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.
New York governor Kathy Hochul took an unusual interest in the hiring practices of the City University of New York on Tuesday when she ordered the public system to take down a job posting for a professorship in Palestinian studies at Hunter College.
CUNY quickly complied, and faculty at Hunter are up in arms over what they call a brazen intrusion into academic affairs from a powerful state lawmaker.
The job posting was for “a historically grounded scholar who takes a critical lens to issues pertaining to Palestine including but not limited to: settler colonialism, genocide, human rights, apartheid, migration, climate and infrastructure devastation, health, race, gender, and sexuality.”
“We are open to diverse theoretical and methodological approaches,” the posting continued.
In a statement Tuesday night, Hochul said the posting’s use of the words “settler colonialism,” “genocide” and “apartheid” amounted to antisemitic attacks and ordered CUNY to “immediately remove” the posting.
A few hours later, CUNY complied, and system chancellor Félix Matos Rodríguez echoed Hochul’s criticisms of the posting.
“We find this language divisive, polarizing and inappropriate and strongly agree with Governor Hochul’s direction to remove this posting, which we have ensured Hunter College has since done,” he wrote in a statement.
Hochul also directed the university system to launch an investigation at Hunter “to ensure that antisemitic theories are not promoted in the classroom.” Matos Rodríguez appeared to imply the system would follow that order as well, saying, “CUNY will continue working with the Governor and other stakeholders to tackle antisemitism on our campuses.”
A CUNY spokesperson declined to say whether the system would launch a probe into the posting at Hunter but wrote in an email that “each college is responsible for its own faculty job posting.”
Hochul’s order came after pro-Israel activists, including a former CUNY trustee and current professor, publicly voiced concerns about the posting.
“To make a Palestinian Studies course completely about alleged Jewish crimes is akin to courses offered in the Nazi era which ascribed all the world’s crimes to the Jews,” Jeffrey Weisenfeld, who served as a CUNY trustee for 15 years, told The New York Post.
Faculty at Hunter are livid about the decision, according to multiple professors who spoke with Inside Higher Ed both on the record and on background. They say it’s a concerning capitulation to political pressure from an institution they long believed to be staunchly independent.
One longtime Hunter and CUNY Graduate Center professor, who spoke with Inside Higher Ed on the condition of anonymity out of fear for their job, said faculty across the system were “outraged at this craven act by our governor and our chancellor.”
“It shows that [Matos Rodríguez] has no commitment to academic freedom or moral compass that would allow him to stand up at this moment of political repression,” they said.
CUNY’s Professional Staff Congress, the union representing more than 30,000 faculty and staff members across the system’s 25 campuses, wrote a letter to Matos Rodriguez on Wednesday evening condemning the posting removal and calling on leadership to reverse their decision.
“An elected official dictating what topics may be taught at a public college is a line that should not be crossed,” the letter reads. “The ‘divisive concepts’ standard for universities is something devised in Florida that shouldn’t be exported to New York. What’s needed are inclusive ways of teaching, not canceling concepts and areas of study.”
It was unclear Wednesday whether the job posting would be edited and reposted or if the opening would be eliminated. A CUNY spokesperson declined to respond to questions about the job’s future, but the anonymous faculty member said they believed Hunter officials were revising the post, intending to relist it.
The anonymous professor said they were worried that Hunter president Nancy Cantor, who took on the role last August after leading Rutgers University–Newark for a decade, could face severe scrutiny after the posting.
“We fully support this initiative by our president to make this Palestinian studies cluster hire,” the anonymous professor said. “I’m very worried about Nancy Cantor’s tenure at Hunter. I think this is part of a campaign by the far right to get rid of Félix [Matos Rodríguez], and it would not surprise me in the least if he threw Nancy Cantor under the bus to save his own skin.”
Heba Gowayed, an associate professor of sociology at Hunter, said she was shocked that Hochul had made the job posting a priority, especially as threats to academic freedom and attacks on higher education from Republicans are intensifying.
“This is an unprecedented overstep in authority, but instead of coming from Republicans, it’s coming from a Democrat in one of the bluest states in the country,” she said. “They’re the ones that are supposed to be fighting to protect academic freedom. This is a tremendous abdication of that responsibility.”
‘A Climate of Fear’
The anonymous professor said their colleagues are grappling with contending emotions: rage and fear. There’s a great appetite to speak up, they said, but they also feel it’s more dangerous than ever, even for tenured faculty.
“People are worried across the board,” they said. “That is the kind of climate of fear that this sort of action creates.”
It’s not the first time CUNY has responded to pressure from pro-Israel activist groups in faculty workforce decisions. Since the Oct. 7, 2023, Hamas attacks, CUNY institutions have declined to renew contracts for two vocally pro-Palestinian professors: Danny Shaw at John Jay College of Criminal Justice, who says he was the target of a pro-Israel pressure campaign to get him fired after 18 years of teaching, and lecturer Lisa Hofman-Kuroda at Hunter, who was reported for pro-Palestinian social media posts.
Shaw, who is currently suing CUNY for breach of contract, told Inside Higher Ed that the decision to remove the job posting did not surprise him.
“This is McCarthyism 2.0,” he said. “Administrators won’t protect us. It’s been made pretty clear that at the end of the day, it’s either their necks on the chopping block or ours.”
Last spring, when the student-led pro-Palestinian encampment protests spread from Columbia University across town to the City College of New York, CUNY leadership drew criticism for calling the New York Police Department to disperse students. Gowayed said that decision shocked faculty across the system, who took pride in their institution’s progressive reputation and history of academic integrity.
Even then, she said she was “disturbed that they have let it get to this higher level of censoring faculty for a completely legitimate job posting.”
The Palestinian studies position was one of two Hunter planned to hire, and Gowayed said faculty and leadership at Hunter had been supportive of the plans to expand their research and teaching capacity in an area of growing interest.
“Whatever your feelings on Palestine, this is a research area in a widely recognized field of scholarship on genocide and apartheid,” Gowayed said. “These are well-established fields, whether you’re studying the Belgian Congo or Rwanda or Palestine, and the posting wasn’t even saying what approach the faculty should take … The reaction to this posting is so discrepant from the actual academic integrity of the job search.”
On February 21, a U.S. district judge issued a preliminary injunction against portions of two of the Trump administration’s executive orders regarding DEI programs. The decision, issued in U.S. District Court for the District of Maryland, blocks federal agencies from taking action to withhold federal funding from federal contractors that conduct programs or initiatives related to DEI.
The preliminary injunction strikes down three separate provisions across these executive orders:
EO 14151 requires the federal government to terminate all equity-related grants or contracts within 60 days (known as the “Termination Provision”).
EO 14173 requires that every grant recipient or federal contractor affirm its compliance with all federal antidiscrimination laws and that it does not operate any DEI programs (known as the “Certification Provision”).
EO 14173 directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations (known as the “Enforcement Threat Provision”).
The National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the mayor and city council of Baltimore, Maryland, challenged these three provisions, arguing that they violate free speech rights under the First Amendment and are unconstitutionally vague — violating the Fifth Amendment. Plaintiffs additionally alleged four types of irreparable harm: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech.
The court ultimately ruled that the plaintiffs were likely to succeed on their constitutional complaints and adequately demonstrated a sufficient likelihood of irreparable harm. The decision concluded that EO 14173 offers no guidance or notice of what the government now considers illegal DEI, and that plaintiffs showed “substantial evidence of the risks of such arbitrariness,” and that by “threatening the private sector with enforcement actions based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.”
The preliminary injunction means that federal agencies may not:
pause, freeze, impede, block, cancel or terminate any awards, contracts or obligations, or change any current obligation terms on the basis of the Termination Provision;
require any contractor to make any certification or other representation pursuant to the Certification Provision; or
bring any enforcement action under the False Claims Act in relation to the Enforcement Threat Provision.
The injunction does not speak to actions that federal agencies may have already taken in response to both executive orders. Nonetheless, the Trump administration will likely appeal the ruling. Given that the policies raised in these executive orders will hold widespread implications for federal contractors in the higher education community, CUPA-HR will continue to share further developments.
The U.S. Department of Education has issued a sweeping directive ordering educational institutions to eliminate race-based considerations from admissions, hiring, and other programs, sparking immediate opposition from civil rights organizations, educational leaders, and advocacy groups.
In a Dear Colleague Letter to schools receiving federal funding, the Department mandated the cessation of race preferences in areas ranging from admissions and hiring to scholarships and disciplinary actions. Schools that fail to comply within 14 days risk losing federal funding.
“With this guidance, the Trump Administration is directing schools to end the use of racial preferences and race stereotypes in their programs and activities,” said Acting Assistant Secretary for Civil Rights Craig Trainor, characterizing the move as “a victory for justice, civil rights laws, and the Constitution.”
The directive, which builds on last year’s Supreme Court decision in Students for Fair Admissions v. Harvard, extends far beyond college admissions to encompass elementary, middle, and high schools. It also targets diversity, equity, and inclusion (DEI) programs, which the Department claims have contributed to “widespread censorship” and a “repressive viewpoint monoculture” on campuses.
The Department’s action specifically prohibits race-based considerations in admissions processes, hiring and promotion decisions, compensation, scholarship and prize distributions, and disciplinary actions. Schools must now evaluate students “according to merit, accomplishment, and character,” according to the directive.
The sweeping nature of the order has raised serious concerns among education experts about its implementation timeline and scope. The 14-day compliance window, in particular, has drawn criticism from school administrators who argue that revamping entire systems of administration, hiring, and student life programs requires more time and careful consideration.
Critics of the directive argue that it represents an overreach of the Department’s authority and misinterprets the Supreme Court’s Harvard decision. While the Court ruled against race-conscious admissions programs at Harvard and the University of North Carolina, many legal experts contend that the ruling’s scope was more limited than the Department’s interpretation suggests.
The Department’s letter also takes aim at what it describes as a “DEI regime” in educational institutions, claiming these programs have fostered censorship through various mechanisms, including “deplatforming speakers who articulate a competing view” and using “bias response teams” to investigate those who object to a school’s racial ideology.
Educational institutions now face the complex task of reviewing and potentially overhauling numerous programs and policies to ensure compliance with the new directive. This includes examining everything from recruitment strategies and scholarship criteria to student organization funding and faculty hiring practices.
The Department has established a complaint system through its Office of Civil Rights for individuals who believe an institution has violated these new guidelines. However, education advocates warn that the rapid implementation timeline could lead to hasty decisions that might inadvertently harm educational equity and access.
As schools scramble to interpret and implement these changes, the directive’s long-term impact on educational equity and institutional diversity remains uncertain. The Department’s enforcement approach and how it will evaluate compliance are yet to be fully detailed, leaving many institutions in a challenging position as they attempt to navigate these new requirements while maintaining their educational missions and values.
As President Donald Trump churned out more than 80 executive orders over the past three weeks, sending the higher education community into a panic, some students were surprised to see a lack of campus protests—even at institutions traditionally rife with activism.
“I haven’t seen a whole lot, which is kind of uncharacteristic of our campus,” said Alana Parker, a student at American University in Washington, D.C. Though she’s heard of certain student political groups protesting on Capitol Hill, things have been quiet on campus.
“I don’t really know why that is, because, in my opinion, there should be more of an outcry. But from my perspective, I think people feel really disenfranchised and like there’s nothing we can do,” she said.
It’s a stark contrast from two semesters ago, when AU was one of dozens of campuses that made national news after pro-Palestinian students set up encampments in opposition to their universities’ investments in companies with ties to Israel.
Students and faculty at AU—and on campuses across the nation—also protested in 2017 after Trump prohibited individuals from seven majority-Muslim nations from entering the United States, according to a news report from the time.
Angus Johnston, a historian of student protest movements and a professor at Hostos Community College, said that he’s not entirely surprised that campuses seem relatively calm. Over the past 20 years, institutions have grown less and less permissive of student protests, culminating in a harsh crackdown on pro-Palestinian protests in spring 2024—in some cases involving police arrests. Since then, many campuses have introduced new—or enforced existing—rules restricting when, where and how students can demonstrate.
Aron Ali-McClory, a national co-chair of the Young Democratic Socialists of America, said that universities’ restrictions on free speech are “100 percent a factor” in why there aren’t many protests happening on campuses right now.
But they noted that the YDSA is mobilizing, just in different ways. Many campus chapters are currently focused on campaigning for their institutions to become “sanctuary campuses,” in the vein of sanctuary cities, municipalities that do not comply with federal immigration laws. Ali-McClory said the chapters involved in that movement are currently distributing petitions, informing their peers about the movement and handing out “know your rights” materials that aim to inform immigrants of how to handle conversations and interactions with immigration officers.
“Looking at what our YDSA chapters are doing across the country, we’re seeing people pivoting to meet the moment on their campus. A lot of that looks less like, ‘Let’s go out and do a protest’ and more, ‘How do we make material gains when the cards are stacked against us?’” they said.
Parker, the AU student, has also chosen to make her voice heard in a different way. An editor of the student newspaper, The Eagle, she and her colleagues penned a staff editorial calling on the university to speak out against Trump’s executive orders, particularly those targeting immigrants and diversity, equity and inclusion efforts. She said the article seemed to be effective: A few days after its publication, the institution sent an email to the campus community, signed by President Jonathan Alger, outlining resources available for immigrant students and employees.
Alger also addressed DEI, writing, “As we continue fostering an inclusive and welcoming community, we are working with teams across campus to determine the impacts on our inclusive excellence strategy and programs.”
‘A Powerful Force’
A handful of campuses have seen protests, primarily in response to their institutions taking steps to comply with Trump’s executive orders by shuttering DEI offices or removing DEI-related language and resources from webpages, for example.
At Missouri State University, students staged a protest after administrators announced they would close the Office of Inclusive Engagement and end other DEI programs “in response to changes nationwide and anticipated actions regarding DEI at the state level.”
According to the student newspaper, The Standard, 50 students gathered outside the main administrative building on Jan. 31 to call for the removal of the university’s president and to advocate for the passage of two bills that would require Missouri schools to teach about Black history and “the dehumanization of marginalized groups.”
At Stanford University, a group of about 15 students participated in a chalking event, writing messages of dissent, like “DEI makes Stanford Stanford,” on bike paths around White Plaza, a central outdoor area on campus.
“Here at Stanford, the important thing to me was that my leaders at my school knew that there would be people who would resist anything that they did to cave to Trump,” said freshman Turner Van Slyke, who organized the demonstration. “I think those leaders just knowing that there’s going to be resistance can be a powerful force for maintaining decency against Trump.”
Various other studentnewssources have reported that students at their institutions have joined outside groups in protesting at their state capitols, hoping to register their objections to Trump’s orders with governors and state representatives.
Johnston noted that more protests may erupt elsewhere as students begin to see the ways that the executive orders are impacting their campuses more directly.
“There’s a lot of stuff that is happening now that is essentially a hand grenade or a time bomb that’s going to explode in days or weeks or months,” he said. “To a large extent, I think this stuff is not having direct impact on a lot of [students] as of yet. Some stuff may be beginning to percolate down to the campus level. But a lot of this is real stuff that is happening, but the effects of it are not being felt directly by students just yet.”
Newly confirmed U.S. secretary of defense Pete Hegseth issued a memo Jan. 29 ordering the Department of Defense to eliminate diversity, equity and inclusion initiatives and offices—including race-conscious admissions at military academies.
The memo establishes a task force “charged with overseeing the department’s efforts to abolish DEI offices” and specifically prohibits “sex-based, race-based or ethnicity-based goals for academic admission” within the department, which oversees military academies. Hegseth wrote that he’s enforcing an executive order issued by President Trump instructing military academy leaders to eliminate DEI initiatives.
When the Supreme Court struck down affirmative action in 2023’s Students for Fair Admissions v. Harvard and UNC Chapel Hill, the justices explicitly made an exception for the military academies. In his majority opinion, Chief Justice John Roberts argued that the institutions, which train the military officer corps, may have “potentially distinct interests” when it comes to admissions and that diversity in the armed forces may be a national security prerogative.
Three of those academies—the Military Academy at West Point, the Naval Academy and the Air Force Academy—have since been sued by anti–affirmative action groups seeking to eliminate the exemption. Last February the Supreme Court declined to hear the case against West Point, and in December a federal judge ruled that the Naval Academy can continue to consider race in admissions; the case against the Air Force Academy is ongoing.
It is unclear if Hegseth’s order to eliminate race-based “quotas” in admissions would prohibit military academies from considering race at all when reviewing applications.
Since taking office for his second term on Jan. 20, President Trump has issued a flurry of executive orders, including several implicating the First Amendment and freedom of expression. Below, we highlight some of these orders and evaluate the potential ramifications for free speech.
Executive order on protecting freedom of speech is a good start — but more must be done
One of the first executive orders the president signed was titled “Restoring Freedom of Speech and Ending Federal Censorship.” This order aims to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” Specifically, the order notes the government has “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
FIRE welcomes this order’s call to end federal government censorship, including that which is hidden from public view. Leaks, court documents, and other disclosures have revealed instances of federal officials pressuring social media companies to limit controversial but constitutionally protected speech on vigorously disputed topics like the origins of Covid-19, the Hunter Biden laptop story, and election integrity.
We have writtenrepeatedly about the dangers of such government coercion, commonly referred to as “jawboning,” highlighting how this sneaky form of government censorship threatens freedom of expression.
A pledge by the executive branch to respect the free speech of all Americans is a good first step. But any executive order can be modified or reversed on the say-so of one person — the president. It will take actual legislation — such as FIRE’s model transparency bill — to create mechanisms that statutorily require disclosure and bring to light governmental efforts to strong-arm private social media companies into censoring protected speech.
In the meantime, FIRE will monitor the administration’s actions, just as we did during the Biden administration, and hold federal agencies to the standards set forth in the executive order.
Executive orders targeting DEI programs appear to avoid First Amendment pitfalls — but FIRE will be watching their implementation
President Trump also signed two executive orders with the aim of dismantling diversity, equity, inclusion, and accessibility programs. The first, signed on Jan. 20 and titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” calls for “termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”
DEI/DEIA programs and initiatives take many forms. FIRE has no position on the values DEI programs may seek to advance. But our experience defending student and faculty rights on campus demonstrates that DEI administrators and offices haveregularlybeen involved in threats to academic freedom and speech policing, functioning as a way to enforce preferred orthodoxy or ideology. And some DEI initiatives — such as mandatory DEI statements in faculty hiring or student admissions — flatly threaten free expression and academic freedom and should be prohibited. We have previously introduced model legislation designed to eliminate such use of political litmus tests in faculty hiring and student admission decisions.
FIRE has also seen legislation in which overbroad attempts to curtail DEI mandates threaten the very same speech rights of faculty and students they aim to protect. Overbroad restrictions can improperly limit classroom discussions — as we saw in West Virginia’s recent executive order prohibiting faculty from sharing any material that promotes or encourages certain DEI-related views, while at the same time permitting criticism of those views. This allows institutions to continue ideological litmus tests as long as such tests oppose DEI — which just recreates the same problem.
Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.
The president’s executive order appears to avoid these issues by targeting only the government’s own speech and initiatives, which it can constitutionally control. For instance, the Office of Management and Budget must provide a list of “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” This is different from prohibiting any federal grantees from promoting DEI, which would threaten speech. Instead, the order specifically targets federal grants made specifically for the purpose of advancing DEI, and the federal government is free to shut off that funding if it no longer wishes to advance those ideals or views.
A second DEI-related order, signed on January 21, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” aims to eliminate “affirmative action” and “illegal discrimination and illegal preferences” in line with the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which held race-based affirmative action programs in college admissions violated the Fourteenth Amendment. (FIRE takes no position on affirmative action.)
FIRE releases statement on the use of ‘diversity, equity, and inclusion’ criteria in faculty hiring and evaluation
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FIRE’s statement provides guidance to universities to ensure they respect faculty members’ expressive freedom when seeking to advance DEI.
The order helpfully includes two provisions that make clear it does not reach into the college classroom or infringe upon academic freedom:
(b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
(c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.
While these orders avoid constitutional pitfalls on their face, implementation should proceed carefully. Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.
Executive order on “gender ideology” invites possible abuse
This executive order focuses on “[defending] women’s rights and [protecting] freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” The order requires federal government agencies to:
remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.
This aspect of the order is limited to the federal government’s own speech. However, there is a risk, similar to that presented by imprecise anti-DEI legislation, that the breadth of such an order could lead to direct or indirect censorship of private actors. The government has the power to control its speech when it is the speaker, such as in a training given to its employees. But its power is much more limited when the speaker is a private citizen.
Of particular concern is this clause: “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
While the government can choose to change its own messaging on gender issues, it cannot deny funds to grantees for exercising their own First Amendment rights. Further, the imprecise language could encourage government actors to withhold otherwise available grants from those with opinions that do not align with the views expressed in this executive order — chilling constitutionally protected speech. Grantees who would otherwise espouse views agreeing with “gender ideology” may refrain for fear of losing their government grant, even if they do not use the grant itself to promote “gender ideology.”
Executive order intended to “protect” Americans from noncitizens who “espouse hateful ideology” is at odds with our culture of free speech
This executive order makes it federal policy to “protect [American] citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” In addition to requiring agencies to ensure their policies for screening aliens align with the executive order, it requires the secretary of state to:
Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens’ rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists.
The federal government has the authority to refuse entry to or deport people who genuinely present a national security threat. But the broad language of this order implies it may also be used to target people already in the U.S. for engaging in speech that is otherwise constitutionally protected. FIRE haspreviously expressed concern about denials of entry in cases where students and speakers were seemingly barred based on their speech. The ambiguous language of the order, including references to a “replacement of the culture,” suggests an intent to review and potentially punish foreign nationals for speech that would typically be protected.
To be clear, speech that calls for violence is generally protected by the First Amendment. As we have previously written, calls for genocide or chanting “From the river to the sea,” though listeners may be offended or deeply upset, are generally constitutionally protected. Denying visas or deporting anyone who engages in such speech will create a chilling effect, deterring foreign nationals from participating in lawful protests and demonstrations.
But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea.
While the driving force behind this executive order is the current Israel-Hamas conflict, there is no reason other than political whim that efforts to punish foreign nationals for their speech would stay confined to one side of that issue, or to the Israeli-Palestinian issue at all. If those targeted for “espousing hateful ideology” are today likely to be those supporting Hamas, a new government could aim such efforts at supporters of Israel’s military efforts in the coming years. Those from other nations experiencing ethnic or religious conflict, from Ukraine to Myanmar to Burkina Faso, could also face adverse immigration decisions for expressing their views.
Why (most) calls for genocide are protected speech
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Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.
Because this executive order is directed at foreign nationals, the legal First Amendment issues (as distinct from the cultural free speech questions) are complicated. The Supreme Court noted in Bridges v. Wixon that the freedom of speech is accorded to resident aliens, but other precedent upholds immigration consequences based on viewpoint, and immigration officials have targeted foreign nationals for deportation for otherwise-protected speech.
In the 1904 caseUnited States Ex. Rel. John Turner v. Williams, the Court upheld a law that allowed the deportation of “anarchists.” In the 1954 case Galvan v. Press, the Court upheld a law that allowed the deportation of non-citizens for belonging to the Communist Party. (Interestingly, statutory prohibitions on the naturalization of anarchists and members of the Communist Party still exist.)
But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea. Establishing a system that allows for the routine deportation of foreign nationals based solely on their otherwise protected speech would erode our national commitment to freedom of expression as a uniquely American cultural value.
In the wake of the recent Executive Orders on DEI, gender identity and immigration, higher ed institutions, like so many other organizations, are assessing the impacts and formulating next steps.
Amid the inevitable changes that lie ahead, it’s important to remember that the role of HR in creating and sustaining a higher ed workplace that provides access and opportunity for all employees hasn’t changed. The programs, policies, processes and language we use to support this work may need to evolve, but the work and the institutional values it supports remain the same.
We can still:
Promote equitable work and career pathing opportunities and pay for all employees.
Cultivate inclusive learning and working communities.
Create a workplace culture that embraces respect and civil discourse.
Level the playing field for everyone by working to remove bias, reviewing outdated policies, and creating transparency.
Reinforce institutional values by ensuring that all employees feel connected and supported.
However, as we review and evaluate the work we’re doing, we have the opportunity to do so with fresh eyes, reframing it in ways that are both purpose-driven and inclusive. For example:
Communities of people with diverse backgrounds and life experiences create opportunities for community members to grow, both personally and professionally. To support a diverse workforce, institutions must explore ways to generate a more diverse applicant pool.
Access, opportunity and equitable pay for all employees promote job satisfaction, recruitment and retention. To support access and opportunity, institutions must identify and remove roadblocks to opportunity. To support equity in pay, institutions must ensure their compensation structures support these efforts.
A safe and welcoming work environment fosters community and collaboration. To create a work environment that’s welcoming and psychologically safe, institutions must ensure that systems, policies and processes are free from discriminatory practices.
If you have resources or ideas to share with other CUPA-HR members regarding ways that you and your HR colleagues are refining your approach to creating and sustaining an inclusive campus community, please email them to [email protected]. Your submission will be treated as confidential and, if shared, will be described in terms that will not identify your institution.
You’re Not Alone
We know that HR leaders are often caught in the middle as different groups of employees and administrators express strong opinions and feelings regarding changes we must implement. In the coming weeks, CUPA-HR will share guidance and support to help you make changes to programs, policies and procedures and communicate these changes to the campus community.
We are also hosting webinars focused on the recent Executive Orders, as well as the rollback of the Title IX regulations. And we’ll continue to keep you informed about future Executive Orders and legislation, as well as potential actions we should take as higher education HR leaders.
The higher ed HR community has proved time and again how strong and resilient it is. Thanks for all the ways you lead and support your organizations, your employees and your CUPA-HR community.
The virtual mini-conference sponsored by Jobs for the Future was scheduled for Jan. 30.
The Rutgers University Center for Minority Serving Institutions announced Thursday that it has canceled an upcoming virtual conference about registered apprenticeship programs as a result of President Trump’s executive orders targeting diversity, equity and inclusion initiatives.
“We were very excited to bring the HBCUs and Registered Apprenticeship Mini-Conference to you next week,” said the email sent to registered attendees. “Unfortunately, due to President Trump’s Executive Orders … we have been asked to cease all work under the auspices of the Diversity, Equity, Inclusion, and Accessibility HUB at Jobs for the Future, which the U.S. Department of Labor funds.”
Jobs for the Future, an organization focused on helping college and workforce leaders create equitable economic outcomes for students, runs a national innovation hub focused on improving access to registered apprenticeships for women, people of color and other underrepresented groups.
Located in New Jersey, a blue state for more the 30 years, Rutgers has not faced pressure from state legislators to dismantle DEI. But the cancellation demonstrates the leverage and power the federal government can hold over colleges and universities by threatening to pull funding from programs that don’t comply with the president’s demands.
“That wariness and sort of pre-emptive compliance, even absent direct threats from the federal or state government, might be somewhat universal,” Brendan Cantwell, a professor of education at Michigan State University, told Inside Higher Ed.
“These leaders will be worried about losing their federal funding, which is exactly what DEI opponents want,” added Shaun Harper, a professor of education, business and public policy; the founder of the University of Southern California’s Race and Equity Center; and an Inside Higher Ed opinion contributor.
More cancellations are anticipated in the weeks and months to come as the Trump administration continues to issue executive orders. For instance, Trump’s growing team at the Department of Education announced a series of actions Thursday related to eliminating DEI.
“The Department removed or archived hundreds of guidance documents, reports, and training materials that include mentions of DEI from its outward facing communication channels [and] put employees charged with leading DEI initiatives on paid administrative leave,” agency officials said in a news release. “These actions are in line with President Trump’s ongoing commitment to end illegal discrimination and wasteful spending across the federal government. They are the first step in reorienting the agency toward prioritizing meaningful learning ahead of divisive ideology in our schools.”
Other actions the department has taken include:
Dissolving the department’s Diversity and Inclusion Council.
Terminating the Employee Engagement Diversity Equity Inclusion Accessibility Council within the Office for Civil Rights.
Canceling ongoing DEI training and service contracts that total over $2.6 million.
Withdrawing the department’s Equity Action Plan, which was released in 2023 to align with former president Joe Biden’s executive order to advance racial equity and support for underserved communities.
