Tag: attack

  • Associate Provost on Coordinated Attack on Academic Freedom

    Associate Provost on Coordinated Attack on Academic Freedom

    Valerie Johnson has watched—and fought against—political attacks on academic freedom for years. A political scientist and associate provost of diversity, equity and inclusion at the Catholic DePaul University, Johnson understands well the political incentives for conservatives to bring universities to heel.

    This year brought an avalanche of new and continuing attacks on what professors can teach, speak about and research at American colleges and universities, led by the Trump administration and exacerbated in states like Florida and Texas, where Johnson describes these changes as swift and effective.

    Together with co-authors and editors Jennifer Ruth, a film professor at Portland State University, and Ellen Schrecker, a professor emerita of American history at Yeshiva University, Johnson wrote The Right to Learn: Resisting the Right-Wing Attack on Academic Freedom (Beacon Press, 2024). In October, the book was granted the American Association of Colleges and Universities’ Frederic W. Ness Book Award, an annual honor that highlights the “book that best illuminates the goals and practices of a contemporary liberal education.”

    Johnson spoke with Inside Higher Ed over Zoom about the impetus for the book and how she interprets the escalating attack on academic freedom today.

    The interview has been edited for length and clarity.

    Q: What prompted you to write this book? Was there a specific moment when the scope of this campaign against academic freedom that you describe became unmistakable for you?

    A: Yes, it was the summer of 2021. A friend of mine was working with the African American Policy Forum, and they wanted to sound the alert that we were seeing a rollback of rights. And so they had asked Jennifer Ruth, my co-author and co-editor of the book, to work on what they called the Faculty Senate campaign. Twenty twenty was a momentous year. We began to see gag orders about what could be taught. So Jennifer and I … wanted to alert all faculty senates across the United States that we were seeing this erosion of academic freedom and that they should pay attention. We asked them to write resolutions asking their administrations to reaffirm academic freedom.

    Q: How have faculty senates or governing bodies adapted—or failed to adapt—to the current legislative landscape?

    A: Well, I would like to say I’ve seen quite a bit of resistance, but unfortunately people have a way of conceding when their livelihoods are at stake. And how you answer that question is also determined by where you are in the country. If you’re in a red state—like Florida, like Texas—where there are prohibitions like, “Hey, you cannot teach on this, this, this and this,” then either you stay there and withstand some degree of punishment, or you leave. A lot of faculty are leaving red states for bluer states.

    It’s actually been very surprising to me. This period in American history has really caused me to rethink what I originally believed about human nature. It is very surprising how cowardly people are … I am a political scientist by training, and I [know] only about 4 to 5 percent of people will protest anything. And we have seen various rallies, protests, etc., but it hasn’t been as engaging as I would like to see.

    Q: One of the things that the book addresses is that efforts on the right to degrade academic freedom are strategic rather than reactive. What evidence convinced you that this was an organized, long-term project?

    A: There’s always been attempts to erase history. Frederick Douglass said a long time ago that America is false to its past. It’s false to its present, and it resigns itself to be false to the future.

    America has always created a story that it is something it is not, and I think the values that we have are largely aspirational. When universities talk about their mission statements, they’re not saying it’s [complete], they are saying, “This is who we’d like to be.” There has always been a concerted effort to blame the victim when it comes to people who have marginalized identities and to ensure that, largely, their stories are not told. And so through education, if you could limit discussions of race and social equality, then people aren’t thinking about it. They’re not thinking about passing legislation that pursues those goals. And you could make people believe that, “Hey, all the problems of the past have been resolved,” when, in fact, if you look empirically, they haven’t.

    Q: When you were doing your research, were there any state-level policies or actors that really surprised you, either in their influence or how quickly they spread?

    A: Yeah, I would say Florida and Texas. It was very quick. [Governor Ron] DeSantis definitely took over the university system very quickly [with] Don’t Say Gay and Anti-Woke. I mean, it’s amazing, but it’s an easy setup. For the average citizen, it’s a part of the culture wars where they see LGBTQIA rights, for example, or women’s rights, and they’re alarmed by them … It is “me against them,” and particularly in red states and the Bible Belt, it has been a pretty easy sell to the citizenry because it aligns with some of their well-cherished values, but it doesn’t promote human rights. It doesn’t promote a country or a world where people are seen not by any sort of cultural or identity markers, but by their membership in the human race.

    Q: Are there any aspects of the current debate that you think are most misunderstood, either by the media or the public or folks in higher ed?

    A: Yes, I think there are a couple of things that are really misunderstood. One is structural inequality, or when you look at, for example, inequality by race. I think most people think that the civil rights movement resolved any social economic inequality when, in fact, it did not. I always use the metaphor of a Monopoly game gone wrong—just because you change the policy doesn’t mean you change the conditions. So let’s say you and I are playing a game of Monopoly, and halfway through the game, I realize you’ve been cheating all along. So I call you out on it, and your response to that is, “OK, let’s change the policy. No more cheating.” And then you say, “Let’s resume the game.” The problem with that is you have already amassed the red hotels, the green houses. Generation by generation, those people who benefited from slavery or land appropriation of the Native Americans and Mexicans, or Jim Crow and residential segregation, that’s a cumulative advantage. For those people who were disadvantaged, there’s a cumulative disadvantage that moves forward from generation to generation. Existing racial inequality—I don’t think people actually understand it. They saw shows like The Cosby Show, and they are like, “Oh, wow, all people from minoritized backgrounds, they’ve made it.” In fact, it’s really a myth.

    To that extent, if you say that you want to provide opportunities that create inclusion on college campuses, they’re looking at that like, “Well, wait a minute. They’ve made it. So this is unfair to me.” Then you have this disdain for DEI. Of course, for people between the ages of zero and 18 in America, the majority of them are nonwhite. So every single year, campus enrollment is becoming less white … and American universities and colleges that are going to have to depend on American students for their enrollment will increasingly have to court and recruit students who are nonwhite because of the demographic shift.

    Q: How should universities communicate with the public about academic freedom without reinforcing the right wing framing that expertise equals elitism?

    A: One thing that is constantly on my mind is: How do you talk about something as heavy as academic freedom? In a way, I wish we would have retitled the book something like “The Right to Learn: Resisting the Attack on What You Can Learn,” or something like that. When you put “academic freedom,” people ask, what is academic freedom? People know about free speech, but people don’t know about academic freedom. That is why you have an increasing number of students who come to college campuses believing that they should get a tailor-made curriculum.

    So, what can universities do? I believe in community education. I love it when community groups and politicians ask me to come and speak to regular community folk. We have to see our enterprise as not only teaching in the university, but outside of the university, and that could be done with op-ed pieces or just going where people are—churches, community institutions … I think that’s the only way it’s going to happen. We have to get out of the ivory tower.

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  • Indiana’s Attack on Intellectual Diversity

    Indiana’s Attack on Intellectual Diversity

    Indiana’s new Act 202, which advocates of free inquiry have feared would suppress academic freedom despite its claims to promote intellectual diversity, now has been implemented in real life: Citing Act 202, Indiana University (IU) officials suspended Social Work professor Jessica Adams from teaching a class called “Diversity, Human Rights and Social Justice” because U.S. Senator Jim Banks complained that she showed a chart in class that included “Make America Great Again” as a slogan that can be used as covert white supremacy.

    Senator Banks declared, “At least one student in the classroom was uncomfortable, and I’m sure there are more. This type of hateful rhetoric has no place in the classroom.” He is wrong. Hateful rhetoric has every place in the classroom, and bans on all ideas deemed “hateful” by someone would require massive repression. The goal of a challenging university must be to make students uncomfortable at times.

    Although Act 202 is a terrible law, it’s important to point out that this law does not allow Adams to be suspended. Act 202 only allows colleges to do two things in response to complaints: Provide the information to the trustees, and “refer” them “for consideration in employee reviews and other tenure and promotion decisions.”

    It does not authorize censoring classes or removing teachers on the grounds of intellectual diversity. In fact, Act 202 specifically prohibits this action because it says that institutions cannot “Limit or restrict the academic freedom of faculty members or prevent faculty members from teaching, researching, or writing publications about diversity, equity, and inclusion or other topics.”

    Obviously, banning a professor from teaching because they used a chart about white supremacy is a direct violation of this provision of Act 202. By suspending a professor from a class and invoking this law, the Indiana University administration is going far beyond the requirements and the authority of the law, and Indiana officials are violating the Bill of Rights, Act 202 and their own policies.

    The unjustifiable, illegal suspension of Adams without due process is yet another act of repression by Indiana University officials.

    But the attack from Act 202 in the name of intellectual diversity has a long history. The right has taken the language of the left, mockingly imitating the words and then turning them into tools of repression.

    In 2003, David Horowitz urged conservatives to “use the language that the left has deployed” and declare that there is “a lack of ‘intellectual diversity’ on college faculties.” Horowitz tried to invoke “academic freedom” to justify suppressing it, creating the Academic Bill of Rights and his “Students for Academic Freedom,” claiming that protecting the rights of students meant banning professors from expressing political views.

    Horowitz’s terrible idea is implemented in Act 202, where one fireable offense is the crime of being deemed by trustees “likely” while teaching “to subject students to political or ideological views and opinions that are unrelated to the faculty member’s academic discipline or assigned course of instruction.” One problem is that no evidence of any misconduct is needed, simply a feeling that a professor might be “likely” to say something forbidden. But the deeper flaw is the belief that professors should not be allowed to say anything unrelated to their classes.

    The AAUP’s standard is for “teachers to avoid persistently intruding material which has no relation to their subject.” It’s not the presence of any ideas unrelated to a class that violates academic norms, but only persistently intruding material. And this rule must be applied in a viewpoint neutral manner. Colleges cannot punish unrelated speech about politics more than they punish unrelated speech about football or the weather or any other topic. By targeting political viewpoints alone for penalties, SB 202 clearly violates the First Amendment.

    Heterodox Academy, an organization that advocates for viewpoint diversity, spoke out strongly against these repressive aspects of Act 202. Joe Cohn warned: “The trustees’ guess that the faculty member is likely to ever express a political or ideological view that isn’t germane to the class is sufficient to justify the denial of promotion or tenure.”

    These kinds of massive, totalistic bans on speech have an enormous chilling effect in practice, since no one knows what ideas could be deemed “unrelated” to a professor’s field by a trustee who knows nothing about that field.

    Indiana has legislated Horowitz’s old dream of banning politics from the classroom, which in practice is meant to be a targeted attack on the expression of left-wing viewpoints.

    When we resist bad laws like Act 202 by attacking intellectual diversity, we end up undermining the values we’re trying to protect and undercutting public support. Instead of denouncing the concept of intellectual diversity, we ought to say instead that we are defending intellectual diversity against those who cynically or misguidedly invoke it in order to destroy it.

    In the past century, no concept has done more to protect intellectual diversity than tenure. Act 202, by creating a post-tenure review by trustees with no competence to judge academic work, undermines tenure and endangers intellectual diversity rather than defending it.

    The Indiana law, by weakening tenure protections, is one of the greatest threats to intellectual diversity in the state. We need to attack the “intellectual diversity” law not because we oppose intellectual diversity, but because we support it. We want professors to be judged by their academic work, not by their political views, and we want academic work to be judged by academic experts rather than unqualified political appointees, because intellectual diversity is endangered when academic freedom and shared governance are attacked.

    This week, I spoke about Indiana’s intellectual diversity law as part of a panel on academic freedom at Purdue University Northwest (an event funded by the University of Chicago’s Forum for Free Inquiry and Expression as part of its Academic Freedom Institute). And while attacks on academic freedom can inspire some people to mobilize against the threat, the far more common response is fear and silence.

    In an atmosphere of budget cuts, no one is safe. We’re all contingent now, even the diminishingly few faculty with tenure in places where tenure still means something, because entire departments can be whacked to pieces as easily as a controversial adjunct professor is not rehired.

    Indiana’s Act 202 attacks intellectual diversity. And when administrators violate the law to suspend faculty for presenting controversial views, academic freedom is under even greater threat.

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  • They Attack Because Higher Ed Is Strong, Not Weak (opinion)

    They Attack Because Higher Ed Is Strong, Not Weak (opinion)

    Academics are cynics. We have to be. We critique our students, our peers and ourselves. It’s how we were trained. It’s how we write and publish and secure grants. But sometimes you have to know when to declare victory.

    There is a lot that is troubling higher education. The Trump administration is canceling research grants, changing indirect cost rates, proposing cuts to future federal research funding and reductions in the size of need-based Pell Grants, and raising taxes on some university endowments. States are banning critical race theory or other “divisive concepts”; dissolving diversity, equity and inclusion programs; attacking faculty unions; and undermining tenure. In many parts of the country, enrollment is down. It is easy to focus on the moment. It is easy to focus on problems within our departments, within the dean’s office or within the university.

    If instead of looking at President Trump’s first 100-plus days, we look at higher education as an institution over the past 100-plus years, it becomes clear we should be celebrating higher education’s triumph and not bemoaning its demise. A century ago, U.S. universities lagged their European counterparts. In fact, many universities that are household names today were still teachers’ colleges (San Diego State University was San Diego State Teachers College) or had yet to be founded (the University of California, San Diego). Ivy League campuses like Harvard, Princeton and Yale Universities actively excluded Jewish and Black applicants. The concepts of academic freedom and tenure were nascent. The National Science Foundation did not exist.

    Universities did great things during the 20th century. Presidents and faculty found strength and legitimacy through relevance. They helped in the all-out effort to win the Second World War. Universities anticipated the needs of the Cold War. Research labs produced products that improved people’s daily lives. The University of Minnesota patented Honeycrisp apples. The University of Wisconsin patented fortifying milk with vitamin D.

    Universities not only solved practical problems, but they also helped us understand ourselves. Faculty explored and legitimized new areas of study: women’s studies, ethnic studies, area studies. They fused disciplines to create fields to understand our bodies and our minds, such as neuroscience and biotechnology.

    As universities expanded graduate education, they trained cadres of researchers and professionals who populated state, federal and international agencies. For instance, the rise of the global environmental movement has been traced to the emergence of communities of actors with similar scientific understanding and motivations to identify and address hazards. The almost exponential increase in university training and science production was not limited to our shores; it was global. Over the 20th century, the rapid expansion of mass schooling, up to and through higher education, sparked the education revolution and created a “schooled society.”

    The Challenge

    Many faculty talk about higher education as though it is weak, when arguably it has been the most successful and influential social institution over the past 100 years. If we take a longer-term view, higher education has not lost. Higher education won. But the game is being reset.

    Higher education’s victories were hard fought. They were political. They were negotiated. They required collective action. Through decades of fighting, universities moved past excluding applicants based on race and sex. Then for decades they used affirmative action, followed by holistic review, to more equitably admit students. They established norms for academic freedom and tenure. They became sites for open debate and social and political protest.

    These types of wins are not easy to come by. They require common principles and interests and a shared sense of what counts as knowledge and how the world works. It is hard to mobilize if everything is socially constructed and morally relative and if we look for ways to critique rather than concur.

    Our challenge in this new era is primarily one of legitimacy. Too many politicians and voters see us as illegitimate because too much of what we do is irrelevant. I have had my work on voter turnout criticized for not correctly guessing which of the following was the reviewer’s preferred term: Chicano, Chicana/o, Chicano/a, Chicanx, Hispanic, Latina and Latino, Latina/o, Latino/a, Latin@, Latinx, Latine. Though there is a place for thinking about names and their usage, the point of the paper was: How do we get more Hispanic students to vote?

    The Good News

    Some of the most direct efforts to limit the influence of higher education are occurring on our own turf. Moneyed interests and Trump acolytes have sought to create conservative centers at Ohio State University, the University of Texas at Austin and the University of Florida. When centers like these are founded, we should recognize that we have the home court advantage. We should engage with their leaders and faculty—we are not outnumbered. We should send our students to enroll in their courses and invite their students to dialogue with us. We have immense forms of cultural and social capital and vast networks. Our disciplines have rich traditions for ways of understanding the world and addressing its problems. We have insightful perspectives for understanding the human condition, thinking about natural law and questioning what the social contract should look like in the 21st century.

    We should look back to how faculty made such strong advances in the last century. For instance, in 1915, the American Association of University Professors adopted a Declaration of Principles. That document served as the foundation for the future 1940 Statement of Principles on Academic Freedom and Tenure, which was jointly developed with the Association of American Colleges (now the American Association of Colleges and Universities). The 1940 document was so promising because it represented agreement between faculty and university leaders.

    Those documents are worth revisiting for both their substance and process. For example, we should remind our detractors that academic freedom comes with concomitant responsibilities. We are criticized for attempting to brainwash America’s youth, but the AAUP’s 1915 Declaration of Principles states,

    “The university teacher, in giving instruction upon controversial matters, while he is under no obligation to hide his own opinion under a mountain of equivocal verbiage, should … set forth justly, without suppression or innuendo, the divergent opinions of other investigators; he should cause his students to become familiar with the best published expressions of the great historic types of doctrine upon the questions at issue; and he should, above all, remember that his business is not to provide his students with ready-made conclusions, but to train them to think for themselves.”

    In the world of social media and generative artificial intelligence, training students to think for themselves may be more important than ever. As faculty, we should practice thinking like the early leaders of the AAUP and seek to build national solidarity and articulate a shared purpose for higher education.

    We should accept that conservative politicians are attacking higher education not because it is weak but because it is so strong. In this time, we must rededicate ourselves to a cause that will outlast our careers, a cause worthy of the collective efforts of generations of scholars. We must advance the public good. By improving the public good, we will be relevant, and by being relevant, we will reclaim legitimacy. We must show that we can do what Google and ChatGPT cannot: We can train students to think and to be good citizens.

    Frank Fernandez is an associate professor of educational leadership and policy analysis at the University of Wisconsin at Madison. He writes about the role of higher education in society.

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  • What DOJ Letters to UVA Say About Trump Attack on Higher Ed

    What DOJ Letters to UVA Say About Trump Attack on Higher Ed

    Before James Ryan stepped down as president of the University of Virginia last month, the Department of Justice accused him and other leaders of actively attempting to “defy and evade federal antidiscrimination laws.” Harmeet Dhillon, assistant attorney general of the DOJ’s civil rights division, said that needed to change.

    “Dramatic, wholesale changes are required, now, to repair what appears to be a history of clear abuses and breaches of our nation’s laws and our Constitution by the University of Virginia under its current administration,” she wrote.

    In a series of seven letters obtained by Inside Higher Ed via an open records request, Dhillon and other Department of Justice officials laid out their increasingly aggressive case that the university was at risk of losing federal funding, just as Ivy League institutions like Harvard and Columbia Universities had in the months prior for allegations of antisemitism. The Cavalier Daily first published the letters in full.

    Taken together, the letters sent between April 11 and June 17 were used to launch what the DOJ called an investigation but that legal experts say is among the latest instances in an all-out pressure campaign against higher education.

    Dhillon and the DOJ have defended their actions, stating multiple times that they did not explicitly call for Ryan’s resignation.

    But now, with similar investigations launched against George Mason University (also located in Virginia), many onlookers view these letters as a template for how President Trump will continue to leverage federal funding to impose his priorities on colleges and universities across the country—altering who is admitted and what is taught and by whom. Higher education experts say it’s an aggressive tactic that will create a climate of uncertainty for years to come.

    “There is not much pushback that that administrators—President Ryan or others—can make, if they want to continue receiving these funds and performing the research that they do,” said Brandt Hill, a partner and litigator with the higher education practice group of Thompson Coburn LLP. “This is all about collecting scalps that [the Trump administration] can then publicize. Each time Trump gets a win, that gives it a snowball effect and gives the impression that he can do it elsewhere.”

    Here is a copy of each letter and three key takeaways about what the letters say.

    Expanding Reach of Affirmative Action Ban

    At the crux of the department’s demands outlined in the letters is the claim that UVA has failed to provide equal opportunity and has violated Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin.

    To justify the allegations, the letters repeatedly cite the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard, which barred colleges from considering race in admissions, as well as President Trump’s executive orders against diversity, equity and inclusion, which aim to expand the high court’s ruling to all campus scholarships and programs.

    Compliance with the Civil Rights Act as well as the administration’s interpretation of Supreme Court’s ruling and the president’s orders, Dhillon states, “is not optional.”

    “Moreover,” the June 16 letter states, “you will certainly recall Attorney General of Virginia Jason Miyares’ admonition that the UVA Board of Visitors and the president of the university are public officials of the Commonwealth of Virginia who owe fiduciary duties and duties of loyalty first and foremost to the Commonwealth, not the interests or ideologies of university administrators or faculty members.”

    And while the department does have the grounds to investigate a possible consideration of race in admissions, extrapolating that to scholarships and other aspects of campus life does not have the same legal backing and precedent, higher ed legal experts said. In February, the Education Department attempted to extend the ban to cover all race-based programming and activities, but a federal judge blocked that guidance in April.

    Jodie Ferise, a partner at Church Church Hittle + Antrim, a higher education–focused law firm in Indiana, noted that the second sentence of the April 11 letter describes the alleged racial discrimination as “immoral.” That’s not by accident, she said.

    “It’s a barely disguised method of pandering to a constituency that no longer has a particular political issue to cling to” when they vote, as the Supreme Court did bar colleges from using affirmative action, Ferise said. “We’re holding up actions that heretofore have been looked at as very moral things, like trying to have more doctors or lawyers of color or women in engineering … Now, to frame them as being very immoral is really an interesting thing to do.”

    Sweeping Demands Created Pressure

    In addition to new and untested legal interpretations, the DOJ’s letters are also unprecedented in the breadth and urgency of their demands.

    Typically, a letter from the department would follow a specific complaint and be more narrow, legal experts explained. But in this case, DOJ officials begin with vague allegations and make sweeping requests that would be difficult—if not impossible—for a university to comply with in a limited amount of time.

    For example, in the first two letters in which the Trump administration asks UVA to certify its compliance with the Supreme Court’s ruling in SFFA v. Harvard, DOJ officials gave university administrators just two weeks to collect and submit “any and all relevant documents guiding your admissions policies and procedures.” Additionally the assistant attorney general asks for “all admissions data for the past five academic years, including applicant test scores (SAT/ACT), GPA, extracurricular activities, essays, and admission outcomes, disaggregated by race and ethnicity,” as well as “any and all relevant documents about your policies and procedures relating to scholarships, financial assistance, or other benefits programs.”

    In the third letter, sent April 28, DOJ officials expanded the list of demands to include all DEI programming.

    “The department says it hasn’t reached any conclusions regarding the University of Virginia’s liability, but I don’t think the department ever really planned to make any final conclusions or planned to receive all the documents and carry out an exhaustive investigation,” said Hill from Thompson Coburn.

    The deadline was later extended by one week, but multiple sources said that still wouldn’t be enough time. And it wasn’t until the fourth letter, sent May 2, that DOJ officials first cited a direct complaint. (The complaint officials referred to was focused on antisemitism, not racial discrimination.)

    John Pistole, former deputy director of the Federal Bureau of Investigation and president emeritus of Anderson University, said he was shocked by how “aggressive” the DOJ was “right out of the gate.” The Trump administration, he added, is likely trying to “bury” colleges in “discovery, basically—motions, if you will.”

    Although the letters do give UVA officials a chance to comply voluntarily by making changes to the university’s campus policies and programs with no penalty, the threat of losing access to federal aid places an abnormal pressure on the institution, Pistole and others said.

    “At what point does all the negativity associated with that become a bargaining chip for the DOJ?” he asked. “At what point does it make sense to say, ‘OK, you win and we’ll comply?’”

    Up until the sixth letter, sent June 16, DOJ officials addressed both the university’s president and its board, but after that, only the board is listed as a recipient. The letter states that “Ryan and his proxies are making little attempt to disguise their contempt and intent to defy these fundamental civil rights and governing laws.” DOJ officials never explicitly requested Ryan’s resignation.

    “I don’t think the Department of Justice wants to put that threat on the table in a formal letter, because I’m not even aware that there is any such kind of authority to force a president to resign,” said Hill. “But the undertone here is that President Ryan needs to be ousted or else this is going to continue.”

    No Clear DEI Definition

    Moving forward, legal experts say, the key question will be whether the DOJ has the authority to probe DEI programs on campus.

    Multiple lawsuits have been filed against the president’s executive order at the heart of the investigations. A district judge blocked the order, but an appeals court overturned that national injunction in March.

    “The whole problem here is no one really has a clear understanding of what DEI extends to,” Hill said. “Until there is some more definitive interpretation, perhaps by the Supreme Court, then federal agencies are going to continue to carry out the president’s ideological view.”

    But in the meantime, what colleges will deal with, Pistole said, is tension over federal funding and a precarious relationship with the government, regardless of who is in charge.

    “Most boards are focused on, how do we best resolve this and get out of the bull’s-eye, because nobody wants to be the focus of intense, persistent scrutiny by a government agency that has the ability to impact your livelihood,” he said. “And the concern is for not just this administration, but what happens in the next administration—whoever it is, fill in the blank. If the policies are changed dramatically by the new administration, that reliability, predictability and the autonomy of higher education would be disrupted.”

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  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

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  • After brazen attack on expressive rights, faculty at Sterling College aren’t in Kansas anymore

    After brazen attack on expressive rights, faculty at Sterling College aren’t in Kansas anymore

    Professor Pete Kosek was a leading voice for the faculty at Sterling College — a small, private Christian college in central Kansas — when negotiating changes to the college’s employee handbook. Ken Troyer, another Sterling professor, spoke out as well, including statements to the media about concerns he had with Sterling administrators’ communication with faculty and about a vote of no confidence in the college’s president.

    For these exercises of basic faculty expressive rights, Sterling has now punished them both for exhibiting “behavior that is fundamentally inconsistent” with Sterling’s mission. But it’s these punishments that are “fundamentally inconsistent” with Sterling’s promises that its faculty enjoy “free expression, on and off campus.”

    FIRE wrote to Sterling on April 3, 2025, articulating our concerns. Its administration ignored us, so today we’re writing to the college again as well as its board of trustees, urging them to reverse the punishments of Kosek and Troyer.

    College clashes with faculty over revisions to the employee handbook

    In 2023, Sterling faculty received a new version of Sterling’s employee handbook. Faculty voiced concerns about whether faculty were obligated to sign the handbook’s acknowledgement, which appeared to require that faculty affirm Sterling’s institutional stance on marriage, life, gender identity, and human sexuality. For example, a provision in the handbook stated: “[m]arriage is designed to be the lifelong uniting of one man and one woman in a single, biblical, covenant union as delineated by Scripture.” 

    Concerned that this may adversely impact faculty who were divorced, Kosek led a group of faculty members in negotiating changes to the handbook. Over the course of a year, he went back and forth with Sterling administrators about making sure the handbook could be modified so that it didn’t single out divorced faculty for adverse action. 

    On Aug. 21, 2024, Kosek emailed a large group of faculty members informing them he believed he and anyone else would be fired if they did not sign the handbook acknowledgement. Kosek also told the administration that while he would abide by the terms of the handbook, he disagreed with how the administration went about communicating with faculty and instituting the new handbook. Two days later, the administration clarified that while faculty were expected to abide by the terms of the handbook, they would not be terminated for not signing it. Kosek subsequently clarified this to the rest of the faculty. The situation seemed resolved, right? Wrong.

    Months later, on Feb. 25 of this year, administrators summoned Kosek to a meeting and gave him a disciplinary warning. They told him that it was because he allegedly misrepresented the college when he told other faculty that he believed he and others would be fired over not signing the handbook’s acknowledgement. Sterling provided Kosek no real opportunity to defend himself from the charge.

    Troyer, meanwhile, received a nearly identical disciplinary warning on the same day as Kosek, purportedly because of his comments to the media criticizing Sterling’s poor communication with faculty. (This poor communication was a major reason why a group of faculty supported a no-confidence vote in Sterling’s leadership.) Troyer had also discussed the inclusion of non-Christian students at the college, and how that inclusion related to Sterling’s Christian mission. 

    Similar to Kosek, Troyer had no real opportunity to defend himself. He was just expected to take the disciplinary warning and keep his mouth shut. 

    If Sterling’s mission required absolute and unquestioning obedience to the administration, this might be understandable. But these punishments cannot be squared with the policies actually laid out in Sterling’s faculty handbook. That handbook does not demand unthinking fealty, but imposes on “students, faculty members, administrators and trustees” the obligation “to foster and defend intellectual honesty, freedom of inquiry and instruction, and free expression on and off campus.” As if anticipating the exact scenario facing both Kosek and Troyer, Sterling adds in the handbook, “administrators should respect the right of faculty members to criticize and seek revision of institutional regulations.” 

    FIRE’s first letter explained why the college could not square its punishment of Kosek with Sterling’s written commitments. Under First Amendment jurisprudence and at most private colleges (like Sterling) faculty members retain the right to comment on matters of public concern — and one of those concerns is how the college is being run. Indeed, faculty members are often among the most important voices regarding how colleges and universities operate since they witness firsthand the impacts of institutional policies. 

    Sterling blew FIRE off. So now we’re taking this up the chain and writing to the Board of Trustees as well as the college. When a private institution like Sterling makes promises in its handbooks to faculty, it must keep those promises. To violate them with impunity is to undermine trust and credibility. 

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  • Education research takes another hit in latest DOGE attack

    Education research takes another hit in latest DOGE attack

    Education research has a big target on its back.

    Of the more than 1,000 National Science Foundation grants killed last month by Elon Musk’s Department of Government Efficiency, some 40 percent were inside its education division. These grants to further STEM education research accounted for a little more than half of the $616 million NSF committed for projects canceled by DOGE, according to Dan Garisto, a freelance journalist reporting for Nature, a peer-reviewed scientific journal that also covers science news.

    The STEM education division gives grants to researchers at universities and other organizations who study how to improve the teaching of math and science, with the goal of expanding the number of future scientists who will fuel the U.S. economy. Many of the studies are focused on boosting the participation of women or Black and Hispanic students. The division had a roughly $1.2 billion budget out of NSF’s total annual budget of $9 billion. 

    Related: Our free weekly newsletter alerts you to what research says about schools and classrooms.

    Neither the NSF nor the Trump administration has provided a list of the canceled grants. Garisto told me that he obtained a list from an informal group of NSF employees who cobbled it together themselves. That list was subsequently posted on Grant Watch, a new project to track the Trump administration’s termination of grants at scientific research agencies. Garisto has been working with outside researchers at Grant Watch and elsewhere to document the research dollars that are affected and analyze the list for patterns. 

    “For NSF, we see that the STEM education directorate has been absolutely pummeled,” Noam Ross, a computational disease ecologist and one of the Grant Watch researchers, posted on Bluesky. 

    Terminated grants fall heavily upon STEM Education 

    Graphic by Dan Garisto, a freelance journalist working for Nature

    The steep cuts to NSF education research follow massive blows in February and March at the Department of Education, where almost 90 research and data collection projects were canceled along with the elimination of Regional Education Laboratories and the firing of almost 90 percent of the employees in the research and data division, known as the Institute of Education Sciences.

    Many, but not all, of the canceled research projects at NSF were also in a database of 3,400 research grants compiled by Sen. Ted Cruz, a Texas Republican. Cruz characterized them as “questionable projects that promoted Diversity, Equity, and Inclusion (DEI) or advanced neo-Marxist class warfare propaganda.”  

    Ross at Grant Watch analyzed the titles and abstracts or summaries of the terminated projects and discovered that “Black” was the most frequent word among them. Other common words were “climate,” “student,” “network,” “justice,” “identity,” “teacher,” and “undergraduate.”

    Frequent words in the titles and summaries of terminated NSF research projects

    Word cloud of the most frequent terms from the titles and abstracts of terminated grants, with word size proportional to frequency. Purple is the most frequent, followed by orange and green. Source: Noam Ross, Grant Watch

    At least two of the terminated research studies focused on improving artificial intelligence education, which President Donald Trump promised to promote in an April 23 executive order,“Advancing Artificial Intelligence Education for American Youth.” 

    “There is something especially offensive about this EO from April 23 about the need for AI education… Given the termination of my grant on exactly this topic on April 26,” said Danaé Metaxa in a post on Bluesky that has since been deleted. Metaxa, an assistant professor of computer and information science at the University of Pennsylvania, was developing a curriculum on how to teach AI digital literacy skills by having students build and audit generative AI models. 

    Related: Chaos and confusion as the statistics arm of the Education Department is reduced to a skeletal staff of 3

    Another canceled grant involved college students creating educational content about AI for social media to see if that content would improve AI literacy and the ability to detect misinformation. The lead researcher, Casey Fiesler, an associate professor of information science at the University of Colorado Boulder, was almost midway through her two-year grant of less than $270,000. “There is not a DEI aspect of this work,” said Fiesler. “My best guess is that the reason it was flagged was the word ‘misinformation.’”

    Confusion surrounded the cuts. Bob Russell, a former NSF project officer who retired in 2024, said some NSF project officers were initially unaware that the grants they oversee had been canceled. Instead, university officials who oversee research were told, and those officials notified researchers at their institutions. Researchers then contacted their project officers. One researcher told me that the termination notice states that researchers may not appeal the decision, an administrative process that is ordinarily available to researchers who feel that NSF has made an unfair or incorrect decision. 

    Related: DOGE’s death blow to education studies

    Some of the affected researchers were attending the annual meeting of the American Educational Research Association in Denver on April 26 when more than 600 grants were cut. Some scholars found out by text that their studies had been terminated. Normally festive evening receptions were grim. “It was like a wake,” said one researcher. 

    The Trump administration wants to slash NSF’s budget and headcount in half, according to Russell. Many researchers expect more cuts ahead.

    Contact staff writer Jill Barshay at 212-678-3595, jillbarshay.35 on Signal, or [email protected].

    This story about NSF education research cuts was written by Jill Barshay and produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for Proof Points and other Hechinger newsletters.

    The Hechinger Report provides in-depth, fact-based, unbiased reporting on education that is free to all readers. But that doesn’t mean it’s free to produce. Our work keeps educators and the public informed about pressing issues at schools and on campuses throughout the country. We tell the whole story, even when the details are inconvenient. Help us keep doing that.

    Join us today.

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  • Penn to Lose Security Clearance in Trump Attack

    Penn to Lose Security Clearance in Trump Attack

    President Donald Trump signed a directive Wednesday removing the security clearances of University of Pennsylvania community members, the latest government action to pummel the president’s alma mater.

    In the directive, Trump, a 1968 Wharton School of Business graduate, ordered the Department of Justice to investigate Miles Taylor, a former senior Department of Homeland Security official who has criticized the president, including in a 2018 New York Times op-ed and in a book in which he alleges presidential misconduct during Trump’s first term.

    Taylor taught an undergraduate course at Penn in fall 2023 called The Future of Conservatism and the GOP, according to The Daily Pennsylvanian, and it’s this tie that has put Penn in the crosshairs.

    Trump’s memo asks the attorney general, the director of national intelligence and other relevant department and agency heads to suspend the security clearances held by Taylor “and any individuals at entities associated with Taylor, including the University of Pennsylvania.”

    According to The Philadelphia Inquirer, Penn does not conduct classified research and has no security clearance.

    “The University does not possess a government security clearance and cannot as a corporate entity possess classified material,” the website states. “It is the policy of the university not to accept agreements which require access to classified data, require university employees to obtain security clearances, or restrict the dissemination of the results.”

    Penn is also currently facing a $175 million funding freeze from the federal government, announced in March, related to participation of a transgender athlete on the women’s swimming team in 2022. The university was further affected by visa revocations of international students and scholars earlier this week.

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  • DEI Under Attack: The Truth from the Frontlines of Academia

    DEI Under Attack: The Truth from the Frontlines of Academia

    Moderator: Dr. Jamal Watson, Professor Trinity Washington University, Executive Editor of Diverse: Issues In Higher Education.                                                 

    Panelists:

    Dr. Michael Eric Dyson, Distinguished Professor, Vanderbilt University

    Dr. Christina Greer, Associate Professor, Fordham University,

    Dr. Annette Gordon Reed, Professor, Harvard University  

    Natasha S. Alford, SVP, The Grio.

    The 2025 National Action Network (NAN) Convention continues to be a clarion call for justice, strategy, and truth-telling. In a climate where DEI (Diversity, Equity, and Inclusion) is being vilified, this year’s panels didn’t hold back. Amid attacks on civil rights, public education, and academic freedom, one of the most critical conversations came from a powerful panel of scholars and journalists who delivered an unflinching perspective on the state of DEI in higher education and beyond.

    As states roll back DEI programs and silence academic voices, these experts stood firm and affirmed that this is not simply a political moment—it’s a moral crisis.

    The War on DEI: A Strategic, Anti-Black Attack Pam McElvanePam McElvane

    Panelists opened with a clear message: what’s happening now is not new—it’s a rebranding of old tactics. As one professor framed it, “We are the canaries in the coal mine.” The dismantling of DEI isn’t isolated, it’s a warning of broader regression.

    They urged us to stop abbreviating “DEI.” Say the words: Diversity, Equity, and Inclusion. The administration’s weaponization of the acronym has become a strategic assault to reassert white supremacy, particularly that of white male dominance. What we are witnessing, they said, is anti-Black racism cloaked in policy and politics.

    This is not a slip or misunderstanding—it is a calculated dismantling of progress.

    The Media and the Misuse of “Woke”

    Journalist Natasha Alford shared how mainstream media has failed to accurately report the DEI backlash. “They took our word—woke—and twisted it into something divisive and dangerous,” she said. The original term was meant to empower and enlighten people of color, yet now it’s used as a slur to silence those demanding equity.

    She called out the need for media literacy among our youth, who are often misled or confused about what’s true. “We must leverage today’s information cycles to educate, not manipulate,” Alford said. Following Black media outlets that tell the truth—like The Grio, Roland Martin Unfiltered, and others—is critical to staying grounded in reality.

    DEI is About Competition—and They Don’t Want That

    Dr. Michael Eric Dyson laid the issue bare: Diversity forces competition, and some in power are unwilling to compete. “When America wants to segregate again, it’s because it longs for a time when it didn’t have to compete with us,” he declared.

    He challenged not only the far right but also white liberals who remain silent, excusing their inaction. “Diversity is what makes America what it is. Equity means recognizing that not everyone starts in the same place. Inclusion means everyone belongs,” he said. And we must beware of the temptation to accept compromises or “payoffs” from those who ultimately seek to suppress our progress.

    Collateral Damage: The Loss of Intellectual and Scientific Power

    Beyond social issues, this anti-DEI movement threatens the entire intellectual infrastructure of the nation. The cancellation of Pell Grants and threats to federal funding for universities that support DEI policies don’t just impact Black communities—they hurt poor and working-class white students too.

    Researchers—some of the greatest minds of our time—are losing funding, careers, and platforms. “We’re watching the dismantling of the very fabric that holds America’s innovation and academic leadership together,” one professor warned.

    What Do We Do Now? Marching Orders for the Movement

    The panel didn’t just offer critique—they offered marching orders:

    • Invest in Black institutions, including churches and Historically Black Colleges and Universities (HBCUs), that are doing the work.
    • Raise your voice. Universities must return to being incubators for critical thought and independent minds.
    • Educate our children at home. If public schools are being silenced, churches and families must step in.
    • Support leaders who support us—vote with intention and integrity.
    • Read—daily. Even just 15 minutes of truth can change your perspective and fuel your power.

    They reminded us that history holds the answers: “We’ve already come through what we’ve been through,” one speaker said. We were once outlawed from reading, yet we learned to read in secret and built institutions that shaped this country. We must now read, remember, and reclaim our narrative.

    A Final Word: This Is the Time to Fight

    “Welcome, white America, to the Black experience,” one professor said, poignantly summing up this moment. As this administration strips away rights, rewrites history, and silences voices, it’s more important than ever to stand on truth.

    This isn’t the end—it’s the beginning of a new resistance. And we must fight not just to be seen or heard—but to lead.

    Pam McElvane is the CEO & Publisher of Diversity MBA Media.

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  • Higher Ed Under Attack Makes the Work More Important

    Higher Ed Under Attack Makes the Work More Important

    Earlier this week, University of North Carolina professor and New York Times columnist Tressie McMillan Cottom remarked on BlueSky, “It’s so weird that we’re all working like this is just a normal country.”

    Indeed, I have recently been struck repeatedly by the immediate juxtaposition of the banal, logistical work of being a freelance writer and speaker and the fact that the stuff I write and speak about—teaching, academia, et al.—are under concerted attack as part of a larger assault on democratic institutions, to the point where one wonders if they’re going to collapse entirely.

    I’ve accepted speaking invites for six months from now wondering if we will still have operating higher education institutions six months from now. I mean, I think we will, but at this moment I wouldn’t 100 percent guarantee it, which is a strange thing to even consider given that some of these places are literally hundreds of years old.

    I even just accepted an invitation to speak at a teachers’ conference in Alberta, Canada, in April 2026, and even as I signed the contract I wondered if we will still be able to travel freely between the U.S. and Canada by then.

    It strikes me that part of the strategy of those currently committing these assaults on democracy is to create this kind of cognitive dissonance. Every day brings a new example of something we didn’t think could happen: disappearing people to foreign countries without even a semblance of due process, dismantling the federal infrastructure around cancer research, a president speculating about a third term and it being taken seriously as a question of legality.

    That’s just this week, by the way.

    The discordancy is probably greater for those working in or adjacent to higher ed, as the sector finds itself so directly in the Trump administration crosshairs. There is more not-normal in education than elsewhere right now, though the recently announced tariffs suggest that not normal is now going to be extended worldwide.

    It strikes me that we are on one of two possible trajectories. One is essentially a slide into what scholars call competitive authoritarianism, where there are some external trappings of democratic society like courts and elections still existing, but where the fix is largely in as to who and what maintains power. Hungary and Turkey are the two most obvious examples that experts cite, but we’re seeing plenty of evidence for joining them right here at home.

    The so-called Big Law firms that have capitulated to Trump and pledged to do hundreds of millions of dollars of legal work in exchange for being removed from the target list seem like examples of organizations that are making their bet that they can survive in a nondemocracy provided they’re willing to curry favor with power. Republican office holders seeking to carve out exceptions from Trump tariffs for their state’s industries are another example.

    So too are the higher ed institutions, such as Columbia, bending the knee to Trump. They apparently view their continued existence—be that in a democratic society or something else—as more important than protecting values like academic freedom or the First Amendment. Noah Feldman, a Harvard Law professor who apparently is an expert on First Amendment law, sees these responses (as characterized by The New York Times) as “rational,” saying, “Sometimes people who are eager for the university to get up and make big statements have a slightly unrealistic conception of what the real-world effect of those statements would be.”

    One of the upsides of the present turmoil—and it is a very small upside, I admit—is that folks are showing their true stances when it comes to the occasional fraught intersection of their purported values and material reality. Here is an esteemed First Amendment lawyer who is willing to countenance an unprecedented assault on academic freedom because the “real-world” consequences are apparently too great.

    I have often lamented in this space how there has appeared to be a significant disconnect between the lofty ideals attached to higher education and how many higher education institutions act when they have a choice between living their mission or funding their operations. Feldman makes it clear which side of the divide he sits on, and he is not alone.

    The other possible trajectory is that the sheer incompetence and erratic nature of Trump and those who surround him will lead to an unraveling of the assault as it implodes under the weight of public disapproval. The recent election results in Wisconsin and Florida, which showed a significant swing toward Democrats, suggest that if the public is activated and motivated, there is sufficient sentiment to defeat Trump and Republicans at the ballot box—provided we still have elections, that is.

    Personally, I keep returning to the question I asked back in February: “What’s next for higher ed?” My argument that one era was over and another is to come has only been made stronger over the last month and a half. There is no going back for Columbia University. They have chosen to be something other than what they previously claimed to be. I’m certain Columbia will survive in some form, but we should not be asked to pretend that they are an example of the values we’d like to claim for higher education institutions.

    Most days, I am both freaked out and hopeful, which is maybe my answer to Cottom’s musing about how we’re able to act like we’re living in a normal country. Part of the time I’m freaked out, certain that we are decidedly not a normal country and we are hurtling toward disaster.

    But other times I am doing work that I think advances the values of free inquiry and personal freedom and development. I imagine going to some college or university six months from now, where we will talk about the importance of human expression through the act of writing, and then after that maybe I sit down to write a blog post, forcing myself to grapple with the world in front of me and make sense of it, even when, or especially when, it appears senseless.

    Next thing you know, some thoughts have been gathered and you share them with the world.

    When I first read the BlueSky post, I imagined that Cottom was thinking that we’re experiencing a disconnect or disassociation that allows us to deny the weirdness and even terror happening around us, but I think it’s the opposite.

    I think it’s a sign that the work matters and that we must throw our continued support behind the leaders and institutions who are pledging to make the work that remains consistent with educational values possible. I don’t know how Feldman’s soft capitulation gets us there.

    Bring me the fighters.

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