The Trump administration has spent the past months demanding that universities do more to protect their Jewish community members. In response, universities like Harvard and Columbia have set up new Title VI compliance offices, adopted new definitions of antisemitism, added new required trainings and orientation programs and imposed new limitations on demonstrations, often with a specific eye to protests of Israel. Columbia has even announced a new policy of “zero tolerance for antisemitism and hate.”
Turning now to public universities, the Trump administration wants UCLA not just to cough up $1.2 billion, but to develop a campuswide survey asking how comfortable its students feel reporting antisemitism, to add several new layers of bureaucrats to monitor whether UCLA is improving its overall climate and its “response to social media harassment,” and to set up new processes for people to report UCLA’s compliance failures. Northwestern University, a private school, recently agreed to nearly identical terms.
Critics of these demands have generally focused on how extortionate they are, given the billions of dollars of research funding and student aid on the line. But even if universities were to take steps like these of their own free will, there would still be a problem, at least for the public schools, which are subject to the First Amendment. Many of the reforms being demanded in the second Trump administration are unconstitutional — and that’s according to judicial decisions that the first Trump administration and its allies fought to win. Those opinions, all issued by conservative federal appellate courts, might now provide Trump’s liberal critics their best tools for resistance.
In 2018, an undisclosed group of right-wing donors established a new campus speech advocacy group, Speech First. The group quickly filed its first case, suing the University of Michigan to strike down its definitions of “harassment,” “bullying” and “bias,” which allegedly chilled too much speech on campus, as well as the university’s “Bias Response Team,” a group charged with fielding complaints of identity-based harms. (At the time, according to one group’s estimate, 456 colleges and universities had groups like this, under different names.)
The federal courts are divided into 13 geographic “circuits” or regions, and in its first five years, Speech First filed lawsuits in seven of them — covering states everywhere but the far West and the Northeast. Speech First’s playbook was the same in every case. It would sue a public university on behalf of its members there — anonymous students. In each case, these unnamed conservatives filed statements describing controversial opinions they said they would have shared on issues like “gun rights, illegal immigration, and abortion,” were it not for the school’s vague harassment policies and the bias response teams that enforce them.
In every case, Speech First sought a preliminary order to block both. Trial courts all said no, but that gave Speech First the chance to go directly to the courts of appeals, even before trial. There, Speech First had stunning success. It got quick and resounding wins in four circuits, plus a quick settlement in another. Universities ended up settling even in the two circuits where they had won, perhaps to avoid Supreme Court review, which neared in 2024 when the Court almost heard Speech First’s case against Virginia Tech.
This enviable win rate was surprising for an organization that had just emerged out of nowhere. But even more surprising was the involvement of Trump’s Department of Justice, which filed a “statement of interest” in Speech First’s very first lawsuit, the one against Michigan. Claiming that “free speech has come under attack on campuses across the country,” the (first) Trump administration agreed with Speech First that Michigan’s policies were vague and overbroad, allowing the school to “dispense disciplinary consequences against a speaker who engages in constitutionally protected speech based on nothing more than a listener’s ‘feelings’ that the speech was ‘hurtful’ or ‘bothersome.’ ”
That was then, this is now. The concern previously given only to speakers — the anonymous conservative students who wanted to talk “passionately and repeatedly” about hot-button political issues — now is given only to certain listeners: those Jewish students, faculty and staff who have felt hurt by the cumulative effect of hostile expression on campus. The irony, of course, is that the hostile educational environment that can arise from individually protected but cumulatively harmful expression was exactly what initially spurred the creation of universities’ harassment policies and bias response teams — the very thing Speech First worked so successfully to end.
The second Trump administration is demanding that universities enact policies and programs suspiciously similar to the ones the first Trump administration helped get banned. Its hypocrisy on these issues might not be surprising. But unless our federal courts are willing to prove equally unprincipled, the opinions several of them handed down in the Speech First cases will provide powerful tools for those who are trying to resist Trump’s overreach now. Here’s how those cases might matter.
First, the Speech First opinions all offer students the right to sue through an organization created for litigation purposes, so they can anonymously claim that their speech will be stifled by policies, reporting hotlines and administrative units set up to fight bias.
Second, those students can file a suit even before they’ve ever been disciplined for their speech. So a student interested, say, in protesting on behalf of Palestinians could bring a lawsuit against their university, without revealing their identity, as soon as the school complied with the Trump administration’s demands.
Third, the fact that some of these Trump demands only involved reporting hotlines and climate-monitoring systems rather than new disciplinary offices doesn’t mean students can’t complain that their speech is being chilled. The bias response teams struck down in the Speech First cases didn’t have disciplinary powers at all, but the fact that they could refer cases to the police, or to the university’s civil rights office, was enough to violate the First Amendment. The Sixth Circuit worried that students who got reported to a bias response team might get treated badly by their professors or future employers. (It didn’t explain how either professors or employers might learn of the complaint.) Fast forward to the present: the fact that the surveys and reports Trump is demanding would be going straight to his Department of Justice should cause far greater alarm — and chilling of speech.
Fourth, a university cannot evade these lawsuits by assuring students that they will only punish speech or protest that is unprotected under the First Amendment — harassment, for example, or true threats or incitement. In one of the Speech First cases, even a sworn statement from the president of the University of Texas wasn’t enough to convince the Fifth Circuit that students weren’t right to worry about getting punished. When a school like Columbia pledges “zero tolerance” for hate as part of its settlement with the Trump administration — despite the fact that there is no “hate speech” exception to the First Amendment — students have far stronger reasons to be fearful that their protected speech might lead to discipline.
Finally, students can cite the Speech First cases to argue that new policy provisions, especially their schools’ adoption of the IHRA definition of antisemitism, are unconstitutionally vague and overbroad, since students might not be able to tell whether their criticisms of the state of Israel count as antisemitic, and thus subject to investigation (or perhaps zero tolerance). The Eleventh Circuit held that a university’s anti-discrimination policy’s use of the word “unreasonably” was “pretty ambiguous,” so it might “cause a reasonable student to fear expressing unpopular beliefs.” The court didn’t seem to notice that it was using the same word it faulted the university for employing.
It might be clear by now that I don’t think very highly of the Speech First opinions. Universities should be able to take steps to address hostile speech on their campus. Even if they can’t impose discipline, because the First Amendment protects what was said, schools should still be able to invite students to discussions about how their speech affects their peers, to facilitate dialogue, or to state their own values as a counterbalance to harmful speech. Being able to speak up in this way — to engage in institutional counterspeech when false or hurtful speech causes controversy — actually lowers the pressure on universities to discipline and censor campus speech. And it lets universities do what they’re meant to do: educate.
But the Speech First cases don’t allow for any of that. Some go so far as to say that universities place an unconstitutional chill on expression even by calling certain student speech “biased.” What does that say about the accusations of antisemitism indiscriminately thrown around by the Trump administration in recent months? Trump and his allies fought for the Speech First decisions. Now let them live by them.
