Jonathan Feingold and Veena Dubal
Since Inauguration Day, the Trump administration has waged open warfare on higher education. The speed, scope, and volume of executive orders and agency actions have been overwhelming. If the goal was to create chaos and “flood the zone,” the president has delivered.
The entries that follow—which cover the administration’s assault on federal grant funding; on trans students; on non-citizen students; on diversity, equity, and inclusion (DEI) efforts, and on pro-Palestinian activism—aim to break down and clarify the legal implications of these various executive actions for higher education institutions. The authors explain what the executive orders purport to require, analyze what they actually require, and assess how colleges and universities ought to respond. As these experts ably demonstrate, the legal details matter, and, as with many Trump-world policies, little if any care has been paid to these details.
Yet to understand these disparate actions, we must understand that they are united by a more fundamental aim. Donald Trump is coming for America’s universities and higher education workers for the same reason that Mussolini demanded loyalty oaths in 1931 and Viktor Orbán launched a “vicious smear campaign” against Hungary’s premier university in 2019: Our commitment to open inquiry over propaganda, to persuasion over coercion, to democracy over dictatorship provides a check on authoritarian rule. As Johns Hopkins President Ronald Daniels presciently observed following the Taliban’s attack on the American University in Kabul in 2021, “Independent universities unnerve authoritarians because everything that these institutions strive to achieve is inimical to the autocrat’s devotion to the accumulation and arbitrary exercise of coercive public power.” The Trump administration is not hiding its agenda. In an interview published in The New York Times in early March, for instance, Trump ally and right-wing activist Christopher Rufo situated these attacks within a broader campaign to make universities feel “existential terror.”
With few exceptions, our country’s most powerful and well-funded universities have failed to meet this moment. Call it what you will—“anticipatory obedience,” “voluntary compliance,” “business as usual”—university leaders keep ceding ground in hopes of appeasing an unappeasable threat. Every inch feeds a decades-long right-wing agenda to destroy higher education or capture it for corporate and antidemocratic interests. For anyone with the misguided belief that capitulating to fascists is a smart strategy, the Trump administration’s intent to cut $400 million in federal funding to Columbia University—under the thinnest pretext of “combating antisemitism”—should serve as an overdue wake-up call.
Where do we go from here? We believe that democratizing higher education institutions, and finding solidarity with other pro-democracy movements, will be central to the long and hard fight before us.
Indeed, the failure of college and university leaders to fight back is closely connected to the ubiquity of governance structures that concentrate power within external lay boards of trustees to whom those leaders feel accountable. Particularly when trustees are more likely to have backgrounds in private equity or defense contracting, the autocratic governance structure privileges profit and risk management over human dignity and the educational mission. It helps explain why our most powerful universities, in particular, behave more like Fortune 500 companies than sites of democratic knowledge production.
To save the sector, our institutions must reclaim higher education for the common good. We believe this requires at least three interlocking elements: political education that helps college and university faculty understand themselves as workers in a specific industry (that is, higher education); a more structural understanding and critique of the political economy that shapes decision-making in higher education (for example, where power resides and what incentives are at play); and a positive vision for higher education for the common good (which includes concrete means of democratizing college and university governance by redistributing power to institutional constituents and the communities in which they reside).
With respect to this vision, we are heartened by recent ideas from organizations like Higher Education Labor United (HELU) and Scholars for a New Deal for Higher Education. Scholars for a New Deal has explained how higher education cannot serve democracy and the common good until we unshackle our institutions from the threat of “neoliberal privatization, systems of inequality, attacks on free speech and shared governance, crushing student debt, and deteriorated working conditions for faculty and staff.” They accordingly call for “expanding and redesigning public funding to facilitate free student access and fair and equitable labor conditions in higher education.” We are further emboldened by the rise of faculty organizing—much of it driven by the AAUP’s renewed commitment to build worker power within and across institutions of higher education. Just one example is Labor for Higher Education, a coalition of nine unions led by the AAUP, HELU, and the UAW that has crafted a proactive vision for the sector while also defending it from the Trump administration’s attacks.
As we look to the future, the following series of short reflections—published jointly by Academe, the magazine of the AAUP, and the LPE Blog, a publication of the Law and Political Economy Project—will help us understand the Trump administration’s war on higher education. One can view each response as offering discrete analysis that focuses on a specific individual or set of executive orders and agency actions. We would encourage a different approach. We believe the series is better read as a whole, because doing so reveals how seemingly discrete attacks on, for example, science funding, “DEI,” and foreign students bind a common project: to eliminate the institutions and individuals best positioned to resist Trump’s claim to be king. Our colleges and universities are not fighting back. The question is, will we?
The Assault on Federal Grants
Samuel Bagenstos
During the first several weeks of his second administration, Donald Trump has focused many key executive actions on stopping the flow of federal grants. Although courts have intervened to rein in the Trump administration’s attacks on federal grants in some respects, the administration has frequently evaded those judicial orders. Trump’s actions threaten to devastate the budgets of universities, hospitals, and other research institutions—and many have already halted projects that are crucially important to people across the United States and the world.
One of the key tools Trump has used against federal grants is the executive order. Trump’s “Unleashing American Energy” executive order, issued on the first day of the new administration, required all agencies to “immediately pause the disbursement of funds appropriated through” the Inflation Reduction Act and the Infrastructure Investment and Jobs Act—two signature Biden administration achievements—pending a review to ensure that spending the money was consistent with the policies of the new administration. That pause halted grants for a variety of green-energy and infrastructure programs funded by Congress.
And Trump’s “Ending Radical and Wasteful Government DEI Programs and Preferencing” executive order, also issued on his first day in office, required agencies to “terminate, to the maximum extent allowed by law,” all “‘equity action plans,’ ‘equity’ actions, initiatives, or programs, [and] ‘equity-related’ grants or contracts.” Because it is so unclear just what is encompassed within the broad phrase “‘equity-related’ grants or contracts,” that order provided the pretext for many agencies to stop or pause a wide array of grants.
A week later, on January 27, the Office of Management and Budget (OMB) sought to implement these and other directives by issuing a broadly worded memorandum directing that federal agencies “must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be issued by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.” The memorandum stated that the pause was necessary to “provide the Administration time to review agency programs and determine the best uses of the funding for those programs consistent with the law and the President’s priorities.”
A day after the OMB announced this broad funding freeze, two lawsuits were filed—one by twenty-two states and the District of Columbia, the other by four nonprofit organizations that receive, or whose members receive, federal grants. The very next day, January 29, in a transparent effort to render the lawsuits moot, the OMB rescinded the funding memorandum in its entirety. But later that same day, White House Press Secretary Karoline Leavitt tweeted that “this is NOT a rescission of the federal funding freeze” and that “the President’s EO’s on federal funding remain in full force and effect, and will be rigorously implemented.”
Unsurprisingly, the two courts determined that the Trump administration had withdrawn the freeze in name only. Each court promptly issued a temporary restraining order directing the administration to end the funding freeze. The administration purported to comply with those orders, but it continued to withhold funds from grantees across the government. So the courts issued additional orders emphasizing that the Trump administration was required to cease its freeze and could not erect new barriers to doing so. As of this writing, however, many agencies are still sitting on grant funds, though the purported reasons shape-shift. (For example, the National Institutes of Health [NIH] has refused to schedule—or has been told by the White House that it cannot schedule—the study sections and advisory committee meetings that are required before it may award new grants.)
The funding freeze is already having significant effects on higher education—effects that threaten to be devastating. Some universities are pausing graduate student admissions; others are freezing hiring and cutting staff; many are unable to start or continue major research projects. The adverse effects of the freeze would be compounded if the NIH were to implement its hastily announced 15 percent cap on indirect cost reimbursements, which could cut some $4 billion from the budgets of research institutions across the country in one fell swoop. A judge quickly enjoined that cap, which violates a specific congressional instruction, but the litigation continues.
In all of these cases, Congress passed laws appropriating money to agencies for grant programs. But the administration is not spending the money, because it wants to ensure that the grants are consistent with Trump policies. That is a violation of basic constitutional principles.
Article I of the Constitution vests in Congress the power of the purse, the power to decide how federal money is spent. Taxing and spending for the general welfare is the very first congressional power listed in the Constitution. As the Supreme Court recently recognized, the framers of the Constitution relied in this respect on the English practice—in which Parliament had successfully struggled, up to and through the Glorious Revolution, to seize the power of the purse from the king.
Congress appropriates money by passing bills, which the president has the power to veto like any other bill. But once those bills are signed into law, Article II of the Constitution gives the president the duty to “take Care” that they are “faithfully executed.” A new president may not come along and disregard an appropriations law out of disagreement with the policy it reflects; under our constitutional system, the president must go back to Congress and convince legislators to pass a new law.
It follows that President Trump may not “pause” or “freeze” congressionally created grant programs to review whether they accord with his own policy views. Once again, his obligation is to follow the policy set forth in the law. If he disagrees with the policy, he must convince Congress to change it in a way that incorporates his views.
Congress itself made this point clear in the Impoundment Control Act. Enacted in the wake of Watergate in an effort to respond to Nixon’s abuses—abuses that included the refusal to spend appropriated money—the Impoundment Control Act gives the president a procedure for proposing to Congress that funding “should be rescinded for fiscal policy or other reasons.” If the president makes such a proposal, providing detail of just what funding Congress should rescind, why, and what the effects will be, the president may pause spending the money for forty-five days to give Congress a chance to enact the proposal into law. But in the absence of such a proposal, the statute makes clear, the president may not “withhold or delay” the spending of appropriated money because of policy concerns.
President Trump has not sent a rescission proposal to Congress under the Impoundment Control Act. Instead, he has simply refused to spend money Congress has appropriated—a clear violation of the Constitution and the statute, and a violation of multiple court orders. He and his administration seem eager to invite a constitutional challenge to the Impoundment Control Act, with the hope of overturning the long understanding of Congress’s power of the purse. It seems likely that the Supreme Court will ultimately decide this question, and probably quite soon.
In the meantime, colleges and universities will continue to face efforts to cut their funding—part of what I have elsewhere called “a systematic effort by the second Trump Administration to attack the independent institutions that could provide some check on Trump’s illegal and disastrous behavior,” and to intimidate those institutions into abandoning speech and programming that the administration disfavors. Instead of trying to lay low in the vain hope of escaping the administration’s wrath, institutions of higher education need to fight back in the courts, and to make an aggressive public case for the value of our research and teaching.
The Assault on Transgender Students
Alexander Chen and Dallas Estes
President Donald Trump’s recent barrage of anti-trans executive orders—which define sex as binary and immutable, bar transgender people from serving in the military, shut transgender women out of sports, and strip transgender and nonbinary people of identification documents and lifesaving medical care—all share a common aim: erasure. These executive orders dramatically increase the strain on transgender and nonbinary people who seek simply to exist in public space. As colleges and universities attempt to uphold countervailing commitments to the mental and physical well-being of students and to academic freedom, it is critical to distinguish policy noise from legal obligation and to avoid anticipatory overcompliance with executive orders of the Trump-Vance administration.
The three of these orders that bear most directly on institutions of higher education involve redefining sex, sports, and medical care and research. Let us say a word about the content of each, before considering their legal effects and what might come next as the administration seeks to compel compliance.
In the first hours following his return to office, President Trump signed an executive order that defines “sex” by reference to whether one “belong[s], at conception, to the sex that produces” either the “large” or the “small” reproductive cell—that is, ova or sperm. This novel definition is legally untested: It has never been used in a federal law or regulation, nor has it been adopted by any federal court. (While it recalls similar definitions in executive orders and recent enactments in conservative states, its language is less precise.) The order also instructs the US attorney general to roll back the Biden administration’s view that Title IX protects against discrimination on the basis of gender nonconformity and sexual orientation and, further, to take action to protect “sex-based distinctions.” It additionally directs agencies to “ensure grant funds do not promote gender ideology.”
A second executive order, signed two weeks later, seeks to oust transgender women from sports teams associated with educational institutions. It does so first by advancing a highly restrictive interpretation of Title IX’s guarantee of “equal opportunity” as barring transgender women from competing in women’s sports. Such participation, it states, deprives women of “fair athletic opportunities” and “results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy.” It then directs agencies to rescind grants and funding from educational programs and associations that violate this interpretation of Title IX. Several investigations have already been launched, though it is unclear how the Trump administration’s efforts to dismantle the Department of Education might dilute the strength of these enforcement threats.
Finally, a January 28 executive order aims to severely restrict nationwide access to gender-affirming care for young people by threatening to withhold research and education grants from institutions that provide gender-affirming hormone therapies or surgery to people under the age of nineteen. Two federal courts have issued orders temporarily blocking the executive order, but the Trump administration has rebuffed similar court orders, and students nineteen and younger may still struggle to access medical care. At the same time, the Trump administration has launched an offensive against medical research, imposing severe cuts to funding for the National Institutes of Health and threatening to withdraw funds for studies related to “DEI” (diversity, equity, and inclusion) and “gender ideology.” These actions have imperiled numerous studies and clinical programs involving transgender individuals, even as opponents of gender-affirming care claim that their concerns arise from the fact that such care is “experimental” and not supported by “long-term medical studies.”
The sweeping nature of these executive orders has left students and higher education institutions in a state of uncertainty regarding their rights and legal obligations. When one assesses the legal effect of an executive order, it is important to keep in mind that the president lacks authority to change the law by executive order. Instead, an executive order is essentially a directive from the president to executive branch officials and agencies to set certain priorities and direct particular actions. For example, the order that “defines” sex cannot, and does not, change the meaning of “sex” under federal law. Instead, it tells federal employees to use its definition when interpreting and applying federal law—as, for instance, when the Department of Education assesses whether a Title IX violation has occurred.
Litigants have already had some success challenging Trump’s trans-hostile executive orders in court, but continued success may be significantly curtailed by the Supreme Court’s pending decision in United States v. Skrmetti, where the court is positioned to rule on several issues with considerable bearing on trans rights. Onlookers predict that Skrmetti will come out unfavorably. Depending on how broadly the court rules, the decision could trigger a series of losses and weaken litigation efforts. Plaintiffs would be left to pursue procedural, statutory, and non-equal protection constitutional claims as they push back on potentially unlawful aspects of these executive orders.
As a practical if not a legal matter, however, colleges and universities are likely to come under immense pressure to comply with the administration’s demands in order to avoid disruptive and invasive investigations or threatened withdrawal of federal funds. While acknowledging these pressures, we urge college and university leaders to avoid the temptation to overcorrect their practices in reaction to these executive orders. Political attacks against transgender people increase risks of violence and hateful acts against them and have serious deleterious effects on their mental health. These risks may be especially acute as President Trump channels deep animus against gender-diverse people, lambasting them as anti-American, dangerous, dishonorable, and deceitful.
College and university leaders should aim to provide maximum support to gender-diverse students while remaining compliant with the letter of the law. Consider the policy of the National Collegiate Athletic Association (NCAA), which changed its eligibility criteria for transgender athletes weeks after the executive order was signed. As of this writing, the NCAA’s position is that transgender women may still practice with their teams even though they cannot compete. This is a small token for transgender athletes, but it highlights how institutions can seek to preserve the broadest possible rights for students while remaining compliant with the law. Participation in sports enhances well-being and builds community, and it is worth considering how to foster these and other benefits for all student athletes—including through support for intramural and all-gender sports both within and beyond the university gates.
Trump administration policies also affect federal identification documents: Transgender people have reported receiving passports with reverted gender markers and having their passports and identification documents indefinitely withheld by the State Department. These issues may make it difficult for students to obtain identification documents that align with their identity. Colleges and universities can take immediate steps to offset the administrative burdens this is likely to cause by assisting affected students who face hurdles accessing student loans or student health insurance, signing up for student employment, or ensuring that diplomas, email addresses, and course lists reflect their preferred names. Clear guidance, systems, and training for administrative staff on how to navigate these issues will benefit the entire student body: As many as 36 percent of Americans and many international students use a name other than their legal first name.
LGBTQ+ students benefit significantly from supportive campus environments. Such support manifests itself in myriad ways, including institutional policies, staff interactions, student community groups, and inclusive curricula. When some of these avenues come under pressure, colleges and universities may wish to respond by placing greater emphasis on other support systems, such as staff training, continued investment in counseling and robust student services, and providing students with physical and administrative resources to foster spaces for community-based support.
The Trump administration has both education and gender-diverse people in its crosshairs, and colleges and universities may find themselves torn between competing legal and moral obligations. At the same time, these institutions can seek to ensure that students are not left to bear these burdens alone by remaining attentive to practical, day-to-day effects on students’ lives.
The Assault on Noncitizen Students
Sarah Sherman-Stokes
On January 20, 2025, the Trump administration issued two executive orders directly targeting noncitizens: “Protecting the American People Against Invasion” and “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats.” Together, these two orders emphasize that the exclusion, apprehension, detention, and deportation of noncitizens will be prioritized and that those who fail to cooperate—including noncitizens themselves as well as state and local actors—will be punished. These executive orders also appear to lay the groundwork for an even more robust “Muslim ban” than the one issued at the outset of Donald Trump’s first term in office. Of course, executive orders are just wish lists; they don’t themselves make law. Still, they matter, both for their expressive content and for the concrete instructions they provide to federal agencies. Until the courts strike down the more pernicious parts of these orders, institutions of higher education can play a limited but important role in resisting them.
The “Protecting the American People Against Invasion” executive order takes a number of steps to further criminalize noncitizens. Among other things, it lays the groundwork for invoking a little known—and not previously enforced—section of the 1952 Immigration and Nationality Act that requires noncitizens to “register” with the US government. Consistent with this order, the Department of Homeland Security (DHS) has since announced the “Alien Registration Requirement,” which requires the registration and fingerprinting of all noncitizens, requires noncitizens to carry special registration documents, and establishes criminal and civil penalties for those who fail to comply. Considering the sense of terror that pervades noncitizen communities under this administration, it seems likely that many, fearing imminent deportation, will choose not to register. The notion that the DHS will individually prosecute millions of noncitizens who fail to comply seems poorly thought out, at best.
This executive order also prioritizes the expansion of both expedited removal and immigration detention. Created in 1996, expedited removal—which allows the government to deport a noncitizen swiftly and without first seeing a judge—applies to noncitizens at ports of entry and to some noncitizens who “enter without inspection” and who have not been continuously present in the United States for at least two years. The executive order, along with subsequent guidance, expands the application of expedited removal to any noncitizen, anywhere in the United States, who entered without inspection and who, when confronted by an immigration official, cannot prove that they have been physically present in this country for the preceding two years. This change will predictably lead to higher numbers of noncitizens placed in detention and facing quick deportation, as well as more mistaken removals and inadequate protection for those fleeing harm, persecution, and torture.
The executive order also contains a number of insidious promises, touching on nearly every aspect of our complex immigration system. It gestures toward the end of Temporary Protected Status (TPS) for Venezuelans and Haitians, which has since been announced. It also encourages information sharing between law enforcement agencies, promotes increased collaboration between local police and Immigrations and Customs Enforcement (ICE), and threatens that federal funds will be withheld from sanctuary jurisdictions. Finally, it pauses the distribution of federal funds to certain nonprofit organizations that have been providing pro bono services to noncitizens and orders that those services be audited for potential “fraud” and “abuse.” Subsequent cuts to the funding provided to these organizations seem almost inevitable.
The second of these executive orders, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” is equally ominous. In large part, this order sets the stage for an updated Muslim ban. It instructs the DHS, the US attorney general, and the director of national intelligence to identify countries “for which vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals from those countries.” This order is designed to shore up the case for banning certain foreign nationals from entering the United States.
But this executive order isn’t limited to those who wish to enter the United States. It also aims to identify, apprehend, and deport those noncitizens already here who “bear hostile attitudes toward [US] citizens, culture, government, institutions, or founding principles,” or who “advocate for, aid, or support designated foreign terrorists and other threats to our national security.” On the campaign trail, President Trump vowed to “immediately deport” student protesters, and the Republican Party’s 2024 platform also promised to “deport pro-Hamas radicals and make our college campuses safe and patriotic again.” Indeed, the administration has already acted to revoke the immigration status of noncitizens with political views they dislike, including recent, high-profile—and legally specious—arrests of noncitizen activists Mahmoud Khalil, Leqaa Kordia, and Badar Khan Suri, among others.
Together, these executive orders have already had profound impacts on higher education and the landscape of constitutionally protected speech on college campuses. Fortunately, colleges and universities can take steps to limit those impacts, including invoking existing privacy protections, refusing to affirmatively cooperate with ICE, providing free, in-house counsel to affected students, and actively protecting students who exercise their First Amendment rights.
To begin with, institutions can rely on existing privacy protections. The Family Educational Rights and Privacy Act (FERPA) protects personally identifiable information contained in a student’s education records, including disciplinary records. If ICE or another law enforcement agency requests any records or information about a student from a faculty or staff member, such information should not be shared in the absence of a lawfully issued subpoena signed by a judge. FERPA also requires the institution, in most circumstances, to notify a student ahead of any disclosure. Colleges and universities would do well to remind faculty and staff of these protections, and to apply them with vigor.
Campus police can also refuse to actively cooperate with ICE. The 287(g) program allows local law enforcement to enter into memoranda of understanding with ICE, and campus police may be under increasing pressure to do so. Colleges and universities should resist this pressure; such cooperation is entirely optional and, despite threats from the Trump administration, local non-cooperation with immigration enforcement is not a prosecutable offense.
Recent estimates are that at least one-third of college students are noncitizens. Higher education institutions should immediately hire in-house immigration counsel to advise noncitizen students both of their rights and of potential pathways to lawful status. With nonprofit organizations facing a temporary pause in government funding, as well as potential long-term cuts, pro bono services will be even less accessible to students. Recent announcements by the DHS signal that many students will lose their TPS status, and other protected status, before the end of the spring semester. Institutions should be exploring postgraduate pathways that, for example, help undocumented students or those on student visas to transition to work visas upon graduation.
In the event of a new Muslim ban, colleges and universities must speak up for their constituents. In February 2017, forty-eight college and university presidents wrote to President Trump, strongly urging him to withdraw his first Muslim ban. Subsequently, a number of universities became plaintiffs in lawsuits challenging the ban. Today, universities seem more apt to engage in anticipatory compliance, and even outright capitulation. As the Trump administration continues to roll out increasingly xenophobic policies and directives, higher education must push back, in letters, in lawsuits, and in the streets.
Finally, colleges and universities must be intentional about protecting students who are exercising their First Amendment rights. Higher education has historically been a bastion of protest activity. Indeed, for many, being nineteen years old all but requires bearing a “hostile attitude toward the US government and our founding principles.” But the language in the second of these executive orders seems intentionally designed to target noncitizens who exercise their constitutional right to express themselves and their beliefs. College and university leaders should be mindful that noncitizen students engaging in lawful protest activities will face increasing criminal and civil penalties, including detention and possible deportation, as in the case of Khalil, Kordia, Suri, and others. Imposing disciplinary sanctions may not only run afoul of students’ First Amendment rights, but, increasingly, will place them at high risk of detention and deportation. Higher education is under no legal obligation to shill for ICE; colleges and universities owe it to their students and the integrity of their mission to stand firm in the face of government harassment and repression.
The Trump administration’s flurry of executive orders was designed to distract, terrorize, and foment chaos, in both the community and the courtroom. Institutions of higher education, ideally acting in concert with one another, are well poised to name this strategy for what it is, and to offer meaningful resistance in robust defense of their students.
The Assault on DEI
Jeremiah Chin
On January 21, 2025, President Donald Trump issued Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This broad and vague executive order requires all federal agencies and contractors to end what it describes as “illegal discrimination” and encourages private actors to do the same. Yet, despite its extravagant claims, in reality this executive order merely requires compliance with existing law, provides a rhetorical shift in labels of federal action, and threatens future, undefined enforcement.
The sweeping language contained in the order—aimed primarily at “‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility (DEIA)’”—is an attempt to encourage uncritical acceptance of this administration’s characterization of any programs that remedy inequality as “illegal discrimination.” Such “illegal DEI and DEIA policies,” the order claims, “can violate the civil-rights laws of this Nation” and are unfettered sources of harm in “case after tragic case.” Yet the order identifies no specific sources of harm, no illustration of how these policies inherently injure society, and no causal or even corollary link between DEI or DEIA and illegal actions.
Instead, the order only requires actions to comply with existing civil rights laws. Section 4 of the order revokes previous constitutional executive actions that promote diversity or equal opportunity and instructs federal agencies to remove specific terms from their budgets and contracts: “‘diversity,’ ‘equity,’ ‘equitable decision-making,’ ‘equitable deployment of financial and technical assistance,’ ‘advancing equity,’ and [the] like . . . as appropriate.” The remainder of the executive order simply encourages the promotion of vague notions of “individual initiative, excellence, and hard work” and requires a strategic enforcement plan from federal agencies to deter and end “illegal discrimination or preferences” in compliance with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, through reports to be issued within 120 days. These reports are ordered to include “specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise),” and each agency is instructed to identify “up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”
Importantly, section 7 of the order provides three exemptions to the order’s scope: in “lawful Federal or private sector employment and contracting preferences for veterans of the U.S. armed forces,” in First Amendment–protected speech, and in teaching that occurs at a federally funded institution of higher education “as part of a larger course of academic instruction.”
The limited scope and narrow set of actions compelled by the order make clear that its grandiose rhetoric is designed to promote unnecessary compliance with the false assumption that all uses of diversity in law and policy are illegal. The invocation of the Supreme Court’s 2023 affirmative action ruling, for instance, attempts to imbue the claims in the order with a veneer of legality, even though the court’s opinion concerns only the formal use of race in admissions as a means to achieve racial diversity in higher education. There, the Supreme Court found that admissions processes at Harvard and the University of North Carolina violated the “narrow restrictions” permitted by previous decisions: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.” However significant the barriers the court has constructed to the use of race in admissions may be, its 2023 ruling in no way supports the assumption underlying the executive order: that any use of diversity, equity, or inclusion is inherently race-based discrimination, or that racial diversity is not a compelling governmental interest.
From the Students for Fair Admissions cases back to Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), the Supreme Court has consistently upheld the educational and social benefits that flow from a “diverse student body” as a compelling state interest that may survive even strict scrutiny. In Grutter, the court traced the importance of racial diversity back to Brown v. Board of Education (1954)—which held that “education . . . is the very foundation of good citizenship”—and explained that “for this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.” Any illegality in actions related to diversity, equity, or inclusion would therefore arise from the means undertaken in achieving this compelling goal—not from pursuing the goal itself. The order, however, fails to identify any particular means or programs that may be the cause of illegality, other than the use of words like diversity, equity, or inclusion.
The lack of guidance or standards within the executive order was central to the recent preliminary injunction issued by the US District Court for the District of Maryland on February 21, 2025. In National Association of Diversity Officers in Higher Education v. Trump, a case in which the AAUP was a plaintiff, the district court issued a preliminary injunction based on the contractual terms of the order and the “enforcement threat provision” contained in section 4. The court found that the plaintiffs were likely to succeed on their claims that these two terms of the order violated the First Amendment in clearly enacting content- and viewpoint-based discrimination “based on the face of the . . . Order, and hammered home by the egregiously content-based actions taken by various agencies pursuant to the . . . Order.” By failing to provide any guidance or notice to parties who are potentially subject to regulation under the executive order, the order simply creates a blank check for pretextual enforcement of anti-DEI polices against any major organization or institution that the Trump administration finds distasteful.
In sum, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” is a purposefully vague and thinly veiled threat. The order lacks any substantive or meaningful standards that could be used to understand, gauge, or measure what actions or policies might actually be illegal and, in place of defined guidance, relies on the ominous threat of enforcement through a looming report, forthcoming “specific steps,” and potential investigations—the purpose of which is to develop a culture of fear and obedience through intimidation rather than actual law making, enforcement, or clear executive decision-making.
Instead of giving in to terror through anticipatory compliance and by removing programs designed to remedy social inequalities, institutions of higher education should recognize that existing programs to foster racial diversity, equity, and inclusion have been designed and are functioning in compliance with existing civil rights laws. They are therefore easily defensible against the vague, ill-defined scope of the executive action, which, as of this writing, cannot be enforced because of the preliminary injunction issued by the district court.
Instead, colleges and universities should devote their time and resources to supporting programs and organizations that stress the importance of racial diversity and recognize the necessity of facilitating equity, given the country’s history of oppression and discrimination.
The Assault on Pro-Palestinian Protesters
Sameer Ashar
On January 29, 2025, President Donald Trump issued an executive order titled “Additional Measures to Combat Anti-Semitism.” The order, which builds on a prior executive order from Trump’s first term, represents a complete abandonment of universal principles of the rule of law. While the Biden administration encouraged suppression of campus protests against US complicity in Israel’s military operations in Gaza after October 7, 2023, in doing so, it at least alluded to such principles. The administration consistently put Islamophobia beside antisemitism as discriminatory forces that it sought to abate. By contrast, Trump’s recent executive order drops any pretense of universality and explicitly targets supporters of Palestine.
While one might think, as I initially did, that Trump’s antecedent executive order was issued in response to the deadliest antisemitic attack in US history at the Tree of Life Synagogue in Pittsburgh—in which Robert Bowers killed eleven worshippers and injured six others—the shooting occurred more than one year before it was issued. Instead, Trump’s 2019 executive order appears to have been issued in response to the growing salience of the boycott, divestment, and sanctions (BDS) movement on US campuses. The calls for economic and academic boycotts gained enough momentum to generate scores of anti-BDS bills in state legislatures and two proposed federal laws introduced in Congress in 2018 and 2019.
The most significant feature of the 2019 executive order was its adoption of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, which labels as antisemitic certain kinds of criticism of Israel, such as claims that it is a racist or apartheid state, as well as calls for boycotts in response to the actions of the state of Israel. To its credit, the IHRA indicates that its broadened definition is “non-legally binding.” However, state legislatures, Congress, and the White House were seeking to will into law a defense of Israel and a characterization of BDS campaigns as antisemitic. The IHRA definition—which the AAUP and others have critiqued and opposed—served those political purposes.
The second Trump executive order builds on the first in characterizing criticism of Israel after the October 7 Hamas attacks as antisemitic. As with other US defenses of Israel since the October 7 attacks, this order attempts to displace the massive death toll and civilizational destruction of homes, schools, hospitals, and universities in Gaza with a narrative of American campus carnage. While the encampments erected during the peak of the protests in spring 2024 undoubtedly blocked certain thoroughfares and caused inconvenience to nonparticipants, it was likely the visibility, magnitude, and sustained nature of the protests that most shook pro-Israeli students and organizations. Israel’s unrestrained reaction to the October 7 attacks had caused an epistemic break among a generation of students (as well as faculty and staff), who no longer saw Israel as an essential regional partner immune from criticism. While that bipartisan consensus held in Washington, DC, it was being challenged from below on US campuses.
To combat antisemitism, as it had defined the term, the 2025 executive order encourages the US attorney general to “to employ appropriate civil-rights enforcement authorities, such as 18 U.S.C. 241,” a federal criminal law provision that targets conspiracy against rights. Originally enacted as part of section 6 of the Enforcement Act of 1870, the provision was intended to criminalize conspiracies, carried out by the Ku Klux Klan and other vigilante groups, to prevent formerly enslaved people from voting. The Trump administration seems unlikely to use this provision in the fight against antisemitic white supremacist groups. It remains unclear how the provision may be enforced against pro-Palestinian protesters, as the law requires proof of the violation of federal constitutional or statutory rights and of specific intent to deprive targets of the exercise of such rights, both of which are lacking in the allegations made against protesters up to this point. Nevertheless, the order sends a signal to ambitious prosecutors seeking to distinguish themselves for promotions within the Trumpist legal firmament.
The order also instructs the secretaries of state, education, and homeland security to include “recommendations for familiarizing institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds and for ensuring that such reports about aliens lead, as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove such aliens.” In other words, the order seeks to leverage existing immigration laws against pro-Palestinian protesters studying in the United States.
The suggestions regarding the use of the Enforcement Act provision and deportation laws likely stem from a Heritage Foundation strategy document, Project Esther: A National Strategy to Combat Anti-Semitism. Because Hamas has been listed as a foreign terrorist organization by the US State Department since 1997, the Heritage Foundation’s allegations that groups such as Students for Justice in Palestine and Jewish Voice for Peace are “Hamas Support Organizations” that “manufacture and mobilize support” for a global “Hamas Support Network” ostensibly implicate the terrorism grounds for deportation in the Immigration and Naturalization Act. (The Heritage Foundation further alleges that the “Hamas Support Network” is backed by such far-flung “masterminds” as George Soros, Governor J. B. Pritzker of Illinois, and Angela Davis.)
The order’s deportation strategy appears to rely upon the “ideological exclusion or endorse/espouse provision” of the Real ID Act of 2005, through which President George W. Bush expanded the terrorist-activity grounds for exclusion to include anyone who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” Because visa holders have presumably been lawfully admitted to the United States, the government bears the burden to show by clear and convincing evidence that the visa holder has supported a terrorist organization. The law purports to require detention during the pendency of a deportation case on these grounds and eliminates eligibility for various forms of relief from removal, such as asylum.
Already, the US affiliate of the Betar Zionist movement, the only Jewish organization on the Anti-Defamation League’s list of extremist organizations, has taken the lead in attempting to identify immigrant students involved in campus protests using facial-recognition software. The group has given its list, which includes the Palestinian poet Mosab Abu Toha, to the Trump administration in the hope that it will initiate deportation actions. To date, no court has had to determine whether a person may be deported under the “endorse/espouse” provision for speech protected under the First Amendment. This order invites university cooperation in identifying and monitoring pro-Palestinian protesters as targets for deportation. Though it is unclear how complicit Columbia University was in the arrest of Mahmoud Khalil, its actions since suggest at least acquiescence to his disappearance by unidentified agents of the federal government. Further, because of the government’s seemingly accidental discovery of Khalil’s legal permanent resident status, it has been incrementally drawing on various provisions of immigration law to justify his detention and deportation with questionable basis and little grounding in practice.
Immigration law, it is worth noting, includes a clearer, less fraught ground for the exclusion of any person “who ordered, incited, assisted, or otherwise participated in genocide.” Because of the current bipartisan configuration of power relations in the United States, the enforcement of this provision against participants in the destruction of Gaza in any presidential administration is not politically viable, but it is law on the books.
As universities and colleges consider their obligations to comply with this executive order, they should keep in mind the broader context of its adoption. The Right has identified universities and colleges as sites of pro-democratic and anti-authoritarian activism and collective action. Perhaps especially in an era in which the public sphere has been hollowed out and technology is a force of alienation, campuses are rare spaces in which students experiment with assertions of democratic agency and new solidarities, pushing beyond the limits imposed by family and hometown. Epistemic disjuncture is a necessary outcome of research (to look again and again, to revise and originate new theories), cogenerative teaching, and active learning. Students, staff, and faculty collectively exercise contentious citizenship and rejuvenate deadened spaces in contemporary American life.
This executive order, along with others prohibiting “DEI,” is an effort by the Trump administration to drain US campuses of their contentious, democratic spirit. Extravagantly resourced elite universities have shown few signs of resistance to authoritarian imperatives falsely premised on antisemitism. It was under the last Democratic administration, after all, that university boards, apparently in response to pressure from the Republican-led House Committee on Education and the Workforce, forced out the presidents at Harvard, Columbia, and the University of Pennsylvania and administrators called in police to crush pro-Palestinian encampments at private and public institutions around the country. University administrators and trustees will not fight for our democratic, contentious spirit because, for the most part, they are agents of proto-authoritarian capital.
It is up to rank-and-file faculty and staff to shelter and nurture the prefigurative activism of our students, to rise from what Stefano Harney and Fred Moten termed “the undercommons” to confront administrators who bend to the whims of donors and would-be dictators. For example, at the University of California, UAW Local 4811 conducted stand-up strikes in spring 2024 against unfair labor practices and in support of their members engaged in pro-Palestinian advocacy. At this conjuncture, those are the kinds of formations and alliances we must join or create to stave off the death drive from above and to build power from the ground up.
