Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
If you haven’t heard about last weekend’s big development, I’ve led with it below (as well as various responses that have emerged over the course of the week). In other news, the gyre continues to widen. As always, these stories and more are in the links below. Looking forward to seeing some of you in Cleveland.
“Federal Rule of Civil Procedure 11 prohibits attorneys from engaging in certain unethical conduct in Federal courts. Attorneys must not present legal filings “for improper purpose[s],” including “to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” FRCP 11(b)(1). Attorneys must ensure that legal arguments are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” FRCP 11(b)(2). And attorneys must ensure that their statements about facts are “reasonably based” on evidentiary support, or a belief that such evidence actually exists. FRCP 11(b)(3)-(b)(4).
…Unfortunately, far too many attorneys and law firms have long ignored these requirements when litigating against the Federal Government or in pursuing baseless partisan attacks. To address these concerns, I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.
I further direct the Attorney General and the Secretary of Homeland Security to prioritize enforcement of their respective regulations governing attorney conduct and discipline.”
“We the undersigned bar organizations stand together with and in support of the American Bar Association to defend the rule of law and reject efforts to undermine the courts and the legal profession.
In particular, as outlined by the ABA:
We endorse the sentiments expressed by the chief justice of the U.S. Supreme Court in his 2024 Year End Report on the Federal Judiciary, “[w]ithin the past year we have also seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment. Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed.”
We support the right of people to advance their interests in courts of law when they have been wronged. We reject the notion that the U.S. government can punish lawyers and law firms who represent certain clients or punish judges who rule certain ways. We cannot accept government actions that seek to twist the scales of justice in this manner.”
“We write to reaffirm basic principles: The government should not punish lawyers and law firms for the clients they represent, absent specific findings that such representation was illegal or unethical. Punishing lawyers for their representation and advocacy violates the First Amendment and undermines the Sixth Amendment.”
“Nowhere yet have we seen true efforts at burden-sharing between those targeted and those not (yet) in the line of fire. Perhaps this is precisely because the types of institutions that Trump is going after have long thought of themselves as autonomous entities whose mission is to take care of themselves and their own. There are some small signs of promise beginning to bubble up, like the law firms looking to file an amicus brief in support of Perkins Coie’s lawsuit against the Trump administration. But there is scope for so much more.
If journalists, lawyers, and academics are going to be able to play the role that they need to perform as bulwarks of democracy and the rule of law, they and their employers must begin to think and act in collective terms. One source of expertise lies in the people and institutions in marginalized communities throughout this country and around the globe who have had decades of experience in navigating a world where simply looking out for one’s own best interests is insufficient for individual or collective survival. ”
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“Judge Matthew Kennelly of the U.S. District Court for the Northern District of Illinois halted the Labor Department from requiring federal contractors or grant recipients from certifying that they don’t operate any programs in violation of Trump’s anti-DEI executive orders.
That certification provision has stepped up pressure on companies and other organizations to revisit their DEI practices because if the government were to determine they violated the provision, they would be subject to crippling financial penalties under the False Claims Act.”
“Entire teams across the Education Department’s Federal Student Aid office have been brought back after initially being cut during the agency's massive reduction in force actions, according to internal documents obtained by POLITICO.”
“Although the IDR application is now available, loan servicers are still updating their systems in accordance with the court’s actions. Servicers will begin processing applications in the near future. We will continue to update this page when new information becomes available, including when servicers resume processing IDR applications.”
“USSA is back and eager to continue their long history and tradition of involving more students from universities across the nation in federal education policy.
“For the last eight years, decisions have been made on the federal level without the USSA’s voice, without student voice. We can see how that has impacted students nationwide and how student voice has not been valued because it hasn’t been present and available,” said Kalwis Lo, former legislative director for the USSA. “USSA is coming back to fill a void. That’s very necessary because [that void] has been so impactful for so many years.”
Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
Tough week. Via an Executive Order, Donald Trump has directed his administration to unwind the Department of Education (student loans will spin off onto the Small Business Administration). Columbia University agreed to the Trump Administration's extensive demands for its internal restructuring as an opening to its negotiations over $400 million in withheld federal funding (a tactic believed by many experts to be unlawful: [Dorf]; [Feldman]). As always, these stories and more are in the links below.
“Now, with the Trump administration intent on making an example of Columbia, Armstrong stands at the center of a fight over the future of higher education in America. The school’s board of trustees faces a Friday deadline to meet nine far-reaching demands from Trump in negotiations over federal funding.”
“Compliance would make Columbia complicit in its own destruction, stripping shared control of academic and student affairs from the faculty and administration and replacing the deliberative practices and structures of the university with peremptory fiats from outside the institution,” the AAUP chapter said in a statement Tuesday. “We see no evidence that compliance would assuage the hostility of the White House.”
“A federal judge on Thursday ordered Columbia University and Barnard College to refrain from complying with a Republican-led House committee’s demand for student disciplinary records, at least until he holds a hearing next week on a request by Mahmoud Khalil and other students for a temporary restraining order.”
“The Trump administration laid out nine demands for the university to meet as a precondition to start talks about the federal funding. On top of those nine demands, Columbia now says it is already taking additional actions to encourage more intellectual diversity at the historically left-leaning institution.
…
A Columbia senior administrator said the school considered legal options to challenge the Trump team but ultimately determined the federal government has so many available levers to claw back money, it would be a difficult fight. Additionally the school believed there was considerable overlap between needed campus changes and Trump’s demands.
…
Schools nationwide are watching Columbia with alarm; many fear a demand for similar concessions. Their primary concern: without freedom to follow their intellectual curiosity, the discoveries and innovations that fuel the U.S.’s economy will decline or even grind to a halt.”
“A college president phone me the other day to ask for advice…he wanted to know what he could learn from my time as president of Central European University when Hungary’s prime minister, Viktor Orbán, tried to expel us from Budapest.
…
I told him to frame his fight to gain as many allies as he can. Mobilize your alumni networks. Enlist families whose children’s lives have been saved in your hospitals; reach out to companies that have commercialized your research, make contact with universities in red and blue states, public and private, who face the same threat. Do it fast. Make sure your campaign is not just about you, because that opens you to attack as a defender of privilege. Make the case to the public that these attacks are senseless assaults on institutions that promote what America is famous for: life-saving science and world-class innovation.”
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“The first five repealed pieces of guidance reference COVID-19 conditions including mask exemption policies, access to resources that help disabled employees explain their rights, and regulations for a medical or family aide in hospital settings, in addition to rules for street eateries to remain ADA compliant.”
“Until recently, it was a little-known program to help Black and Latino students pursue business degrees. But in January, conservative strategist Christopher Rufo flagged the program known as The PhD Project in social media posts that caught the attention of Republican politicians. The program is now at the center of a Trump administration campaign to root out diversity, equity and inclusion programs in higher education. The U.S. Education Department last week said it was investigating dozens of universities for alleged racial discrimination, citing ties to the nonprofit organization…The investigations left some school leaders startled and confused, wondering what prompted the inquiries. Many scrambled to distance themselves from The PhD Project, which has aimed to help diversify the business world and higher education faculty.”
“This legal-aid network, substantially funded by LSC, has a 50-year history of advancing a radical agenda on controversial subjects such as racial preferences, transgenderism, homelessness, illegal immigration, and the growth of the welfare state. Where possible, legal-aid attorneys have sued in court; on other occasions, they have used advocacy tools outside the courthouse. Their efforts, in league with activist judges, have radicalized American society and institutions, undermining values and interests of the vast middle class. As Trump looks to eliminate wasteful and politicized spending, he needs to pick up where Reagan left off a generation ago, and this time the White House and Congress need to get the job done.”
“Today, we take a very historic action that was 45 years in the making,” he said at a signing ceremony at the East Room of the White House that included multiple school-age children sitting at classroom desks. “I will sign an executive order to begin eliminating the federal Department of Education.”
“The department’s useful functions … will be preserved, fully preserved,” Trump added, referring to Pell Grants, Title I funding and programs for students with disabilities. “They’re going to be preserved in full and redistributed to various other agencies and departments.”
“In declarations from 18 departments or agencies, officials said roughly 25,000 federal workers had been terminated across the government. Their disclosures are the largest insight yet into mass reductions that have become the signature focus of President Donald Trump's first 100 days in office. Agency officials were required to file the declarations by Monday night in a Maryland case brought by 20 Democratic state attorneys general who allege that the mass firings were illegal.”
“Recent reduction-in-force actions taken by the General Services Administration “have the potential to create both immediate and long-term effects on court operations and the services provided by GSA,” Paul Gamble, chief of the facilities and security office of the Administrative Office of the US Courts, wrote in a Monday memo.”
“The Department of Homeland Security is dismantling the office that investigates civil rights violations in immigrant enforcement and other departmental work as President Donald Trump aims to downsize federal agencies. Employees in the Office for Civil Rights and Civil Liberties received news of the closure in a meeting Friday afternoon, according to a Senate aide and four people in the meeting or briefed on it in real time.”
“Trump administration lawyers insist that the IRS and other federal agencies have acted within their authority when they ordered waves of mass terminations since Trump took office. But according to previously unreported emails obtained by ProPublica, a top lawyer at the IRS warned administration officials that the performance-related language in his agency’s termination letter was “a false statement” that amounted to “fraud” if the agency kept the language in the letter.”
Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
Here we are again, riding out another turbulent week. Until last night, I would have highlighted for you the Trump administration’s efforts to halve the Department of Education and its Executive Order aiming to restrict access to Public Service Loan Forgiveness. (Both discussed below.) Instead, though, I’m leading by calling your attention to events that unfolded just last night as the Trump administration continues its efforts to condition federal funding for education on universities’ willingness to adopt increasingly intrusive policy directives.
“The letter stated that the University must comply with required policy shifts, listing nine bullet points…The letter demands that the University abolish the University Judicial Board and “centralize all disciplinary processes under the Office of the President,” empowering the Office of the President to suspend or expel students. The letter introduces a precondition that Columbia Public Safety officers have “full law enforcement authority, including arrest and removal of agitators.”
…Compliance would also require that the University begin the process of placing the Middle East, South Asian, and African studies department under academic receivership—a process that requires an outside chair to run the department—for a minimum of five years.
…It further demands the implementation of “time, place, and manner rules,” including a “plan to hold all student groups accountable,” and “a plan for comprehensive admissions reform.” It additionally adds a demand for the adoption and promotion of a formal definition of antisemitism.”
“Per the Kalven Report, “From time to time instances will arise in which the society, or segments of it, threaten the very mission of the university and its values of free inquiry. In such a crisis, it becomes the obligation of the university as an institution to oppose such measures and actively to defend its interests and its values.” We note the characterization here of the university’s role as an “obligation” and the characterization of executing this obligation as “active defense.” We believe it is clear what such an active defense entails in the present moment:”
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“Last month, a federal judge issued an injunction blocking President Donald Trump’s administration from implementing multiple executive orders designed to purge the government of anything related to diversity — including an order to prohibit contractors and grant recipients from doing literally anything to promote the concepts of diversity, equity, and inclusion (DEI) within their organizations.
…After the judge clarified on Monday that his injunction does, indeed, bar the whole federal government from enforcing Trump’s anti-diversity orders, the administration hasn’t bothered to inform various nonprofits and grant recipients they do not currently have to comply with the president’s orders, according to two of the sources. The new contract terms the Trump administration attempted to foist on these organizations and recipients remain on their desks, with the threats about failure to sign still dangling over them.” [emphasis added]
“By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
…The Secretary of Education shall propose revisions to 34 C.F.R. 685.219, Public Service Loan Forgiveness Program, in coordination with the Secretary of the Treasury as appropriate, that ensure the definition of “public service” excludes organizations that engage in activities that have a substantial illegal purpose, including:
(a) aiding or abetting violations of 8 U.S.C. 1325 or other Federal immigration laws;
(b) supporting terrorism, including by facilitating funding to, or the operations of, cartels designated as Foreign Terrorist Organizations consistent with 8 U.S.C. 1189, or by engaging in violence for the purpose of obstructing or influencing Federal Government policy;
(c) child abuse, including the chemical and surgical castration or mutilation of children or the trafficking of children to so-called transgender sanctuary States for purposes of emancipation from their lawful parents, in violation of applicable law;
(d) engaging in a pattern of aiding and abetting illegal discrimination; or
(e) engaging in a pattern of violating State tort laws, including laws against trespassing, disorderly conduct, public nuisance, vandalism, and obstruction of highways.”
“President Trump’s executive order limiting the PSLF program cannot be implemented immediately. Under the program's governing statute, a president does not have the authority to unilaterally change its operation. Instead, the order directs the Department of Education to revise the PSLF program regulations to enact the set of restrictions. As a practical matter, even if this happens, it will take a while…But such wholesale changes to PSLF regulations may be illegal, even if the Department of Education follows each required procedural step perfectly. That’s because the statute governing PSLF does not give the president or the Department of Education discretion to limit PSLF eligibility, particularly for 501(c)(3) nonprofit organizations or government entities, based on an organization’s activities.
…In addition, the wording of President Trump’s executive order is so broad that, if incorporated fully into new PSLF regulations, could easily be read to allow for sweeping restrictions on PSLF eligibility that may amount to constitutional violations, such as freedom of speech and association.”
“with the application websites down, he said he is “unable to progress towards forgiveness and with the application site down. I can’t restart them on a different repayment plan. I’m not even sure if my current employment is going to count towards repayment at this point.”
As the potential shuttering of the department of education looms, Pierce noted that “the worst things that could happen are already happening right now, and we don’t need to wait for the education department to shuffle the deck chairs around on the Titanic”.”
“The judge made clear the Trump administration, like any other, can engage in mass reductions of the federal workforce, but it must do so by following federal statutes and the Constitution. The Office of Personnel Management directed agencies to carry out the firings, Alsup concluded, which he said circumvented those established procedures.
…“The reason that OPM had wanted to put this based on performance was at least in my view a gimmick to avoid the [RIF laws],” the judge said.
He added: "It’s a sad, sad day when our government would fire a good employee and say it’s based on performance when they know good and well that is based on a lie."”
Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
Here we are again, hanging together yet (I hope). Major stories among the editor’s choices–including a letter out of Georgetown Law that’s worth a close look. In other news, the Trump Administration is planning a “final mission” for the Department of Education, which may include spinning student debt off onto the Small Business Administration. OPM has revised its instructions to federal agencies regarding probationary employees, and the Department of Defense has announced it will look at its independent authority to implement the employment policies laid out in Executive Orders along the lines formerly prescribed by OMB. The New York Times is working to track employees fired–and rehired–across the federal government, and state and local governments are stepping into the breach to try and catch employees cut from the federal civil service. As always, these stories and more are in the links below.
“OAH is launching an oral history initiative to document the experiences of federal workers and federal contractors affected by these shifts. These recorded histories will serve as a vital resource for historians and the public, offering insight into the lives and contributions of our nation’s federal workers, and documenting these stories for future generations.”
“Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum ‘unacceptable’. The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it…This is a bedrock principle of constitutional law–recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from ‘exercising control over the content of school curricula.’
Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.
…Georgetown-educated attorneys have, for decades, served this country capably and selflessly in offices such as yours, and we have confidence that tradition will continue. We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.”
“The terminations of federal workers by the Trump administration’s so-called Department of Government Efficiency — headed up by billionaire entrepreneur Elon Musk — may ultimately stretch into the hundreds of thousands. That would amount to the largest mass layoff in U.S. history. The scale of cuts would likely “overwhelm” the Unemployment Compensation for Federal Employees (UCFE) program, the “rarely utilized and creaky” system most federal workers use to claim unemployment benefits, according to a report by The Century Foundation, a progressive think tank. ”
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“Since taking office, the Trump administration has issued orders that threaten to broadly undercut the financial foundation of university based research, including deep reductions in overhead cost reimbursements through the National Institutes of Health. Court challenges have paused some of the cuts, but universities are bracing for uncertainty…In some cases, schools are pre-emptively cutting their expenses as a precautionary measure…
‘I hate to sound fatalistic,’ said Dr. Cooper, who specializes in the study of limb development. ‘But at this point I think they’re trying to break the academic enterprise. And cutting academic science has impacts on the educational mission of the entire university.’”
“Specifically, he said he hopes to shift Federal Student Aid to the Small Business Administration, which provides financial and counseling assistance to entrepreneurs. Linda McMahon, who was confirmed Monday by the U.S. Senate to lead the Education Department, previously ran the SBA during Trump's first term.”
“A draft of the executive order that circulated on Wednesday recognizes that the president does not have the power to shutter the Education Department…Rather, the draft calls on Education Secretary Linda McMahon to ‘take all necessary steps’ to facilitate the closure of the department ‘to the maximum extent appropriate and permitted by law.’”
“President Trump has moved swiftly to wage his war on the federal bureaucracy, defying norms and legal limits…This page will be updated periodically as numbers are confirmed.”
“In revised guidance issued to the heads of federal agencies, the Office of Personnel Management ― the human resources agency of the federal government ― tries to rewrite history by claiming it never actually ordered agencies to fire probationary employees (people who generally have held their jobs for a year or less)…Instead, OPM claims it’s been up to each agency all along to decide who to fire…OPM’s guidance doesn’t say anything about federal agencies being encouraged to rehire all the people who were fired…Separately, the memo spells out how agencies can use administrative leave as a way to remove employees from the workplace. It gives agencies until Sept. 13 to update their internal policies to comply with OPM’s regulations on this.” [emphasis added]
“Consistent with [EO 13217, EO 14210,] and the Secretary of Defense’s clear direction to streamline operations and…re-direct scarce and limited resources…the Department is taking independent steps to reduce the size of the civilian workforce…The first step in doing this will be terminating those probationary employees whose continued employment at the Department would not be in the public interest. These terminations will commence on Monday, March 3, 2025.” [emphasis added]
“Even as the Trump administration continues to slash federal jobs, a number of federal agencies have begun to reverse course — reinstating some workers and pausing plans to dismiss others, sometimes within days of the firings. The Office of Personnel Management on Tuesday revised earlier guidance calling for probationary workers to be terminated, adding a disclaimer that agencies would have the final authority over personnel actions. It is unclear how many more workers could be reinstated as a result.”
Get a weekly summary of news items that affect the public service legal community, with an emphasis on funding, job market, law school initiatives, and access-to-justice developments.
