, etc. — if that discourse is “related” to “equity.” And they direct the “private sector” to “end” diversity, to “end” equity, and to “end” inclusion. See J21 Order § 4(b) (directing agencies to “encourage the private sector to end . . . DEI”). “End” is not a mere “chill.” “Deter[rence]” is not a side-effect of the Challenged Provisions; their explicit goal is to “deter” not only “programs” but “principles” — i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.
The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, see ECF No. 44 at 36-44, 53-55, there can be no serious question that the direct and necessary impact of those provisions — and purposeful, to the extent that matters — is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.
[ . . . ]
Upon consideration of the motion to vacate the preliminary injunction, ECF No. 77, and the response and reply thereto, and after oral argument on April 10, 2025, and for the reasons provided above, it is ORDERED that the motion is DENIED.
NYU Law School saga — right to take exams and lawfully protest reinstated
Pro-Palestine law students at New York University have secured a major victory against the university administration’s attempts to silence protests. On May 4, the NYU administration confirmed that 31 law students who had been barred from campus and prohibited from sitting for final exams, unless they sign away their right to protest, are now permitted to take their exams.
“This type of public pressure, the backlash that [the administration] got from not allowing students to sit for exams, was not something that they expected,” said one of the affected NYU law students, who spoke to Peoples Dispatch about this latest decision.
The NYU administration had sent a message out to 31 law students, barring them from campus including to take exams, unless they signed a “Use of Space Agreement” which included the language “you may not participate in any protest activity or disruptive activity on Law School property.” The law students who received the message are accused of participating in peaceful sit-in protests on March 4 and April 29, at NYU’s library and outside the office of the dean of the law school.
These student activists have pointed out that this is a form of protest permitted by the school’s own outlined policies. NYU’s Guidance and Expectations on Student Conduct explicitly states that “peacefully protesting on University property” is a type of “permitted” protest.
Tinker-type case distributed for conference nine times
The case is L.M. v. Town of Middleborough. The issue raised in the case is whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
The case has been on the docket since early October of last year. Since then it has been distributed for conference eight times between Dec. 6, 2024 and May 2, 2025. Eighteen states have filed an amicus brief in support of the petitioner.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland(9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re: “false statements”)
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.
“Under my watch, the partisan weaponization of the Department of Justice will end. America must have one tier of justice for all.” — Pamela Bondi (confirmation hearing for U.S. attorney general, Jan. 15, 2025)
“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.” — Donald J. Trump (Jan. 20, 2025, inaugural address)
“Government censorship of speech is intolerable in a free society.” — Donald J. Trump (Jan. 20, 2025, executive order)
So many lies, so many orders, so much suppression. The “flood” of free expression abridgments continues to be dizzying and depressing.
Unprecedented! That is the word for this new form of silencing that is spreading like a deadly cancer.
The rules of the past cease to be honored. Retribution has replaced righteousness. Fear triumphs over courage. A one-party-led Congress has abdicated its authority. Judicial review is derided. And our system of justice as constituted is unable to adequately address the wrongs perpetuated by an authoritarian figure aided by his confederates. A blitzkrieg takeover of the federal government seeks to vest unchecked power in the Executive while normalizing suppression on the vile pretense of advancing free speech and equality — a page right out of Orwell’s “1984.”
In some respects, we are witnessing what constitutes a threat perhaps as great as the Sedition Act of 1798, the Civil War actions taken by Lincoln, and the World War I, Cold War, and Vietnam War abridgments of free speech. Nonetheless, the number and frequency of such abridgments make it difficult to comprehend the cumulative gravity of this threat to our First Amendment freedoms.
Within the Trump administration’s first 100 days, the government has ushered in a new era of direct and indirect suppression of speech. Meanwhile, cases are being litigated, individuals and institutions are being silenced, books banned, “settlements” coerced, scientific research squelched, history erased, while lower court rulings struggle to be relevant. And all of this, in its many forms, has occurred in the absence of any near-final resolution by the Supreme Court, as if that too might be slighted someday soon.
We are beyond any “there are evils on both sides” mentality, much as we were beyond it in 1798. Recall that while John Adams, the lawyer, championed free speech in his writings, he later backed the Alien and Sedition Acts as “the Federalist” president.
Calling out tyranny is not partisan; it is American! And yet, many are relatively detached, silent, and clueless.
Trump’s “flood the zone” tactics have taxed the American mind to such an extent that few can barely, if at all, remember yesterday’s free speech abridgments let alone those of last week or last month. The result: who remembers all of the trees leveled not to mention any big picture of the forest devastated in the process? What to do?
Enter “First Amendment Watch” and the Zick Resource Report
Thanks to Professor Stephen Solomon and Susanna Granieri over at First Amendment Watch (FAW), there is a meaningful way to begin to get a conceptual hold on what has occurred within the first 100 days of the Trump administration and its attacks on free speech.
Happily, FAW today released what is surely the most important First Amendment resource documenting the numerous First Amendment abridgments committed by the Trump administration within its first 100 days. This invaluable resource was prepared by Professor Timothy Zick.
Professor Timothy Zick
Though the full resource repository is available over at FAW, its table of contents is reproduced below:
Introduction by Timothy Zick
I. First Amendment-Related Executive Orders and Memoranda
A. Freedom of Speech and Censorship B. Foreign Terrorism and National Security C. Law Firms D. Retribution Against Former Government Officials E. Diversity, Equity, and Inclusion F. Gender and Gender Identity G. K-12 Education H. Museums, Libraries, and Public Broadcasting I. Political Donations J. University Accreditors
II. First Amendment-Related Litigation
A. Lawsuits Challenging Executive Orders, Guidance, and Policies
1. Diversity, Equity and Inclusion 2. Immigration 3. Educational Funding 4. Law Firms 5. Gender and Gender Identity 6. Data and Scientific Inquiry 7. Libraries and Museums 8. Public Broadcasting
B. Retaliatory Dismissal and Other Employment Lawsuits C. Lawsuits Filed by Media and Journalists D. Defamation and Other Civil Lawsuits Filed By Donald Trump
III. Commentary and Analysis
A. Actions Against the Press and Journalists B. Defamation and Other Civil Lawsuits C. Broadcast Media D. Social Media E. Education
1. DEI Programming and Initiatives 2. Antisemitism Investigations and Demands 3. Academic Freedom 4. K-12 Curriculum
F. Immigration Enforcement
1. International Students 2. Foreign Scholars 3. Immigration Activism
G.Public Employees H. Private Sector
1. Law Firms 2. Individual Critics and Enemies
I. Transparency, Data, and Information
1. Data, Information, and Scientific Research 2. Museums and Libraries 3. Public Broadcasting 4. Misinformation and Disinformation 5. “DOGE” and Transparency
J. Grants and Funding K. Protests and Demonstrations
1. Campus Protests 2. Public Protests
L. Governmental Orthodoxy
1. Race and DEI 2. Gender and Gender Identity 3. History and Patriotism
M. Retribution and Chilling Speech N. Investigations O. The Bigger Picture P. Tracking All Trump 2.0 Lawsuit
Related
Coming Next Week
The next installment of Professor Timothy Zick’s ongoing posts is titled “Executive Orders and Official Orthodoxies.”
Justice Department to go after reporters’ records in government leak cases
Senate Judiciary Committee considers the nomination of Pamela Bondi for Attorney General on Jan. 15, 2025. (Maxim Elramsisy / Shutterstock.com)
The Justice Department is cracking down on leaks of information to the news media, with Attorney General Pam Bondi saying prosecutors will once again have authority to use subpoenas, court orders and search warrants to hunt for government officials who make “unauthorized disclosures” to journalists.
New regulations announced by Bondi in a memo to the staff obtained by The Associated Press on Friday rescind a Biden administration policy that protected journalists from having their phone records secretly seized during leak investigations — a practice long decried by news organizations and press freedom groups.
The new regulations assert that news organizations must respond to subpoenas “when authorized at the appropriate level of the Department of Justice” and also allow for prosecutors to use court orders and search warrants to “compel production of information and testimony by and relating to the news media.”
The memo says members of the press are “presumptively entitled to advance notice of such investigative activities,” and subpoenas are to be “narrowly drawn.” Warrants must also include “protocols designed to limit the scope of intrusion into potentially protected materials or newsgathering activities,” the memo states.
Former FCC Chairs attack FCC’s attack on First Amendment principles
(T. Schneider / Shutterstock.com)
As former chairmen of the Federal Communications Commission (FCC) — one appointed by a Democrat, the other by a Republican — we have seen firsthand how the agency operates when it is guided by its mission to uphold the public interest. But in just over two months, President Donald Trump and his handpicked FCC Chair Brendan Carr have upended 90 years of precedent and congressional mandates to transform the agency into a blatantly partisan tool. Instead of acting as an independent regulator, the agency is being weaponized for political retribution under the guise of protecting the First Amendment.
Their actions fall into two categories. First, the president used executive orders (EOs) to strip the agency of its independence, making it subservient to the White House. Second, the chairman has exploited the commission’s powers to undermine the very First Amendment rights it is supposed to uphold.
Mchangama on the ‘New McCarthyism’
Jacob Mchangama
Despite being Danish, I’ve always found America’s civil-libertarian free speech tradition more appealing than the Old World’s model, with its vague terms and conditions. For much of my career, I’ve been evangelizing a First Amendment approach to free speech to skeptical Europeans and doubtful Americans, who are often tempted by laws banning “hate speech,” “extremism,” and “disinformation.” That appreciation for the First Amendment is something I share with many foreigners — Germans, Iranians, Russians — who now call America home.
[ . . . ]
It’s now clear that the government is targeting noncitizens for ideas and speech protected by the First Amendment. The most worrying example (so far) is a Turkish student at Tufts University, apparently targeted for co-authoring a student op-ed calling for, among other things, Tufts to divest from companies with ties to Israel. One report estimates that nearly 300 students from universities across the country have had their visas revoked so far.
Instead of correcting this overreach, the government has doubled down. U.S. Citizenship and Immigration Services recently announced that it would begin screening the social media posts of aliens “whose posts indicate support for antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity.” Shortly after, the X account of USCIS posted about a “robust social media vetting program” and warned: “EVERYONE should be on notice. If you’re a guest in our country — act like it.” And four days later, White House homeland security adviser Stephen Miller promised to deport “anyone who preaches hate for America.” What that means is anybody’s guess — and seems to depend entirely on subjective assessments.
[ . . . ]
Had America been known for deporting, rather than welcoming, dissent, I would never have made it my home. That might not have been much of a loss. But consider this: 35 percent of U.S.-affiliated academic Nobel laureates are immigrants, and nearly half of all American unicorn startups have founders born outside the country. How many of these brilliant minds would have chosen the United States if they risked exile for crossing the speech red lines of the moment?
As a European who owes my freedom in life thus far to the America that fought Nazism and defeated communism, I feel a responsibility to speak out when this country strays from its founding ideals. I came to America for its freedom, not just to enjoy it, but to defend it — even if that puts me at risk.
Related
New scholarly article on commencement speaker provocateurs
This Article explores an untheorized area of First Amendment doctrine: students’ graduation speeches at public universities or private universities that embrace free speech principles, either by state statute, state constitutional law, or internal policy. Responding to recent graduation speech controversies, it develops a two-tier theory that reconciles a multiplicity of values, including students’ expressive interests, universities’ institutional interests in curating commencement ceremonies and preventing reputational damage, and the interests of captive audiences in avoiding speech they deem offensive or profane.
The Article challenges the prevailing view that university students’ graduation speeches implicate individual First Amendment rights. It develops a site-specific understanding of the ritualistic sociology of the university commencement speech, which the Article argues is firmly within the managerial purview of the university. But it also argues that heavy-handed administrative regulation of student graduation speeches has the potential to undermine the academic freedom of students and professors.
Reflecting on the history of the university commencement speech in the American intellectual tradition, it urges university administrators to exercise their authority to regulate speeches through transparent standards, a longitudinal view, and collaborative negotiation with student speakers.
It concludes by discussing the conceptual dangers of turning the First Amendment into a metonym for every instance of speech abridgment within a managerial sphere.
‘So to Speak’ podcast: Rabban and Chemerinsky on academic freedom
Our guests today signed onto a statement by a group of 18 law professors who opposed the Trump administration’s funding threats at Columbia on free speech and academic freedom grounds.
Since then, Northwestern, Cornell, Princeton, Harvard, and nearly 60 other colleges and universities are under investigation with their funding hanging in the balance, allegedly for violations of civil rights law.
To help us understand the funding threats, Harvard’s recent lawsuit against the federal government, and where universities go from here are:
David Rabban — distinguished teaching professor at The University of Texas at Austin School of Law
Erwin Chemerinsky — distinguished professor of law and dean at UC Berkeley Law.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Emergency Applications
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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.
President Donald Trump took aim at college accreditors in an executive order signed Wednesday that targets two accrediting agencies for investigation and suggests others could lose federal recognition altogether.
The order was one of seven issued Wednesday as Trump nears the end of his first 100 days. Others directed the Education Department to enforce the law requiring colleges to disclose some foreign gifts and contracts, aimed to support historically Black colleges and universities, and outlined several policy changes for K-12 schools. With the accreditation order and the others, Trump and White House officials argued they were refocusing the education system on meritocracy.
Education Secretary Linda McMahon, who was in the Oval Office for the signing, opened her follow-up statement by praising the accreditation order and saying it would “bring long-overdue change” and “create a competitive marketplace.”
“America’s higher education accreditation system is broken,” she wrote. “Instead of pushing schools to adopt a divisive DEI ideology, accreditors should be focused on helping schools improve graduation rates and graduates’ performance in the labor market.”
Some of the immediate public reactions from higher ed groups criticized the accreditation order, describing it as yet another attempt to put more power in the hands of the president and threaten academic freedom.
The Council of Higher Education Accreditation said Trump’s directive would “affect the value and independence of accreditation,” while the American Association of University Professors said it would “remov[e] educational decision making from educators and reshap[e] higher education to fit an authoritarian political agenda.”
Overhauling Accreditation
Rumored for weeks, the accreditation order was perhaps the most anticipated one of those signed Wednesday, and it will likely have widespread ramifications as Trump seeks to scrutinize and reform the system.
Historically, accreditors have operated under the radar with little public attention, but in recent years conservatives have focused on the agencies and their role in holding colleges accountable. (The accreditors do hold a lot of power, because universities must be accredited by a federally recognized agency in order to access federal student aid.)
During his presidential campaign, Trump himself called accreditation reform his “secret weapon” and accused accreditors of failing “to ensure that schools are not ripping off students and taxpayers.”
The order calls for McMahon to suspend or terminate an accreditor’s federal recognition in order to hold it accountable if it violates federal civil rights law, according to a White House fact sheet. The executive order specifically says that requiring institutions “to engage in unlawful discrimination in accreditation-related activity under the guise of ‘diversity, equity, and inclusion’ initiatives” would be considered a violation of the law.
The order also singles out the American Bar Association, which accredits law schools, and the Liaison Committee on Medical Education, which accredits medical schools, and directs cabinet secretaries to investigate them. (The American Bar Association suspended DEI standards for its members in February, as did some other accreditors.)
Beyond that, McMahon is tasked to “realign accreditation with student-focused principles.” That could include recognizing new accreditors, prioritizing intellectual diversity among faculty and requiring “high-quality, high-value academic programs,” though the fact sheet doesn’t say how that would be measured.
White House staff secretary Will Scharf said during the event that accreditors have relied on “woke ideology” instead of merit and performance to accredit universities. He didn’t provide evidence for his claims, but the fact sheet cites the national six-year undergraduate graduation rate, which is at 64 percent, as one example of how accreditors have “failed to ensure quality.”
“The basic idea is to force accreditation to be focused on the merit and the actual results that these universities are providing, as opposed to how woke these universities have gotten,” Scharf said.
The Trump administration also wants to streamline the process to recognize accreditors and for institutions to change agencies. Some states that have required their public colleges to change accreditors have claimed that the Biden administration made the process too cumbersome.
Scharf said the order charges the Education Department “to really look holistically at this accreditation mess and hopefully make it much better.”
Trump didn’t say much about the order or what actions he hopes to see McMahon take next.
Enforcement of Foreign Gifts
The president is not the first government official this year who has sought to limit foreign influence on American colleges and universities.
The House recently passed a bill, known as the DETERRENT ACT, which would amend Section 117 of the Higher Education Act to lower the threshold for what foreign gifts must be reported from $250,000 to $50,000. It also would require the disclosure of all gifts from countries of “concern,” like China and Russia, regardless of amount. The legislation advanced to the Senate in late March following a 241–169 vote.
Rep. Tim Walberg, a Michigan Republican and chair of the committee that introduced the bill, praised Trump’s action Wednesday, saying it “underscores” a Republican commitment to “promoting transparency.”
“Foreign entities, like the Chinese Communist Party, anonymously funnel billions of dollars into America’s higher education institutions—exploiting these ties to steal research, indoctrinate students, and transform our schools into beachheads in a new age of information warfare,” Walberg wrote in a statement shortly after Trump’s order was signed. “I am glad the Trump administration understands the grave importance of this threat, and I look forward to working with President Trump to protect our students and safeguard the integrity of America’s higher education system.”
Colleges’ compliance with Section 117 has been a key issue for Republicans over the years. House lawmakers repeatedly criticized the Biden administration’s efforts to enforce the law, but former education secretary Miguel Cardona defended his agency’s actions. They also tried to pass the DETERRENT Act last session, but it was blocked by Democrats in the Senate.
The executive order is broader than the DETERRENT Act and does little to distinguish itself aside from directing McMahon to work with the attorney general and heads of other departments where appropriate and to reverse or rescind any of Biden’s actions that “permit higher education institutions to maintain improper secrecy.”
More Support for HBCUs
Another order creates within the White House an initiative focused on historically Black colleges and universities and revokes a Biden executive order titled “White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity Through Historically Black Colleges and Universities.”
During his first term, Trump moved an HBCU initiative at the Education Department to the White House as a largely symbolic gesture to show his support for Black colleges. That initiative continued under Joe Biden, though it was returned to the Education Department. Biden also created initiatives focused on Hispanic-serving institutions and tribal colleges. Trump ended those newly created initiatives during his first week in office.
The executive order also established the President’s Board of Advisors on HBCUs at the Education Department, which appears to already exist. The panel last met in January, according to a Federal Register notice.
Scharf said the order would ensure that HBCUs are “able to do their job as effectively and as efficiently as possible.”
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The Trump administration on Friday announced a major change in Title IX enforcement at schools and colleges, tapping the U.S. Department of Justice to help investigate and ultimately enforce the separation of transgender students from girls’ and women’s athletics teams and spaces in schools and colleges.
The Title IX Special Investigations Team shifts some civil rights investigations and enforcement from the U.S. Department of Education to the Department of Justice — both of which are a part of the newly minted unit.
The move is part of a Trump administration effort to push through a backlog of complaints at the Education Department’s Office for Civil Rights. These investigations usually take months — sometimes years — to complete. The process typically includes interviews and other tools and ultimately ends in resolution agreements to bring schools into compliance.
Instead, the department will rely on a rapid resolution process to address sex discrimination complaints, framing the move as a way to protect cisgender girls and women, according to a Friday announcement. Rapid resolution is “an expedited case processing approach,” according to the Trump administration’s case processing manual, which was updated in January.
There are certain requirements before rapid resolution is an option, including having the complainant initiate the expedited process and having schools on board with that plan of action to resolve a complaint. The tool can be tapped when schools have already taken action to resolve the complaint on their own accord. It was used under the previous administration as well to address the increasing volume of complaints.
“OCR under this Administration has moved faster than it ever has, and the Title IX SIT will ensure even more rapid and consistent investigations,” U.S. Secretary of Education Linda McMahon said in Friday’s announcement. “To all the entities that continue to allow men to compete in women’s sports and use women’s intimate facilities: there’s a new sheriff in town. We will not allow you to get away with denying women’s civil rights any longer.”
Attorney General Pamela Bondi said in an accompanying statement that “protecting women and women’s sports is a key priority” for the Department of Justice. The agency will “ take comprehensive action when women’s sports or spaces are threatened,” she continued. The administration has often used that language to separate transgender students from programs spaces aligning with their gender identities with blanket bans.
The department’s formal announcement that it is handing off Title IX enforcement to the Justice Department and joining forces on investigations comes after weeks of collaboration between the two agencies, confirming suspicions from education civil rights attorneys that DOJ involvement will be the new normal.
It was also expected, considering that Education Department layoffs gutted half of OCR enforcement offices nationwide, and the department was already relying on the DOJ in the layoffs’ wake.
The Education Department already tapped the Justice Department in an investigation the Trump administration launched into the Maine Department of Education over the state’s transgender athlete policy.
“Why would they continue to administratively enforce when they’re trying to put themselves out of jobs?” Kayleigh Baker, a Title IX attorney for TNG Consulting, an education civil rights consultant group, surmised late last month in wake of the Maine case. “And so I think leaning on DOJ makes sense.”
Prior to this administration, the DOJ was rarely called off the bench to enforce civil rights protections in schools, and its involvement was usually only reserved for complex and high-profile cases.
The move to more heavily involve the Justice Department in education civil rights enforcement also comes as the administration aims to shift other Education Department responsibilities to outside agencies. In March, for example, the administration announced that it intends to move special education oversight to the U.S. Department of Health and Human Services.
Lawsuits challenging the Education Department’s mass layoffs claim they have compromised the agency’s ability to continue statutory responsibilities such as civil rights enforcement. But the department told K-12 Dive in a March email that would not be the case.
“We are confident that the dedicated staff of OCR will deliver on its statutory responsibilities,” said department spokesperson Madi Biedermann at the time.
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The Trump administration on Friday announced a major change in Title IX enforcement at schools and colleges, tapping the U.S. Department of Justice to help investigate and ultimately enforce the separation of transgender students from girls’ and women’s athletics teams and spaces in schools and colleges.
The Title IX Special Investigations Team shifts some civil rights investigations and enforcement from the U.S. Department of Education to the Department of Justice — both of which are a part of the newly minted unit.
The move is part of a Trump administration effort to push through a backlog of complaints at the Education Department’s Office for Civil Rights. These investigations usually take months — sometimes years — to complete. The process typically includes interviews and other tools and ultimately ends in resolution agreements to bring schools into compliance.
Instead, the department will rely on a rapid resolution process to address sex discrimination complaints, framing the move as a way to protect cisgender girls and women, according to a Friday announcement. Rapid resolution is “an expedited case processing approach,” according to the Trump administration’s case processing manual, which was updated in January.
There are certain requirements before rapid resolution is an option, including having the complainant initiate the expedited process and having schools on board with that plan of action to resolve a complaint. The tool can be tapped when schools have already taken action to resolve the complaint on their own accord. It was used under the previous administration as well to address the increasing volume of complaints.
“OCR under this Administration has moved faster than it ever has, and the Title IX SIT will ensure even more rapid and consistent investigations,” U.S. Secretary of Education Linda McMahon said in Friday’s announcement. “To all the entities that continue to allow men to compete in women’s sports and use women’s intimate facilities: there’s a new sheriff in town. We will not allow you to get away with denying women’s civil rights any longer.”
Attorney General Pamela Bondi said in an accompanying statement that “protecting women and women’s sports is a key priority” for the Department of Justice. The agency will “ take comprehensive action when women’s sports or spaces are threatened,” she continued. The administration has often used that language to separate transgender students from programs spaces aligning with their gender identities with blanket bans.
The department’s formal announcement that it is handing off Title IX enforcement to the Justice Department and joining forces on investigations comes after weeks of collaboration between the two agencies, confirming suspicions from education civil rights attorneys that DOJ involvement will be the new normal.
It was also expected, considering that Education Department layoffs gutted half of OCR enforcement offices nationwide, and the department was already relying on the DOJ in the layoffs’ wake.
The Education Department already tapped the Justice Department in an investigation the Trump administration launched into the Maine Department of Education over the state’s transgender athlete policy.
“Why would they continue to administratively enforce when they’re trying to put themselves out of jobs?” Kayleigh Baker, a Title IX attorney for TNG Consulting, an education civil rights consultant group, surmised late last month in wake of the Maine case. “And so I think leaning on DOJ makes sense.”
Prior to this administration, the DOJ was rarely called off the bench to enforce civil rights protections in schools, and its involvement was usually only reserved for complex and high-profile cases.
The move to more heavily involve the Justice Department in education civil rights enforcement also comes as the administration aims to shift other Education Department responsibilities to outside agencies. In March, for example, the administration announced that it intends to move special education oversight to the U.S. Department of Health and Human Services.
Lawsuits challenging the Education Department’s mass layoffs claim they have compromised the agency’s ability to continue statutory responsibilities such as civil rights enforcement. But the department told K-12 Dive in a March email that would not be the case.
“We are confident that the dedicated staff of OCR will deliver on its statutory responsibilities,” said department spokesperson Madi Biedermann at the time.
A federal judge in Maryland this week ordered the U.S. Department of Education to reinstate numerous grants that support teacher-preparation programs.
The department canceled the $600 million in grants last month as part of a wider effort to slash federal funding and eliminate programs that promote diversity, equity and inclusion. In response, the American Association of Colleges for Teacher Education, the National Center for Teacher Residencies and the Maryland Association of Colleges for Teacher Education challenged the cuts, arguing in a lawsuit that the grant terminations were illegal.
On Monday, U.S District Judge Julie Rubin ordered the department to restore funding for the Supporting Effective Educator Development program, the Teacher Quality Partnership program and the Teacher and School Leader incentive program within five business days. That order comes after a federal judge last week directed the department to reinstate canceled grants in eight states.
“We are thrilled that the court has ruled in favor of preserving funding for TQP, SEED, and TSL grants, which have a transformative impact on our nation’s education system,” AACTE president and CEO Cheryl Holcomb-McCoy said in a news release.
The order also blocks the department from terminating any other TQP, SEED or TSL grant awards “in a manner this court has determined is likely unlawful as violative of the Administrative Procedure Act,” which instructs courts to “hold unlawful and set aside final agency actions” deemed “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
The judge asked both the department and the plaintiffs to file a status report within seven business days showing compliance with the order.
On March 14, the U.S. Court of Appeals for the 4th Circuit issued a decision allowing the Trump administration to enforce Executive Orders 14151 and 14173, both of which target “illegal … DEI preferences, mandates, policies, programs, and activities” in the public and private sectors and in federal contracts. The 4th Circuit’s decision effectively overrules a February 21 preliminary injunction issued in a U.S. District Court in Maryland that had blocked the administration from enforcing some provisions in the orders.
As a reminder, orders 14151 and 14173 revoke prior executive orders, including Executive Order 11246, which required federal contractors to maintain affirmative action plans. Among other things, orders 14151 and 14173 also mandate that:
federal agencies include provisions in federal contracts requiring that contractors agree to comply with nondiscrimination laws and certify they do not operate any DEI programs that violate discrimination laws;
the Office of Management and Budget terminate all “‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and like mandates, requirements, programs, or activities, as appropriate;” and
each agency “identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”
CUPA-HR will continue to share further developments regarding the lawsuits challenging orders 14151 and 14173.
On Feb. 11, the National Endowment for the Humanities announced on its website that it had modified its funding criteria for eligible humanities projects in compliance with three recent executive orders. According to the announcement, “NEH awards may not be used for the following purposes:
promotion of gender ideology;
promotion of discriminatory equity ideology;
support for diversity, equity, and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA) initiatives or activities; or
environmental justice initiatives or activities.”
These prohibitions impose the terminology of Executive Orders 14151, 14168 and 14190 onto future applicants for NEH funding, whether individual scholars, museums, nonprofit organizations or colleges (including historically Black colleges and universities and tribal colleges). Published well within the stipulated 60-day window for government agency compliance with the order to terminate all “equity-related” initiatives, grants or contracts, these prohibitions represent a swift implementation of the Trump administration’s point-by-point mandate for “Ending Radical Indoctrination.”
I can only begin to conjecture here about what the consequences of the NEH’s new criteria might be for the humanities, the domain of cultural and intellectual inquiry the NEH was created to foster. To cite the National Foundation on the Arts and Humanities Act of 1965, “While no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent.”
To uphold conditions defined by prohibition rather than freedom—and with prohibitions explicitly targeting the right to existence of queer and transgender people (“gender ideology”), the ability in any way to offset egregious structural inequalities in educational and cultural access (“DEI”), and even the very right to advocate on behalf of anyone’s rights (“discriminatory equity ideology”)—is to betray the very terms under which the NEH was created. In revising its Notice of Funding Opportunities, the NEH is in violation of its public mission.
Presumably, as a government agency perpetually under threat of budget cuts, the NEH hastened to implement Trump’s executive orders in order to fend off wholesale elimination. The NEH is a federal agency and is thus directly implicated in the executive orders, provided those orders are constitutional. By complying with Trump’s ideology, the National Endowment may perhaps live to see another day, thereby preserving the careers of at least some of its approximately 185 employees and its ability—to do what?
The NEH has not yet fully overhauled its website to reflect its compliance. Of its current listings of Great Projects Past and Present, perhaps “The Papers of George Washington,” “Journals of the Lewis and Clark Expedition,” and “The Real Buffalo Bill” might manage to squeeze through under the new stipulations, but would the Created Equal documentary film project be so lucky? Would a biography of union organizer César Chavez manage to qualify as a fundable project, or a documentary about “A Black Surgeon in the Age of Jim Crow”? How about the Transatlantic Slave Trade Database? The NEH has leveraged its own institutional survival on the forfeit of future such projects.
The problem is a far deeper one, however. In what universe should it be too much to ask that a state-sponsored institution created to uphold the “material conditions” for freedom of thought, imagination and inquiry put up even the slightest resistance to the inhumane, reactionary and repressive edicts issued by the Trump regime? Even today, the NEH website champions its past support for projects that uphold justice in the face of oppression, that resist totalitarian erasure. Yet the NEH itself has mustered no such resistance. Instead, it has announced that any such projects are now ineligible for consideration.
Of one thing I am certain: The National Endowment for the Humanities has forfeited its claim to the word “humanities.” The humanities do not designate a prohibitive sphere of capitulation to ruling forces. The humanities are not furthered by a governmental agency that serves, willingly or unwillingly, as an ideological extension of a political party. The humanities are a domain of inquiry, of questioning and investigation, not of unquestioning acquiescence.
As a literature professor and an educator in the humanities for more than a quarter century, I have assured my students that the study of cultural, artistic and intellectual production is continuous with its practice. This not only means that humanistic inquiry involves creativity, creation and a commitment to thinking freely, but it also means that humanistic inquiry necessarily upholds the same responsibility to questions of ethics, value and meaning with which any other historical action must reckon. Humanists cannot, and do not, stand meekly aside while the “real” agents of historical change make big decisions.
In posting a recent message to the frequently asked questions web form on the NEH website, I wrote that in light of the NEH’s silent capitulation to Trump’s executive orders, I was ashamed to call myself a humanist. I hereby recant that statement. I am not ashamed to call myself a humanist. It is the National Endowment for the Humanities that should be ashamed. Or, better yet, I call on the NEH and all its 185 employees, including and especially NEH chair Shelly C. Lowe, to recant their compliance with Executive Orders 14151, 14168 and 14190 and join other national and international agencies, organizations and individuals in resisting the inhumane and unconstitutional decrees of the Trump administration.
Jonathan P. Eburne is a professor of comparative literature, English and French and Francophone studies at Pennsylvania State University and director of undergraduate studies in comparative literature.
