Tag: Unlawful

  • Detaining Öztürk over an op-ed is unlawful and un-American

    Detaining Öztürk over an op-ed is unlawful and un-American

    FIRE has filed a “friend of the court” brief in support of Rümeysa Öztürk in her lawsuit against the Trump administration. FIRE argues that the U.S. government is unlawfully detaining Öztürk for protected speech and reviving the authoritarian spirit of the Alien and Sedition Acts in the process. The brief’s summary of argument follows.

    It is unthinkable that a person in a free society could be snatched from the street, imprisoned, and threatened with deportation for expressing an opinion the government dislikes. Certainly not in the country envisioned by our nation’s framers. America’s founding principle, core to who and what we are as a nation, is that liberty comes not from the benevolent hand of a king, but is an inherent right of every man, woman, and child. That includes “the opportunity for free political discussion” as “a basic tenet of our constitutional democracy.” Cox v. Louisiana, 379 U.S. 536, 552 (1965). And “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). For these reasons, along with all citizens, “freedom of speech and of press is accorded aliens residing in this country.” Bridges v. Wixon, 326 U.S. 135, 148 (1945).

    Secretary of State Marco Rubio, however, is arresting and detaining a PhD student, Rümeysa Öztürk, not because the government claims she committed a crime or other deportable offense, but for the seemingly sole reason that her expression — an op-ed in a student newspaper — stirred the Trump administration to anger. ICE made a discretionary decision to detain Ms. Öztürk under 8 U.S.C. § 1226(e). See Order, ECF No. 104, at 38. This Court explained that “her detention did not flow naturally as a consequence of her removal proceedings.” Id. The Secretary argues his discretionary power over lawfully present international students includes the authority to order their arrest, detention, and deportation for even protected speech. It does not.

    The First Amendment’s protection for free speech trumps a federal statute. United States v. Robel, 389 U.S. 258, 268 n.20 (1967). Accepting Secretary Rubio’s position would irreparably damage free expression in the United States, particularly on college campuses. Foreign students would (with good reason) fear criticizing the current American government during classroom debates, in term papers, and on social media, lest they risk arrest, detention, and eventually deportation. That result is utterly incompatible with the longstanding recognition that “[t]he essentiality of freedom in the community of American universities is almost self-evident,” and that “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

    Secretary Rubio claims (as do all censors) that this time is different, that university students’ pro-Palestine (and, as administration officials allege, anti-Israel) views cannot be tolerated. But “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive.” Texas v. Johnson, 491 U.S. 397, 414 (1989) (holding the First Amendment protects burning the American flag in protest); see also Snyder v. Phelps, 562 U.S. 443, 454 (2011) (holding the First Amendment protects displaying “God Hates Fags” and “Thank God for Dead Soldiers” posters outside a military funeral).

    The government’s actions against Ms. Öztürk harken back to the infamous Alien Friends Act of 1798, which allowed President John Adams to deport any alien deemed a danger to “public safety.” An Act Concerning Aliens § 2, 1 Stat. 571 (1798). It was “one of the most notorious laws in our country’s history,” “widely condemned as unconstitutional,” and “may have cost the Federalist Party its existence.” Sessions v. Dimaya, 584 U.S. 148, 185 (2018) (Gorsuch, J., concurring). Yet today, Secretary Rubio allows a stain of history to repeat itself. This Court must act.

    The “First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.” Bridges v. California, 314 U.S. 252, 263 (1941) (invalidating criminal convictions, including of a non-citizen, based on protected speech). Our “liberty-loving society” does not permit arrest, detention, and deportation as a punishment solely based on an opinion voiced in a newspaper. The Court should grant Ms. Öztürk’s petition.

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  • Presidents’ Alliance challenges “unlawful” SEVIS terminations

    Presidents’ Alliance challenges “unlawful” SEVIS terminations

    Their suit argues that the thousands of terminations, which to date have left more than 1,800 students without valid status, are “unlawful” and came “without warning, individualised explanation and an opportunity to respond”.

    The Presidents’ Alliance on Higher Education and Immigration, which advocates for immigrant and international student rights, and several impacted students from institutions such as MIT and Boston University filed the suit in the District Court for the district of Massachusetts yesterday.

    Not only have students been forced out of housing, jobs or their chosen institution mere weeks away from graduation, but the Trump administration’s crackdown on international students has “undermined’ institutions’ being able to “attract, retain, and effectively serve” students from overseas, the group warned.

    The court is asked to find that the policy is unlawful and unconstitutional, reactivate the SEVIS records of affected students, halt the policy while the case is being fought and “vacate all improper SEVIS terminations”.

    President and CEO of the Presidents’ Alliance, Miriam Feldblum, warned that students would be put off from studying in the US because of the “fear and uncertainty diminishing our global competitiveness and reputation”.

    “The unlawful termination of student records without due process strikes at the heart of higher education’s mission. Colleges and universities drive innovation, research, and workforce growth by fostering global talent – but they can’t do that when students’ futures are derailed without explanation,” she said.

    “These actions deter future students from studying here in the US, and hinder campus administrators from carrying out their work by the arbitrary upending of established regulations and processes.” 

    Meanwhile, Sirine Shebaya, executive Director at the National Immigration Project – which is representing the Presidents’ Alliance – blasted the policy vas “not only lawless… [but] cruel” – marking “yet another manifestation of policies that fly in the face of both legal standards and common decency”.

    These actions deter future students from studying here in the US, and hinder campus administrators from carrying out their work by the arbitrary upending of established regulations and processes
    Miriam Feldblum, Presidents’ Alliance

    While the surge in visa revocations was at first thought to mainly affect students who had expressed pro-Palestinian sympathies, international education stakeholders have been left baffled at a growing number being issued at institutions where no such protests had taken place.

    Some students – including one unnamed Boston University graduate represented in the legal case – are reporting that their visas had been taken away due to minor traffic infractions. Others have been left confused after their visas were revoked despite having no criminal history.

    Yet the State Department continues to back the policy.

    “The Trump administration is focused on protecting our nation and our citizens by upholding the highest standards of national security and public safety through our visa process,” a State Department spokesperson told The PIE News this week.  

    “The Department of State will continue to work closely with the Department of Homeland Security to enforce zero tolerance for aliens in the United States who violate US laws, threaten public safety, or in other situations where warranted.” 

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  • Trump administration’s coercion at Columbia is unlawful and unconstitutional

    Trump administration’s coercion at Columbia is unlawful and unconstitutional

    FIRE today filed a “friend of the court” brief in support of the American Association of University Professors and the American Federation of Teachers in their lawsuit against the Department of Justice and other federal agencies. FIRE argues that the Trump administration’s actions against Columbia University are unlawful and unconstitutional attacks on freedom of expression, freedom of association, and academic freedom. The brief’s summary of argument follows.

    The federal government characterizes its abrupt revocation of $400 million in federal grants to Columbia University — and the government’s threat to revoke billions more if its demands are not met — as necessary to address anti-Semitism on campus in the wake of pro-Palestinian protests that sometimes veered into unlawful activity. Addressing discrimination is a worthy end. But it cannot justify the government’s flatly unconstitutional means here. While Columbia’s response to campus misconduct may raise questions about the university’s obligations under federal anti-discrimination law, there is no question about the government’s failure to meet its obligations under the First Amendment. The administration’s coercion is a blatant end-run around statutory safeguards and a flagrant attempt to jawbone the university into surrendering its institutional autonomy to federal officials. For the sake of Columbia’s students, faculty, and our free society, this government intimidation cannot stand unanswered.

    The same federal statute that governs institutional responses to allegations of anti-Semitism — Title VI — requires funding recipients like Columbia to receive notice, a hearing, and an opportunity to come into compliance voluntarily before the government can terminate funding. These provisions protect students, faculty, and institutions from precisely the kind of repressive, capricious government overreach that now harms Plaintiffs. Yet despite its professed interest in addressing campus anti-Semitism, the administration chose to ignore entirely the lawful statutory means by which it may do so. Instead, it has instituted rule by fiat: arbitrarily declaring Columbia subject to punishment, cancelling hundreds of millions of dollars in grants and threatening worse to come, and leaving Columbia faculty and students at the mercy of unchecked federal authority under the specter of a hostile takeover.

    This is unlawful. Just last year, the Supreme Court reaffirmed that the government cannot jawbone private actors into punishing speech that the First Amendment protects from state intrusion. Nat’l Rifle Ass’n of Am. v. Vullo, 2024). But jawboning is exactly what the administration is doing to Columbia — except here, the government’s bullying is so extreme it might more accurately be called extortion. Wielding the threat of crippling financial consequences like a mobster gripping a baseball bat, the government forced Columbia to adopt a restrictive speech code that punishes disfavored or dissenting viewpoints. Not only would it be unconstitutional at a public university, the speech code also violates Columbia’s free speech promises and its right as a private entity to set its own rules regarding speech. The government further forced Columbia to surrender control of an entire academic department and to relinquish its right to make independent decisions about discipline and admissions — all of which violate longstanding precepts of academic freedom, institutional independence, and university self-governance.

    These demands are unconstitutional. Again, just last year, the Supreme Court reemphasized the limits the Constitution places on the government in its interactions with private institutions. “On the spectrum of dangers to free expression,” the Court wrote, “there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” (Moody v. NetChoice, LLC, 2024). As Defendants trample constitutional barriers in seeking to effectively outlaw certain political views on campus, this grave danger that the Court identified is fully realized.

    The government’s gambit is not permissible simply because federal funding is involved. The Supreme Court long ago established that “even in the provision of subsidies, the Government may not ‘ai[m] at the suppression of dangerous ideas’” — and that the First Amendment demands judicial intervention if funding is “‘manipulated’ to have a ‘coercive effect.’” (Nat’l Endowment for the Arts v. Finley, 1998) (quoting Regan v. Tax’n With Representation of Wash., 1983). Few things could be more manipulative or coercive than revoking grants in an explicit attempt to override the expressive and associational rights of a private institution of higher education, its students, and its faculty.

    This case illustrates the grave threat to core First Amendment freedoms posed by expansive — and here, extralegal and unbounded — conceptions of governmental power to address discrimination. For more than a quarter century, amicus FIRE has advocated against overly broad and impossibly vague campus speech codes promulgated under federal anti-discrimination law. To that end, FIRE successfully led the charge against the Obama administration’s attempt to pressure institutions to adopt a federal definition of “sexual harassment” — advanced as a national “blueprint” — that subjected wide swaths of protected speech to investigation and punishment. And yet as misguided as that initiative was, those pressure tactics pale in comparison to the scope and intensity of the unlawful shakedown Defendants mount here.

    The government’s aggression against Columbia is alarming not just because it is unlawful and unconstitutional, but because its plain aim is “suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.” Rosenberger v. Rector & Visitors of the Univ. of Va., 1995). While Columbia was the first institution targeted by the administration, it has not been the last — the list of colleges facing coercive funding cuts and chilling demands is growing.

    Addressing anti-Semitism does not and cannot require violating the First Amendment. Left unchecked, the administration will continue to deploy its distorted conception of federal anti-discrimination law as a battering ram against institutional autonomy and to seize for itself power to control permissible speech and instruction on our campuses. The stakes are high: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 1957). This Court must act now to protect freedom of expression, academic freedom, and our institutions of higher education from a hostile federal takeover.

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  • EEOC and DOJ Issue Technical Assistance Documents on Unlawful DEI-Related Discrimination

    EEOC and DOJ Issue Technical Assistance Documents on Unlawful DEI-Related Discrimination

    by CUPA-HR | March 20, 2025

    On March 19, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) released two technical assistance documents intended to educate “the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The two documents aim to inform the public about how civil rights rules and laws like Title VII of the Civil Rights Act of 1964 apply to employment policies, programs and practices, including those labeled or framed as “DEI.”

    Title VII prohibits employment discrimination based on protected characteristics, including race, color, religion, sex or national origin. As the agencies note in both documents, DEI is a broad term that is not defined under statute. The technical assistance explains that DEI practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated in whole or in part by an employee’s race, sex, or other protected characteristic. The agencies emphasize that Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes, and that unlawful discrimination may exist no matter which employees are harmed.

    Technical Assistance Document #1: The EEOC describes what DEI-related discrimination looks like.

    The first document, “What To Do If You Experience Discrimination Related to DEI at Work,” explains how DEI-related practices may manifest as discrimination under Title VII.

    • Title VII bars disparate treatment: Any employment action motivated in whole or in part by race, sex, or another protected characteristic that is taken in the context of the terms, conditions, or privileges of employment may be unlawful.*
    • Title VII prohibits limiting, segregating, and classifying: Any action taken that limits, segregates, or classifies employees based on race, sex, or other protected characteristics in a manner affecting their status or depriving them of employment opportunities may be unlawful. Examples of these practices include the establishment of workplace groups (employee resource groups or employee affinity groups) that limit membership to a protected group or groups, as well as the separation of employees into groups based on a protected characteristic when administering trainings or other privileges of employment. The document makes clear that the latter may still violate Title VII even if the separate groups receive the same training or programming content.
    • Title VII prohibits workplace harassment: Workplace harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe to reasonably be considered intimidating, hostile, or abusive. The document explains that DEI training may give rise to a hostile work environment claim and that harassment may occur when an employee is subject to unwelcome remarks or conduct based on protected characteristics.
    • Title VII prohibits employer retaliation: The agencies explain that reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for their belief that the training violated Title VII, and that an employer may not retaliate if an employee participates in an EEOC investigation or files an EEOC charge.

    The document reaffirms that Title VII protects employees, potential and actual applicants, interns, and training program participants. It directs individuals who suspect to have experienced DEI-related discrimination to contact the EEOC “promptly” as claimants have 180 to 300 days to file a claim depending on whether a state or local agency enforces a law that prohibits employment discrimination on the same basis.

    Technical Assistance Document #2: The EEOC answers additional questions about DEI-related discrimination in the workplace.

    The second technical assistance document, titled “What You Should Know About DEI-Related Discrimination At Work,” expands upon the information provided in the technical assistance document discussed above and answers a number of additional questions on how Title VII intersects with DEI-related practices in the workplace.

    Notably, the document addresses questions surrounding employers’ DEI-related considerations of race, sex, and other protected characteristics when the protected characteristic wasn’t the “sole or deciding factor” for the employers’ action. The document states that “race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employment action or the ‘but-for’ (deciding) factor for the action” for there to be unlawful discrimination. Additionally, the agencies explain that workers only need to show “some injury” or “some harm” affecting their terms, conditions or privileges of employment to allege a colorable claim of discrimination under Title VII.

    The document also makes clear that an employer may not justify an employment action simply on the basis that they have a business necessity or interest in “diversity” as Title VII prohibits employers from using business necessity as a defense against intentional discrimination claims. Likewise, the agencies explain that “client or customer preference is not a defense to race or color discrimination” and that “basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination.”

    CUPA-HR will continue to monitor for updates related to Title VII enforcement from the EEOC.

    *The terms and conditions of employment include: hiring; firing; promotion; demotion; compensation; fringe benefits; exclusion from training; exclusion from mentoring or sponsorship programs; exclusion from fellowships; selection for interviews (including placement on candidate slates).



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