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How standardized tests became part of the DEI debate

In the Education Department’s sweeping Dear Colleague letter last month, acting assistant secretary for civil rights Craig Trainor wrote that colleges must eliminate all race-conscious programs and policies, from scholarships and admissions practices to campus cultural groups and DEI training.

One surprising mention: standardized testing policies.

Trainor wrote that test-optional policies could be “proxies for race” to help colleges “give preference” to certain groups.

“That is true whether the proxies are used to grant preferences on an individual basis or a systematic one,” he wrote. “It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”

Higher education leaders and researchers have long debated the pros and cons of standardized testing in admissions: Some believe they’re a meritocratic predictor of academic success, while others say they’re more aligned with family wealth. In recent years, those debates have become entangled with discussions of systemic racism in the American education system.

During the COVID-19 pandemic, the vast majority of colleges waived test requirements for applicants. Five years later, most have retained their test-optional policies—though a year ago some selective institutions began returning to score requirements, reigniting a charged debate about the role of standardized tests in admissions.

After the Supreme Court banned affirmative action in 2023, experts said test-optional policies could serve as race-neutral measures to help colleges maintain diversity in their applicant pools. They cited research showing that colleges with test-optional policies enrolled 10 to 12 percent more students from underrepresented racial backgrounds; other studies found that doing away with test requirements simplified the application process and thus removed barriers for first-generation and other underserved students. The Biden administration even included test-optional policies in its guidance for colleges adjusting to the court ruling.

If colleges cited such research in keeping their test-optional policies, Trainor’s letter implied it could be grounds for a civil rights investigation.

In a Frequently Asked Questions document meant to clarify the broad scope of the Dear Colleague letter, OCR made no mention of testing policies. But in response to multiple questions from Inside Higher Ed about how the department views test-optional policies, Trainor left the door open to federal scrutiny.

“This isn’t complicated,” he wrote. “When in doubt, every school should consult the [Students for Fair Admissions v. Harvard] legal test contained in the [Dear Colleague letter]: ‘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.’”

Harry Feder, executive director of FairTest and an outspoken critic of standardized testing, said assessments like the SAT have long been embroiled in debates about racial equity in education, but the discourse grew more prominent as attacks on DEI and affirmative action intensified.

“The SAT has racial bias baked into it from its origins as an early IQ test to keep out the riffraff,” he said. “What Republicans are now saying is, that’s an objective measure of merit, and if white and Asian kids do better on them over all, then colleges not considering those scores is a form DEI run amok.”

John Friedman, an economics professor at Brown University, has published numerous influential studies on the effects of standardized testing policies, including those cited by the majority of Ivy League institutions that decided to return to test requirements. He said he understands where the Education Department’s skepticism comes from.

“Schools might be tempted to continue test-optional policies to make it easier to maintain diverse classes, even if that makes it harder to assess students’ academic preparation,’” Friedman said. “I think that’s where some of the angst comes from, as part of a larger concern about higher education moving away from the traditional sense of meritocracy.”

At the same time, he said the department should consider how institutions use test scores in admissions, which can vary widely.

“The point is not that you can’t go test-optional. It’s that you shouldn’t if your goal is an end run around the SFFA decision,” Friedman said. “It would be bad to force institutions that decided thoughtfully that test requirements are not best for them to adopt those policies anyway.”

Dominique Baker, associate professor of education and public policy at the University of Delaware, said she doesn’t believe it should matter whether colleges are considering racial diversity in deciding on their testing policies. The truth, she said, is that research on how testing policies affect applicant diversity is murky, and many of the colleges where the policies could have a demonstrable impact have already returned to requiring scores.

For her, the mention of testing policies alongside other DEI initiatives is “head-scratching.”

“The places the administration cares about have largely already returned to testing, or are certainly poised to do so soon. So who is this for?” Baker said. “It’s bananas that testing is even in here.”

Reversing the Test-Optional Tide?

So far, the letter hasn’t had any effect on institutions’ testing policies. But colleges are starting to respond to the Dear Colleague letter’s guidance in other ways, changing the names of student service offices, scrubbing mentions of race and equity from their websites, eliminating race-conscious programs, and canceling affinity group events.

“It would be naïve to believe that certain institutions wouldn’t, at the very least, strongly consider changing their testing policies in order to fly under the radar with the administration,” Baker said.

Some colleges are pushing ahead with their test-optional policies regardless. Last Thursday the University of Vermont announced that its test-optional policy, put in place during the pandemic, would become permanent.

Jay Jacobs, vice president for enrollment management at Vermont, told Inside Higher Ed the decision was based on years of research that found that removing test requirements not only had little effect on students’ academic performance and persistence, but also helped UVM achieve its goal of enrolling more local and first-generation students.

He said the university did not take racial diversity into account when measuring the policy’s enrollment impact—“we didn’t want that to be construed as the reason,” he explained—but said that whatever the rationale, he doesn’t believe the Education Department’s guidance should have any influence.

“No external party should have a say in dictating institutional policy,” Jacobs said.

Meanwhile, leaders in the assessment industry have remained largely silent about the Trump administration’s promotion of their exams as part of the war on DEI.

The College Board, which owns and administers the SAT, did not release a public statement about the letter, nor did ACT, Educational Testing Services or any other major assessment organization.

College Board communications director Holly Stepp wrote in an email to Inside Higher Ed that the organization believes testing can promote college access, but it does not usually comment on policy matters.

“College Board provides access and opportunity to millions of students from every background through programs that are mission-driven, evidence-based, and nonpartisan,” Stepp wrote. “We do not set policies around how our exam is used by higher education institutions and scholarship providers.”

Juan Elizondo, ACT’s strategic communications director for government and public relations, told Inside Higher Ed that the company stands behind institutions’ freedom to set their own testing policies.

“ACT respects the authority of our higher education partners to decide the admission standards that are right for their institutions,” he wrote.

Failing the Logic Test

As colleges like Yale, Harvard and MIT returned to test requirements last year, many cited the same new research: a study from Opportunity Insights that found that test-optional policies made it more difficult for selective institutions to admit students who could succeed academically—and to find qualified applicants from diverse racial and economic backgrounds. Statements from both Yale and Dartmouth said that test scores could “help expand access” for underrepresented groups, including students of color.

So if both test-optional and test-mandatory policies can promote racial diversity depending on the institution, how will the Trump administration enforce its guidance?

When asked this question, Trainor did not respond directly but implied that any institution using racial diversity as a justification for any policy, or even citing it as a potential benefit, could be in violation of the current Education Department’s views on civil rights law.

Friedman, one of the researchers who produced the Opportunity Insights study, said his research showed that for some highly selective colleges, requiring test scores could help “a little bit” with diversity in the selection process. The argument is that by providing a standardized measure of academic preparedness, selective colleges can find a “diamond in the rough”—applicants from underresourced high schools who would struggle to stand out otherwise.

“For some schools, going back to requiring testing may help improve diversity, but my sense is that improving diversity is not the primary motivation behind this policy change,” he said.

Feder agreed but had a different prediction.

“If I’m at the OCR and an Ivy League college is saying, ‘We went back to test requirements because it’s good for diversity,’ even if that’s not really the case, I’d go investigate them,” he said. “By their own logic, they’d have to.”

Baker said there hasn’t been enough research to determine whether test-optional policies make a huge difference in promoting diversity. Many of the colleges that have kept them in place, she said, have also made more holistic changes to their admissions process that could account for diversity gains. But she believes ending the experiment early by government coercion would be a major step backward.

“Researchers in the field are doing some real deep dives to better understand the effects of test-optional policies themselves. The people writing the [Dear Colleague] letter have no clue about any of that; they just read about how these policies are part of an anti-white war on meritocracy,” she said. “They’re just throwing spaghetti at the wall.”

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March 11, 2025
College campus counseling center usage and staffing

Counseling services are a key element of student retention in higher education due to elevated numbers of students reporting mental health conditions, but creating a sustainable practice that addresses students and staff needs remains a challenge, according to survey data from the Association for University and College Counseling Center Directors (AUCCCD).

The association’s annual report, published Feb. 25, highlights a tapering off of the increased demand for mental health services from students, but continued pressure to support clinician and nonclinical staff members through challenging work conditions.

Methodology

The survey includes responses from 367 counseling center directors from the U.S. and its territories and 14 from other countries. The majority of respondents work at four-year institutions and urban campuses. The reporting period ranges from July 1, 2023, to June 30, 2024.

Student engagement: While students continue to report high levels of mental health concerns, some counseling centers are seeing a decline in student demand.

The majority of respondents at four-year institutions reported a decline or no change in the number of unique clients seen (68 percent) and the number of appointments provided (58 percent). Among two-year colleges, 33 percent reported a decrease in the number of unique clients seen and 43 percent reported a decrease in overall appointments provided.

One in four counseling center directors (24 percent) indicated their centers did not have trouble meeting demand for services.

Around 11 percent of students at four-year institutions accessed counseling services, and just under 5 percent of students at community colleges received counseling center support. “Centers at smaller schools served, on average, much larger proportions (8 to 19 percent) of their enrolled populations than centers at larger schools (7 to 8 percent),” according to the report.

Student data indicated a correlation between student success and counseling center usage: 73 percent of clients reported that counseling services positively impacted their academic performance, and 71 percent said it helped them stay in school.

Staffing: The four-year college had 9.2 full-time-equivalent clinical employees, while the average for community colleges was 4.5 employees. Around 2 percent of centers were staffed by only one person, but this was a decline compared to the year prior, when 3.5 percent of directors indicated they were a one-person center.

Diversity of directors who completed the survey continues to rise, with 30 percent of respondents identifying as a person of color, up from 16 percent in the 2012–13 survey.

Staff turnover remains a concern for college counseling centers, with 12 percent of all nontrainee clinical positions and 10 percent of all nontrainee positions turning over in the past fiscal year. The top reasons staff left their roles were low salary (48 percent) and work conditions (32 percent), though fewer staff cited leaving the field as a reason for departure this year, compared to prior surveys.

Embedded counseling services remain limited, with around 30 percent of institutions utilizing counselors assigned to work within other departments. Athletics was the most frequently reported area where embedded clinicians work, followed by a specific school, student affairs office and residence life.

Services: Most clinical sessions were delivered in person (81 percent), followed by video (15 percent) and phone (3 percent). This mirrors the Center for Collegiate Mental Health’s data, published earlier this year, which found 64 percent of clients received exclusively in-person counseling and 13 percent received video-only care.

While a slight majority of centers do not have formal session limits (55 percent), 43 percent of institutions limit the number sessions a student can access by year, with some flexibility in the model. Only 0.6 percent of respondents indicated their campus has a hard session limit with no exceptions.

Teletherapy continues to be a popular offering among institutions, with 53 percent of four-year institutions and 35 percent of community colleges employing a third-party vendor to provide services. Use by students varies widely, even among similarly sized institutions, but the average number of participating students was 453.

“Overall, regardless of the type of service provided by a third-party vendor, the majority of directors reported utilization was less than hoped for or met their expectations,” according to the report.

The number of unique students who attended a crisis appointment averaged across centers was 125, and the average number of crisis appointments was 166. A majority (65 percent) offered psychiatric services within the counseling center, elsewhere on campus or in both locations.

In addition, a majority of respondents indicated their center provides formal or informal consultation services to the community.

Looking ahead: While the report focuses on the previous fiscal year, there remains a need to continue to provide accessible and high-quality counseling services, says Cindy M. Bruns, survey coordinator for AUCCCD. “By fostering a supportive campus culture and ensuring that mental health resources are available, colleges can help students navigate political and social environments while promoting resilience and well-being.”

Some counseling directors have noticed students are experiencing “elevated levels of anxiety, uncertainty, threats to their sense of safety and belonging on campus” due to federal action under the second Trump administration, Bruns says, which could prompt an increase in the number of students seeking services.

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March 11, 2025
How do care-experienced students view their time in higher education?
Last Thursday 6^th March, TASO shared its report on Pathways into and through higher education for young people with experience of children’s social care. It found that young people with experience of care are four times less likely to attend higher education by age 22 and more than twice as likely to drop out as their peers without experience of care.

It builds on a growing body of literature in this area, including analysis by the Unite Foundation and evaluations of its own scholarships with Jisc.

Through the annual Student Academic Experience Survey (SAES), HEPI and Advance HE collect data on the experiences and attitudes of care-experienced students. We are in a constant process of iterating and improving the SAES, and in 2024, a close reading of our data from previous years suggested a higher number of respondents than expected were saying they had experience of care. To make sure we were capturing the right students, we refined the question as follows:
Have you been in care? Select yes if you’ve ever lived in public care or as a looked-after child, including:

with foster carers under local authority care

in a residential children’s home

being ‘looked after at home’ under a supervision order

living with friends or relatives in kinship care

Note: This does not refer to time spent in boarding schools, working in a care or healthcare setting, or if you are a carer yourself.
In 2024, nearly 900 of the roughly 10,300 respondents to the SAES – still quite a high number, but significantly fewer than the previous year – said they had experience of care. What do the data say about their experiences in higher education? (Note that the margin of error for any subset will be higher than the margin for the whole survey sample, which is around 1%.)

On subject choices, care-experienced students in the SAES were somewhat more likely to be studying Medicine and Dentistry and subjects allied to Medicine, which is consistent with sector-level data. They were also more likely to be studying Engineering and less likely to be studying Business, Social Studies and creative subjects.

In addition to the challenges faced by having experienced care, these students were also less likely to come from the highest quintiles of participation in higher education (POLAR) than other students and more likely to have a disability (45%, compared to 30% of other students) but less often described themselves as first in family (25%, compared to 32% of other students).

This probably informs many of their responses throughout the survey. For example, like other students taking courses like these, care-experienced students have more contact hours and do more hours of independent work (a total of 41.5 hours) than students without experience of care (36 hours on average). Likewise, more than half of care-experienced students use AI at least once a week, compared with less than a third (30%) of other students. This is as expected, given that saving time is a primary reason students use AI tools.

Perhaps surprisingly, care-experienced students report higher scores on wellbeing measures, like happiness and life satisfaction. (For example, they average 7.08 out of 10 for whether the things they do are worthwhile, compared to 6.74 for other students.) However, they also report higher rates of anxiety and loneliness than students without experience of care, averaging 5.29 out of 10 for feeling anxious compared with 4.48 for other students.

Care-experienced students are more likely to have considered withdrawing: 38% compared with 24% of all students. When asked for their main reason why, they cite mental health as the primary challenge, but at a lower rate than students without experience of care. Instead, they were more likely to mention workload – either a higher or lower volume than expected – or their physical health.

These data also suggest that care-experienced students face an altogether more challenging context. Some 58% of care-experienced students say they travel 10 miles or more to get to university, compared with only 31% without experience of care travelling the same distance. This may be because the benefits some care-experienced students get can be contingent on living within a particular local authority. Care-experienced students reported living alone or with family at higher rates than other students.

Additionally, care-experienced students may need to remain at home to provide for family members at higher rates. Almost all care-experienced students (80%) do some paid work during term-time, compared with 55% of other students. This is most often to supplement their income. But more than one-third of care-experienced students (35%) work to support friends or family financially.

A third (33%) say the cost-of-living crisis has affected them ‘a lot’, compared with 27% of other students. Care-experienced students are also nearly twice as likely to depend on scholarships or bursaries to cover their costs, which could also show that such funds are being effectively targeted towards students who need them.

In summary, care-experienced students are more likely to take certain Health and Science subjects, live further from their institution, are more likely to be working to support their families and are affected more by cost-of-living difficulties. These challenging findings help to explain why care-experienced students withdraw from higher education at higher rates.

Clearly there is more that institutions and government can do to support this group of students. The TASO report recommends, for example, working closely with local authorities to ensure care-experienced students have reliable access to accommodation, both during and outside of term-time. And as Paige Mackenzie wrote for us in 2022, the holidays can be a ‘really lonely time’ for care-experienced and estranged students and it helps when staff reach out.
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March 11, 2025
Trump doesn’t rule out recession as tariffs roil market (ABC News)

Higher Education Inquirer : Trump doesn’t rule out recession as tariffs roil market (ABC News)

Trump doesn’t rule out recession as tariffs roil market (ABC News)

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March 11, 2025
Trust, creativity, and collaboration are what leads to impact in the arts
Impact in the arts is fundamentally different from other fields. It is built on relationships, trust, and long-term engagement with communities, businesses, and cultural institutions.

Unlike traditional research models, where success is often measured through large-scale returns or policy influence, impact in the creative industries is deeply personal, embedded in real-world collaborations, and evolves over time.

For specialist arts institutions, impact is not just about knowledge transfer – it’s about experimental knowledge exchange. It emerges from years of conversations, interdisciplinary convergence, and shared ambitions. This process is not transactional; it is about growing networks, fostering trust, and developing meaningful partnerships that bridge creative research with industry and society.

The AHRC Impact Acceleration Account (IAA) has provided a vital framework for this work, but to fully unlock the potential of arts-led innovation, it needs to be bigger, bolder, and more flexible. The arts sector thrives on adaptability, yet traditional funding structures often fail to reflect the reality of how embedded impact happens – rarely immediate or linear.

At the University for the Creative Arts (UCA), we have explored a new model of knowledge exchange—one that moves beyond transactional partnerships to create impact at the convergence of arts, business, culture, and technology.

From ideas to impact

At UCA, IAA impact has grown not through top-down frameworks, but through years of relationship-building with creative businesses, independent artists, cultural organisations, and museums. These partnerships are built on trust, long-term engagement, and shared creative exploration, rather than short-term funding cycles.

Creative industries evolve through conversation, experimentation, and shared risk-taking. Artists, designers, filmmakers, and cultural institutions need time to test ideas, adapt, and develop new ways of working that blend creative practice with commercial and social impact.

This approach has led to collaborations that demonstrate how arts impact happens in real-time, to name a few:
- Immersive storytelling and business models – Research in VR and interactive media is expanding the possibilities of digital storytelling, enabling new audience experiences and sustainable commercial frameworks for creative content.
- Augmented reality and cultural heritage – Digital innovation is enhancing cultural engagement, creating interactive heritage experiences that bridge physical and virtual worlds, reinforcing cultural sustainability.
- Sustainable design and material innovation – Design-led projects are exploring circular economy approaches in sports, fashion, and product design, shifting industry mindsets toward sustainability and responsible production.
- Photography and social change – Research in archival and curatorial practice is reshaping how marginalised communities are represented in national collections, influencing curatorial strategies and institutional policies.
These projects are creative interventions that converge research, industry, and social change. We don’t just measure impact; we create it through action.

A different model of knowledge exchange

The AHRC IAA has provided an important platform for arts-led impact, but if we are serious about supporting creative industries as a driver of economic, cultural, and social transformation, we must rethink how impact is funded and measured. Traditional funding models often overlook the long-term, embedded collaborations that define arts impact.

To make the impact funding more effective, we need to:
- Recognise that creative impact develops over time, often requiring years of conversation, trust-building, and iterative development.
- Encourage risk-taking and experimentation, allowing researchers and industry partners the flexibility to develop innovative ideas beyond rigid funding categories.
- Expand the scale and duration of support to enable long-term transformation, allowing small and specialist universities to cultivate deeper, sustained partnerships.
In academic teaching and training, knowledge exchange must be reconsidered beyond the REF framework. Rather than focusing solely on individual research outputs, assessment frameworks should value collective impact, long-term partnerships, and iterative creative inquiry. Funding models should support infrastructure that enables researchers to develop skills in knowledge exchange, ensuring it is a fundamental pillar of academic and professional growth.

By embedding knowledge exchange principles into creative education, we can cultivate a new generation of researchers who are not only scholars but also creative change makers, equipped to collaborate with industry, drive cultural innovation, and shape the future of the creative economy.

A call for bigger, bolder AHRC impact funding

UCA’s approach demonstrates how arts institutions are developing a new model of impact—one rooted in collaboration, creativity, and social change. However, for this model to thrive, impact funding must evolve to recognise and support the unique ways in which creative research generates real change.

To keep pace with the evolving needs of cultural, creative, and technology industries, research funding must acknowledge that impact in the arts is about stories, communities, and the human connections that drive transformation. It’s time to expand our vision of what impact means – and to build a funding model that reflects the true value of the arts in shaping business, culture, and society.
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March 11, 2025
VICTORY! 9th Circuit rules in favor of professor punished for criticizing college for lowering academic standards

SAN FRANCISCO, March 10, 2025 — Today, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of Lars Jensen, a math professor unconstitutionally punished for criticizing what he believed was his college’s decision to water down its math standards.

Reversing a federal district court, the Ninth Circuit held Jensen suffered wrongful dismissal of his claims against Truckee Meadows Community College in Reno, Nevada, and that he should have his day in court to prove college administrators violated his First Amendment rights. The court also held Jensen’s right to speak out about the math standards was so clearly established that the administrators were not entitled to dismissal on qualified immunity grounds.

“This decision is a major victory for the free speech rights of academics,” said Foundation for Individual Rights and Expression attorney Daniel Ortner, who argued the case before a Ninth Circuit panel in November 2024. “This decision will protect professors from investigation or threats of termination for their speech, and promote accountability for administrators who violate the First Amendment.”

The dispute began in 2020, when Jensen planned to comment at a TMCC conference about what he perceived to be diminishing academic standards at the college. After administrators prohibited Jensen from sharing his views at a Q&A session, he printed out his planned comments critiquing the college for allowing for “a student graduating from college” while only being “ready for middle school math,” and handed them out to his colleagues during the break. TMCC Dean Julie Ellsworth told Jensen not to circulate his fliers during the break, but he continued to do so without interrupting the session.

Ellsworth then accused Jensen of “disobeying” her and warned him he had “made an error” defying her. Following through on her veiled threats, Ellsworth sent Jensen an official reprimand. Over the next two performance reviews, Jensen’s department chair suggested he receive an “excellent” rating, but Ellsworth retaliated by giving him “unsatisfactory” ratings for “insubordination.” As a result, Jensen automatically had to undergo review for possible termination.

“The college’s actions tarnished my reputation and chilled my speech,” said Jensen. “The Ninth Circuit’s decision vindicates my First Amendment rights and allows me to have my day in court.”

COURTESY PHOTOS OF PROFESSOR JENSEN AND HIS ATTORNEYS

TMCC might have fired Jensen if not for the speedy intervention of FIRE, which wrote a letter objecting that the administrators were violating the First Amendment, which protects faculty at public colleges in commenting as citizens on matters of public concern. TMCC announced that Jensen would not be fired, but the damage to his First Amendment rights was already done, especially with the negative performance evaluations remaining on his file.

Jensen sued Ellsworth and other TMCC administrators in 2022, arguing the college’s retaliatory actions violated his First Amendment rights as well as his right to due process and equal protection. A district court dismissed the case in 2023.

The Ninth Circuit ruled today that the district court erred in dismissing Jensen’s First Amendment claim, because his speech about the college’s academic standards involved a matter of public concern related to scholarship or teaching, and thus receives First Amendment protection.

The Court also held the university’s retaliatory actions were likely to chill Jensen’s speech, and that a university’s “interest in punishing a disobedient employee for speaking in violation of their supervisor’s orders cannot automatically trump the employee’s interest in speaking.” The Court warned, in fact, that if an employer could fire an employee solely for refusing to obey an order to stop speaking, a university could unconstitutionally enjoy “carte blanche to stifle legitimate speech.”

The Court further held the district court erred when it held that claims against the college administrators were barred by qualified immunity, a doctrine that requires plaintiffs to show a government official violated their “clearly established right” before they can hold those officials accountable for damages. The Ninth Circuit held that at the time Jensen spoke out, “it was clearly established that a professor has a right to speak about a school’s curriculum without being reprimanded, given negative performance reviews, and put through an investigation and termination hearing.”

The ruling remands the case back to the District Court of Nevada, where Jensen’s First Amendment claims can proceed. He may also choose to amend his other claims as necessary to proceed alongside them. Jensen is also represented by Nevada attorney John Nolan, who brought the lawsuit and wrote the briefs filed with the Ninth Circuit.

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT:

Alex Griswold, Communications Campaign Manager, FIRE: 215-717-3473; [email protected]

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March 10, 2025
Free speech advocates rally to support FIRE’s federal appeal to defend advocacy in public parks

Protesting in public parks is as American as apple pie. It’s at the heart of our First Amendment — and one of our nation’s most time-honored principles. That right does not disappear merely because a private entity operates the public park on the government’s behalf.

That’s why FIRE and the Law and Religion Clinic at the University of Texas School of Law are appealing a district court ruling that weakens this First Amendment right. And we are proud to be backed by a broad coalition of prominent organizations as “friends of the court.”

Here’s what happened. Several years ago, animal welfare advocates Daraius Dubash and Dr. Faraz Harsini took to Houston’s largest public park to raise awareness about the harms of industrialized farming. For Dubash, this activism is rooted in his Vedantic Hindu faith, which compels him to promote the teaching of ahimsa, or nonviolence. To communicate their message, Dubash and Harsini serve as co-organizers for an international nonprofit animal-rights group. Their signature event involves volunteers showing muted documentary footage of farming practices to passersby, while others remain available to answer questions.

Dubash and Harsini’s right to peacefully advocate on this issue in a public park is beyond dispute. But on three separate occasions, the public park’s private management ordered them to leave. The fourth time, park management had Houston police arrest Dubash for criminal trespass and banned them both from showing their video footage in the park in the future. Why? Because the park’s private managers and city police deemed their message “offensive.”

With the help of FIRE and the Law and Religion Clinic, Dubash and Harsini filed suit in 2023 against the City of Houston, the park management corporation, its then-president, and the arresting officers. But in September, 2024, the U.S. District Court for the Southern District of Texas dismissed their claims, ruling that none of the defendants were responsible for violating Dubash and Harsini’s constitutional rights in a public park.

We disagree.

FIRE and the Clinic appealed to the Fifth Circuit, arguing that the ruling effectively lets the government bypass the First Amendment by delegating the management of public spaces to private organizations. And the court’s limited interpretation of governmental liability would make it nearly impossible for anyone to challenge violation of their constitutional rights by municipalities or law enforcement.

Last week, 12 prominent organizations from across the ideological spectrum filed nine amicus curiae briefs in support of Dubash and Harsini:

The ACLU of Texas argues the park management company was acting as a state actor and public-private partnerships “cannot serve as an end run around the First Amendment.” The brief also argues the district court erred by failing to hold the arresting officers accountable based on their “mistaken belief” that the park was private. As the brief explains, probable-cause findings must be based on “objective facts and circumstances rather than subjective beliefs.”

Young America’s Foundation, Hamilton Lincoln Law Institute, and Advancing American Freedom explain that Houston cannot bypass its duty to protect free speech in its public spaces by granting oversight authority to a private third party. The brief also emphasizes the sweeping implications of the district court’s decision, including in the academic context where state universities are increasingly attempting to evade First Amendment protections by outsourcing park management to nominally private entities like student governments.

Liberty Justice Center argues the district court’s decision “blurs the line between state and private actors,” allowing Houston to “contract out of its constitutional obligations.” We could not agree more.

The Center for American Liberty, in a brief submitted through Reeves Law LLC, argues that maintaining a public park is a traditional and exclusive government function, with public parks serving “as public forums for the expression of speech,” whether or not they are managed by a private entity.

The National Press Photographers Association, in a brief submitted through the First Amendment Clinic at Southern Methodist University Dedman School of Law, explains how the district court’s ruling “threatens the sanctity of the spaces where speech is deserving of the highest protection.”

Law Enforcement Action Partnership and the National Police Accountability Project explain that accountability for law enforcement officers and municipalities is crucial to preserving public confidence in the police and the government, and that failing to hold police officers accountable “undermines public trust in law enforcement.” The brief also argues that municipalities should know their police officers “need training and guidance to appropriately respond” to peaceful expressive activity, and failing to provide that training is sufficient to establish municipal liability.

Protect the First Foundation, in a brief submitted through the Religious Freedom Clinic at Harvard Law School and Schaerr Jaffe LLP, highlights that Dubash was motivated to proselytize nonviolence by his deeply held religious beliefs, and describes the long history and tradition of public proselytization, from the persecution of religious minorities in the colonies through the legal protections established by First Amendment jurisprudence.

The Hindu American Foundation, in a brief submitted through Jackson Walker LLP, explains that Dubash’s religious motivation to advocate for nonviolence towards animals is consistent with Hindu teachings. The brief also argues that his “arrest, detention, and the ongoing prohibition on his method of proselytizing” do not pass constitutional muster.

The American Hindu Coalition, in a brief submitted through the Free Exercise Clinic at Yale Law School, emphasizes the history of public parks and streets as centers of religious activity, how marginalized faiths rely on these spaces to exercise their faith, and that Dubash’s activism is rooted in his religious beliefs.

Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other protesters and religious minorities to engage in protected expression as guaranteed under the First Amendment.

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March 10, 2025
The government wants to financially bludgeon those seeking to defend constitutional rights

A new White House directive to heads of executive departments and agencies threatens to make it prohibitively expensive for Americans to defend the Constitution in court. The memo “directs” the departments and agencies to “demand” that courts make those seeking injunctions against federal actions “cover the costs … incurred if the Government is ultimately found to have been wrongfully enjoined.”

The move could not be more transparent in attempting to scare off potential litigants challenging executive orders or other federal actions of questionable constitutionality.

The White House deems this necessary because “activist organizations” are supposedly “inserting themselves into the executive policy making process” and have “obtained sweeping injunctions.” The administration claims Rule 65(c) of the Federal Rules of Civil Procedure mandates security bonds for all preliminary injunctions and temporary restraining orders to protect against the prospect of a later judicial ruling that the defendant was improperly enjoined.

But this is misleading. That literal reading of the rule may make sense in the mine-run of private disputes, like claims in commercial contexts. But courts have long recognized exceptions for public-interest litigation, especially when it comes to those seeking to protect constitutional rights. In other words, “activist groups” like FIRE and the clients we proudly defend.

Our free speech protections safeguard us from government incursion, they do not extend “rights” — that is, protection — to government actors.

It’s bad enough Rule 65 already exempts “the United States, its officers, and its agencies” from the bond requirement if they win a preliminary injunction, and that the feds also avoid the obligation the Civil Rights Act imposes on state actors to pay attorney fees if a party sues to correct a constitutional violation and wins. But to insist on payment by a party challenging the constitutionality of government action — after that party has shown likelihood of succeeding on the claim, as is required for a preliminary injunction — clearly seeks to buck the case law on public interest litigation. In the name of disincentivizing challenges to constitutionally suspect federal action, no less.

And that’s just wrong — the government should not be in the business of financially punishing those who seek to vindicate their constitutional rights, or of erecting extra barriers to being able to do so.

FIRE made the same point in our recent friend-of-the-court brief filed with the U.S. Court of Appeals for the Ninth Circuit in U.S. News v. Chiu. In that case, San Francisco’s city attorney took issue with U.S. News’ annual hospital rankings and launched a “false advertising” investigation that included subpoenas demanding, among other things, that the publisher disclose its ranking methodology and supporting documents.

So U.S. News challenged the subpoenas in court as retaliation against its protected speech. But the city attorney sought to dismiss the case as a meritless “strategic lawsuit against public participation” (SLAPP) under California’s anti-SLAPP law and sought attorney fees, as the statute allows for prevailing defendants. Troublingly, the court bought it, dismissing the case and ordering U.S. News to pay.

Just one problem: Anti-SLAPP laws protect defendants from frivolous lawsuits alleging defamation or similar claims that are designed not necessarily to prevail, but to silence or punish the exercise of free speech rights. And state actors operating in official roles do not exercise free speech rights at all, but rather, government powers, as the Sixth Circuit recently reaffirmed. Our free speech protections safeguard us from government incursion, they do not extend “rights” — that is, protection — to government actors, which is who wield the powers from which protection is needed. Exactly like those the city attorney wielded in subpoenaing U.S. News.

That’s why, when U.S. News appealed, FIRE’s brief argued the district court was wrong to award fees in granting the city attorney’s anti-SLAPP motion. Giving government officials anti-SLAPP protection serves only to chill people from challenging unconstitutional and illegal government actions, thus threatening the very rights that anti-SLAPP laws seek to protect.

The White House’s new directive suffers from the same chilling problem. If agencies insist that courts make people put up or shut up by having to cover potentially ruinous federal governmental costs if they preliminarily succeed in challenging unconstitutional behavior, then naturally fewer plaintiffs (and organizations that represent them) will be willing and able to vindicate First Amendment rights in court.

That would leave all of us less free.

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March 10, 2025
FIRE demands answers from Trump admin officials on arrest of Mahmoud Khalil
FIRE Letter to Trump Administration Officials on Detention of Mahmoud Khalil

March 10, 2025

The Honorable Marco Rubio
Secretary of State
U.S. Department of State
2201 C St., NW
Washington, DC 20520

The Honorable Kristi Noem
Secretary of Homeland Security
U.S. Department of Homeland Security
Office of the Executive Secretary
Mail Stop 0525
Washington, DC 20528

The Honorable Pamela Bondi
Attorney General
U.S. Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530

Mr. Todd Lyons
Acting Director, ICE Leadership
U.S. Immigration and Customs Enforcement
500 12th St., SW
Washington, DC 20536

Dear Secretary Rubio, Attorney General Bondi, Secretary Noem, and Acting Director Lyons:

On March 8, agents from the Department of Homeland Security arrested Mahmoud Khalil, a lawful permanent resident of the United States who has been involved in activism related to the current conflict in Gaza.^[1] According to Mr. Khalil’s attorney, the agents who arrested him initially said his visa had been revoked.^[2] Upon being informed that Mr. Khalil is a lawful permanent resident, whose status therefore cannot be revoked by unilateral DHS action, the agents arrested him anyway. When Mr. Khalil’s attorney asked to see a warrant for his arrest, DHS declined to produce one.^[3] As of this writing, Mr. Khalil remains in DHS detention.

Mr. Khalil recently received a graduate degree from Columbia University, where he has participated in student protests intended to express opposition to policies of the U.S. and Israeli governments. On March 9, DHS stated that Mr. Khalil’s arrest was made “in support of President Trump’s executive orders prohibiting anti-Semitism,” and that “Khalil led activities aligned to Hamas, a designated terrorist organization.”^[4] Secretary Rubio, alluding to Mr. Khalil’s arrest, stated, “We will be revoking the visas and/or green cards of Hamas supporters in America so they can be deported.”^[5] On March 10, President Trump remarked on Mr. Khalil’s arrest, noting that the government intends to seek removal of any foreign students who engage in “pro-terrorist, anti-Semitic, anti-American activity.”^[6]

Demonstrations occurring on Columbia’s campus since Oct. 7, 2023, have included both constitutionally protected speech and unlawful conduct, but the government has not made clear the factual or legal basis for Mr. Khalil’s arrest. The statements the government has released suggest its decision may be based on his constitutionally protected speech. This lack of clarity is chilling protected expression, as other permanent residents cannot know whether their lawful speech could be deemed to “align to” a terrorist organization and jeopardize their immigration status.

The federal government must not use immigration enforcement to punish and filter out ideas disfavored by the administration. It must also afford due process to anyone facing arrest and detention, and must be clear and transparent about the basis for its actions, to avoid chilling protected speech. To that end, we request answers to the following questions:
- What was the specific legal and factual basis for Mr. Khalil’s arrest on March 8?
- What is the specific legal and factual basis for Mr. Khalil’s detention?
- What is the specific legal and factual basis on which you are seeking revocation of Mr. Khalil’s green card?
- Will Mr. Khalil be afforded the due process protections required by U.S. law?
- Is it your intention to seek the revocation of lawful immigration status on the basis of speech protected by the First Amendment?^[7]
We request a substantive response to this letter no later than close of business on Tuesday, March 11, 2025. Any delay in resolving these questions risks further chilling protected speech.

Sincerely,

Carolyn Iodice
Legislative and Policy Director
Foundation for Individual Rights and Expression

Notes

[1] Ginger Adams Otis, ICE Arrests Columbia Student Who Helped Lead Pro-Palestinian Protests, Wall St. J. (March 9, 2025, 10:07 pm), https://www.wsj.com/us-news/education/dhs-detains-columbia-student-who-helped-lead-pro-palestinian-protests-fbbd8196.

[2] Eliza Shapiro, Immigration Authorities Arrest Pro-Palestinian Activist at Columbia, N.Y. Times (March 9, 2025), https://www.nytimes.com/2025/03/09/nyregion/ice-arrests-palestinian-activist-columbia-protests.html.

[3] Canada’s New Leader, ICE Arrest Columbia Student, Congress and The Budget, NPR (March 10, 2025, 6:05 AM), https://www.npr.org/transcripts/1237260282.

[4] Homeland Security (@DHSgov), X (March 9, 2025, 9:29PM), https://x.com/DHSgov/status/1898908955675357314.

[5] Marco Rubio (@marcorubio), X (March 9, 6:10PM), https://x.com/marcorubio/status/1898858967532441945.

[6] Donald Trump (@realDonaldTrump), Truth Social (March 10, 2025, 1:05PM), https://truthsocial.com/@realDonaldTrump/posts/114139222625284782.

[7] Note there is no categorical exception to the First Amendment for speech that “aligns to” or even expresses explicit support for a foreign terrorist organization.
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March 10, 2025
Rep. Al Green (D-TX) Speaks After Being Censured (C-Span)

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March 10, 2025