PSJD News Digest – February 21, 2025

February 21, 2025 at 3:48 pm · Filed under Public Interest Law News Bulletin

Sam Halpert, NALP Director of Public Service Initiatives

Photo: Harris and Ewing Collection, Library of Congress

Hi Interested Public,

It’s been a cold, cold week. Aside from my editor’s choices below, I’d like to call everyone’s attention to the “Dear Colleague” letter issued by the Department of Education last weekend (see “Changes at the Department of Education”). Despite multiple court orders directing the Trump Administration to reverse its “funding pause” policies, continued interruptions in federal funding have begun to affect immigration legal services and hiring in higher education. Meanwhile, federal reductions in force expanded into several additional agencies over the course of the week.

Stay strong and stay in touch,

Sam

Editor’s Choice(s)

  • DEI Programs Are Lawful Under Federal Civil Rights Laws and Supreme Court Precedent (Legal Memo from various law professors to “Colleagues, University Offices of General Counsel, and University Leaders”; 20 Feb 2025)

    “We are law professors who study and teach antidiscrimination law, education law, employment law, constitutional law, and civil rights…This memo explains why common DEI initiatives remain legally defensible notwithstanding President Trump’s January 21, 2025 Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “J21 EO”) and related agency communications like the Department of Education’s February 14 Dear Colleague Letter (the “DCL”). …We urge university leaders to respond confidently, with both law and moral principle on your side, and not to sacrifice essential and legally defensible DEI initiatives that help universities fulfill their most basic mission to pursue truth and knowledge for the common good.”

  • See inside DOGE’s playbook for eliminating DEI (Washington Post; 15 Feb 2025)

    “Phase 1 focuses on rescissions of Biden administration executive orders related to DEI and shutting down targeted agencies. Phase 2 consists of placing on leave employees in non-DEI roles — who DOGE determines are somehow tied to DEI — as well as other employees working at offices whose existence is mandated by law. Phase 3 is slated to include large-scale firings, the documents show. The nation is now in DOGE’s Phase 2, which is scheduled to last until Wednesday [Feb 19], according to the documents. …The final steps listed in the documents call for large-scale firings. DOGE intends for the Trump administration to terminate all DEI-linked employees via a Reduction In Force, or RIF, the government form of layoffs. Positions to be cut include employees in non-DEI positions and people working in offices required by law. The documents note the possibility of legal challenges and state: ‘We are exploring options for this.’”

  • Trump expected to take control of USPS, fire postal board, officials say (Washington Post; 21 Feb 2025)

    “The board is planning to fight Trump’s order, three of those people told The Washington Post. In an emergency meeting Thursday, the board retained outside counsel and gave instructions to sue the White House if the president were to remove members of the board or attempt to alter the agency’s independent status…Trump’s order to place the Commerce Department in charge of the Postal Service would probably violate federal law, according to postal experts.”

Conflicts Over Diversity, Equity, Inclusion, and Accessibility

Academic Funding Reductions

  • Revealed: NIH research grants still frozen despite lawsuits challenging Trump order (Nature; 20 Feb 2025)

    “The Trump administration issued an order on 27 January freezing payment on all federal grants and loans, but lawsuits challenging its legality were filed soon after, placing the order on hold. The fact that payments still aren’t going out because Trump’s team has halted grant-review meetings is exploiting a “loophole” in the process, says Aaron Hoskins, an RNA biochemist at the University of Wisconsin-Madison who has had to reconsider hiring graduate students because of a frozen grant application. “It’s really quite nefarious.”

    Some legal scholars say this ‘backdoor’ approach to freezing funding is illegal.”

  • Federal Funding Uncertainty Prompts Hiring Freezes (Inside Higher Ed; 19 Feb 2025)

    “Even some of the wealthiest universities in the nation have already frozen hiring, paused graduate admissions and taken other actions as officials estimate the potential damage if the National Institutes of Health plan to cap reimbursements for indirect research costs moves ahead.”

Changes at the Department of Education

  • Trump’s Pick to Lead ED Advances Through Committee (NASFAA; 21 Feb 2025)

  • Dear Colleague Letter: Title VI of the Civil Rights Act in Light of Students for Fair Admission vs. Harvard (Dept. of Ed. Office for Civil Rights; 14 Feb 2025) [4 pages long]

    “Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus 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. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.” [emphasis added]

    • Law Schools Are Dropping 'Diversity' From Their DEI Branding (Bloomberg Law; 20 Feb 2025)

      “Some top US law schools have dropped mentions of diversity from their websites as academic centers face a compliance deadline to ensure continued federal funding…The changes come as schools, businesses and nonprofits look for ways to adapt to heightened scrutiny of their diversity, equity and inclusion practices. Law schools are required to adhere to the American Bar Association’s DEI standards by its accrediting body. Schools are facing a Feb. 28 deadline to ensure their DEI policies, initiatives and programs do not violate federal law or risk their federal funding, according to a Feb. 14 letter from Craig Trainor, the acting assistant secretary for Civil Rights at the Education Department.”

Spending “Pauses”

  • Legal organizations told to stop federally funded work for unaccompanied migrant children (NBC News; 19 Feb 2025)

    “The Interior Department sent a stop-work order to the nonprofit Acacia Center for Justice on Tuesday, cutting off funding for “all activities” under Acacia’s federal contract to provide legal services for unaccompanied migrants younger than 18, according to the text of the letter obtained by NBC News…It is unclear why the most recent stop-work order, the second the Acacia Center for Justice has received in recent weeks, was issued. In January, the Justice Department issued a stop-work order to four legal access and education programs for immigrants run by the Acacia Center, but the Justice Department lifted it after a judge issued a temporary restraining order stemming from a lawsuit against the Trump administration.”

2025 Federal Reductions in Force

  • Trump’s cuts hit red states, triggering GOP pushback (Politico; 14 Feb 2025)

    “The fight illustrates how efforts by DOGE and OMB to slash the federal bureaucracy are poised to create conflicts with industries and interests that Republican lawmakers hold dear. The confrontation is also the latest test of Capitol Hill’s power in the second Trump era, and a new front for lawmakers who have a direct say over federal spending. …It’s an awkward position for GOP lawmakers who have otherwise voiced support for DOGE. …But when it comes to government waste, Republican lawmakers are beginning to see things differently as constituents in red states speak out. Many are waiting to see if the courts strike down some of DOGE and OMB’s actions, according to a senior Republican Hill aide granted anonymity to discuss party dynamics.

    Some Republicans are “chafing about the basis of [the] executive doing it rather than it being done by Congress,” said the aide.”

  • Trump and Elon’s ‘Pointless Bloodbath’ at the FAA Is Even Worse Than You Think (Rolling Stone; 21 Feb 2025)

    “Late last week, just as Presidents’ Day weekend was starting, Donald Trump and Elon Musk purged hundreds of Federal Aviation Administration employees — including multiple lawyers whose job was to help prevent pilots with drug and alcohol problems from getting in the cockpit, knowledgeable sources tell Rolling Stone. According to a person familiar with the matter and another source briefed on it, the mass job cuts at the FAA hit multiple legal offices at the agency, which is part of the Department of Transportation. Different kinds of lawyers were abruptly let go, blindsiding numerous staffers and officials who could not see much rhyme or reason to these dismissals.”

“Performance Management”

  • Trump administration directs agencies to fire recent hires en masse (Government Executive; 13 Feb 2024)

    “One SBA employee who received a termination notice for poor performance said the letter arrived despite not yet working a single day for the agency. Others said they had only received outstanding grades in their performance reviews.”

  • Civil servants are leading the American resistance – with GameStop as a guide (The Guardian; 20 Feb 2024)

    “On Reddit, one poster encouraged federal employees to think with a view to the public record. They should write letters, the poster urged, on behalf of the “trashed colleagues”. It was imperative to put on paper that these colleagues “did indeed have good performance despite the firing”.

    The poster offered a list of reasons to write these letters, among them that references help workers get new jobs. But the biggest reason to praise colleagues who have been fired under false pretenses is that, as the poster wrote, “it’s the truth.”

  • “Ensuring Accountability for All Agencies” (Executive Order; 18 Feb 2025)

    “previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal Presidential supervision…The Director of OMB shall establish performance standards and management objectives for independent agency heads, as appropriate and consistent with applicable law, and report periodically to the President on their performance and efficiency in attaining such standards and objectives.”

Hiring Freeze

Probationary Employee “Purge”

  • National Science Foundation Fires 168 Workers as Federal Purge Continues (Wired; 18 Feb 2025)

    “Earlier this month, however, these permanent workers were suddenly told by NSF that their one-year probationary period should have been two years and they were no longer safe from being terminated. The Trump administration has ordered federal agencies to fire nearly all probationary employees who had not yet gained permanent status, thereby receiving civil service protections. But NSF workers who believed they were safe suddenly found themselves without jobs today.” [emphasis added]

  • ‘It makes no logical sense’: A Mass. immigration judge is among more than 20 fired by Trump administration (Boston Globe; 18 Feb 2025)

    “‘EOIR has determined that retaining you is not in the best interest of the Agency,’ the letter read. Doyle, who grew up in Chelmsford, is one of more than 20 judges across the nation fired by the Trump administration in recent weeks, 13 of whom had yet to be sworn in and who were dismissed last Friday, according to Matthew Biggs, president of the International Federation of Professional & Technical Engineers, a union representing federal workers, including some immigration judges.”

Deferred Resignation (“Fork in the Road”)

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