Category: First Amendment

  • Bari Weiss, UATX, and the Corporate Rewriting of “Free Speech”

    Bari Weiss, UATX, and the Corporate Rewriting of “Free Speech”

    Bari Weiss has built a powerful public identity as a defender of free speech against institutional conformity. From elite universities to legacy newsrooms, she presents herself as a principled dissenter confronting ideological capture. Yet her expanding influence across higher education and corporate media suggests something deeper than individual controversy. It reveals how elite institutions are increasingly repackaging control, consolidation, and risk management as rebellion.

    Weiss’s involvement in the University of Austin and her editorial authority at CBS News illustrate how the language of free inquiry has been absorbed into a broader project of institutional realignment rather than democratization.

    The University of Austin was launched in 2021 as a highly publicized response to what its founders described as illiberal conditions in American higher education. Weiss, as a co-founder and public face of the project, helped frame UATX as a refuge for intellectual risk-taking and heterodox thought. Yet the institution was not built from the margins of academia. It emerged through the backing of wealthy donors, venture capitalists, tech executives, and high-profile media figures who already occupy powerful positions within American public life.

    UATX’s critique of higher education centers almost entirely on cultural politics, presenting universities as hostile to dissent while leaving largely untouched the material structures that govern academic freedom. The casualization of academic labor, the erosion of tenure, donor influence over research agendas, student debt as a disciplinary force, and retaliation against labor organizers and whistleblowers rarely figure into the narrative. In this way, UATX offers not a systemic challenge to elite education but an exit strategy for those with the resources to opt out of public accountability.

    The same logic appears in Weiss’s role within legacy media. In late 2025, CBS News pulled a completed investigative segment from 60 Minutes examining the Trump administration’s deportation of Venezuelan migrants to a notoriously brutal prison in El Salvador. The segment had reportedly passed legal and editorial review. The decision to shelve it, attributed to a demand for additional on-the-record administration comment, sparked internal outrage. Veteran journalists described the move as political interference rather than standard editorial caution, with some staff reportedly threatening to resign.

    The episode carried a deep irony. One of the most prominent self-described defenders of free speech now presided over the suppression of investigative journalism within one of the country’s most storied news programs. Whether temporary or permanent, the delay signaled a shift in institutional priorities, where political sensitivity and corporate risk appeared to outweigh journalistic autonomy.

    This controversy unfolded amid broader upheaval at CBS News. Longtime anchors departed the CBS Evening News in emotional farewells as management reshuffled talent and redefined the network’s public posture. Inside the newsroom, morale reportedly declined as staff faced uncertainty about editorial direction, layoffs, and ideological repositioning. Weiss reportedly questioned journalists about public perceptions of bias, reinforcing a top-down effort to rebrand the organization rather than engage in collective editorial deliberation.

    These developments cannot be separated from the corporate transformation of CBS’s parent company. Paramount Global has undergone a sweeping restructuring shaped by its merger with Skydance Media, led by David Ellison, the son of Oracle founder Larry Ellison. Under this new ownership structure, CBS News has been encouraged to restore “balance” and credibility, language that often accompanies efforts to reduce investigative risk and align journalism more closely with corporate and political interests.

    At the same time, Paramount’s deal-making has intersected with elite political networks. Jared Kushner’s private equity firm was involved in related media acquisition efforts before withdrawing, highlighting the increasingly blurred lines between media ownership, political influence, and capital consolidation. In this environment, editorial independence is not abolished outright but carefully managed, constrained by the priorities of ownership and the sensitivities of power.

    What connects UATX and CBS News under Weiss’s influence is not ideology so much as structure. In both cases, authority flows upward while dissent is curated. Free inquiry is framed as a moral value but detached from democratic governance, labor protections, or accountability to those most vulnerable to institutional retaliation. Meanwhile, individuals and groups who experience genuine silencing in academia and media—adjunct faculty, student activists, labor organizers, whistleblowers, and critics of militarism or donor power—remain largely absent from this version of the free speech debate.

    This pattern is familiar within higher education. When institutions face crises of legitimacy, elites rarely pursue democratization. Instead, they create alternatives that preserve control under new branding: private institutes, donor-led centers, honors colleges, and parallel universities. Legacy media has followed a similar path, repackaging dissent while narrowing the scope of accountability.

    Bari Weiss is not an anomaly within this landscape. She is emblematic of it. Her influence reflects how “free speech” has become an aesthetic rather than a structural commitment, invoked loudly while practiced selectively.

    The danger is not that Weiss holds strong opinions. It is that her framework for free speech travels so easily across institutions precisely because it leaves their economic and power relations intact. The University of Austin does not confront the forces hollowing out higher education. CBS News, under corporate consolidation, risks muting the investigative journalism that once defined it. In both cases, freedom becomes a branding strategy rather than a democratic practice.

    For those concerned with truly independent journalism and genuinely democratic education, the lesson is clear. Speech is never just about speech. It is about ownership, power, and who bears the consequences when truth becomes inconvenient.

    Source link

  • Higher Education and the Culture of Silence

    Higher Education and the Culture of Silence

    American higher education presents itself as a beacon of truth, courage, and critical inquiry. Yet behind the marketing gloss lies a pervasive culture of silence—one that extends far beyond colleges and universities themselves. The same forces that suppress dissent on campus operate through a larger ecosystem of nonprofits, contractors, ed-tech companies, and “public-private partnerships” that orbit higher ed. Together, they form a network of institutional interests that reward secrecy, punish whistleblowers, and prioritize reputation and revenue over honesty and accountability.

    At the center of this system are nondisclosure agreements. NDAs are now standard tools not only in universities, but in the foundations that support them, the think tanks that shape education policy, and the ed-tech corporations that extract profit from student data and public subsidies. Whether a case involves workplace retaliation, fraudulent recruitment, financial misconduct, algorithmic harm, or student exploitation, NDAs are used to hide patterns of abuse and protect organizations from scrutiny. What gets buried is not just information—it is the possibility of reform.

    The threat of litigation is part of the same architecture. Universities, nonprofits, and ed-tech companies routinely rely on aggressive legal strategies to silence critics. Workers attempting to expose unethical contracts, deceptive marketing, or discrimination face cease-and-desist letters. Researchers who publish unflattering findings are pressured to retract or soften their conclusions. Students raising alarms about data privacy or predatory practices encounter legal intimidation disguised as “professional communication.” These organizations—flush with donor money, investor capital, or public funds—use lawsuits and threats of lawsuits as shields and weapons.

    Leadership across this broader ecosystem is often weak, conflicted, or corrupt. University presidents beholden to trustees are mirrored by nonprofit executives beholden to major donors, and by ed-tech CEOs beholden to venture capital. Many leaders prioritize political favor, philanthropic relationships, and corporate growth over the public interest. They outsource accountability to law firms, PR agencies, and consulting outfits whose job is not to fix problems but to bury them.

    And circulating through this system is the same cast of characters: politicians chasing influence, lawyers crafting airtight silence, consultants selling risk-mitigation strategies, bean counters manipulating data, and conmen repackaging failed ideas as “innovation.” The lines between nonprofit, corporate, and educational interests have blurred to the point of erasure. Trustees who shape campus policy sit on nonprofit boards. Ed-tech companies hire former university officials and then market themselves back to campuses. Donors direct funds through philanthropic intermediaries that simultaneously pressure institutions for access and silence.

    The victims of this system—faculty, staff, gig workers in tech and nonprofit roles, graduate students, undergraduates, and even the communities surrounding campuses—are pressured to comply. They face retaliation in the form of job loss, non-renewal, demotion, academic penalties, professional blacklisting, or immigration vulnerabilities. Whistleblowers are isolated. Critics are surveilled. And when the fallout becomes too public to contain, institutions rely on payouts—quiet settlements, buyouts, and confidential agreements that allow perpetrators to move seamlessly to their next institution or company.

    This culture of silence is not a collection of isolated incidents. It is a structural feature of modern higher education and the industries built around it.

    But it is not unbreakable.

    If you have experienced or witnessed this culture—whether in a university, a higher-ed nonprofit, or the ed-tech world—the Higher Education Inquirer invites you to share your story. You may do so publicly or anonymously. We understand the risks. We know many people cannot speak openly without jeopardizing their jobs, degrees, or health. Anonymous accounts are welcome, valued, and protected.

    Your story, no matter how brief, can help illuminate the patterns that institutions spend billions to obscure. Silence is what sustains the system. Truth—shared safely and collectively—is what can dismantle it.


    Sources

    • Elisabeth Rosenthal, An American Sickness

    • Alondra Nelson, Body and Soul

    • Harriet A. Washington, Medical Apartheid

    • Rebecca Skloot, The Immortal Life of Henrietta Lacks

    • Reporting from the Higher Education Inquirer on university corruption, NDAs, donor influence, and ed-tech abuses

    • Investigations into nonprofit and ed-tech misconduct published in public records, court filings, and independent journalism

    Source link

  • Tenn. Law Aimed at Students Who Make School Shooting Threats Ensnares a Retiree – The 74

    Tenn. Law Aimed at Students Who Make School Shooting Threats Ensnares a Retiree – The 74

    School (in)Security is our biweekly briefing on the latest school safety news, vetted by Mark KeierleberSubscribe here.

    Larry Bushart Jr. was just freed from a Tennessee jail cell after spending more than a month behind bars — for a Facebook post.

    The high-profile arrest of the 61-year-old retiree and former cop — which made waves in free speech circles — has all the hallmarks of a bingeworthy culture war clash in 2025: 

    • A chronically online progressive turns to Facebook to troll his MAGA neighbors about President Donald Trump’s seemingly lopsided response to school shootings compared to the murder of right-wing pundit Charlie Kirk
    • An elected, overzealous county sheriff intent on shutting him up
    • A debate over the limits of the First Amendment — and the president’s broader efforts to silence his critics
    Eamonn Fitzmaurice / T74

    The controversy, I report this morning, also calls attention to a series of recent Tennessee laws that carry harsh punishments for making school shooting threats and place police officers on campus threat assessment teams working to ferret out students with violent plans before anyone gets hurt. 

    In Bushart’s case, the sheriff maintained that his post referring to the president’s reaction to a 2024 school shooting in Perry, Iowa, constituted a threat “of mass violence at a school,” apparently the local Perry County High School. The rules that ensnared Bushart have also led to a wave of student arrests and several free speech lawsuits. His is likely to be next, Bushart’s lawyer told The Washington Post.


    In the news

    Updates in Trump’s immigration crackdown: Federal immigration officers chased a Chicago teacher into the lobby of a private preschool Wednesday and dragged her out as parents watched her cry “tengo papeles!” or “I have papers.” The incident is perhaps the most significant immigration enforcement act in a school to date. | The 74

    • Proposed federal rules would allow Immigration and Customs Enforcement to collect iris scans, fingerprints and other biometric data on all immigrants — including, for the first time, children under 14 years old — and store it for the duration of each individual person’s “lifecycle.” |  Ars Technica
    • On the same day Cornell University notified an international student that his immigration status had been revoked, Google alerted him that federal authorities had subpoenaed his personal emails. Now, the institution won’t say whether federal authorities had tapped into university “emails to track [students] as well.” | The Cornell Daily Sun
    • In California, federal immigration officers shot a U.S. citizen from behind as he warned the agents that students would soon gather in the area to catch a school bus. The government says the shots were “defensive.” | Los Angeles Times
    • ‘Deportation isn’t a costume’: A Maine middle school principal is facing pushback for a federal immigration officer Halloween costume, complete with a bulletproof vest that read “ICE.” | Boston.com
    • In Chicago communities that have seen the most significant increase in immigration enforcement, school enrollment has plunged. | Chalkbeat
    • Also in Chicago, a federal judge ordered the Trump administration to hand over use-of-force records and body camera footage after trick-or-treaters were “tear-gassed on their way to celebrate Halloween.” | USA Today

    A bipartisan bill seeks to bar minors from using AI chatbots as petrified parents testified their children used the tools with dire consequences — including suicide. Some warn the change could stifle the potential of chatbots for career or mental health counseling services. | Education Week

    • A Kentucky mom filed a federal lawsuit against online gaming communities Discord and Roblox alleging the companies jeopardized children’s safety in the name of profit. After her 13-year-old daughter died by suicide last year, the mom said, she found the girl had a second life online that idolized school shooters. | 404 Media
    • Character.AI announced it will bar minors from its chatbots, acknowledging safety concerns about how “teens do, and should, interact with this new technology.” | BBC
    Getty Images

    A jury awarded $10 million to former Virginia teacher Abby Zwerner on Thursday, two years after she was shot by her 6-year-old student. Zwerner accused her former assistant principal of ignoring repeated warnings that the first grader had a gun. The student’s mother was sentenced to nearly four years in prison for felony child neglect and federal weapons charges. | The New York Times

    ‘Creepy, unsettling’: This family spent a week with Grem, a stuffed animal with artificial intelligence designed to “learn” children’ s personalities and hold educational conversations. | The Guardian

    A judge ordered the Trump administration to release federal funds to California school districts after it sought to revoke nearly $165 million in mental health grants as part of a broader crackdown on diversity, equity and inclusion.  The grants funded hundreds of school social workers and counselors. | EdSource

    In 95% of schools, active-shooter drills are now a routine part of campus life. Here’s how states are trying to make them less traumatic. | The Trace

    Sign-up for the School (in)Security newsletter.

    Get the most critical news and information about students’ rights, safety and well-being delivered straight to your inbox.

    A lawsuit against a Pennsylvania school district alleges educators failed to keep students safe after a 12-year-old girl was attacked by a classmate with a metal Stanley drinking cup. | NBC10

    ‘Inviting government overreach and abuse’: The Education Department was slapped with two lawsuits over new Public Service Loan Forgiveness rules that could bar student borrowers from the program who end up working for the president’s political opponents, including organizations that serve immigrant students and LGBTQ+ youth. | The Washington Post


    ICYMI @The74

    1939 redlined maps of Los Angeles showing neighborhoods deemed eligible and ineligible for economic aid

    How LAUSD School Zones Perpetuate Educational Inequality, Ignoring ‘Redlining’ Past

    Students Want Schools to Incorporate AI in Learning But Express Some Fears

    LifeWise’s Big Red Bus Is Driving Thorny Questions about Church and State


    Emotional Support

    Matilda plots her escape.


    Did you use this article in your work?

    We’d love to hear how The 74’s reporting is helping educators, researchers, and policymakers. Tell us how

    Source link

  • Can College Presidents Tell Us the Truth?

    Can College Presidents Tell Us the Truth?

    “Truth? You can’t handle the truth!” Jack Nicholson’s Colonel Jessup in A Few Good Men captures the tension at the heart of American higher education: can college presidents confront veritas—the deep, sometimes uncomfortable truths about their institutions—or will they hide behind prestige, endowments, and comforting illusions?

    At the foundation of academia lies veritas, Latin for truth or truthfulness, derived from verus, “true” or “trustworthy.” Veritas is not optional decoration on a university crest; it is a moral and intellectual obligation. Yet 2025 reveals a system where veritas is too often sidelined: institutions obscure financial mismanagement, exploit adjunct faculty, overburden students with debt, and misrepresent outcomes to the public.

    The Higher Education Inquirer (HEI) embodies veritas in action. In “Ahead of the Learned Herd: Why the Higher Education Inquirer Grows During the Endless College Meltdown,” HEI demonstrates that truth-telling can thrive outside corporate funding or advertising. By reporting enrollment collapses, adjunct exploitation, and predatory for-profit practices, HEI holds institutions accountable to veritas, exposing what many university leaders hope will remain invisible.

    Leadership failures are a direct affront to veritas. Scam Artist or Just Failed CEO? scrutinizes former 2U CEO Christopher “Chip” Paucek, revealing misleading enrollment tactics and financial mismanagement that serve elite universities more than consumers. These corporate-style decisions in a higher education setting betray the very principle of veritas, prioritizing appearance and profit over educational integrity and human outcomes.

    Student journalism amplifies veritas further. Through Campus Beat, student reporters uncover tuition hikes, censorship, and labor abuses, demonstrating that veritas does not belong only to administrators—it belongs to those who seek to document reality, often at personal and professional risk.

    Economic and political realities also test veritas. In “Trumpenomics: The Emperor Has No Clothes,” HEI exposes how hollow economic reforms enrich a few while leaving the majority behind. Academia mirrors this pattern: when prestige is elevated over substance, veritas is discarded in favor of illusion, leaving students and faculty to bear the consequences.

    Structural crisis continues. In “College Meltdown Fall 2025,” HEI documents federal oversight erosion, AI-saturated classrooms with rampant academic misconduct, rising student debt, and mass layoffs. To honor veritas, leaders would confront these crises transparently, but too often they choose comforting narratives instead.

    Debt remains one of the clearest tests of institutional veritas. HEI’s The Student Loan Mess: Next Chapters shows how trillions in student loans have become instruments of social control. The Sweet v. McMahon borrower defense cases illustrate bureaucratic inertia and opacity, directly challenging the principles of veritas as thousands of debtors await relief that is slow, incomplete, and inconsistently applied.

    Predatory enrollment practices further undermine veritas. Lead generators, documented by HEI, exploit student information to drive enrollment into high-cost, low-value programs, prioritizing revenue over truth, clarity, and student welfare. “College Prospects, College Targets” exposes how prospective students are commodified, turning veritas into a casualty of marketing algorithms.

    Through all of this, HEI itself stands as a living testament to veritas. Surpassing one million views in July 2025, it proves that the public demands accountability, clarity, and honesty in higher education. Veritas resonates—when pursued rigorously, it illuminates failures, inspires reform, and empowers communities.

    The question remains: can college presidents handle veritas—the unflinching truth about student debt, labor exploitation, mismanagement, and declining institutional legitimacy? If they cannot, they forfeit moral and public authority. Veritas is not optional; it is the standard by which institutions must be measured, defended, and lived.


    Sources

    Source link

  • Help Us Uncover the Best Investigative Stories from College Newspapers Across the Country

    Help Us Uncover the Best Investigative Stories from College Newspapers Across the Country

    In the shifting landscape of higher education, some of the most courageous and insightful journalism comes not from national outlets, but from the campus newspapers that quietly dig into the stories shaping student life, faculty struggles, and university governance.

    At the Higher Education Inquirer (HEI), we believe that student investigative reporting holds the key to revealing systemic problems and sparking meaningful change. Yet these stories too often remain local, unamplified, and overlooked beyond campus borders.

    That is why we are launching “Campus Beat”—a new series dedicated to curating and amplifying the best investigative research coming from college newspapers, whether from large flagship universities, small liberal arts colleges, or commuter-based community colleges.  

    Student reporters regularly expose tuition hikes, mismanagement, labor abuses, campus safety failures, and other urgent issues affecting millions of students and workers. These investigations often anticipate or push back against narratives set by university administrations and mainstream media. From uncovering adjunct faculty exploitation at large state schools to revealing discriminatory housing policies at private colleges, student journalists perform vital watchdog work under difficult conditions—limited resources, censorship, and often threats from administration.

    We want to highlight investigative or deeply reported pieces that expose systemic problems affecting students, faculty, or staff; illuminate trends in higher education policy or campus governance; tell stories of activism, resistance, or community impact; or offer data-driven or document-based reporting rather than opinion or commentary.

    We especially encourage reporters who have faced censorship or suppression to submit their work or share their experiences. Your voice is critical to uncovering truths that might otherwise be silenced.

    If you are a student journalist or adviser with an investigative story you are proud of, or if you know of exceptional reporting from your campus, please send us links or documents. Selected stories will be featured in our Campus Beat roundup, accompanied by context and analysis connecting them to the broader higher education landscape.

    By sharing and spotlighting the work of student journalists, HEI hopes to build bridges across campuses and contribute to a more informed, equitable conversation about the future of higher education. We invite student reporters, advisers, and readers alike to help us identify the stories that deserve national attention. Together, we can amplify voices too often unheard and push for the systemic change our colleges and universities desperately need.

    For submissions or questions, our email contact is [email protected].

    Source link

  • Supreme Court Must Not Undermine Public Education in Religious Charter Case – The 74

    Supreme Court Must Not Undermine Public Education in Religious Charter Case – The 74


    Get stories like this delivered straight to your inbox. Sign up for The 74 Newsletter

    Last week, the Supreme Court held oral arguments in a case that could undermine public education across America. The question the court is looking to answer is whether a religious institution may run a publicly funded charter school — a move that would threaten not only the separation of church and state, but the right of every student to access free, high-quality learning.

    In 2023, Oklahoma’s Statewide Virtual Charter School Board approved St. Isidore of Seville Catholic Virtual School, an action that would make it the nation’s first-ever religious charter school. It would be governed by Catholic religious doctrine in its syllabus, operations and employment practices. It would use taxpayer dollars to pay for religious instruction. And it could turn away students and staff if their faith or identity conflict with Catholic beliefs. 

    Here’s the issue: Charter schools were created to be public schools. They are open to all students, from every background, tradition and faith community. They are publicly funded and tuition-free. And they are secular. 

    That’s not an arbitrary distinction – it’s a constitutional one, grounded in the law and embedded in charter schools’ very design. The First Amendment’s Establishment Clause bars the government from promoting or endorsing any religion through public spaces or institutions. This foundational rule has ensured that students of all backgrounds can access public schools. It does not stifle religious expression — the Constitution fully protects this freedom, and religious education is available in other venues. Personally, I was, in fact, educated at Jesuit Catholic schools for my entire academic career. 

    Parochial education has long been an accepted and important part of the education ecosystem, serving a variety of students and often filling an important need. Religiously affiliated schools have a long history of educating and caring for children who are new to this country and underserved, and supporting families who are overlooked. But promoting the exclusive teachings of a specific religion with public funds in a public school violates a clear constitutional principle. 

    The issue isn’t only a legal matter; it’s about the character of public education itself. Muddying the boundary between public and religious institutions would undercut a fundamental commitment made by the nation’s public charter schools: that they are accessible to every student. It would undermine legal protections that keep public services available to the public. 

    Rather than creating more opportunities for America’s students, it would constrict opportunities for a high-quality education, especially in states that are hostile toward charters or alternative public school models. Legislative bodies could seek to eliminate funding for all unique school types if the court decision forced them to fund religious schools operating with public dollars. This would curtail or dismantle strong independent schools, 30-year-old public charter schools and schools with unique programs designed for special populations.

    As executive director of the DC Charter School Alliance, and a long-time public charter school advocate, I’ve seen the importance of public charter schools firsthand. Here in the District of Columbia, charter schools serve nearly half of the public school students in the city. Outstanding educators from all walks of life teach a wide range of subjects with enthusiasm and expertise to prepare young people for success. Our students bring to the classroom an incredible range of experiences, including faith traditions. And every student, family and faculty member is welcome. D.C.’s charter schools reflect a core American value: the promise of a high-quality public education for all. 

    The justices of the Supreme Court face a clear and critical choice: They can bolster that promise, or they can tear it down. If the court allows a religious school to operate with public funds, there is no doubt that it will open the floodgates to other proposals across the country. Taxpayers could be forced to foot the bill for countless new and converted schools, draining resources from an already financially strapped education system. True public charter schools — the ones committed to high standards, positive results and opportunity for all — could bear the cost. And the students who rely on them could suffer. 

    Public education is one of America’s most vital institutions. It offers all children, no matter their background or beliefs, access to free, high-quality learning. Charter schools play an essential role in making that promise real. But allowing a religious school to operate with public funds turns public education into something much more restrictive, dismantling its very foundation.

    The court must reaffirm this indisputable truth: Public schools should remain public — and open to all. 


    Get stories like these delivered straight to your inbox. Sign up for The 74 Newsletter

    Source link

  • HR and the Courts — December 2023 – CUPA-HR

    HR and the Courts — December 2023 – CUPA-HR

    by CUPA-HR | December 12, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    University of California May Test Federal Ban on Hiring Undocumented Workers

    The University of California may be the first public institution to challenge whether the 1986 Immigration Reform and Control Act (IRCA) applies to state entities, including public colleges and universities. The IRCA prohibits U. S. employers from hiring undocumented workers.

    On November 20, 2023, the University of California postponed plans to go forward with a self-imposed deadline of November 30, 2023, to initiate a plan to hire undocumented workers. The university has decided to study the issue further before deciding on a specific course of action. The Supreme Court has dealt with the constitutionality of federal regulation of state employers on multiple occasions in the past, having come down on both sides of the issue. We will follow developments in this area as they unfold.

    Texas Community College Wins Suit Brought by Professor Who Commented on Race and COVID-19 Policies

    Collin College in Texas prevailed in partial summary judgement against a former professor who sued alleging First Amendment free speech retaliation in the non-renewal of his teaching contract. He claimed his contract was terminated because of his outspoken views as a private citizen on public issues including race relations in Dallas, Confederate monuments and his criticism of the college’s COVID-19 policies.

    The court granted part of the college’s motion to dismiss because the college’s policies were not facially unconstitutional. However, the federal court denied each side’s motions for summary judgement on the professor’s claims that the college’s policies were overboard in their restriction of his speech, holding that the issue should be reserved for decision until factual questions are resolved (Phillips v. Collin Community College District (E.D. Tex. No. 22-cv-00184, 11/4/23)).

    Law Professor Sues Northwestern University, Claiming Age Discrimination

    A 78-year-old law professor has sued his university employer claiming age-based salary discrimination. The professor, who is tenured and taught at the law school for 42 years, claims he has been consistently paid substantially less than “significantly younger, less experienced and less tenured” comparators (Postlewaite v. Northwestern University (N.D. Ill. No 1:23-cv-15729, Comp filed 11/7/23)).

    The professor claims to be “a preeminent scholar” in the field of tax law and started his law school’s lucrative Master of Laws in Taxation program, which he claims has been the school’s “highest ranked specialty department” for 17 of the last 19 years. The professor alleges that he has been awarded lower base-salary increases than his younger counterparts. He further alleges that for the academic year 2022-23, his salary was $7,000 less than the 50th percentile and $55,000 less than the 75th percentile, even though those percentiles equated to 20 and 32 years, respectively, of total teaching while he has completed 49 years of total legal academic teaching.

    The lawsuit was filed in federal court and alleges violation of the federal Age Discrimination in Employment Act and the Illinois Human Rights Act.

    Supreme Court Declines to Review Decision on UPS Driver’s Disability Accommodation

    The Supreme Court declined to review a 4th U.S. Circuit Court of Appeals case in which the 4th Circuit upheld the dismissal of a driver’s disability accommodation request. The driver requested that he be allowed to drive a smaller truck with softer suspension to accommodate his hip and back bursitis disability, which caused him severe pain (Hannah v. United Parcel Service (Case No. 23-264 US Sup Ct, cert den. 11/6/23)).

    The 4th Circuit decision, which the Supreme Court let stand, concluded that the employee’s request for an accommodation was not reasonable because the request altered the “essential elements” of the employee’s job. The court concluded that if the driver was given the accommodation to drive a smaller truck, he would not be able to complete the daily work load requirement of his existing driver position.

    Tesla Allowed to Ban Union Shirts

    The 5th U.S. Circuit Court of Appeals overturned an NLRB decision holding that Tesla violated the NLRA when it required its production employees to wear black Tesla-monogrammed uniform work shirts and did not allow production workers to wear black union-insignia work shirts. The decision of the three-judge panel was unanimous in overturning the NLRB ruling against Tesla (Tesla v. NLRB (5th Cir. No. 22-60493 11/14/23)).

    While Tesla had banned the wearing of union-insignia work shirts, it allowed production employees to wear Tesla-insignia work shirts with a union insignia pinned on the shirt. Tesla had argued unsuccessfully to the NLRB that its rule was necessary to prevent damage to cars and to help supervisors distinguish between production employees and other employees at the company’s California facility. The Court of Appeals decision allows Tesla to continue to enforce its prior policy requiring Tesla-insignia work shirts, with the employee’s option of pinning on a union insignia.

    Appeals Court Affirms Dismissal of Gymnastic Coach’s Wrongful Termination and Defamation Lawsuits

    A Pennsylvania state appellate court affirmed a trial court dismissal of a former Pennsylvania State University gymnastic coach’s lawsuit. The former coach alleged defamation and violation of his employment contract when the university terminated his contract after investigating allegations that he created a hostile environment for gymnasts. The three-judge appellate panel adopted the decision of the trial court judge, concluding that the university had good cause for firing the coach and that the athletic director’s statement about prior accusations against him had not been defamatory (Thompson v. Pennsylvania State University (Case no. 1460 MDA 2022, 11/28/23)).

    The appeals court ruled that the gymnastic coach’s high profile in collegiate sports made him a limited public figure and that the university’s reaction to allegations of mistreatment of athletes were matters of public concern. That meant that the plaintiff must show “actual malice” in order to prove defamation in these circumstances. The appellate court concluded that the university’s actions did not rise to the level of “actual malice.”



    Source link

  • HR and the Courts — October 2023 – CUPA-HR

    HR and the Courts — October 2023 – CUPA-HR

    by CUPA-HR | October 10, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Governor Newsom Vetoes Bill That Would Ban Caste Discrimination

    California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.

    Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.

    University Trustees May Be Sued for Professor’s Alleged First Amendment Claims

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).

    The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.

    In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.

    SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team

    To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.

    The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.

    This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.

    On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.

    Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives

    Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.

    A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.

    Fired Football Coach Sues University, Seeks $130 Million in Damages

    A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”

    The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.



    Source link

  • HR and the Courts — September 2023 – CUPA-HR

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Unionization Increases to Record Levels, Largely Driven by Graduate Students and Medical Interns

    Unionization in the first six months of 2023 reached near record levels, surpassing last year’s numbers, which were driven by Starbucks employees’ organization drives. In the first six months of 2023, over 58,000 new workers were unionized, almost 15,000 more than last year’s significant levels. The size of new bargaining units has grown, with new units of 500 or more employees growing by 59% over last year. In the first six months of 2023, unions won 95% of elections in large units of over 500 employees compared to 84% in the first six months of 2022.

    According to a Bloomberg Law report, this increase coincides with a growth in graduate assistant and medical intern organizing. There have been union organization elections in 17 units involving graduate students and medical interns in the first six months of 2023. This is the highest level of activity in the sector since the 1990s.

    Court of Appeals Rejects Religious Discrimination Claim by Fire Chief Who Was Terminated After Attending a Religious Event on “City Time”

    The 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) rejected a former fire chief’s allegation of religious discrimination after he attended a church-sponsored Christian leadership event in place of attending a non-religious leadership training program he was asked to attend (Hittle v. City of Stockton, California (2023 BL 268076, 9th Cir. 22-15485, 8/4/23)). The court concluded that the fire chief’s supervisors were legitimately concerned about the constitutional implications of a city official attending a church-sponsored event.

    The fire chief claimed, as evidence of religious discrimination, that city supervisors questioned whether his attendance at the event was part of a “Christian Coalition.” He further alleged that the supervisors questioned whether he was part of a “Christian clique.” The court rejected the fire chief’s arguments that this questioning amounted to religious bias against Christians. The court concluded that the questioning was related to the report they received on his attendance at the church-sponsored event. The court noted that the supervisors did not use derogatory terms to express their own views. The case may be appealed to the Supreme Court, and we will follow developments as they unfold.

    University Wins Dismissal of Federal Sex Harassment Lawsuit for Failure of Professor to File a Timely Underlying Charge of Sex Harassment With the EEOC

    Pennsylvania State University won a dismissal of a male ex-professor’s federal sex harassment lawsuit alleging a female professor’s intolerable sex harassment forced him to resign. The Federal Court concluded that the male professor never filed a timely charge with the EEOC (Nassry v. Pennsylvania State University (M.D. Pa. 23-cv-00148, 8/8/23)). The plaintiff professor argued he was entitled to equitable tolling of the statute of limitations because he attempted to resolve the matter internally as opposed to “overburdening the EEOC.”

    The court commented that while the plaintiff’s conduct was “commendable,” the court was unable to locate any case where a plaintiff was bold enough to offer such a reason to support equitable tolling. The court dismissed the federal case, holding that there was no way to conclude the plaintiff professor was precluded from filing in a timely manner with the EEOC due to inequitable circumstances. The court dismissed the related state claims without prejudice as there was no requirement that the state claims be filed with the EEOC.

    Professor’s First Amendment Retaliatory-Discharge Case Over Refusal to Comply With COVID-19 Health Regulations Allowed to Move to Discovery

    A former University of Maine marketing professor who was discharged and lost tenure after refusing to comply with COVID-19 health regulations on the ground that they lacked sufficient scientific evidentiary support is allowed to move forward with discovery. The university’s motion to dismiss was denied (Griffin V. University of Maine System (D. Me. No. 2:22-cv-00212, 8/16/23)).

    The court held “for now” the professor is allowed to conduct discovery to flush out evidence of whether or not the actions which led to the termination were actually protected free speech. The court concluded that the actual free speech question will be decided after more facts are unearthed.

    U.S. Court of Appeals Reverses Employer-Friendly “Ultimate Employment Decision” Restriction on Actionable Title VII Complaints

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed the long standing, 27-year-old precedent restricting Title VII complaints to those only affecting an “ultimate employment decision.” The employer-friendly precedent allowed the courts to dismiss Title VII complaints not rising to the level of promotion, hiring, firing and the like. The 5th Circuit now joins the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and the D.C. Circuit (covering Washington, D.C.) in holding that a broader range of employment decisions involving discrimination are subject to Title VII jurisdiction.

    The 5th Circuit case involved a Texas detention center which had a policy of allowing only male employees to have the weekend off. The 5th Circuit reversed its prior ruling dismissing the case and allowed the case to proceed. This reversed the old “ultimate employment decision” precedent from being the standard as to whether a discrimination case is subject to Title VII jurisdiction.

    Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations

    The U.S. Department of Labor has proposed revised regulations that would allow union representatives to accompany OSHA inspectors on inspections. The regulations, which were first proposed during the Obama administration, were stalled by an adverse court order and then dropped during the Trump administration.

    The proposed rule would drop OSHA’s current reference to safety engineers and industrial hygienists as approved employee reps who could accompany the inspector. The new rule would allow the OSHA inspector to approve any person “reasonably necessary” to the conduct of a site visit. Among the professions that could be approved are attorneys, translators and worker advocacy group reps. The public comment period on these proposed regulations will run through October 30, 2023.



    Source link

  • HR and the Courts — August 2023 – CUPA-HR

    HR and the Courts — August 2023 – CUPA-HR

    by CUPA-HR | August 9, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Tenured Professor Loses First Amendment Retaliation Claim Related to “Offensive” Blog Posted Months Before the Adverse Action 

    The U.S. Court of Appeals for the 4th Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) dismissed a North Carolina State University professor’s First Amendment retaliatory discrimination claim following the removal of the professor from a key university program. The professor claimed that his removal stemmed from his critical  “woke joke” blog post. His blog stated that the Association for the Study of Higher Education’s conference had “… moved from focusing on general post-secondary research to social justice.” He claimed that the comment was protected speech and could best be characterized as a “woke joke.”

    The Court of Appeals dismissed his claim holding that the blog post was published 10 months before his removal from the program area and eight months after the department head had emailed him stating that the blog had “generated controversy on social media.” The appeals court ruled 2 to 1 that “temporal proximity” between the alleged speech and the adverse action was lacking and therefore the case must be dismissed (Porter v. Board of Trustees of North Carolina State University (4th Cir. No. 22-01712, 7/6/23)).

    Court Decisions on Telework Disability Accommodation Changing in the Aftermath of the COVID-19 Pandemic

    Federal judges are less likely to decide in favor of employers rejecting telework accommodation in disability cases in the aftermath of the COVID-19 epidemic. The employer win rate in cases denying a disability telework accommodation has dropped to 60% in the aftermath of COVID-19 compared to a 70% win rate during the two-year period prior to the pandemic, according to statistics cited by Bloomberg Industry Group (DLR 7/6/23).

    Federal judges are now more likely to consider telework as a reasonable accommodation in certain disability cases as a result of the widespread use of telework during the COVID-19 pandemic.

    Mandatory Paid Family and Medical Leave Becoming More Common Among State and Local Jurisdictions

    Twelve states, plus the District of Columbia, have enacted mandatory paid medical and family leave for workers within their jurisdictions. While the form of the mandate varies from jurisdiction to jurisdiction, workers are increasingly being granted by these statutes guaranteed paid time off to care for their own serious medical condition, a newborn or newly adopted child, or a family member’s major medical condition. In addition, according to Bloomberg DLR, Michigan and New Mexico appear likely to adopt mandatory paid-leave programs in the near future. It is important to check your state and local jurisdictions for developments in this area.

    Professor of Iranian Decent Entitled to Title VII Jury Trial Over Allegations That His Contract Non-Renewal Was Based on National Origin Prejudice by His Turkish Supervisor 

    A federal district court judge denied a summary judgement motion and held that a tenure-track art professor of Iranian descent was entitled to a jury trial under Title VII regarding his allegations that his supervisor denied renewal of his contract because of the supervisor’s anti-Iranian, Turkish background. The judge concluded that the plaintiff stated a claim of national origin discrimination under Title VII and was therefore entitled to a jury trial over those allegations and allegations that the university denied the plaintiff access to legal counsel and misstated his legal position (Shams v. Delta State University (N.D. Miss. No. 22-cv-00035, 7/11/23)).

    The plaintiff alleged that there is tension between Iranians like himself and Turks like his supervisor because the two countries “… share a contentious border and not much else.” The plaintiff also alleges that he was replaced by an art professor of Turkish background who was contacted for the position before the non-renewal of his contract.

    Former Professor’s First Amendment Retaliation Claims Related to His Termination After Publishing an Article on “Racial IQ Gap” Dismissed Against University, But Survives Against University Officials

    A former Cleveland State University professor can pursue some of his First Amendment retaliation claims, after he was terminated following publication of an article that advanced a theory that genetics cause a “Racial IQ Gap” between White and Black Americans. The federal district court hearing the case dismissed the complaint against the university on sovereign immunity grounds. However, the court let some of the complaint proceed against some university officials, at least through discovery. After completion of discovery, the court will rule on whether individual university officials are covered by the university’s sovereign immunity (Pesta v. Cleveland State University ( 2023 BL 242086, N.D. Ohio, No. 1-23-cv-00546, 7/14/23)).

    The controversial article was subject to outside criticism that the professor unethically misused NIH Data on studies of racial differences to reach his conclusions. The university stated that the professor was terminated for ethical lapses and for violating its academic and integrity standards. The professor claims that he was fired because of university viewpoint discrimination against the conclusions in his article in violation of the First Amendment. We will follow developments as this case unfolds.

    New Jersey Equal Pay for Temps Law Is First to Mandate Joint Liability of Employers Along With Temp Agencies

    New Jersey employers will face expanded liability along with temp agencies under a law which mandates that temp employees receive pay and benefits equal to comparable full-time employees employed by the employer. The law is the first to impose joint-employer liability along with temp agencies employed by the employer and goes into effect on August 5, 2023, according to Bloomberg DLR, 8/4/23. While other states — including California, Illinois and Massachusetts — have temporary-worker bill-of-rights laws, New Jersey is the first to impose joint-employer liability on the actual employer employing the temp agency.

    The New Jersey law imposes the requirement that temp employees in the state receive wages and benefits comparable to those of similarly situated full-time employees.



    Source link