The names of faculty, students and staff were contained in documents related to a federal investigation on alleged campus antisemitism.
Justin Sullivan/Getty Images
The University of California, Berkeley, told about 160 faculty, staff and students on Sept. 4 that their names appeared in documents officials gave to the Trump administration, which is investigating the university’s response to reports of campus antisemitism, The New York Times reported.
According to Berkeley, the 160 names provided to the Education Department in compliance with the investigation include people accused of or affected by antisemitic incidents, as well as those who filed complaints about antisemitism on campus.
Berkeley is one of numerous higher education institutions the Trump administration is investigating for alleged antisemitism, including the University of California, Los Angeles. The UC system is also weighing Trump’s demands that UCLA pay the government a $1.2 billion settlement to restore $584 million in frozen federal research funding.
Berkeley’s decision to hand over the 160 names comes two months after House Republicans grilled Berkeley’s chancellor, Rich Lyons, and two other university leaders at a hearing about their alleged failures to protect Jewish students from discrimination and harassment. At the hearing, Lyons said the university has an “obligation to protect our community from discrimination and harassment” and uphold the First Amendment’s guarantee of free speech.
While some alumni criticized Berkeley’s compliance with the Trump administration’s investigation, the UC system said in a statement to the Times that it’s “committed to protecting the privacy of our students, faculty, and staff to the greatest extent possible, while fulfilling its legal obligations.”
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The Trump administration will release the remaining fiscal year 2025 K-12 grant funds that it had frozen — nearly $5 billion — to states and districts, the Office of Management and Budget confirmed Friday.
The funding for student academic supports, English learners, immigrant students and teacher training was supposed to be available July 1, but was not released pending a “programmatic review” by OMB, the White House’s budget arm.
That review was to ensure the grants align with Trump administration policies and priorities, OMB told K-12 Dive earlier this month. The office had said initial findings showed “many of these grant programs have been grossly misused to subsidize a radical leftwing agenda.”
On Friday, a senior administration official told K-12 Dive in an email, “Guardrails are in place to ensure these funds will not be used in violation of Executive Orders or administration policy.”
Earlier this week, OMB began releasing $1.3 billion it had withheld for after-school and summer programming under the 21st Century Community Learning Centers grant, according to the Afterschool Alliance.
The remaining funds to be released are:
$2.2 billion for Title II-A for professional development.
$1.4 billion for Title IV-A for student support and academic enrichment.
$890 million for Title III-A for English-learner services.
$375 million for Title I-C for migrant education.
Education officials, Republican and Democratic lawmakers, education organizations, parents and nonprofits had all urged OMB to release the funds that were approved by Congress in an appropriations bill that President Donald Trump signed in March. They said the weekslong delay in accessing the money was already causing “budgetary chaos” for schools, which began cancelling contracts, laying off staff and eliminating programs when the funds didn’t arrive as scheduled.
A survey by AASA, the School Superintendents Association, found that nearly 30% of districts said they needed access to the withheld funds by Aug. 1 to avoid cutting programs and services for students. By Aug. 15, survey respondents said they would have to notify parents and educators about the loss of programs and services. The survey was conducted earlier this month and drew responses from 628 superintendents in 43 states.
On Friday, David Schuler, AASA’s executive director, said in a statement that he was pleased the “critical” funds would now be available to schools.
Sen Patty Murray, D-Wash., vice chair of the Senate Appropriations Committee, said in a statement Friday, “There is no good reason for the chaos and stress this president has inflicted on students, teachers, and parents across America for the last month, and it shouldn’t take widespread blowback for this administration to do its job and simply get the funding out the door that Congress has delivered to help students.”
Randi Weingarten, president of the American Federation of Teachers, addressed the news during a keynote speech Friday at the Together Educating America’s Children conference in Washington, D.C., according to a press release.
“Today, they backed down: our lobbying, our lawsuits, and our advocacy for why these funds matter to kids, it worked.” Weingarten said.
Becky Pringle, president of the National Education Association, said in a Friday statement, “These reckless funding delays have undermined planning, staffing, and support services at a time when schools should be focused on preparing students for success.”
Common Sense Media has released its first AI Toolkit for School Districts, which gives districts of all sizes a structured, action-oriented guide for implementing AI safely, responsibly, and effectively.
Common Sense Media research shows that 7 in 10 teens have used AI. As kids and teens increasingly use the technology for schoolwork, teachers and school district leaders have made it clear that they need practical, easy-to-use tools that support thoughtful AI planning, decision-making, and implementation.
Common Sense Media developed the AI Toolkit, which is available to educators free of charge, in direct response to district needs.
“As more and more kids use AI for everything from math homework to essays, they’re often doing so without clear expectations, safeguards, or support from educators,” said Yvette Renteria, Chief Program Officer of Common Sense Media.
“Our research shows that schools are struggling to keep up with the rise of AI–6 in 10 kids say their schools either lack clear AI rules or are unsure what those rules are. But schools shouldn’t have to navigate the AI paradigm shift on their own. Our AI Toolkit for School Districts will make sure every district has the guidance it needs to implement AI in a way that works best for its schools.”
The toolkit emphasizes practical tools, including templates, implementation guides, and customizable resources to support districts at various stages of AI exploration and adoption. These resources are designed to be flexible to ensure that each district can develop AI strategies that align with their unique missions, visions, and priorities.
In addition, the toolkit stresses the importance of a community-driven approach, recognizing that AI exploration and decision-making require input from all of the stakeholders in a school community.
By encouraging districts to give teachers, students, parents, and more a seat at the table, Common Sense Media’s new resources ensure that schools’ AI plans meet the needs of families and educators alike.
eSchool Media staff cover education technology in all its aspects–from legislation and litigation, to best practices, to lessons learned and new products. First published in March of 1998 as a monthly print and digital newspaper, eSchool Media provides the news and information necessary to help K-20 decision-makers successfully use technology and innovation to transform schools and colleges and achieve their educational goals.
A judge released a Harvard Medical School research associate and Russian native Thursday. She had been held in federal detention for nearly four months after she tried to re-enter the U.S.
Kseniia Petrova still faces a criminal charge for allegedly trying to smuggle frog embryos into the country through Boston’s Logan International Airport, where Customs and Border Protection detained her, but she’s been freed for now.
“I hear it’s sunny. Goodbye,” U.S. magistrate judge Judith G. Dein said after approving Petrova’s release, the Associated Press reported.
The AP wrote that Petrova, standing outside the John Joseph Moakley U.S. Courthouse in Boston, thanked her supporters, saying, “I never really felt alone any minute when I was in custody, and it’s really helped me very much.”
The court set a probable cause hearing in the case for next Wednesday.
Despite being detained Feb. 16 and transferred to Immigration and Customs Enforcement custody in Louisiana, it wasn’t until mid-May that prosecutors announced the smuggling charge. One of her lawyers, Gregory Romanovsky, has said that Petrova “was suddenly transferred from ICE to criminal custody” less than two hours after a judge set a hearing on her release.
On May 28, a U.S. District Court of Vermont judge said that Petrova’s immigration detention was unjustified and granted bail, but that didn’t immediately lead to her release, NBC News reported.
“It’s difficult to understand why someone like Kseniia needed to be jailed for four months,” Romanovsky said. “She poses no danger and has deep ties to her community. Her case is a reminder that immigration enforcement should be guided by law and common sense—and not deportation quotas.”
Sen. Bill Cassidy, R-Louisiana, spearheading the Senate plan for higher education reform.
Kevin Dietsch/Getty Images
Senate Republicans want to eliminate so-called “inflationary loans,” stop federal aid to degrees that leave students worse off and expand the Pell Grant to workforce training programs as part of a draft plan released late Tuesday evening to overhaul higher education policy.
The 71-page legislation is part of the Senate’s response to the One Big Beautiful Bill Act, which passed the House last month and is designed to fund President Donald Trump’s tax cuts, his crackdown on immigration and other top agenda items.
The Senate Health, Education, Labor and Pensions committee drafted the higher education portion of the legislation. As expected, the plan mirrors the House bill in many ways as it calls for significant changes to the federal student loan system. For instance, both plans would end the Grad Plus loans and restrict the Parent Plus program.
But the Senate has a different plan to hold colleges accountable, nixing the House’s proposed risk-sharing model, under which colleges would have to pay a fee for their graduates’ unpaid loans, for a measure like gainful employment. Under the Senate plan, colleges would have to report their average postgraduate income levels and could lose access to federal aid, depending on students’ earnings and debt. The Senate bill also omits a provision from the House bill that would exclude part-time students from the Pell grant. Overall, the changes in the Senate bill would save $300 billion over 10 years compared to the House bill, which would save $350 billion.
“American higher education has lost its purpose. Students are graduating with degrees that won’t get them a job and insurmountable debt that they can’t pay back,” said Sen. Bill Cassidy, the Republican chair of the HELP committee, in a news release. “We need to fix our broken higher education system, so it prioritizes student success and ensures Americans have the skills to compete in a 21st century economy. President Trump and Senate Republicans are focused on delivering results for American families and this bill does just that.”
Lawmakers are using the process known as reconciliation to advance the legislation, so it only needs 51 votes to pass the high chamber instead of the typical 60 votes. But before senators can vote, the Senate Budget committee and then the parliamentarian will have to scrutinize the various provisions and ensure they adhere to the reconciliation rules. For example, the policy changes must have a budgetary impact and be within the jurisdiction of the committee that proposed it.
President Donald Trump has set an ambitious July 4 deadline to sign the measure into law, which would require quick action from the Senate.
From the beginning of the Trump administration in January, House Republicans have been pushing a more radical plan with steep cuts to key welfare programs like Medicaid, the Supplemental Nutrition Assistance Program, and, most recently, student financial aid like the Pell Grant. Meanwhile, senators have talked about more modest, though still significant, spending cuts.
Now, Republicans from both chambers will have to get on the same page if they want to meet their deadline. All the while, lobbyists, policy analysts and political figures—including ex-Trump advisor, Elon Musk—are expected to come at the bill from every angle with critiques.
“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.
On March 1, the Department of Education’s Office for Civil Rights (OCR) released a Frequently Asked Questions document providing further guidance on OCR’s February 14, 2025, “Dear Colleague” letter.
The February 14 “Dear Colleague” Letter
The “Dear Colleague” letter outlines OCR’s enforcement position with respect to the legal requirements “under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities,” in light of the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard (SFFA). The letter states SFFA “clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI.” OCR declares in the letter that, in accordance with SFFA, federal law “prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” The letter states that OCR will “take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date,” which was February 28. OCR also notes in the letter that institutions that fail to comply “face potential loss of federal funding.”
CUPA-HR joined the American Council on Education and dozens of other higher education associations in a February 25, 2025, letter to OCR noting that the language in the “Dear Colleague” letter is ambiguous and, as a result, campuses are confused about their compliance responsibilities. CUPA-HR, ACE and the other associations requested in the letter that the department rescind the “Dear Colleague” letter and “engage with the higher education community to ensure a clear understanding of their legal obligations in this area.”
The FAQ
The March 1, 2025, FAQ provides details on how to file a discrimination complaint, the department’s view on what type of activity is unlawful and the department’s approach to enforcement.
Enforcement
With respect to the department’s approach to enforcement, the FAQ states that if OCR “determines that a school failed to comply with the civil rights laws that it enforces, [it] will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement.” The FAQ then states that “if a school is unwilling to negotiate a resolution agreement, OCR will inform the school of the consequences, which may result in OCR initiating enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings.”
Unlawful Activity
OCR notes in the FAQ that OCR’s assessment of whether an institution’s policies and programs are lawful “depends on the facts and circumstances of each case,” but provides more details on specific activities that do or may violate the law. The FAQ notes that it regards the following activities as unlawful:
preferences and stereotypes as a factor in admissions, hiring, promotion, scholarship, prizes, administrative support, sanctions, discipline, and other programs and activities;
any programming, graduation ceremonies, housing, or any other aspect of school life that allows one race but not another or otherwise separates students, faculty, or staff based on race; and
policies that appear neutral on their face but are made with racially discriminatory purpose.
With respect to the last bullet, OCR states in determining “whether a school acted with a racially discriminatory purpose, [it] may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent.” OCR provides the following “non-exhaustive list,” which may include:
whether members of a particular race were treated differently than similarly situated students of other races;
the historical background or administrative history of the policy or decision;
whether there was a departure from normal procedures in making the policy or decision;
whether there was a pattern regarding policies or decisions towards members of a particular race;
statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race;
whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race; and
the school’s history and stated policy of using racial classifications and race-based policies to further DEI objectives, “equity,” a racially oriented vision of social justice, or similar goals.
The FAQ also describes activities that could be unlawful. Specifically, the FAQ notes that “extreme practices at a university — such as requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race — are all forms of school-on-student harassment that could create a hostile environment under Title VI.”
DEI?
The FAQ notes, “whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” but rather whether it discriminates “based on race, color, or national origin.” The FAQ notes that institutions “may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races,” or programming that “discourages members of all races from attending, either by excluding or discouraging students of a particular race or races.”
The FAQ also notes, however, that “programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” OCR also states that “educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate or recognize historical events and contributions, and promote awareness,” are lawful “so long as they do not engage in racial exclusion or discrimination.”
Next Steps
CUPA-HR will continue to monitor and keep members apprised of any further developments.
On February 4, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to institutions of higher education regarding enforcement of Title IX regulations. Specifically, the letter reaffirms that OCR will enforce the first Trump administration’s Title IX rule instead of the Biden administration’s Title IX rule.
As a reminder, in early January of this year, a judge from the Eastern District of Kentucky Court struck down the Biden administration’s rule nationwide, reverting enforcement back to the 2020 Title IX regulations for all institutions. In the Dear Colleague letter, OCR states that the Department of Justice is responsible for determining whether to appeal the district court’s decision, but they confirm that the decision was effective immediately and that the Biden administration’s rule is no longer in effect in any jurisdiction.
In addition to the court decision, the letter also points to Trump’s executive order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The letter restates from the executive order that all federal agencies are directed to “‘enforce all sex-protective laws to promote [the] reality’ that there are ‘two sexes, male and female,’ and that ‘[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.’” As such, the letter states that OCR must enforce Title IX consistent with the executive order.
Finally, the letter orders all open Title IX investigations initiated under the Biden administration’s Title IX rule to “be immediately reoriented to comport fully with the requirements of the 2020 Title IX rule.” It also directs institutions to a Title IX resource page on the Department of Education’s website, which includes resources that provide an overview of the changing Title IX landscape over the past couple of years.
CUPA-HR is hosting a webinar on Title IX and Title IV enforcement at OCR on February 25 at 1 p.m. ET. The webinar is free to attend but registration is limited. A recording of the webinar will be available after the live event. CUPA-HR will continue to monitor for new developments related to Title IX enforcement under the new Trump administration.
On December 13, the Biden administration issued their Fall 2024 Regulatory Agenda, which provides insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Fall 2024 Regulatory Agenda is the second agenda published this year, following the Spring 2024 Regulatory Agenda released in July.
Given the upcoming change in administration, the Fall 2024 Regulatory Agenda is the last that will be released by the Biden administration. The Trump administration will seek to change many regulatory priorities after taking office, meaning that regulations intended to be released after the Biden administration leaves office will change or be withdrawn altogether. As such, the regulations and target dates highlighted below are not final and subject to change once the Trump administration takes office.
The Biden administration’s regulatory agenda reminds interested stakeholders of the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA)’s notice of proposed rulemaking on heat injury and illness prevention measures for both indoor and outdoor work settings. The comment period is open through January 14, 2025.
If finalized, the rule would impact all workplace settings under OSHA’s jurisdiction where employees are exposed to heat indexes that equal or exceed 80 degrees, regardless of whether the work is performed in an indoor or outdoor setting. All covered employers would need to circulate heat injury and illness prevention plans (HIIPPs), implement measures for providing breaks and water to employees exposed to high heat, and train employees on heat-related risks and illness prevention, among other provisions.
Given the comment period’s closing date, the incoming Trump administration will be tasked with next steps for the heat rule upon taking office. Trump nominated Lori Chavez-DeRemer to serve as DOL secretary, where she will oversee future actions taken with respect to heat injury and illness regulations. While she has not publicly weighed in on the current proposal, she co-led a report during her time in Congress that recommended the creation of a federal heat standard for nonimmigrant agricultural workers. She is also from Oregon, which has already implemented its own state heat illness prevention standard. As such, she may be responsive to moving forward with a heat injury and illness rule if confirmed as DOL secretary, though what those regulations may include remains to be seen.
The regulatory agenda includes a reminder that the Equal Employment Opportunity Commission (EEOC) published a notice of proposed rulemaking to extend existing recordkeeping requirements under EEO law to include charges under the Pregnant Workers Fairness Act (PWFA). The NPRM was published on November 21, 2024, and the comment period runs through January 21, 2025.
The PWFA was signed into law in December 2022, and the EEOC subsequently finalized implementing regulations for the PWFA in April 2024. The lengthy regulations provide guidance to employers and workers on people covered under the law and regulations, the types of limitations and medical conditions covered, and how to request reasonable accommodations.
According to the regulatory agenda, the new notice of proposed rulemaking sets out recordkeeping requirements for institutions of higher education relating to PWFA charges. The regulations do not require the creation of any records, but they do require that all covered entities (including higher ed institutions) maintain all employment and personnel records they make or keep in the regular course of business for a period of one year and all records relevant to a PWFA charge. These requirements are identical to the recordkeeping requirements related to Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA) charges.
In January 2025, the Department of Defense (DOD), General Services Administration (GSA), and NASA anticipate releasing a final rule to amend the Federal Acquisition Regulation on pay equity and transparency in federal contracting.
The joint agencies published a pay equity and transparency notice of proposed rulemaking in January 2024, in which the agencies propose to amend the Federal Acquisition Regulation to implement a government-wide policy that would:
prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
require these contractors and subcontractors to disclose the compensation to be offered on job announcements (“compensation disclosure” or “pay transparency”).
Although the agencies are targeting January 2025 for release, the final rule has not yet been sent to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. All regulations are required to be reviewed by OIRA before they are published for the public, and review typically lasts 30-60 days after the regulation is received. Given the short time left, it appears unlikely that the rule will be published before the end of the Biden administration’s term. It is unknown if the Trump administration will move forward with this rule or seek to withdraw it.
The Fall 2024 Regulatory Agenda shows that the Department of Homeland Security aimed for a December 2024 release of additional regulations to modernize the H-1B program. DHS met this timeline, publishing a final rule on December 18.
The final rule included several noteworthy provisions that addressed concerns raised by CUPA-HR in comments responding to the October 2023 proposed rule, including a modification of the definition and criteria for H-1B specialty occupations.
The rule also codifies DHS’s current policy to give deference to prior determinations when adjudicating petitions involving the same party and facts (known as the “deference policy”), eliminates the itinerary requirement in the Form I-129, expands the H-1B cap exemptions for nonprofit and governmental research organizations, enhances cap-gap protections for F-1 students transitioning to H-1B status, and strengthens the USCIS site-visit program.
The final rule takes effect on January 17, 2025, just days before the next presidential inauguration. While it is unclear if the incoming Trump administration will seek to modify or roll back the rule, the codification of key provisions, such as the deference policy, makes them more difficult to rescind without formal rulemaking.
Keeping with the date set in the Spring 2024 Regulatory Agenda, the Department of Education’s Office for Civil Rights (OCR) originally targeted December 2024 for the release of a notice of proposed rulemaking to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this in response to a 2019 Trump executive order and a 2021 Biden executive order.
The proposed rulemaking has become a higher priority for OCR, given the recent political activity on campus related to the Israel-Hamas war and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”
OCR missed the December target date, and the rule has not yet been sent to OIRA for review prior to publication. Given the short amount of time the Biden administration has before the end of its term, it seems unlikely that this rule will be published before the Trump administration takes office. It is unknown if and how the Trump administration would move forward with regulations on the same issue, though they may seek to publish a proposal given the first Trump administration’s 2019 executive order on combatting antisemitism.
In the Fall 2024 Regulatory Agenda, OCR kept its rule to finalize Title IX requirements related to transgender students’ participation in athletic programs to its “long-term actions” list, but the Biden administration subsequently withdrew it on December 20, 2024, halting all efforts to finalize the rule.
As a reminder, the April 2023 proposed rule recommended language that would prohibit schools receiving federal funding from adopting or applying a one-size-fits-all ban on transgender student participation on teams consistent with their gender identity.
The Trump administration is likely to reverse the Biden administration’s Title IX regulations that expand protections to individuals facing discrimination on the basis of sexual orientation and gender identity. Trump and Republicans also spoke of bans on transgender women’s participation in women’s sports during the 2024 election campaign. As such, the Trump administration could choose to issue a separate Title IX rule regarding transgender students’ participation in athletic programs, though it remains to be seen if they will do so.
Looking Ahead
As mentioned above, the target dates and regulations themselves are likely to change once the Trump administration takes office. The public will not have insight into the anticipated regulatory and deregulatory activity under the Trump administration until the Spring 2025 Regulatory Agenda is released, which will likely be sometime in late spring or early summer 2025. CUPA-HR will continue to keep members apprised of all relevant regulatory activity as it develops throughout the year.
On July 5, the Biden administration released the Spring 2024 Unified Agenda of Regulatory and Deregulatory Action (Regulatory Agenda), providing insights on regulatory and deregulatory activity under development across more than 60 federal departments, agencies and commissions. The Spring 2024 Regulatory Agenda is the first of two that will be released during the calendar year, and it sets target dates for regulatory actions in the coming months.
CUPA-HR’s government relations team reviews each Regulatory Agenda that is released and has put together the following list of noteworthy regulations included in the current edition.
The Department of Education’s Office for Civil Rights (OCR) is targeting December 2024 for the release of a Notice of Proposed Rulemaking (NPRM) to amend Title VI of the Civil Rights Act of 1964 and OCR’s enforcement responsibilities for cases involving discrimination based on shared ancestry or ethnic characteristics. OCR is issuing this NPRM in response to a 2019 Trump Executive Order (EO) and a 2021 Biden EO.
The NPRM has become a higher priority for OCR, given the recent political activity on campus related to the war in Gaza and related scrutiny from Congressional Republicans of higher education’s response to protests on campus. In the Regulatory Agenda announcement, OCR explains the need for this rulemaking by stating that they have “received complaints of harassment and assaults directed at Jewish, Muslim, Hindu and other students based on their shared ancestry or ethnicity.”
According to the Regulatory Agenda, the Biden administration has pushed its final rule on transgender students’ participation in athletic programs to its “long-term actions,” with an undetermined date for when the final rule will be published. In the Fall 2023 Regulatory Agenda, the final rule was previously targeted for March 2024.
OCR released an NPRM on this topic in April 2023. Under the NPRM, schools that receive federal funding would not be permitted to adopt or apply a one-size-fits-all ban on transgender students participating on teams consistent with their gender identity. Instead, the proposal allows schools the flexibility to develop team eligibility criteria that serves important educational objectives, such as fairness in competition and preventing sports-related injuries. The department further explained that the eligibility criteria must take into account the sport, level of competition, and grade or education level of students participating, and the criteria would have to minimize harm to students whose opportunity to participate on a team consistent with their gender identity would be limited or denied.
The move to push the final rule to “long-term actions” with an undetermined publication date is likely a result of recent challenges to the Biden administration’s Title IX final rule and the upcoming election. Shortly after the Title IX rule was published, over two dozen states joined lawsuits challenging the regulations, with many citing the inclusion of protections for gender identity and sexual orientation as top concerns with the final rule. Since then, the Title IX final rule has been blocked from going into effect on August 1 in 14 states.
In December 2024, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) anticipate releasing a final rule to amend the Federal Acquisition Regulation (FAR) on pay equity and transparency in federal contracting.
The joint agencies published a pay equity and transparency NPRM in January 2024. In the NPRM, the agencies propose to amend the FAR to implement a government-wide policy that would:
prohibit contractors and subcontractors from seeking and considering job applicants’ previous compensation when making employment decisions about personnel working on or in connection with a government contract (“salary history ban”), and
require these contractors and subcontractors to disclose on job announcements the compensation to be offered (“compensation disclosure” or “pay transparency”).
As part of its justification for publishing the NPRM, the proposal noted that 21 states, 22 localities, and Washington, D.C., have put bans into place that prohibit employers from asking job applicants for their salary, and 10 states have pay transparency laws in place, with several other states working toward implementing such laws.
According to the Regulatory Agenda, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) anticipates releasing at least one more final rule to modernize the H-1B and F-1 visa programs in December 2024.
In October 2023, USCIS issued an NPRM to simplify the application process for H-1B visas, increase the program’s efficiency, and strengthen the program’s integrity measures. In February 2024, USCIS issued a final rule to implement a new beneficiary-centric selection process for H-1B registrations, but it did not finalize all of the provisions that were originally included in the NPRM. When publishing the February 2024 final rule, DHS indicated that it planned to publish a separate final rule to address the remaining aspects from October’s proposed rule. The separate final action listed in the Spring Regulatory Agenda will likely be the remainder of the provisions from the NPRM.
CUPA-HR will keep members apprised of updates to these regulations and additional policies as they are introduced.
