Tag: Analysis

  • OCR’s new Title VI letter: FIRE’s analysis and recommendations

    OCR’s new Title VI letter: FIRE’s analysis and recommendations

    Last week, the Department of Education’s Office for Civil Rights published a “Dear Colleague Letter” describing educational institutions’ obligations under federal anti-discrimination law and explaining how OCR will interpret Title VI and other legal authorities.

    Since FIRE is, at its core, an organization dedicated to free expression, we reviewed OCR’s letter through that lens. In this blog entry, we offer recommendations to OCR to ensure that it does not unlawfully censor educational institutions or pressure them to censor their students and faculty, and we ask for additional clarification of the letter. We also offer recommendations to colleges and universities to prevent overreactions to the DCL and to ensure they continue to protect student and faculty free speech rights.

    Overview of Title VI and OCR’s ‘Dear Colleague’ Letter

    Title VI prohibits educational institutions receiving federal funding from discriminating against individuals on the basis of race, color, or national origin. In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC, the Supreme Court of the United States struck down racial preferences in college admissions for violating the Equal Protection Clause of the Fourteenth Amendment and Title VI of Civil Rights Act of 1964. In interpreting Title VI, the Equal Protection Clause, and the SSFA decision, OCR’s letter states:

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

    The letter also advises institutions to:

    1. Ensure that their policies and actions comply with existing civil rights law;
    2. Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
    3. Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by the institutions in an effort to circumvent prohibited uses of race. 

    The letter warns that “[i]nstitutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.”

    Irrespective of whether one agrees or disagrees with race-conscious policies, OCR is likely within its authority to prohibit institutions from providing or denying benefits to individuals based on their race. But while FIRE has no institutional position on affirmative action programs, we routinely see government actors use anti-discrimination rationales to censor First Amendment-protected speech. 

    Recommendations for OCR

    FIRE has seen a number of states seek to rein in DEI-related administrative offices at their state educational institutions. We’ve told those legislatures repeatedly that, while they have significant authority to manage nonacademic bureaucracies at their public higher education institutions, they cannot restrict which ideas can be taught in the college classroom, including on topics related to “diversity, equity, and inclusion,” or related concepts. They also cannot restrict student organizations from forming around or advocating on behalf of DEI initiatives.

    OCR’s new Dear Colleague letter chides educational institutions for “routinely us[ing] race as a factor in admissions, financial aid, hiring, training, and other institutional programming.” [Emphasis added.] It states that over the past few years, schools have “toxically indoctrinated” students, asserting that institutions have been “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” [Emphasis added.]

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    While OCR is free to criticize colleges for overstepping the bounds of the law on  DEI-related issues over the past few years, it must be careful when turning that criticism into policy. When a regulatory agency with the authority to cut off all federal funding to institutions cites certain types of “programming” as evidence that institutions could be violating federal anti-discrimination law, it risks chilling speech on those topics. That is especially true when the term “programming” is left undefined in the letter. Private institutions also maintain broad First Amendment rights of their own, and threats to punish them for their own speech about DEI or affirmative action risks violating the free speech rights of those institutions. 

    To abate any confusion arising from the letter, OCR should provide additional guidance to describe in more detail the types of programming it thinks violates Title VI and other anti-discrimination laws. Does OCR seek to prohibit institutions from hosting outside speakers who espouse disfavored ideas about DEI? Does OCR seek to limit particular classwork or research at institutions? If so, it has strayed beyond the First Amendment’s boundary. 

    To avoid chilling protected speech, OCR should clarify the distinction between providing benefits or preferences to individuals based on race or other protected characteristics, and pure speech about DEI and affirmative action — and make clear that it is not banning the latter. OCR must also be careful about regulating institutional trainings at private institutions in ways that violate institutional free speech rights. 

    As FIRE has made clear many times over the course of several administrations, OCR is bound by the First Amendment and cannot order or compel colleges and universities to violate it. 

    Courts have struck down government attempts to regulate DEI-related trainings offered by private businesses. The U.S. Court of Appeals for the Eleventh Circuit, for example, upheld an injunction blocking Florida’s Stop WOKE Act insofar as it applied to private business trainings, writing that “by limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin.” 

    FIRE hopes OCR will quickly provide institutions with additional clarity about the full scope of its Title VI interpretations. 

    FIRE is challenging other parts of the Stop WOKE Act that restrict classroom instruction in higher education on First Amendment grounds. After a federal district court issued a preliminary injunction preventing the state from enforcing those sections of the law, our case is now before the Eleventh Circuit.  

    To the extent OCR is concerned about the lawfulness of certain mandatory training programs, OCR could require state institutions to make public their training materials on DEI-related issues. FIRE’s Intellectual Freedom Protection Act, which prohibits public colleges from requiring mandatory DEI statements — or any other political litmus test — as a condition of hiring or promotion, contains a provision that could be a useful starting point: 

    Each public institution of higher education in the state shall post and make publicly available all training materials used for students, faculty, and staff, on all matters of nondiscrimination, diversity, equity, inclusion, race, ethnicity, sex, or bias, and all of its policies and guidance on those issues, on its website. 

    Such a requirement would provide both regulators and the public with a better idea of how institutions train its students about DEI-related topics. 

    Recommendations for institutions interpreting recent executive orders, memos, and letters

    If there is a conflict — real or perceived — between federal guidance and the First Amendment, the First Amendment prevails. For public institutions, this means they cannot violate faculty or student speech or associational rights regardless of federal agency guidance. For private institutions, this means federal guidance cannot unlawfully restrict the institution’s speech or pressure the institution to unlawfully suppress the speech or association of their faculty or students. 

    Campus administrators nationwide should not over-read this Dear Colleague Letter to justify censoring student or faculty expression. It would be wise to read it in conjunction with President Trump’s Jan. 21 Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the directive that likely led to this letter and that contains provisions expressly protecting free speech and academic freedom:

    (b)  This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.

    (c)  This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

    Since the Justice Department has a role in enforcing Title VI alongside that of the Education Department’s OCR, institutions should also note Attorney General Bondi’s memo on “Ending Illegal DEI and DEIA Discrimination and Preferences.” Her memo expressly notes:

    This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination. 

    When read together in the context of these companion documents, the new DCL should provide no justification for institutions to believe they must censor students, student organizations, or faculty, or rush to cancel university-sponsored cultural events or celebrations. Moreover, doing so may well violate the First Amendment at public universities—and again, courts will always give precedence to constitutional guarantees over guidance and regulations. Colleges will, however, need to end any policy or programs that actively separate individuals or provide benefits based on race.

    Given the tight timeline for compliance, FIRE hopes OCR will quickly provide institutions with additional clarity about the full scope of its Title VI interpretations. In the meantime, we again remind colleges and universities to honor their constitutional duties or institutional promises to protect the freedom of expression and academic freedom of their students and faculty. 

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  • Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech

    Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech

    Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza. 

    While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis. 

    FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.

    Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothing new. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus … And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.) As Stern predicted in that piece:

    If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.

    Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.

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    At public universities, which are bound by the First Amendment, it’s possible that the test will not last that long. In a case over the definition’s adoption by Texas public institutions by gubernatorial executive order, a federal judge ruled last October that Students for Justice in Palestine was likely to succeed in its claim that policies using the IHRA definition “impose impermissible viewpoint discrimination that chills speech in violation of the First Amendment.” The policies are still in place until the trial, which is scheduled for January of 2026.

    But even if use of the IHRA definition is struck down at public universities, that would not prevent its use at Harvard or hundreds of other private institutions. FIRE’s opposition to the use of the IHRA definition for the purpose of regulating speech is not because we do not believe anti-Semitic harassment is not happening. Obviously, it is. Nor is it because we believe anti-Semitic harassment is not worth attention or not prohibited by civil rights law. Again, it is. Our concern is with the IHRA definition itself and the way campuses across the country are likely to misapply it to further chill speech — and use it as an entering wedge to do the same with speech on every other topic under the sun. If the underlying issue were bigotry against any other group, our concerns would be the same. (And if you are aware of such efforts, please bring them to our attention.)

    The IHRA definition and anti-discrimination law

    At the outset, the adoption of the IHRA definition to define anti-Semitism is itself novel in that laws and rules in the United States generally do not define what acts specifically are racist, sexist, religiously bigoted, or anti-Semitic. They are written from the perspective of prohibiting discrimination against a class of people protected by that law. In the case of Title VI of the Civil Rights Act of 1964, for example, that includes race, color, and national origin. But the law does not go on to say “and here is what is racist” followed by a list of examples or a definition. That is left to judges and fact-finders to determine, taking into account the facts and context of a given case.

    Detailed definitions and examples are much less novel on college campuses, though they have long been problematic. Back in 2007, FIRE took issue with the University of Delaware for a mandatory freshman orientation that (among a massive number of its problems) defined “a racist” as “all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture, or sexuality.” Sexual harassment is often (too broadly) defined simply as “unwelcome conduct of a sexual nature,” which is unhelpful and overbroad, and then further runs aground on examples like Cal State-Channel Islands’ (our July 2019 Speech Code of the Month) “derogatory posters, cartoons, drawings, symbols, or gestures.” 

    The IHRA definition combines a couple of these problems. Its website explains: 

    On 26 May 2016, the Plenary in Bucharest decided to:

    Adopt the following non-legally binding working definition of antisemitism:

    “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

    Let’s look at this with an eye towards enforcement. Did a person accused of discriminatory harassment do so based on having “a certain perception of Jews?” What perception is that? Hatred? Not exactly, as it “may be expressed as hatred towards Jews.” But if it “may be expressed as hatred towards Jews,” it may also not be expressed as hatred towards Jews. That leaves open the possibility that anti-Semitism can be expressed by anything. The definition then moves on to say that it can be directed toward “Jewish or non-Jewish individuals and/or their property.” The group of “Jewish and non-Jewish individuals” includes literally everyone. It is more specific about community institutions and religious facilities, excluding those that are not Jewish.

    The IHRA definition’s flexibility and reach introduce serious problems when the definition is being used as a speech code that can result in the discipline of individuals or the silencing of their speech. 

    Most of the definitional work, then, is left to be done by analogy to the examples, which IHRA makes clear, saying, “To guide IHRA in its work, the following examples may serve as illustrations.” Some of those examples include hard-to-argue-with propositions like “Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion,” or “Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.” But other examples have a much greater potential overlap with political critiques, such as “Drawing comparisons of contemporary Israeli policy to that of the Nazis,” and “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor,” both of which were cited by the judge in the Texas lawsuit mentioned above. Still others are somewhere in between, like “Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”

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    For the IHRA definition’s intended purpose — to identify anti-Semitism in Europe so that the IHRA may catalog and identify it — the breadth of the examples isn’t too much of a problem. It is common, at FIRE and everywhere else, to ask someone to look for examples of a certain kind of incident by telling them “look for things that look like this.” The sweep of the examples is likely helpful for the IHRA’s intended aim, in that they may capture “edge cases” that don’t strictly fall into the definition but nevertheless seem like part of what it was intended to cover.

    Yet the IHRA definition’s flexibility and reach introduce serious problems when the definition is being used as a speech code that can result in the discipline of individuals or the silencing of their speech. The definition is simply not constructed in a manner that makes for fair and predictable application by different individuals, even if all of those individuals are trying their level best. That’s likely why the IHRA went out of its way to label it both a “non-legally binding” and “working” definition, building into the definition’s very text the recognition that it was neither intended to be used as a regulation nor the final word.

    Having said that, IHRA goes on to couch things even further. Preceding the examples, it writes:

    Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.

    Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to: […]

    The bolded phrases are all qualifiers that leave more openings for interpretation — a situation that courts recognize as a problem in the area of free speech because it makes the rule too vague to follow or fairly administer. In Grayned v. City of Rockford, a landmark 1972 case, the Supreme Court explained that a law (or regulation) is unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” And vagueness is a particular problem when the rule concerns free speech: “[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.”

    Harvard is private, so the First Amendment doesn’t directly apply on its campus, but the underlying problem for any institution that claims to be committed to free speech is the same.

    Applying the IHRA definition in practice

    Let’s walk through one example to see how this can play out.

    Accusations that Israel is an “apartheid state” are common on campuses (including at Harvard). Are they anti-Semitic? Many would say yes; the ADL calls labeling Israel as an apartheid state “inaccurate [and] offensive,” and notes it is “often used to delegitimize and denigrate Israel as a whole.” A large majority of Americans may find it unconvincing — only 13% in this April 2023 poll agreed that Israel was “a state with segregation similar to apartheid.” Yet saying that Israel’s Jews are oppressing Palestinians by running an apartheid regime is most certainly criticism “similar to that leveled against” countries like the United States, India, Malaysia, and course the former regime of South Africa (the country from which the term originates), along with many others, past and present. If applying the actual words of the IHRA definition, then, this seems to mean that accusations of Israeli apartheid “cannot be regarded as antisemitic.”

    On the other hand, Israeli apartheid accusations do sound similar to several of the IHRA examples. Is the apartheid accusation “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor?” That’s close, but not exactly right; you may think that Israel should exist, but with different policies. Is it “[a]pplying double standards by requiring of it a behavior not expected or demanded of any other democratic nation?” This depends on whose expectations or demands are being considered. And is making the claim while mostly around American Jews rather than Israeli Jews a form of “[h]olding Jews collectively responsible for actions of the state of Israel,” since most of your Jewish listeners are likely to be American, with little influence on what Israel does?

    None of these are easy questions. Regardless of your personal view, you will find reasonable people who disagree on the answers. And that’s exactly why the IHRA’s examples, when used as part of a speech regulation, threaten protected speech.

    Nobody asked the IHRA to come up with a law or rule to define anti-Semitism for purposes of determining what might be discriminatory harassment on American campuses. It’s not the IHRA’s fault that the definition is not right for that purpose.

    Ask yourself: What would you do if put in the position of the fact-finder tasked with using the IHRA definition to determine whether a person had engaged in prohibited discriminatory harassment by constantly banging the drum about “Israeli apartheid?” First, you would look to see if the accused said or did something else that would make the prohibited discriminatory intent — that the real reason for their activity was prejudice, not political disagreement — more obvious. If so, problem solved: you can either ignore the apartheid accusation or feel fairly safe assuming that this particular person did mean it to be anti-Semitic.

    But if there’s no other helpful evidence, you have to make a decision: Do I believe the IHRA definition actually means what it says about how “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic?” The rules of grammar and logic dictate one answer. But, you think, “that can’t actually be what the rule means, can it?” You look at the examples and can’t figure it out, so you just pick one meaning and go with it. This isn’t an application of the rule based on the facts before you. It’s essentially a coin-flip, and replacing it with an actual coin-flip would produce an equally accurate outcome.

    More likely, though, you’re on the disciplinary panel because you care about the college community and are determined to try to do what’s best for it. You ask yourself: “Is anyone really that angry about political discrimination in a far-off land, or is it really hostility towards Jews? Might they escalate to physical violence if I let them ‘get away’ with it? Maybe it’s better safe than sorry; after all, this person sounds unpleasant to be around.”

    Either way, you don’t have the information you need to know whether the person is guilty or innocent, because you don’t know what the rule actually forbids. You can speculate about what it means, and you have incentives to find a certain way. But the main thing you have to fall back on is the one thing for which you don’t need any process or information at all: prejudice. Imagine the most likely result with a white student named Stacy. Then a Latino student named Reuben. Then a black student named Denise. Then an Arab student named Mohammed. Are all these cases equally likely to come out the same way? The obvious answer is no.

    That’s the cost of punishing people for breaking rules that are too vague to understand, or too confusing to follow, or that reasonable people can read entirely differently from one another. 

    This is bad practice with any rule, but it’s particularly bad with rules that can affect expression. Vague and incomprehensible rules about income taxes are certainly bad, but people are still likely to work and pay (most of) their taxes. Vague rules about speech means people silence themselves, at least in public, which only encourages resentment and radicalization. 

    Nobody asked the IHRA to come up with a law or rule to define anti-Semitism for purposes of determining what might be discriminatory harassment on American campuses. It’s not the IHRA’s fault that the definition is not right for that purpose. It will be the fault of a school who adopts it when the inevitable injustice results, and quite possibly turns a persuadable political opponent into someone with a racial or religious ax to grind.

    Harvard compounds the problem through hypocrisy

    Harvard’s FAQ attempting to explain how this applies only makes the situation worse.

    A few days after announcing the settlement, Harvard also released a Frequently Asked Questions document about its updated policy. It’s more than 3,500 words long, and refers students to the IHRA definition as well as Harvard’s own (also long) Non-Discrimination and Anti-Bullying Policy. It states that “[d]iscrimination on the basis of the following protected categories, or any other legally protected basis, is unlawful and is prohibited,” with those categories being 

    According to the press release, Harvard agreed to include discrimination against Zionists as a form of punishable discriminatory harassment, apparently independent of whether those Zionists are or are perceived to also be Jewish. The FAQ confirms this, but with a twist — it covers anti-Zionists, too:

    Does conduct that would violate the Non-Discrimination Policy if targeted at Jewish or Israeli individuals also violate the policy if targeted at Zionists?

    Yes, provided that the conduct meets the requirements for discriminatory disparate treatment or discriminatory harassment. The Non-Discrimination Policy includes among its protected categories religion, national origin, shared ancestry or ethnic characteristics, and political beliefs. For many Jewish people, Zionism is a part of their Jewish identity. Conduct that would violate the Non-Discrimination Policy if targeting Jewish or Israeli people can also violate the policy if directed toward Zionists. Examples of such conduct include excluding Zionists from an open event, calling for the death of Zionists, applying a “no Zionist” litmus test for participation in any Harvard activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., “Zionists control the media”), or demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism to harass or discriminate.

    Such conduct would need to meet the standards expressed in the Non-Discrimination Policy for discriminatory disparate treatment or discriminatory harassment, as described above.

    Zionists, anti-Zionists, and non-Zionists are all protected against discriminatory disparate treatment and harassment under the policy.

    Does conduct that would violate the Non-Discrimination Policy if targeted at Muslim, Arab, Palestinian individuals also violate the policy if targeted at individuals who support Palestinian rights?

    Yes, parallel to the question and answer above, provided that the conduct meets the requirements for discriminatory disparate treatment or discriminatory harassment. The Non-Discrimination Policy includes among its protected categories religion, national origin, shared ancestry or ethnic characteristics, and political beliefs such as support of Palestinian rights.

    On one hand, this can be seen as solving the problem of appearing to carve out special protections for those with a particular religious or political belief (Zionism is at least one of those and sometimes both) by according the same level of protection to those with the opposing belief. Perhaps this will end up being a net benefit for Jewish or Zionist students who are discriminatorily harassed — if one assumes that Harvard administrators did not already know that Zionism was, if not a religious belief, certainly a political belief. (That seems hard to swallow, but it’s possible.) What Harvard appears to do with this FAQ is simply subsume the settlement into its pre-existing protections against discrimination against people based on their political beliefs.

    And that’s where this all breaks down, because it’s quite possible that there is not a single person on this planet who sincerely believes that Harvard does not engage in disparate treatment of people based on their political beliefs. (Start here and keep on scrolling.)

    It is no exaggeration to say that FIRE would not exist if Harvard didn’t play favorites with regard to politics. Its decades of doing so were a major factor in leading FIRE co-founder Harvey Silverglate (a graduate of Harvard Law who to this day resides in Cambridge, and who often represented Harvard students at its disciplinary hearings) to realize that something had gone terribly wrong on our nation’s college campuses. He would eventually join FIRE’s other co-founder, Alan Charles Kors, to publish The Shadow University back in 1998, and to found what began as the Foundation for Individual Rights in Education the following year. Harvard’s written prohibition against political discrimination was already in place when then-president Claudine Gay stepped on a metaphorical rake regarding anti-Semitism in front of Congress in 2023, starting a chain of events that led to her resignation.

    Simply put, if Harvard was serious about preventing discrimination against Jewish or Zionist students, it already had the ability to do so. Whether based on status or belief, they were certainly protected under Harvard’s existing policies. Harvard just didn’t feel like enforcing those rules for the benefit of those students.

    Nor did Harvard feel like using the correct standard for discriminatory harassment in the educational context — the Davis standard that behavior must be “severe, pervasive, and objectively offensive” (as well as fulfill several other factors) to be punishable discriminatory harassment. FIRE has written exhaustively about the importance of the Davis standard (here’s a primer in two parts on it), and why the constant attempts of schools to water it down by pretending “and” is the same as “or” are dangerous for free expression.

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    Harvard has done exactly that, watering down the Davis standard to require only that to be punishable, offensive behavior merely be severe or pervasive, not both. Here’s the thing: a great deal of activism is meant to be pervasive. Ongoing protests, social media campaigns, distribution of literature, the display of flags and signs, and many other forms of expression can all go on for days, weeks, or months. The messages may well be offensive, even objectively offensive. Requiring that the communication of these messages also reach the level of severity is a fundamental guardrail preventing the use of discriminatory harassment policies to silence protected speech — and Harvard has gone ahead and pulled that guardrail right out.

    Presumably, the plaintiffs are hoping that this settlement will at least focus Harvard’s attention on discrimination against Jewish and Zionist students. This is likely to be true, at least until the heat is off. Given the past couple of years, it’s hard to blame anyone involved in the Israeli-Palestinian controversy for being upset about how campuses have treated them. But the permanent effect of broadening the reach of discriminatory harassment policies so that virtually every cultural, political, or religious disagreement becomes a potential matter for investigation will inevitably be to chill speech on any topic that might be controversial.

    Harvard is likely just fine with that chilling effect, and even more content to know that the more overbroad, vague, and complicated it can make its harassment policies, the more discretion its administrators have to simply do whatever they want. Not only does the vagueness guarantee this outcome, but the FAQ contains plenty of “savings clause” language that gives Harvard the ability to apply the policy arbitrarily. How about this gem:

    Ordinarily, it will not violate the NDAB Policies for members of the Harvard community to make controversial statements in the course of academic work or in scholarship; express disagreement with another person’s political views; or criticize a government’s policy or the political leaders of a country.

    “Ordinarily” it won’t — which means sometimes it will. Can you determine when that might be by reading the policies? No. The answer, then, is “when we say it will.”

    This is not a win for free speech or for anti-discrimination. This is a license for Harvard to go right on doing whatever it wants.

    The double standards are the real problem

    The words “Equal Justice Under Law” are carved on the front of the Supreme Court for a reason. 

    There is little that is more corrosive to a society or community than rules that allow the authorities to treat offenses differently depending on who the alleged victims or offenders might be. This is a common thread in many FIRE cases, but it’s impossible not to notice how clearly it takes front and center in complaints by Jewish or pro-Israel students that they are subjected to treatment that no campus would accept were it aimed at other minority groups.

    The complaint in the Brandeis Center v. Harvard case at issue is just one among many examples. It’s literally the first thing they bring up in the complaint. While Harvard promises to prohibit “[b]ullying, hostile and abusive behavior,” the plaintiffs write:

    [A]s to Harvard’s Jewish and Israeli students, these promises are empty. In recent years, and especially in the last few months, Jewish and Israeli students have been subjected to cruel antisemitic bullying, harassment, and discrimination. And when Harvard is presented with incontrovertible evidence of antisemitic conduct, it ignores and tolerates it. Harvard’s permissive posture towards antisemitism is the opposite of its aggressive enforcement of the same anti-bullying and anti-discrimination policies to protect other minorities.

    FIRE has spoken to enough students at Harvard and other institutions to give us no reason to doubt this is true. While a perennial problem with regard to many issues, the transparent application of double standards has been particularly central to the complaints of Jewish and pro-Israeli students.

    The extent to which this is acutely felt by Jewish and pro-Israeli students is further compounded by the fact that the application of double standards to Jews and/or Israel is widely considered to be a central characteristic of specifically anti-Semitic bigotry. After all, the words “double standards” literally appear in one of the IHRA examples of potential anti-Semitism: “Applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.”

    Consider this allegation, taken from the Brandeis Center’s complaint:

    On October 18, 2023, another member of JAFE and the Brandeis Center, Member #4, an Israeli Jew and a student at the Harvard Business School (“HBS”), was walking through campus when he encountered an outdoor anti-Israel protest and decided to video the event, as others were doing. When protestors saw him and identified him as Jewish and/or Israeli, they accosted him. A mob surrounded him, engulfed him with keffiyehs, and chanted “Shame! Shame! Shame!” in his face. The assailants grabbed him, and one hit him in the neck with his forearm, before forcing Member #4 out of Harvard’s quad…. The video of the assault is shocking. But more remarkable perhaps is that Harvard has not taken any action to date to redress both the physical assault and the clear violations of its Anti-Bullying and Anti-Discrimination Policies.

    Assuming this account is anywhere near the truth, it is impossible to imagine this being Harvard’s reaction to, say, a group of white students doing this to an African-American student. Nor is any change to policy required to handle this situation. You don’t even need a discrimination policy to prevent people from shoving others around. If Harvard truly sat on its hands here, that’s because it wanted to.

    The solution to this problem will not come from making people at Harvard more aware of what represents anti-Semitic discrimination, expanding the number of protected classes, or broadening their interpretation in a way that cannot help but scare people away from speaking. It can only be solved when the people in charge are either no longer willing or no longer able to apply noxious double standards in order to advance their own political, religious, or cultural agendas.

    Adopting the IHRA definition of anti-Semitism will chill campus speech. We can hope that it will also help at least a few Harvard students whose episodes of discriminatory harassment might otherwise be ignored, assuming the Harvard administration feels the need to make a show of things. It won’t address the root problem. But it will set Harvard up for plenty of new ones.

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  • Analysis: Early flurry of executive orders a mixed bag for free speech

    Analysis: Early flurry of executive orders a mixed bag for free speech

    Since taking office for his second term on Jan. 20, President Trump has issued a flurry of executive orders, including several implicating the First Amendment and freedom of expression. Below, we highlight some of these orders and evaluate the potential ramifications for free speech.

    Executive order on protecting freedom of speech is a good start — but more must be done

    One of the first executive orders the president signed was titled “Restoring Freedom of Speech and Ending Federal Censorship.” This order aims to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” Specifically, the order notes the government has “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”

    FIRE welcomes this order’s call to end federal government censorship, including that which is hidden from public view. Leaks, court documents, and other disclosures have revealed instances of federal officials pressuring social media companies to limit controversial but constitutionally protected speech on vigorously disputed topics like the origins of Covid-19, the Hunter Biden laptop story, and election integrity.

    We have written repeatedly about the dangers of such government coercion, commonly referred to as “jawboning,” highlighting how this sneaky form of government censorship threatens freedom of expression.

    A pledge by the executive branch to respect the free speech of all Americans is a good first step. But any executive order can be modified or reversed on the say-so of one person — the president. It will take actual legislation — such as FIRE’s model transparency bill — to create mechanisms that statutorily require disclosure and bring to light governmental efforts to strong-arm private social media companies into censoring protected speech. 

    In the meantime, FIRE will monitor the administration’s actions, just as we did during the Biden administration, and hold federal agencies to the standards set forth in the executive order.

    Executive orders targeting DEI programs appear to avoid First Amendment pitfalls — but FIRE will be watching their implementation

    President Trump also signed two executive orders with the aim of dismantling diversity, equity, inclusion, and accessibility programs. The first, signed on Jan. 20 and titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” calls for “termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”

    DEI/DEIA programs and initiatives take many forms. FIRE has no position on the values DEI programs may seek to advance. But our experience defending student and faculty rights on campus demonstrates that DEI administrators and offices have regularly been involved in threats to academic freedom and speech policing, functioning as a way to enforce preferred orthodoxy or ideology. And some DEI initiatives — such as mandatory DEI statements in faculty hiring or student admissions — flatly threaten free expression and academic freedom and should be prohibited. We have previously introduced model legislation designed to eliminate such use of political litmus tests in faculty hiring and student admission decisions.

    FIRE has also seen legislation in which overbroad attempts to curtail DEI mandates threaten the very same speech rights of faculty and students they aim to protect. Overbroad restrictions can improperly limit classroom discussions — as we saw in West Virginia’s recent executive order prohibiting faculty from sharing any material that promotes or encourages certain DEI-related views, while at the same time permitting criticism of those views. This allows institutions to continue ideological litmus tests as long as such tests oppose DEI — which just recreates the same problem.

    Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.

    The president’s executive order appears to avoid these issues by targeting only the government’s own speech and initiatives, which it can constitutionally control. For instance, the Office of Management and Budget must provide a list of “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” This is different from prohibiting any federal grantees from promoting DEI, which would threaten speech. Instead, the order specifically targets federal grants made specifically for the purpose of advancing DEI, and the federal government is free to shut off that funding if it no longer wishes to advance those ideals or views.

    A second DEI-related order, signed on January 21, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” aims to eliminate “affirmative action” and “illegal discrimination and illegal preferences” in line with the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which held race-based affirmative action programs in college admissions violated the Fourteenth Amendment. (FIRE takes no position on affirmative action.)

    FIRE releases statement on the use of ‘diversity, equity, and inclusion’ criteria in faculty hiring and evaluation

    News

    FIRE’s statement provides guidance to universities to ensure they respect faculty members’ expressive freedom when seeking to advance DEI.


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    The order helpfully includes two provisions that make clear it does not reach into the college classroom or infringe upon academic freedom:

    (b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.

    (c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

    While these orders avoid constitutional pitfalls on their face, implementation should proceed carefully. Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.

    Executive order on “gender ideology” invites possible abuse

    This executive order focuses on “[defending] women’s rights and [protecting] freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” The order requires federal government agencies to:

    remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.

    This aspect of the order is limited to the federal government’s own speech. However, there is a risk, similar to that presented by imprecise anti-DEI legislation, that the breadth of such an order could lead to direct or indirect censorship of private actors. The government has the power to control its speech when it is the speaker, such as in a training given to its employees. But its power is much more limited when the speaker is a private citizen.

    Of particular concern is this clause: “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”

    While the government can choose to change its own messaging on gender issues, it cannot deny funds to grantees for exercising their own First Amendment rights. Further, the imprecise language could encourage government actors to withhold otherwise available grants from those with opinions that do not align with the views expressed in this executive order — chilling constitutionally protected speech. Grantees who would otherwise espouse views agreeing with “gender ideology” may refrain for fear of losing their government grant, even if they do not use the grant itself to promote “gender ideology.”

    Executive order intended to “protect” Americans from noncitizens who “espouse hateful ideology” is at odds with our culture of free speech

    This executive order makes it federal policy to “protect [American] citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” In addition to requiring agencies to ensure their policies for screening aliens align with the executive order, it requires the secretary of state to:

    Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens’ rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists.

    The federal government has the authority to refuse entry to or deport people who genuinely present a national security threat. But the broad language of this order implies it may also be used to target people already in the U.S. for engaging in speech that is otherwise constitutionally protected. FIRE has previously expressed concern about denials of entry in cases where students and speakers were seemingly barred based on their speech. The ambiguous language of the order, including references to a “replacement of the culture,” suggests an intent to review and potentially punish foreign nationals for speech that would typically be protected.

    To be clear, speech that calls for violence is generally protected by the First Amendment. As we have previously written, calls for genocide or chanting “From the river to the sea,” though listeners may be offended or deeply upset, are generally constitutionally protected. Denying visas or deporting anyone who engages in such speech will create a chilling effect, deterring foreign nationals from participating in lawful protests and demonstrations.

    But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea.

    While the driving force behind this executive order is the current Israel-Hamas conflict, there is no reason other than political whim that efforts to punish foreign nationals for their speech would stay confined to one side of that issue, or to the Israeli-Palestinian issue at all. If those targeted for “espousing hateful ideology” are today likely to be those supporting Hamas, a new government could aim such efforts at supporters of Israel’s military efforts in the coming years. Those from other nations experiencing ethnic or religious conflict, from Ukraine to Myanmar to Burkina Faso, could also face adverse immigration decisions for expressing their views.

    Why (most) calls for genocide are protected speech

    News

    Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.


    Read More

    Because this executive order is directed at foreign nationals, the legal First Amendment issues (as distinct from the cultural free speech questions) are complicated. The Supreme Court noted in Bridges v. Wixon that the freedom of speech is accorded to resident aliens, but other precedent upholds immigration consequences based on viewpoint, and immigration officials have targeted foreign nationals for deportation for otherwise-protected speech.

    In the 1904 case United States Ex. Rel. John Turner v. Williams, the Court upheld a law that allowed the deportation of “anarchists.” In the 1954 case Galvan v. Press, the Court upheld a law that allowed the deportation of non-citizens for belonging to the Communist Party. (Interestingly, statutory prohibitions on the naturalization of anarchists and members of the Communist Party still exist.)

    But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea. Establishing a system that allows for the routine deportation of foreign nationals based solely on their otherwise protected speech would erode our national commitment to freedom of expression as a uniquely American cultural value.

    FIRE’s Senior Scholar, Global Expression Sarah McLaughlin published a piece at MSNBC exploring President Trump’s Executive Order on anti-Semistism.

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  • Across All Ages & Demographics, Test Results Show Americans Are Getting Dumber – The 74

    Across All Ages & Demographics, Test Results Show Americans Are Getting Dumber – The 74


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    There’s no way to sugarcoat it: Americans have been getting dumber.

    Across a wide range of national and international tests, grade levels and subject areas, American achievement scores peaked about a decade ago and have been falling ever since. 

    Will the new NAEP scores coming out this week show a halt to those trends? We shall see. But even if those scores indicate a slight rebound off the COVID-era lows, policymakers should seek to understand what caused the previous decade’s decline. 

    There’s a lot of blame to go around, from cellphones and social media to federal accountability policies. But before getting into theories and potential solutions, let’s start with the data.

    Until about a decade ago, student achievement scores were rising. Researchers at Education Next found those gains were broadly shared across racial and economic lines, and achievement gaps were closing. But then something happened, and scores started to fall. Worse, they fell faster for lower-performing students, and achievement gaps started to grow.

    This pattern shows up on test after test. Last year, we looked at eighth grade math scores and found growing achievement gaps in 49 of 50 states, the District of Columbia and 17 out of 20 large cities with sufficient data.

    But it’s not just math, and it’s not just NAEP. The American Enterprise Institute’s Nat Malkus has documented the same trend in reading, history and civics. Tests like NWEA’s MAP Growth and Curriculum Associates’ i-Ready are showing it too. And, as Malkus found in a piece released late last year, this is a uniquely American problem. The U.S. now leads the world in achievement gap growth.

    What’s going on? How can students here get back on track? Malkus addresses these questions in a new report out last week and makes the point that any honest reckoning with the causes and consequences of these trends must account for the timing, scope and magnitude of the changes.

    Theory #1: It’s accountability

    As I argued last year, my top explanation has been the erosion of federal accountability policies. In 2011 and 2012, the Obama administration began issuing waivers to release states from the most onerous requirements of the No Child Left Behind Act. Congress made those policies permanent in the 2015 Every Student Succeeds Act. That timing fits, and it makes sense that easing up on accountability, especially for low-performing students, led to achievement declines among those same kids.

    However,  there’s one problem with this explanation: American adults appear to be suffering from similar achievement declines. In results that came out late last year, the average scores of Americans ages 16 to 65 fell in both literacy and numeracy on the globally administered Program for the International Assessment of Adult Competencies. 

    And even among American adults, achievement gaps are growing. The exam’s results are broken down into six performance levels. On the numeracy portion, for example, the share of Americans scoring at the two highest levels rose two points, from 10% to 12%, while the percentage of those at the bottom two levels rose from 29% to 34%. In literacy, the percentage of Americans scoring at the top two levels fell from 14% to 13%, while the lowest two levels rose from 19% to 28%. 

    These results caused Peggy Carr, the commissioner of the National Center for Education Statistics, to comment, “There’s a dwindling middle in the United States in terms of skills.” Carr could have made the same comment about K-12 education —  except that these results can’t be explained by school-related causes.

    Theory #2: It’s the phones

    The rise of smartphones and social media, and the decline in reading for pleasure, could be contributing to these achievement declines. Psychologist Jean Twenge pinpointed 2012 as the first year when more than half of Americans owned a smartphone, which is about when achievement scores started to decline. This theory also does a better job of explaining why Americans of all ages are scoring lower on achievement tests.

    But there are some holes in this explanation. For one, why are some of the biggest declines seen in the youngest kids? Are that many 9-year-olds on Facebook or Instagram? Second, why are the lowest performers suffering the largest declines in achievement? Attention deficits induced by phones and screens should affect all students in similar ways, and yet the pattern shows the lowest performers are suffering disproportionately large drops.

    But most fundamentally, why is this mostly a U.S. trend? Smartphones and social media are global phenomena, and yet scores in Australia, England, Italy, Japan and Sweden have all risen over the last decade. A couple of other countries have seen some small declines (like Finland and Denmark), but no one has else seen declines like we’ve had here in the States.

    Other theories: Immigration, school spending or the Common Core

    Other theories floating around have at least some kernels of truth. Immigration trends could explain some portion of the declines, although it’s not clear why those would be affecting scores only now. The Fordham Institute’s Mike Petrilli has partly blamed America’s “lost decade” on economic factors, but school spending has rebounded sharply in recent years without similar gains in achievement. Others, including historian Diane Ravitch and the Pioneer Institute’s Theodor Rebarber, blame the shift to the Common Core state standards, which was happening about the same time. But non-Common Core states suffered similar declines, and scores have also dropped in non-Common Core subjects.

    Note that COVID is not part of my list. It certainly exacerbated achievement declines and reset norms within schools, but achievement scores were already falling well before it hit America’s shores.

    Instead of looking for one culprit, it could be a combination of these factors. It could be that the rise in technology is diminishing Americans’ attention spans and stealing their focus from books and other long-form written content. Meanwhile, schools have been de-emphasizing basic skills, easing up on behavioral expectations and making it easier to pass courses. At the same time, policymakers in too many parts of the country have stopped holding schools accountable for the performance of all students.

    That’s a potent mix of factors that could explain these particular problems. It would be helpful to have more research to pinpoint problems and solutions, but if this diagnosis is correct, it means students, teachers, parents and policymakers all have a role to play in getting achievement scores back on track. 


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  • 2024 Election Results and Analysis of Future Policy Impacts

    2024 Election Results and Analysis of Future Policy Impacts

    by CUPA-HR | November 14, 2024

    The results of the 2024 election are in: Donald Trump will serve as the 47th president of the United States, while both the Senate and House of Representatives will be controlled by Republicans. With the Republican trifecta in the White House and Congress, Republicans can focus on passing their policy priorities through legislation in Congress and regulatory action at the federal agencies. CUPA-HR’s government relations team provides the following analysis to offer insight into possible leadership, policies and regulations we expect starting in January 2025.

    Federal Agencies and Congressional Committees

    Department of Labor

    The Department of Labor (DOL), overseen by the secretary of labor, directs policy and regulations for employers, workers, and retirees in the U.S. Throughout the election season, news organizations have speculated President-elect Trump’s potential picks for the secretary position, though who will be nominated will be unknown until Trump announces it. According to Politico, two possible candidates are Patrick Pizzella and Bryan Slater. Under the first Trump administration, Pizzella served as deputy secretary of labor and acting secretary of labor between former secretaries Alex Acosta and Eugene Scalia. Slater, who currently serves as Virginia’s secretary of labor, had also previously served as assistant secretary at DOL under the previous Trump administration.

    In addition to the secretary of labor, Trump will pick people to head the subagencies at DOL, including the Employee Benefits Security Administration, Occupational Safety and Health Administration, and Wage and Hour Division, among others. These agencies draft and implement regulations governing retirement and health benefits plans, workplace safety and health, and minimum wage and overtime pay requirements. Leaders of the DOL subagencies are typically selected later in the Cabinet-appointment process.

    National Labor Relations Board

    The party control of the National Labor Relations Board (NLRB) depends on actions taken by the Senate during the lame-duck session between the election and President-elect Trump’s inauguration. Current chair of the NLRB Lauren McFerran’s term is set to expire in December 2024, but she has been renominated to serve on the board for another five years by President Biden. Senate Democrats, who are likely to push for her confirmation now that the Senate and White House will be Republican-controlled in 2025, will need to vote to confirm her position, only needing a simple majority. If confirmed, NLRB would be under Democratic control until at least August 2026, more than a year and a half into the Trump administration, leaving President Trump unable to obtain a Republican majority on the board — and thereby control the policy at the NLRB — for nearly half of his second term.

    Despite possibly not having control of the NLRB, President Trump may choose to fire the NLRB General Counsel Jennifer Abruzzo (Democrat), whose term is not set to expire until July 2025. In 2021, President Biden terminated then-General Counsel Peter Robb (Republican) within hours of his inauguration, despite Robb’s term not ending until November of that same year. This was the first time any sitting president had fired a sitting general counsel at an independent agency for policy differences. Federal courts upheld Robb’s termination, so President Trump is highly likely to terminate Abruzzo immediately upon taking office. As a reminder, Abruzzo issued several memos stating her position regarding employment status for student-athletes, severance agreements, and disclosure obligations under the National Labor Relations Act and Family Educational Rights and Privacy Act, all of which would likely be rescinded by Trump’s NLRB general counsel appointee.

    Equal Employment Opportunity Commission

    Unless a commissioner leaves their post before their term expires, the Equal Employment Opportunity Commission (EEOC) will maintain a Democrat majority (currently 3-1, with one Republican seat vacant) until July 2026. Despite this, President-elect Trump is likely to appoint Commissioner Andrea Lucas to serve as chair of the EEOC. Lucas and the EEOC would be limited in their ability to adopt new policies or reverse actions taken by the Democrat-controlled commission prior to July 2026. At that time, we expect the Republican-controlled EEOC to issue revised guidance that narrows the scope of the agency’s interpretation of Title VII protections in light of Bostock v. Clayton County and the legality of diversity, equity, and inclusion (DEI) initiatives in employment practices, possibly extending legal principles established under the Students for Fair Admission v. Harvard case.

    Similar to the NLRB, we expect that President-elect Trump will replace the current EEOC General Counsel Karla Gilbride (Democrat). In her role, Gilbride has litigated on behalf of the EEOC in federal court, but the position typically does not provide policy recommendations to the full commission like the NLRB general counsel does.

    Department of Education

    The Department of Education (ED) oversees and implements policy and regulations governing federal assistance to education. With respect to higher education, ED governs issues like federal financial aid, Title IX compliance, and other laws aimed at promoting student success. Under the incoming Trump administration, Politico has speculated that there are a few possible contenders who could ultimately lead the agency.

    One possible candidate for ED’s secretary is Betsy DeVos, who served as secretary of education during Trump’s first term. During DeVos’ first term as ED secretary, she led the agency to implement the 2020 Title IX regulations that are still currently in place in 26 states and hundreds of schools around the country, pending legal challenges to the Biden administration’s rule. However, DeVos resigned from her position as secretary of education after the January 6, 2021, riots at the U.S. Capitol, which may lead the incoming Trump administration to search for new candidates. Despite her resignation, DeVos has indicated that she is open to discussions about potentially serving in the role again.

    As we also discuss below, Rep. Virginia Foxx (R-NC) will be stepping down from her role as chair of the House Education and the Workforce Committee, where she most recently led an investigation into antisemitism on campus in higher education. This, along with her previous experience serving as an English instructor and president of a community college, may set her up for a bid for the secretary position.

    Some additional names that have been discussed by Politico are Virginia Governor Glenn Youngkin, Oklahoma State Superintendent of Public Instruction Ryan Walters, and Moms for Liberty founder Tiffany Justice.

    House Education and the Workforce Committee

    Republicans held control of the House in the 2024 election, but there will still be some shakeup in leadership for the Education and Workforce Committee. Chair of the committee Virginia Foxx will be stepping down from her role, leaving open the Republican leader position of the Committee. The two front-runners to chair the committee are Reps. Tim Walberg (R-MI) and Burgess Owens (R-UT), both currently serving on the committee. Notably, Walberg has served on the committee for 16 years, and Owens currently serves as the chair of the Higher Education and Workforce Development Subcommittee. For Democrats, current ranking member of the committee Bobby Scott (D-VA) is expected to maintain his position as leader of the Committee Democrats.

    Walberg and Owens have both publicized their policy priorities. Walberg has stated that, under his leadership, the committee would focus on legislation to make college more affordable, boost apprenticeships, implement a short-term Pell grant for workforce training programs, and reauthorize the Workforce Innovation and Opportunity Act. Owens hopes to steer the committee with a more education-centric focus, stating that top priorities for him are school choice and oversight into how ED uses its funding.

    Senate Health, Education, Labor, and Pensions Committee

    Republicans in the Senate gained control during the 2024 election, flipping the previously Democrat-controlled chamber. As a result, Senator Bill Cassidy (R-LA) will likely rise to the role of chair on the Health, Education, Labor, and Pensions (HELP) Committee. Senator Bernie Sanders (I-VT) will shift into the ranking member position after serving as the chair of the full committee in the 118th Congress. Before his political career, Cassidy was a physician, meaning he could pivot the committee to focus more on health policy. Despite this, Cassidy has also advocated for the HELP committee to advance a Workforce Innovation and Opportunity Act reauthorization bill, and he has advocated for the committee to focus on other education issues as well.

    Policy Implications of the Election

    FLSA Overtime

    As you already know, the Biden administration is in the process of implementing their FLSA overtime regulations. The final rule took a two-phased approach to increasing the minimum salary threshold. The first increase raised the salary threshold to $43,888 per year and took effect on July 1, 2024. The second increase would raise the salary threshold to $58,656 per year and is set to take effect on January 1, 2025. The regulations are currently being challenged in a federal district court in Texas, where a preliminary injunction to block the rule from taking effect has been placed only for public employers in the state of Texas. It remains to be seen how the federal judge will rule on the lawsuits, though a hearing for the cases was held on November 8 and a ruling is imminent.

    As the Trump administration will not take office until after the January 1 threshold, the regulation will take effect, pending further appeals, if the final rule is upheld in federal court. If the rule is struck down, we expect the Trump administration will let the court’s decision remain and make no further effort to appeal the decision. If the Trump administration decides to increase the minimum salary threshold during this upcoming term, they will likely use the methodology from the 2019 rule to increase the threshold.

    Title IX

    Similar to the overtime final rule, the Biden administration issued Title IX regulations in 2024 that are also facing legal challenges. The Biden administration’s Title IX rule took effect on August 1, 2024, but several lawsuits challenging the rule have resulted in preliminary injunctions blocking ED from enforcing it in 26 states and hundreds of other schools in states that did not challenge the final rule.

    The Biden administration’s regulations replaced the previous Trump administration’s 2020 Title IX regulations. If the regulations are upheld in federal court, we expect that the incoming secretary of education will repeal the Biden administration’s regulations in favor of keeping the 2020 regulations in effect across the country.

    Immigration

    There are several policies and regulations that CUPA-HR has been tracking on the immigration front that face uncertain futures under the incoming Trump administration. During the first term, the Trump administration placed a proposed rule on the regulatory agenda aiming to restrict the Optional Practical Training  program, which allows international students who graduate from U.S. institutions to work in their degree-related field for at least 12 months after graduating. The Trump administration also finalized a couple of final rules that would have increased wage obligations for H-1B visas and narrowed eligibility for H-1B visas to positions that qualified as “specialty occupations.” These rules were struck down in court, so while Trump is unlikely to implement the same rules, we could see similar attempts to increase H-1B wage obligations and narrow the H-1B program.

    Additionally, the incoming Trump administration will likely look to reverse policies implemented by the Department of Homeland Security under the Biden administration, including dropping any appeal of the recent court ruling against the “Keeping Families Together” program for undocumented spouses and children of U.S. citizens, as well as rescinding the guidance to streamline the H-1B visa waiver process for Deferred Action for Childhood Arrivals (DACA) recipients. Similarly, if the Biden administration does not finalize the H-1B modernization rule before the end of his term, a new Trump administration may seek to implement a more restrictive version, reshaping the rule to reflect its own priorities rather than those outlined in the Biden administration’s October 2023 proposal.

    Legislative Priorities

    With Republicans controlling both the House and the Senate, legislative priorities should be mostly aligned between the two chambers and the White House. However, their ability to pass legislation will still depend on bipartisan support, as Republicans hold a narrow majority in the House and do not have a large enough majority in the Senate to bypass the 60-vote filibuster. Despite these challenges, we expect Republicans to focus on issues like paid leave, workforce development, and affordable college and workforce training.

    Though paid leave is a priority for both parties, Republicans and Democrats have previously not agreed on the best approach to establish it through federal legislation. In his first term, Trump and other Republicans backed paid leave legislation that allowed parents to collect a portion of their future child tax credits early to use for leave and receive smaller credits in the following years. This proposal ran counter to the Democrat-supported Family and Medical Insurance Leave (FAMILY) Act, which would establish a payroll tax to fund a paid family and medical leave program that can be used to pay workers who are new parents or who are caring for their own health issues or those of their family. Republicans and Democrats will need to find a compromise if they are to pass any paid leave legislation in the upcoming Congress, as they will need 60 votes in the Senate to bypass a filibuster.

    Despite their differences on paid leave, Republicans and Democrats have made bipartisan efforts to pass legislation to improve workforce development and create a short-term Pell grant. During this Congress, both the House and Senate have worked to pass legislation to reauthorize the Workforce Innovation and Opportunity Act, which serves as the nation’s primary federal workforce development legislation designed to help Americans receive training and support to obtain skills necessary for high-quality jobs and careers. Additionally, there has been bipartisan support to pass legislation that would expand the Pell grant program to cover short-term workforce development and training programs that are outside the traditional higher education path. Again, Republicans and Democrats will need to find consensus on these issues in order to bypass the Senate’s 60-vote filibuster, but bipartisan issues like workforce development and short-term Pell grants appear to have a possible path to becoming law.

    CUPA-HR is hosting a 2024 election analysis webinar on November 21 at 12 PM ET. Registration is free for CUPA-HR members. Additional updates will be provided through future blogs and Washington Insider alerts.



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  • How to ChatGPT-proof Analysis Assignments –

    How to ChatGPT-proof Analysis Assignments –

    Let’s assume we live in a world in which students are going to use ChatGPT or similar tools on their assignments. (Because we do.) Let’s also assume that when those students start their jobs, they will continue to use ChatGPT or similar tools to complete their jobs. (Because they will.) Is this the end of teaching as we know it? Is this the end of education as we know it? Will we have to accept that robots will think for everyone in the future?

    No. In this post, I’m going to show you one easy solution that solves the problem of assuming students will use generative AI by incorporating it into assessments. Keep in mind this is just a sketch using naked ChatGPT. If we add some scaffolding through software code, we can do better. But we can do surprisingly well right now with what we have.

    The case study

    Suppose I’m teaching a college government class. Here are my goals:

    • I want students to be able to apply legal principles correctly.
    • I want to generate assignments that require students to employ critical thinking even if they’re using something like ChatGPT.
    • I want students to learn to use generative AI appropriately.

    Let’s throw in a couple of more goals just to make it interesting:

    • I want students to demonstrate competencies.
    • I want my assignment to support diversity, equity, and inclusion

    Can we do all that?

    Yes.

    The prompt

    I cobbled together a DEI guidelines document from some existing ones I found on the web to create something focused on curricular materials generation. I gave the document to ChatGPT along with the following prompt, which is designed to provide assessment questions that you can’t answer by just copying/pasting them into ChatGPT:

    You are instructed to generate 3 fictional legal scenarios assessing The following competency:

    • Assess whether a case is likely to be heard by the Supreme Court based on an analysis of the Court’s role and selection criteria.

    Evaluating Court functions will be consistently required.

    For each scenario:

    • Involve 2-3 parties and a dispute requiring application of the competency.
    • Make it sufficiently complex so direct questions don’t fully demonstrate understanding.
    • Generate 1-2 written questions requiring analysis using the competency.

    Additionally, construct a rubric table that is appropriate for all generated scenarios to evaluate student responses on:

    • Mastery of the competency above.
    • Mastery of the competencies below.

    Demonstration of the following additional competencies

    Critical Thinking Competencies

    • Ask probing questions to uncover deeper complexities beneath the surface. Questioning skills are inherently required by the assessment structure.
    • Critically evaluate source credibility and potential biases when analyzing information. Assessing the AI responses is crucial.
    • Produce sound arguments and reasoning to justify conclusions.

    Written justifications will necessitate this in all cases.

    AI Competencies:

    • Formulate questions and direct dialogue with an AI assistant to extract relevant insights. Strategic probing of the AI agent will be essential.
    • Efficiently utilize an AI’s knowledge while evaluating its capabilities and limitations. Critically appraising the AI’s responses is key.

    Rubric should include levels of performance for each competency (e.g. novice, developing, proficient). Apply the attached diversity, equity, and inclusion guidelines to the content you generate. Incorporate diverse litigants and equity-relevant issues in the cases you generate.

    [Note: I’ve added some formatting to make it more legible for humans. The actual prompt doesn’t have bullets and has fewer paragraph breaks.]

    The results

    Here’s what ChatGPT gave me back:

    Legal Scenario 1: The Case of Interstate Water Rights

    Background: The states of Aridonia and Riverbend are locked in a legal battle over the rights to water from the Silver River, which flows from the mountains in Aridonia and through the agricultural heartlands of Riverbend. Aridonia, facing an unprecedented drought, has constructed a series of dams to conserve water, significantly reducing the flow to Riverbend. Riverbend’s economy relies heavily on agriculture, which is now under threat due to the reduced water supply.

    Parties Involved:

    1. The State of Aridonia (Plaintiff)
    2. The State of Riverbend (Defendant)
    3. The Indigenous Tribes of the Silver River Basin (Intervenors) – They claim ancestral rights to the river and are impacted by the actions of both states.

    Complexity: The dispute requires an understanding of interstate commerce, environmental law, and indigenous rights.

    Questions:

    1. Analyze the potential arguments each party could make to justify their claims to the Silver River’s water. How might these arguments impact the likelihood of the Supreme Court electing to hear this case?
    2. Considering the Supreme Court’s historical approach to interstate disputes and the involvement of indigenous rights, what precedents might influence the Court’s decision to grant certiorari?

    Next, I will create the second legal scenario.

    Legal Scenario 2: The Case of Digital Privacy and International Data Exchange

    Background: GlobalTech Inc., a multinational tech company, is sued by the State of Freedonia on behalf of its citizens for allegedly breaching privacy laws. GlobalTech’s data centers, located in various countries, process and store data from Freedonian users. The lawsuit asserts that GlobalTech’s practices violate Freedonia’s stringent digital privacy laws. However, GlobalTech contends that they are compliant with international agreements on data protection to which Freedonia is a signatory.

    Parties Involved:

    1. The State of Freedonia (Plaintiff)
    2. GlobalTech Inc. (Defendant)
    3. International Privacy Watch (Amicus Curiae) – A global coalition advocating for citizens’ digital rights and privacy.

    Complexity: This scenario involves understanding international law, digital privacy, and the implications of cross-border data flow.

    Questions:

    1. Evaluate the competing interests of national privacy law and international data agreements in the context of this case. How might these factors affect the Supreme Court’s decision to grant a writ of certiorari?
    2. What are the broader implications for digital privacy and international commerce if the Supreme Court decides to hear this case? Consider historical precedents and current legal trends in your analysis.

    Now, I’ll proceed to create the third legal scenario.

    Legal Scenario 3: The Case of Health Care Access and Religious Exemptions

    Background: A new federal regulation mandates that all employers, regardless of their religious beliefs, must include comprehensive reproductive health services in their employee health insurance plans. FaithFirst, a nationwide chain of craft stores owned by a family with strong religious convictions, files a lawsuit claiming that this mandate violates their religious freedom. The case is further complicated by the intervention of HealAll, a non-profit organization that provides health services to underprivileged populations and argues that exemptions undermine public health efforts.

    Parties Involved:

    1. FaithFirst (Plaintiff)
    2. The Federal Government (Defendant)
    3. HealAll (Intervenor) – Advocating for universal access to health care.

    Complexity: This scenario encompasses the interpretation of religious freedom, federal regulatory power, and the right to health care.

    Questions:

    1. Assess the potential constitutional conflicts at play in this case, particularly the tension between religious liberty and federal health care mandates. How could these conflicts influence the Supreme Court’s inclination to review the case?
    2. Examine how the Supreme Court’s previous decisions on similar health care and religious freedom cases might be used as precedents in this scenario. What factors might the Court consider in deciding whether to hear this case?

    With the three legal scenarios outlined, it’s time to generate a universal rubric that can be applied to assess student responses for all three scenarios. I will incorporate the DEI guidelines into this rubric to ensure the content is sensitive to diversity, equity, and inclusion.

    Universal Rubric for Assessing Legal Scenario Responses

    The following rubric applies to responses for all three legal scenarios, ensuring that students are assessed on the mastery of core competencies along with critical thinking and AI engagement. The DEI guidelines are integrated to promote inclusive and diverse perspectives in the analysis.

    Competency Novice (1-2) Developing (3-4) Proficient (5-6) Mastery (7)
    Mastery of Supreme Court Case Assessment Displays limited insight into the Supreme Court’s selection criteria. Overlooks DEI considerations. Recognizes basic aspects of the Court’s role and criteria. Considers DEI aspects superficially. Analyzes the Court’s criteria proficiently, integrating DEI considerations into the analysis. Provides comprehensive analysis aligned with the Court’s criteria and DEI principles, demonstrating nuanced understanding.
    Critical Thinking: Questioning Questions lack depth and do not reflect DEI considerations. Questions show an emerging understanding of complexities with some DEI awareness. Probes complex issues effectively with questions that incorporate DEI awareness. Asks deep, insightful questions that fully embrace DEI complexities within the legal context.
    Critical Thinking: Source Evaluation Shows limited ability to evaluate credibility and biases, with minimal DEI consideration. Begins to critique sources for credibility and bias, showing awareness of DEI. Evaluates sources critically for credibility and biases with a consistent DEI lens. Expertly discerns source credibility and biases, thoroughly applying a DEI perspective.
    Critical Thinking: Argumentation Constructs basic arguments, lacking DEI perspective and strong justification. Develops arguments that begin to incorporate DEI considerations with moderate justification. Presents well-reasoned arguments that effectively integrate DEI considerations. Articulates complex arguments, richly informed by DEI considerations and robust justification.
    AI Competency: Question Formulation Struggles to craft questions that effectively leverage AI insights, with little DEI focus. Formulates questions that occasionally lead to relevant AI insights and consider DEI. Consistently crafts questions that elicit useful AI insights, mindful of DEI implications. Strategically formulates questions for AI that yield comprehensive insights, fully integrating DEI.
    AI Competency: AI Utilization Demonstrates limited understanding of AI capabilities and DEI considerations. Shows basic awareness of AI’s capabilities and DEI considerations in utilization. Utilizes AI effectively, with a clear understanding of its capabilities and DEI considerations. Masters AI utilization, skillfully balancing its capabilities with DEI awareness in analysis.

    The performance levels for each competency are:

    • Novice: Limited application and understanding
    • Developing: Basic to moderate application and understanding with some inconsistencies
    • Proficient: Consistent application and understanding with minor gaps
    • Mastery: Exceptional application and understanding with insightful integration

    These are challenging assignments. You’d need to precede them with lower-level formative assessments to ensure they’re getting the foundational concepts and know what kinds of questions to ask the generative AI.

    Which is exactly what you should be doing before any challenging competency application assessment anyway.

    I asked ChatGPT to generate three examples, but I just as easily could have asked it to generate 300. In other words, you can create a test bank if that’s what you need. Or just generate them on demand every term. You’d want a human expert to tweak the rubric and review each assignment; it’s a bit more complex and error-prone than algorithmic math problem generators.

    Grading the assignment

    The key here is that the assignment students turn in is the ChatGPT transcript. (You can optionally have them submit their final analysis work product separately.) The students are, in effect, showing their work. They can’t use ChatGPT to “cheat” because (1) ChatGPT is part of the assignment, and (2) the assignment is designed such that students can’t just plug in the questions and have the AI give them the answer. Their ability to analyze the problem using the new tool is what you are evaluating.

    You could use your generative AI here too as a TA. Give it the assignment and the rubric. Write a prompt asking it to suggest scores and cite evidence from the student’s work. You can decide how heavily you want to lean on the software’s advice, but at least you can get it.

    Learning to think like a lawyer (or whatever)

    Generative AI does not have to kill critical thinking skills. Quite the opposite. These assignments are much farther up on Bloom’s taxonomy than multiple-choice questions and such. Plus, they get students to show their thought work.

    In fact, these scenarios are highly reminiscent of how I use generative AI every day. Here is a sampling of tasks I’ve performed over the last several months using ChatGPT and other generative AI that I probably couldn’t have—and definitely wouldn’t have—performed without them:

    • Analyzed the five-year performance of a business based on its tax returns and developed benchmarks to evaluate the quality of its growth
    • Cloned a Github source code repository, installed Docker and other needed tools on my laptop, and ran the Docker image locally
    • Analyzed and hedged the risk to my retirement fund portfolio based on technical and economic indicators
    • Wrote the generative AI prompt that is the centerpiece of this post

    None of these scenarios were “one and done,” where I asked the question and got the answer I wanted. In all cases, I had to think of the right question, test different variations, ask follow-up questions, and tease out implications using generative AI as a partner. I didn’t have to learn accounting and business analyst but I did have to know enough about how both think to ask the right question, draw inferences from the answer, and then formulate follow-up questions.

    To score well on these assessments, I have to demonstrate both an understanding of the legal principles and the ability to think through complex problems.

    Critical thinking competencies

    Ethan Mollick, a professor at the Wharton School of Business who writes prolifically and insightfully about generative AI, wrote an excellent analogy for how to think about these tools:

    The thing about LLMs that make them unintuitive is that analogizing them to having a science fiction AI is less useful than thinking of them as infinite copies of some guy named Steve, a first year grad student who is great at coding & art and is widely-read, but makes up stuff based on what he remembers when he is pressed.

    Asking AI to do things an incredibly fast Steve couldn’t do is going to lead to disappointment, but there is a lot of value in Steve-on-demand.

    Ethan Mollick’s LinkedIn post

    This is a great analogy. When I was analyzing the tax returns of the business, I didn’t have to understand all the line items. But I did have to know how to ask Steve for the important information. Steve doesn’t understand all the intricacies of this business, its context, or my purpose. I could explain these things to him, but he’d still just be Steve. He has limits. I had to ask him the right questions. I had to provide relevant information that wasn’t on the internet and that Steve couldn’t know about. I used Steve the way I would use a good accountant whose help I need to analyze the overall quality of a business.

    Coming up with benchmarks to measure the business against its industry was even more challenging because the macroeconomic data I needed was not readily available. I had to gather it from various sources, evaluate the quality of these sources, come up with a relevant metric we could estimate, and apply it to the business in question.

    In other words, I had to understand accounting and economics enough to ask an accountant and an economist the right questions and apply their answers to my complex problem. I also had to use critical thinking skills. Steve could help me with these challenges, but I ultimately had to think through the problem to ask Steve for the kind of help he could give me.

    When you’re teaching students using a generative AI like ChatGPT, you should be teaching them how to work with Steve. And as bright as Steve may be, your student still has much she can contribute to the team.

    Generative AI competencies

    Suppose you have a circle of intelligent friends. Steve is brilliant. He has a mind like an engineer, which can be good or bad. Sometimes, he assumes you know more than you do or gives you too short an answer to be helpful. Also, he’s been focused night and day on his dissertation for the last two years and doesn’t know what’s been happening in the real world lately. He’ll do a quick internet search for you if it helps the conversation, but he’s not tuned in.

    Your friend Claude thinks like a Classics graduate student. He’s philosophical. He pays close attention to the nuances of your question and tends to give longer answers. He also has a longer attention span. He’s the kind of friend you talk with late into the night about things. He’s somewhat more aware of current events but is also a bit tuned out of the latest happenings. He can be analytical, but he’s more of a word guy than Steve.

    Then there’s your friend Anna. Anna Bard. She’s not quite as sharp as either Steve or Claude, but, as an international finance graduate student, she reads everything that’s happening now. If you need to have an in-depth conversation on anything that’s happened in the last two years, Anna is often the person to go to.

    Also, all of these friends being young academics in training, they’re not very good at saying “I don’t know” or “I’m not sure.” They’re supposed to be the smartest people in the room, and they very often are. So, they’re not very self-aware of their limitations sometimes. All three of my friends have “remembered” studies or other citations that don’t exist.

    And each has their quirks. Claude has a strong sense of ethics, which can be good and bad. I once asked him to modify a chapter of an OER book for me. I gave him the front matter so that he could see the Creative Commons licensing was there. He told me he couldn’t do the work unless he could see the whole book to verify that it was ethically OK to modify the content.

    I told him, “Claude, that book is 700 pages. Even you don’t have the attention span to read that much.”

    He told me, “You’re right. In that case, I’m sorry, but I can’t help you.”

    So I took the chapter to Steve, who had no ethical qualms at all but only skimmed the chapter and lost interest about halfway through my project.

    When I do my work, I have to figure out which of my AI colleagues can help me and when to trust them. For the business model analysis, Steve answered most of my questions, but I had to get him some information from my friends who haven’t been locked in the library for the past two years. I asked both Anna and Claude. They were somewhat different from each other, both of which were well-reasoned. I had to do some of my own Googling to help me synthesize the analyses of my two friends, develop my own opinion, and bring it back to Steve so he could help me finish the work.

    For the software project, surprisingly, Steve was useless. He assumed I knew more than I did despite my asking him several times to simplify and slow down. Also, the software had changed since he last looked at it. While he tried to make up for it by saying, “Look for a menu item labeled something like ‘X’ or ‘Y’,” he just couldn’t walk me through it. Anna, on the other hand, did a superb job. She knew the latest versions of all the software. She could adjust when I had trouble and needed some extra explanation. While I wouldn’t have guessed that Anna is the better co-worker for that type of task, I am learning how to get the most out of my team.

    Generated by DALL-E 3

    For the design of the prompt at the heart of this post, I went to Claude first to think through the nuances of the competency and the task. Then, I brought the summary I created with Claude to Steve, who sharpened it up and constructed the prompt. And yet, it still could use improvement. I can ask my friends for more help, but I will need to think through what to ask them.

    My retirement portfolio analysis was 90% Anna’s work since she’s been following the market and economic conditions. I asked Steve to give me a second opinion on bits of her analytic approach. But mostly I relied on Anna.

    We often say that we must teach students how to collaborate in teams since they will probably have to collaborate in their jobs. Teaching students how to use generative AI models is an overlapping skill. And it’s only going to get more critical as models proliferate.

    I have a model called Mistral running on my laptop right now. That’s right. It’s running locally on my laptop. No internet connection is required. I don’t need to share my data with some big cloud company. And I don’t need to pay for the usage.

    My subjective experience is that Mistral is generally more competent than GPT-3 but not as smart as ChatGPT-3.5 Turbo. However, according to one calculation, Mistral is 187 times cheaper to run than GPT-4. It’s also relatively easy and affordable to fine-tune, which is a bit like sending her out to earn a MicroMasters in a particular subject.

    Let’s suppose I’m a building site engineer for net-zero buildings in Nova Scotia. I have to know all the details of the building codes at the municipal, township, provincial, and national levels that apply to any given project. Since I’m using new building technologies and techniques, I may have to think through how to get a particular approach accepted by the local building inspector. Or find an alternative approach. And very often, I’ll be out in the field without any internet connection. Mistral may not be as smart at questions about macroeconomics or software development as Steve, Claude, and Anna, but she’s smart enough to help me with my job.

    If I were running that construction company, I would hire Mistral over the others and pay for her MicroMasters. So I have to know how to evaluate her against other potential synthetic employees I could employ. Choosing Steve would be like hiring a Harvard-educated remote-working external consultant. That’s not what I need.

    Fear not

    Personally speaking, my daily use of generative AI hasn’t made me dumber or lazier. Sure, it’s saved me a lot of work. But it’s also enabled me to do work that was beyond my reach before. It feels a little like when Google first came out. If I’m curious about something, I can explore it instantly, any time I want, and go as deep as I want.

    In fact, generative AI has made me a better learner because I’m fearless now. “Can’t” isn’t a viable starting assumption anymore. “Oh, I can’t analyze tax returns.” That answer doesn’t cut it when I have an Ivy League accounting MBA student available to me at all times. I need to know which financial questions to ask and what to do with the answers. But if I don’t at least try to solve a problem that’s bugging me, I feel like I’m copping out. I almost can’t not try to figure it out. The question won’t leave me alone.

    Isn’t that what we want learning to feel like all the time?

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