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Courts, DOJ, Congress and Universities

Aug 1, 2025

Courts, DOJ, Congress, and Universities

  • On July 30, 2025, Judge Jamal N. Whitehead (W.D. Wash.) granted plaintiffs’ motion for class-action status in a case brought by refugee assistance groups challenging President Trump’s suspension of the U.S. Refugee Admissions Program. Judge Whitehead held that plaintiffs met the legal requirements to certify a class comprising individuals seeking admission to the United States as a refugee on their behalf or on behalf of a family member as well as some Afghan and Iraqi Special Immigrant Visa holders. Kudos to Carl Reisner, and IRAP who has assisted on these efforts. Notice the counsel is Perkins & Coie. The DOJ filed a notice of appeal in the DC Circuit Court of Appeals on June 30, 2025 of the court order voiding the executive order against Perkins Coie, but there does not yet seem to be a briefing schedule.  

 

  • On July 30, 2025 Judge Royce C. Lamberth (D.D.C.) ordered the Trump administration to produce by August 13, 2025 a plan for how it intends to comply with the Court’s preliminary injunction requiring the government to restore funding to Voice of America. In a March executive order, President Trump called for the dismantling of the federally-funded news organization. Judge Lamberth wrote that defendants have “consistently refused to give the Court the full story regarding personnel actions” and “continue to provide cagey answers and omit key information.” The injunction was issued on April 22.

 

 

    • In a stark rejection of President Donald Trump’s plan to dramatically slash federally funded biomedical research in 2026, a Senate funding committee today approved a draft bill [by 23-3] that instead gives the National Institutes of Health (NIH) a modest raise of $400 million. It also disregards Trump’s plan to gut the Centers for Disease Control and Prevention (CDC).

Kudos go to Leora Herman for working on the efforts to restore such funds, whose success two days in a row shows that the public can be mobilized to reverse the administration depredations.  More work needs to be done on the House side and to dissuade the administration from disregarding the Congressional appropriations for these important health agencies.

 

 

  • The July 31, 2025 Dorf on Law column by Michael Dorf entitled, Down Goes Brown. The posting concludes with the following paragraph

 

    • What is that aim [of the attacks on the university]? Trump is transactional, but the movement he leads and does not always control is ideological. With respect to academia, J.D. Vance spoke for the movement when he said that to accomplish its aims, it must “aggressively attack the universities.” The goal of the Trump administration in its pressure campaign against American academia is not reform but destruction. Today it is one step closer to reaching that goal.

 

I am agnostic about the correctness of the final sentence . As with the law firms the public and private reactions to the Brown settlement will determine the reaction of the other universities with the difference that many universities have a brief deadline.  They will be under substantial pressure to resolve the Trump attacks before the planned return of international students return and start of the fall semester begins, which is generally before Labor Day.  Like the law firms I expect most, like Yale, will seek to keep their heads down and avoid offending the President, who may be preoccupied with tariffs for the first week of August.

 

 

Justice Department Declares DEI Unlawful

 

The nine-page memo builds on the Trump administration’s efforts to dismantle diversity, equity and inclusion programs.

By Johanna Alonso Inside Higher Ed July 30, 2025

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Attorney General Pamela Bondi authored the memo declaring all race-conscious practices unlawful. Photo by Yasin Ozturk/Anadolu via Getty Images

More than three months after a federal court struck down an Education Department directive that barred any practices that consider race at colleges across the country, the Department of Justice declared Wednesday that diversity, equity and inclusion practices are unlawful and “discriminatory.”

But the agency’s memo goes even further than ED’s guidance, suggesting that programs that rely on what they describe as stand-ins for race, like recruitment efforts that focus on majority-minority geographic areas, could violate federal civil rights laws. The directive applies to any organization that receives federal funds, and DOJ officials warned that engaging in potentially unlawful practices could lead to a loss in grant funding.

Other examples of “potentially unlawful proxies” include requirements that job applicants “demonstrate ‘cultural competence,’ ‘lived experience,’ or ‘cross-cultural skills’” or narratives about how the applicant has overcome obstacles, Attorney General Pamela Bondi wrote.

This interpretation of federal law could present new challenges for colleges that have relied on tactics like place-based recruitment to create diverse student bodies since the Supreme Court banned affirmative action in 2023. For instance, some colleges have guaranteed admission to students who graduate in the top 10 percent of their high schools.

“This highlights that every practice of colleges is under scrutiny, even ones that have been viewed as politically safe for years (such as top ten percent plans or even TRIO programs). The only truly safe ways to admit students right now are to admit everyone or only use standardized test scores,” Robert Kelchen, a professor in the University of Tennessee at Knoxville’s Department of Educational Leadership and Policy Studies, wrote in an email to Inside Higher Ed. “Being an enrollment management leader has always been tough, but now it’s even more challenging to meet revenue targets and satisfy stakeholders who have politically incompatible goals.”

The document offers clearer guidance about what the Justice Department considers off-limits as it investigates DEI at colleges and universities. The DOJ is playing a greater role in investigating colleges as it enforces its position that DEI programs as well as efforts to boost diversity among faculty and staff violate federal antidiscrimination laws.

Since President Trump took office in January, he’s targeted DEI programs, practices and personnel via executive orders and other efforts. However, higher ed experts have repeatedly said that the orders don’t change the underlying laws, so colleges that complied with the law before Jan. 20 remain in compliance. In response to the federal edicts, colleges have rolled back a number of their programs and closed centers that catered to specific student groups.

Many of the practices declared unlawful in the nine-page memo echo those referenced in the Education Department’s February Dear Colleague letter, such as race-based scholarships. But it also explicitly states that “BIPOC-only study lounges” and similar facilities are unlawful. The Education Department’s guidance mentioned race-based facilities generally but not specifically study lounges.

DEI advocates have long argued that these centers or lounges are open to all students. Some have persisted even after state DEI bans, but multiple colleges have in recent months closed centers that catered to specific student groups. Bondi argued that such spaces violate Title VI of the Civil Rights Act of 1964, which bars discrimination based on race and national origin.

“Even if access is technically open to all, the identity-based focus creates a perception of segregation and may foster a hostile environment. This extends to any resource allocation—such as study spaces, computer labs, or event venues—that segregates access based on protected characteristics, even if intended to create ‘safe spaces,’” the order reads.

Lynn Pasquerella, president of the American Association of Colleges and Universities, said that the memo is “another example of governmental overreach into academic freedom, institutional autonomy and shared governance that conditions federal funding on ideological alignment with the administration’s viewpoints.”