Tag: coming

  • Nils Gilman on Trump’s coming assault on universities (Matthew Sheffield, Theory of Change)

    Nils Gilman on Trump’s coming assault on universities (Matthew Sheffield, Theory of Change)

    The second term of Donald Trump has officially begun, but despite all the things he’s unveiled in the past several weeks, we don’t know fully what his policies are going to be over the next four years. 

    That is in part because Trump himself is a very erratic figure who says things that are nonsensical, even by his own standards. And also because while there are documents such as Project 2025 which were created by Trump’s ideological allies in the reactionary movement, that document itself is not particularly detailed in a number of ways.

    But one thing we can be sure is going to happen in the second Trump administration is that he will conduct a full-scale assault on America’s colleges and universities. As a candidate, he did promise to create taxes on private university endowments. And he also talked about removing the funding for universities that don’t bow to his various censorship demands.

    Unlike a number of other Trumpian boasts and threats, he is very likely to follow through on these ones because Republicans in a number of states and localities have enacted many of the policies that Trump has talked about doing on the campaign trail.

    Joining me today to talk about all this is Nils Gilman, a friend of the show who is the chief operating officer at the Berggruen Institute, a think tank in Southern California that publishes Noema Magazine. He is also the former associate chancellor at the University of California, Berkeley, where he saw first-hand just what the [00:02:00] Republican vision for education in the United States is. He’s also the co-author of a new book called Children of a Modest Star, which we discuss at the end of the episode.
       

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  • Fairness and protection for students is coming – but not for those that need it now

    Fairness and protection for students is coming – but not for those that need it now

    As well as a new condition of registration on governance (covered elsewhere on the site by my colleague David Kernohan), the Office for Students (OfS) has announced a new approach focussed on providers “treating students fairly”.

    There will be a new condition of registration – replacing existing ones on consumer protection guidance and student protection plans – aimed at institutions providing students with clear, easy to access information about what will happen if changes are made to their course, and fair processes for refunds and compensation and complaints.

    Broadly, OfS will shift from expecting providers to pay “due regard” to guidance from the Competition and Markets Authority towards itself making judgements – both about compliance with consumer law, and some of its own higher standards for fairness.

    It says that students have told the regulator that they want to receive a high quality education that reflects their financial investment and the experience they were promised, and that they want to be treated fairly – but that while many students do not explicitly refer to their experiences as consumers, words such as “fairness” and “honesty” are often used when they describe specific experiences and promises that have not been met.

    As cuts continue across the sector, a heavy focus on financial sustainability both inside providers and the regulator almost certainly means an enhanced risk that students will feel unfairly treated when their courses or wider experiences shoulder the burden of savings reductions. Often those feelings will be legally justified.

    But the jaw-to-the-floor astonishing thing – given OfS’ positioning as a risk-based regulator – is that none of the new proposals in this area will apply to currently regulated providers:

    We recognise that proposing to strengthen protections and ensure consistency of information for students of providers registered under [new] proposed initial condition C5 would mean that different arrangements would be in place for different groups of students, depending on when their provider was registered.

    Changes to ongoing regulatory requirements for registered providers are not within the scope of the current consultation. However our ultimate aim is to strengthen protections and ensure consistency of information for all students at all OfS-registered providers. In doing so, we would aim to align ongoing requirements for all registered providers, and we therefore envisage that having different requirements for different providers would be an interim position.

    Proposals to achieve this alignment, and to ensure that all students are treated fairly on an ongoing basis, would form part of a future consultation on ongoing requirements for currently registered providers.

    That’s right – well over five years since the bones of its new approach were set out in a paper to its board, in a context where the risks to students in this space have intensified significantly, better protecting students inside providers already on the register is parked as an “ultimate aim” with an unspecified date. And so for some, what follows below shifts from “need to get across” to “of mild passing interest for the time being”.

    Doing so much harm, doing so much damage

    The main thrust of the new approach to “fairness” – telegraphed by Director for Fair Access and Participation John Blake last summer – has a couple of key components.

    First, rather than relying on the Competition and Markets Authority, or the courts, or National Trading Standards to take action or make a judgement over an issue, it’s taking that in-house.

    And to go alongside that, it’s taking existing legislation – mainly consumer protection law, but there’s other bits too – and adding to it to form a new mega-definition of what it considers to represent “fairness”, partly to address the cat-nip nature of the “consumer” nomenclature.

    As well as the engagement feedback it’s had from students, it’s doing this based on experience. Examples it has seen include omitting material information, like additional course costs or registration fees, leading students to make uninformed decisions.

    It says it’s come across providers withdrawing offers after acceptance due to over- or under-subscription, leaving students unable to secure alternative options and stuck with financial commitments like accommodation. It has also come across – and referred to trading standards – like contractual terms that limit providers’ obligations during staff industrial disputes that may prevent students from receiving adequate teaching or compensation.

    It’s also seen issues involving complaints processes that impose unreasonable barriers, like short submission windows, which hinder students from seeking redress and compensation.

    And it’s picked up on false or misleading advertising, including claims about financial aid, course accreditation, or a provider’s status as a university, that may mislead students into pursuing programs that fail to deliver expected outcomes – where as a result, students may complete courses only to find that their certificates lack the value or recognition they anticipated.

    One might ask, if it’s seen all of that in its current crop of registered providers, why it’s consulting on souping up its regulation only in newly registered providers for the time being.

    But you don’t wanna get involved

    But on the assumption (which, from experience, is a dangerous one) it gets there in the end, it’s worth looking at what it’s proposing in detail.

    First thing on fairness. Currently, providers have to demonstrate compliance with consumer protection law when they apply to be on the register – but are not required to show how they more broadly ensure “fair treatment” of students.

    This, it says, can result in situations where providers meet regulatory conditions but still have unfair policies or terms affecting students. So the proposed changes aim to better protect students by ensuring that providers’ policies and practices are fair and safeguard consumer interests consistently – avoiding a situation where students end up having to legally challenge unfair terms, and moving towards an approach of requiring providers to act fairly from the outset.

    In that lovely OfS way, it will then assess whether a provider treats students fairly through a requirement that identifies when a provider does not treat students fairly. The old “I don’t know what a seminar is, but a 100 people in a room isn’t one” is the vibe here.

    A bunch of negative behaviours will be set out, and assessments will evaluate whether providers meet the condition by identifying the presence or absence of those negative behaviours – a “streamlined process” that it says will result in a clear “satisfied” or “not satisfied” outcome.

    The specifics of that run like this. If actions (or omissions) either fall within one or more descriptions, which it proposes to set out in a separate “OfS prohibited behaviours list”, or give rise to a likelihood of detriment or actual detriment to the student (except where reasonable in all the relevant circumstances), then the application gets the big red “unfair” stamp.

    The definition of unfair treatment it’s proposing draws on consumer protection law and CMA guidance, which it says are already familiar to higher education providers (notwithstanding that a whole chunk of it is changing, which I looked at earlier on the site here). The key bit is that OfS is aiming to offer an additional layer of protection beyond editing legal requirements – the proposed list of negative behaviours is not confined to those explicitly prohibited by law.

    And for consumer law fans, contract terms that may be regarded as unfair according to the Consumer Rights Act 2015 (the so-called “grey list”) will always be unfair in OfS-world – particularly over changes to courses, refund and compensation policies and contract terms and conditions:

    We are proposing to consider documents beyond those that may ordinarily have contractual effect and the condition therefore has a wider scope than consumer protection law. Our initial view is that this is appropriate because students may rely on a wider range of documents in practice.

    Some will regard that as overreach – others will feel reassured that the square peg/round hold of applying consumer law to the relationship between student and university will be properly addressed.

    The other thing in here for consumer law detail fans is that the draft condition proposes that a provider would not be regarded as treating a student fairly if, in OfS’s reasonable opinion, its actions or omissions (including those that are proposed or likely) give rise to a likelihood of detriment or actual detriment to the student.

    That’s odd because, as I explained on the site a few days ago, consumer law and the way the CMA is proposing to apply it is moving away from a “detriment test” and towards banning some behaviours regardless.

    And excuses will be available – whether it is reasonable to argue that the course of action proposed or taken is, or was, necessary in the circumstances; whether those circumstances are, or were, in the control of the provider; and whether the provider is doing, or has done, everything possible to limit the extent of any detriment. That opens up all sorts of “what ifs” – including those on “but we were about to collapse and you told us not to collapse” – that OfS officials will doubtless be fielding on webinars in the coming weeks.

    One curious aspect of the proposal – at least as it’s set out here – concerns the difference between an “initial” condition and an “ongoing” condition of registration. OfS is proposing new C5 on fairness explicitly here as an “initial” condition – so it’s principally proposing to look at a bunch of documents and policies before it lets a provider onto the register.

    Of course not only can those policies change, it’s often the way they’re implemented (or not) and interpreter that matters more – the consultation is oddly silent on whether new C5 will also become an ongoing condition of registration that OfS could intervene on later.

    In fact it feels like OfS is under pressure to get registrations going again, isn’t quite ready on this fairness stuff, and so has half slipped it into an announcement on new registrations for the time being.

    I know you wanna live yourself

    This being OfS, you actually have to fish your way to page 72 of the consultation document at Annex D to see what it’s proposing as prohibited behaviours – and it’s in seven sections, covering key documents, descriptions relating to conduct and omissions, the clarity and legibility of key documents and other information for students, policies on changes to courses, complaints processes, refund and compensation policies and fake reviews.

    The first of those picks up much of the casework that it’s been referring to National Trading Standards – clauses that deny students the ability to offset payments due to provider failures, clauses that allow providers to withdraw offers at their discretion, particularly due to oversubscription, penalties for withdrawing or unmet obligations, and those that give universities the ability to terminate contracts or define terms at will.

    There’s also stuff on contracts that limit students’ access to legal recourse or impose restrictive dispute resolution processes, those that allow providers to transfer their obligations to other entities without student consent, and ones that allow a provider to determine whether the services supplied conform with the contract.

    In the actions and omissions bit, there’s claiming OfS registration or the right to use the term “university” without permission; offering degrees without appropriate authority or contracts; falsely asserting validation, accreditation, or endorsement by another body; displaying unauthorised logos, trust marks, or quality marks; and making definitive claims about future registration, university status, or authorisations that have not been granted.

    Pleasing to these eyes at least is also advertising or promoting courses, services, or facilities without disclosing reasonable doubts about the provider’s ability to deliver them; intending not to deliver what was advertised and/or planning to provide an alternative, and applying pressure to force immediate decisions, such as falsely claiming that an offer or its terms are available for a limited time only, depriving students of the opportunity to make an informed choice.

    There’s also communicating with prospective students in a non-English language without disclosing that services will be provided in English (!), presenting legal rights as unique features of the provider (!!) and using paid media content to promote services without clearly identifying it as advertising (!!!). It all goes on.

    In fact this list gets better as you move down it. Publishing false or inaccurate information about market conditions or competitors to induce students to sign contracts, offering prizes or rewards without delivering them or without disclosing associated costs, and falsely describing services as free when hidden costs exist are in there too – as well as making persistent, unwanted contact with applicants or students through various communication channels – defined partly in reference to harassment legislation.

    Maybe you work in a provider where you assume that the further down that list you get, the less likely it is that any of that happens. If you’re paying agents – either domestically or internationally – I can pretty much assure you that there’s a real iceberg below that tip.

    Clarity and legibility covers off documents that are hard to read or use unclear language, or fail to specify how they apply to different time periods or categories of students. Complaints unfairness includes strict time limits, no clear contact point, a lack of clear and reasonable timescales, and the one derisory mention of the Office of the Independent Adjudicator’s complaints scheme.

    And the section on changes hedges its bets a bit – there has to be clear stuff on the circumstances where changes may occur (like alterations to course content, qualifications, mode of study, teaching location, and fees), measures to address the needs of specific student groups, such as those with accessibility needs, and those policies must ensure that all students are treated fairly if such changes are implemented. Examples of where providers reserve too much of a right to make changes after the fact (“but all of those optional modules that you chose here for were not material”, and so on) are missing in action.

    Oh – and refund and compensation policies have to clearly outline the circumstances under which students are entitled to refunds or compensation (along with the methods used to calculate both!), and picking up some of that DMCC 2024 stuff, fake reviews are called out too – which include falsely claiming authorship by a student, concealing incentives provided for reviews, manipulating reviews by hiding or removing negative ones, and not taking reasonable steps to prevent or remove fake reviews.

    But could you forgive yourself

    Some other aspects of note. OfS expects all providers to comply with the law and as a starter any provider found not to have done so gets that “not fair” stamp. That includes consumer protection law, the Education Reform Act 1988 (unrecognised degrees), the Companies Act 2006 (failure to comply with a Secretary of State direction to change a company name, or a name giving misleading indication of activities).

    It’s also chucking in the Protection from Harassment Act 1997 to address circumstances where a provider imposes academic sanctions for non-payment of non-tuition fee debts, the thing that originally led the then Office for Fair Trading to start thinking about the way consumer law applied to students in the first place in the last decade.

    Of particular interest is scope. It covers relationships with current, prospective, and former students – the first and third of that list theoretically pick up rights that they often don’t have now. It obviously applies to all modes and levels of study, including online, face-to-face, or hybrid delivery. It naturally extends to providers operating through partnerships or intending to do so. But it also includes ancillary services and the provision of student information – including marketing and advertising.

    Ancillary services are defined here as services provided between a provider and a student as part of their higher education experience, including library services, disability support, scholarships, accommodation, and sports facilities:

    These services can influence a student’s decision on where to study and their overall higher education experience. Unclear or inaccurate information about these services may affect a student’s choice of provider or course, while unclear or unfair terms of service may negatively impact their experience.

    This is very good news for students who, from experience, are often told that stuff on or adjacent to that list can be cut because it’s not “part of the contract” or “on the CMA material information list” (it’s in the footnotes, actually). It should make it much harder to slash that intercampus bus, or cut 24 hour libraries down to 12.

    I stand in front of you

    What’s that you say? What happens to student protection plans? I’ve written extensively on the failure of that regime on the site before, suffice to say that the Higher Education and Research Act still mentions them, and OfS’ way around that is to argue that Condition C4, introduced in 2021, allows it to issue student protection directions if there is a material risk of a provider ceasing higher education provision – so C3 (have an SPP) is being deleted, and instead the suite of documents it will look at in pursuit of all of the above will, in effect, constitute a provider’s student protection plan.

    This makes lots of sense – SPPs were inconsistent, protections were assessed on OfS’ judgement of provider risk rather than the granularity pockets of students face in a large provider, and in theory means consistency from their point of view.

    So the silly SPP “risk assessment” goes – the one that right now probably says your university is swimming in cash as it announces a round of redundancies – and instead all of the above will have to appear on a single webpage to allow a “one stop shop” for students.

    You might also wonder where that strategy proposal has gone – the one that Jo Johnson proposed before OfS was born, and the one that Gavin Williamson proposed too – a “model contract” that sets out students’ rights and obligations, alongside the obligations of providers. It’s being parked for now as a potential addition:

    We may therefore explore development work in this area through further discussion and engagement with the sector, outside the current consultation process and alongside, rather than instead of, the introduction of a new initial condition of registration.

    On reflection, one glaring omission in here concerns what a provider can and can’t do when it comes to fee increases for continuing students – a cynic might argue that that’s controversial enough right now without OfS wading in and… protecting students. But given Ofcom has now banned in-contract price increases altogether, it does look like a huge hole.

    The other thing I’m surprised to see missing is the protection aspects of progression. There are plenty of providers that advertise a “BA in Wonkhe studies with an integrated foundation year” which technically and internally consists of an FY and a degree course – where the closure of the degree course seems to not trigger the same protections for those left high and dry as a second or third year disappearing. See also students who were “sold” a UG on the basis of progression to a vital PGT qualification.

    It’s also disappointing to see little mention of the sort of pressure that students can be under to make what the CMA, in its draft guidance on the DMCC, would call a “transactional decision” like agreeing to a (contract) variation. CMA’s definition of consumer vulnerability and its insistence than in practice, offering students the chance to exit a contract if they’re not happy with changes is not one most can make is a huge issue across the sector right now – and both is and will be a big driver of those “dishonesty” and “unfairness” perceptions that OfS leads the consultation off with. The lack of mention of the issues in the ongoing Student Group Claim – especially when OfS was pontificating about those issues during Covid – is wild.

    The single mention of the Office of the Independent Adjudicator (OIA) is also one to ponder on – partly because it’s the OIA that has tended to take the lead on judging (conceptually at least) fairness for students. Even if we set aside the politics, it won’t help for two sets of guidance to be floating around on what “fairness” means in practice – and students surely deserve these two grown-ups getting in a room to reconcile their advice on rights.

    One other thing that continues to vex me about the proposals and the approach is the obsession with OfS’ powers over student power. Some of this sort of stuff is about providers doing the right thing – but so much of it is about students understanding their rights, so that when someone says “well all those optional modules aren’t contractual”, they can put up a fight.

    It really wouldn’t be hard for OfS to write in something similar to that which we saw in Poland recently – where it’s the law that SUs are given the support to tell students about their rights (and responsibilities) in a way that barely goes near the catnip of consumerism. Beyond the wording of policies, some students are going to be treated unfairly sometimes – steps that ensure they know it beyond a feeling are surely a precursor to effective regulation. It’s hard to ever accept OfS announcements about student focus or student empowerment without that shift in approach that other regulators seem to understand.

    As such, the framing of it all is a bit odd given, as I say, this is being proposed as an initial rather than an ongoing condition of registration at this stage – sat within this need to announce what it’s doing about a growing backlog of applications. Some of the wording only really makes sense in terms of what providers do in practice, not what some PDF says on a website. We’re left assuming that what’s in here will, at some later date, apply beyond the day OfS says yes or no to a new provider – but even critiquing that appears to be outside of the scope of the consultation.

    It’s certainly interesting for OfS to be consulting providers, SUs and students and students on stuff that won’t apply to most of them, but might, in a slightly different way, apply them at an unspecified future time.

    Overall, this looks like great news for students – finally, an education regulator properly thinking through the ways in which students are treated unfairly. But to return to the astonishing aspect of all of this – what is being proposed here is one set of rights for students in a new(ly registering) provider, and another set of much weaker ones for everyone else, all in the name of “fairness”, at just the point that providers are under pressure to not deliver on some of the promises they made to students.

    The lack of justification or explanation for that is alarming – and while I often do my best to not speculate or attribute motive, it would be hard for students braving a read of this to conclude anything other than OfS has resolved that the financial sustainability horse needs to have fully bolted before the regulatory framework stable door is closed in their interests.

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  • Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    To lift a line from the songwriter extraordinaire of our era, “the times they are a- changin’.” Indeed, they are — and this is certainly true in our own corner of the world, the world of free speech. 

    For better and worse, Donald Trump and his agents are rearranging the structure of free expression in America. Only a few weeks into his presidency, things are proceeding at a breakneck speed, with a flurry of executive orders flying out the windows of the White House. Even early on, there is a sense that what will follow may well mark one of those pinpoints in our history when that “experiment” of which Holmes spoke is tested. Whatever else happens, it is important that there is some record of these times and what happened in them. To that end, we will soon launch a new segment within FAN called “Executive Watch” to track it all: the President’s orders, the executive agencies’ actions, the activities of the President’s affiliates, and Mr. Trump’s personal undertakings.

    Enter Professor Timothy Zick, the William and Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship. 

    Prof. Timothy Zick

    Zick is the author of five books on the subject: “Speech out of Doors: Preserving First Amendment Liberties in Public Places,” “The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties,” “The Dynamic Free Speech Clause: Free Speech and its Relation to Other Constitutional Rights,” “The First Amendment in the Trump Era,” and “Managed Dissent: The Law of Public Protest.” He is also the co-author of a First Amendment casebook, “The First Amendment: Cases and Theory.”

    For all of the above reasons and others, Professor Zick is well suited to undertake the “Executive Watch” bi-monthly feature of First Amendment News. 

    Even at this early stage, this project comes a time when news stories like the following 21 surface with increasing frequency:



    WATCH VIDEO: Trump Calls For Changes To First Amendment, Demands “Mandatory One-Year In Jail” For U.S. Flag Burning.

    By chronicling such information and then analyzing it, the hope is that our readers will have a more informed sense of the state of free speech at a time when so much is in flux. There is the hope that “Executive Watch” will prompt further discussion of that vital freedom that is at the core of constitutional government in America.

    FBI agents file First Amendment class action

    While FBI agents may be at-will employees who can, generally speaking, be fired for “any reason or no reason,” they can’t be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can’t fire all the African-American agents, or all the agents registered as Democrats).

    The Complaint, filed in DC District Court, is posted here. Plaintiffs are “employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity.” They “intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest.”

    Knight Institute on need for fact-checking platform

    [Recently] Meta announced changes . . . to its content moderation policies, including that it’s replacing third-party fact checking with a Community Notes model that allows users to publicly flag content they believe to be incorrect or misleading. 

    The following can be attributed to Katherine Glenn Bass, the Knight Institute’s research director:

    Katy Glenn Bass Research Director Knight Institute

    Katy Glenn Bass

    “Mark Zuckerberg’s announcement today is a stark reminder that many of the biggest platforms we use to communicate about issues of public importance are owned by billionaires who are not accountable to us. Apart from the obvious effort to signal political allegiance, the impact of the announced changes will not be clear for some time. But if we have any hope of measuring or understanding what is happening on these platforms, we need strong protections for the independent researchers and journalists who study them, and better mechanisms for ensuring they can access platform data.”

    In 2019, more than 200 researchers signed an open letter in support of the Knight Institute’s efforts to persuade Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research on the platform. Read more about that effort here.

    Shibley on Harvard’s anti-Semitism settlement

    Robert Shibley

    Robert Shibley

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

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

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

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

    As Stern predicted in that piece:

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

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

    Forthcoming book: New edition of Neier’s ‘Defending My Enemy’

    A new edition of the most important free speech book of the past half-century, with a new essay by the author on the ensuing fifty years of First Amendment controversies.

    Cover of the book "Defending My Enemy: Skokie and the Legacy of Free Speech in America" by Aryeh Neier

    When Nazis wanted to express their right to free speech in 1977 by marching through Skokie, Illinois — a town with a large population of Holocaust survivors — Aryeh Neier, then the national director of the ACLU and himself a Holocaust survivor — came to the Nazis’ defense. Explaining what many saw as a despicable bridge too far for the First Amendment, Neier spelled out his thoughts about free speech in his 1977 book Defending My Enemy.

    Now, nearly fifty years later, Neier revisits the topic of free speech in a volume that includes his original essay along with an extended new piece addressing some of the most controversial free speech issues of the past half-century. Touching on hot-button First Amendment topics currently in play, the second half of the book includes First Amendment analysis of the “Unite the Right” march in Charlotteville, campus protest over the Israel/Gaza war, book banning, trigger warnings, right-wing hate speech, the heckler’s veto, and the recent attempts by public figures including Donald Trump to overturn the long-standing Sullivan v. The New York Times precedent shielding the media from libel claims.

    Including an afterword by longtime free speech champion Nadine Strossen, Defending My Enemy offers razor-sharp analysis from the man Muck Rack describes as having “a glittering civil liberties résumé.”

    Praise for Defending My Enemy

    “Aryeh Neier’s Defending My Enemy is as relevant today as it was when it was first published. The book is a powerful reminder of why free speech matters—not just for the voices we agree with, but for the voices we abhor. Neier’s story of defending Nazis’ rights to speak in Skokie underscores a timeless truth: If we want to preserve freedom for ourselves, we must be willing to defend it for others, no matter how deeply we disagree. At a time when censorship is on the rise globally, Defending My Enemy stands as a bold and principled call to action. Every advocate of free expression needs to read this book—and more importantly, live its lessons.” — Greg Lukianoff

    Forthcoming scholarly article: ‘Output of machine learning algorithms isn’t entitled to First Amendment protection’

    Stanford Law Review logo

    Machine learning algorithms increasingly mediate our public discourse – from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech.

    This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” – the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech.

    Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work – and how they have changed with the advent of machine learning. 

    Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence. 

    Related

    More in the news

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions

    Petitions denied

    Last scheduled FAN

    FAN 455: “Eight free expression cases pending on SCOTUS docket”

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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  • Snitch hotlines for ‘offensive’ speech were a nightmare on campus — and now they’re coming to a neighborhood near you

    Snitch hotlines for ‘offensive’ speech were a nightmare on campus — and now they’re coming to a neighborhood near you

    We know the term “Orwellian” gets thrown around a lot these days. But if a government entity dedicated to investigating and even reeducating Americans for protected speech doesn’t deserve the label, nothing does.

    This step towards the Stasi isn’t hypothetical, either. It’s real. The governing bodies in question are called bias reporting systems, and the odds are they’re already chilling free expression on a campus near you. What’s worse, they aren’t staying there — now municipalities and states are using them, too.

    In this explainer, we’ll break down what bias reporting systems are, how they’ve spread beyond campus, and why they’re a threat to free speech.

    What are bias reporting systems?

    If you’ve been on campus in the last decade, you’ve likely heard of bias reporting systems — or, as they’re sometimes called, bias response teams. Their structure and terminology vary, but FIRE defines a campus bias reporting system as any system that provides:

    1. a formal or explicit process for or solicitation of
    2. reports from students, faculty, staff, or the community
    3. concerning offensive conduct or speech that is protected by the First Amendment or principles of expressive or academic freedom.

    Bias reporting systems generally solicit reports of bias against identity characteristics widely found in anti-discrimination laws. Western Washington University, for example, defines a “bias incident” as “language or an action that demonstrates bias against an individual or group of people based on actual or perceived race, color, creed, religion, national origin, sex, gender identity or expression, disability, sexual orientation, age, or veteran status.” Some systems also invite reports of bias against traits like “intellectual perspective,” “political expression,” and “political belief,” or have a catch-all provision for any other allegedly biased speech.

    Many colleges have bias response teams that consist not only of administrators but law enforcement. They often investigate complaints and summon accused students and faculty to meetings.

    The ability to speak freely is core to our democracy. Any system or protocol that stifles or inhibits free expression is antithetical to the principles and ideals of our institutions of higher education and our republic. 

    You might be wondering, “Don’t civil rights laws already cover this sort of thing?” Well, not quite. Bias reporting systems cover way more expressive ground than civil rights laws do, which puts these systems at odds with First Amendment protections. They generally define “bias” in such broad or vague terms that it could be applied to basically anything the complainant doesn’t like, including protected speech. This is doubly so when a school includes that vague and subjective word “hate” as another form of language or behavior worth reporting.

    That’s a problem at public colleges, which are bound by the First Amendment, and also at private colleges that voluntarily adopt First Amendment-like standards. Bias reporting systems completely ignore the fact that “hate speech” has no legal definition, and that unless a given expression clearly falls into one of the clearly-defined categories of unprotected speech, like true threats or incitement to immediate violence, it is almost certainly protected by the First Amendment. This remains so regardless of how anyone might feel about the speech itself.

    Bias Response Team Report 2017

    Reports

    The posture taken by many Bias Response Teams is likely to create profound risks to freedom of expression and academic freedom on campus.


    Read More

    These initiatives incentivize and in many cases encourage people to report each other for disfavored expression. As you can imagine, these systems often lead to unconstitutional infringements on protected student and faculty speech and chill expression on campus.

    For example, after the University of California, San Diego received bias incident reports about a student humor publication that satirized “safe spaces,” administrators asked the university’s lawyer to “think creatively” about how to address the newspaper, which they felt “crosse[d] the ‘free speech’ line.” And at Connecticut College, pro-Palestinian students were reported for flyers mimicking Israeli eviction notices to Palestinians, prompting an investigation by a dean.

    These are just a couple of instances where bias reporting systems have crossed the line. Sadly, there are plenty more, spanning FIRE’s research and commentary going back as far as 2016 — and none of them are good news.

    Sound Orwellian enough for you yet? Wait until you hear how bias reporting systems work off campus.

    Bias reporting systems have graduated from campus into everyday life

    Exporting campus bias reporting systems to wider society is a disastrous idea. No state should be employing de facto speech police. But of course, that hasn’t stopped state and city governments from trying.

    Bias reporting systems have been popping up in one form or another across more than a dozen state and city municipalities in the last four years, usually consisting of an online portal or telephone number where citizens are encouraged to submit reports.

    If you’re thinking this is just like the hate crime hotlines that many states have had for years, there is one important difference: namely, the word “crime.” While the new bias reporting systems will similarly accept reports of criminal acts, they also actively solicit reports of speech and behavior that are not only not crimes, but also First Amendment-protected expression.

    They know this, too.

    Vermont state police protocol, for instance, describes the information it compiles as being on “biased but protected speech.” This raises the obvious question of why the police are concerning themselves with Americans lawfully exercising their fundamental rights, and opens the door to police responses that violate those rights.

    Wherever they’ve popped up, these bias reporting systems have been bad news. Washington Free Beacon journalist Aaron Sibarium’s research has turned up a number of alarming examples. In Oregon, citizens can report “offensive ‘jokes’” and “imitating someone’s cultural norm or practice.”

    Meanwhile, in Maryland, the attorney general’s office states on its website that “people who engage in bias incidents may eventually escalate into criminal behavior,” which is why “Maryland law enforcement agencies are required by law to record and report data on both hate crimes and bias incidents.” But these speculative concerns do not justify the chilling effect bias reporting systems create. Not only do these systems solicit complaints about protected speech, they also cast an alarmingly wide net. It’s hard to believe, for instance, that many “offensive jokes” are reliable signs of future criminal activity.

    At this point you’d be forgiven for thinking that “Orwellian” is an understatement.

    But that’s not the worst of it. In Philadelphia — home of FIRE, the Liberty Bell, and the Constitution — authorities fielding “hate incidents” can now ask for exact addresses and various identifying details about the alleged offending party, including their names. According to Sibarium, city officials will in some cases “contact those accused of bias and request that they attend sensitivity training.”

    You heard that right. If you’re reported for a “non-criminal bias incident” in the city of Philadelphia, the city may request that you take a course meant to teach you the error of your ways. “If it is not a crime, we sometimes contact the offending party and try to do training so that it doesn’t happen again,” Saterria Kersey, a spokeswoman for the Philadelphia Commission on Human Relations, told Sibarium.

    The training is voluntary, but it reflects an unsettling level of government interference in the thoughts and opinions of the public.

    At this point you’d be forgiven for thinking that “Orwellian” is an understatement.

    Bias reporting systems are a threat to free speech on and off campus

    Thankfully, there has been some considerable pushback on bias reporting systems — though not entirely successful. Washington, for example, introduced a bill to create a statewide bias reporting system, but it failed to advance out of the Senate Ways and Means committee. However, a new version of the bill passed in March of 2024, and Washington is now set to establish a bias reporting system this year.

    The threat remains real, and the consequences of these speech-chilling initiatives are further-reaching than it might seem at first glance.

    On campus, the mere existence of bias reporting systems threatens one of the purposes of higher education, if not the purpose: the free exchange of ideas. Some courts have recognized that bias reporting systems may chill protected speech to such a degree that they violate the First Amendment.

    Bias reporting systems fundamentally undermine the First Amendment rights of not just students and faculty, but also ordinary citizens.

    The state-level reporting systems raise similar First Amendment issues — especially when law enforcement is involved. Like their campus counterparts, the state systems use expansive definitions of “bias” and “hate” that could encompass a vast range of protected expression, including speech on social or political issues.

    However, unconstitutionality isn’t the only concern. Even a bias reporting system that stays within constitutional bounds can deter people from freely expressing their thoughts and opinions. If they are afraid that the state will investigate them or place them in a government database just for saying something that offended another person, people will understandably hold their tongues and suppress their own voices. Moreover, the lack of clarity around what some states actually do with the reports they collect is itself chilling.

    The ability to speak freely is core to our democracy. Any system or protocol that stifles or inhibits free expression is antithetical to the principles and ideals of our institutions of higher education and our republic. In both word and deed, bias reporting systems fundamentally undermine these principles — and now seriously threaten the First Amendment rights of not just students and faculty, but also ordinary citizens.

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  • Wildfire aid coming to California schools as educators plan to restart learning

    Wildfire aid coming to California schools as educators plan to restart learning

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    Schools across Southern California impacted by devastating wildfires this month are working to ensure students, families and staff are safe and have basic needs — all while attempting to restart instruction and as-normal-as-possible school routines after school closures. 

    At least 335 schools from Los Angeles, San Bernardino, Riverside, Ventura and San Diego counties had closed temporarily when fires broke out last week, affecting more than 211,000 students, according to the California Department of Education. 

    Two schools in the Los Angeles Unified School District — Palisades Charter Elementary and Marquez Charter Elementary — will need to be rebuilt due to fire damage, LAUSD said in a Jan. 13 statement. 

    At an event Tuesday in Washington, D.C., to highlight U.S. Department of Education initiatives under the Biden administration, Deputy Secretary of Education Cindy Marten, who previously served as superintendent of San Diego Unified School District, said the area is close-knit and that people have been “deeply affected” by the destructive wildfires. 

    “What we know is that precious schools have burned down and communities are reeling,” said Marten, adding that the U.S. Education Department will provide training and funding to communities affected by the disaster.

    According to the California Department of Forestry and Fire Protection, known as CAL FIRE, 40,695 acres have burned and more than 12,300 structures have been destroyed. Several fires that started Jan. 7 or after still have not been fully contained. 

    Most schools in LAUSD — the second largest school system in the nation — reopened Monday after district employees cleaned schools and others worked “around the clock” over the weekend to ensure campuses were safe for students and staff, a Jan. 13 district statement said. By Wednesday, outdoor activities including P.E. and recess could resume at all campuses pending local conditions, and students at the two schools destroyed by fire were relocated to two other campuses, the district said.

    “We have a unique opportunity to show the strength and resilience of our community in the face of adversity,” said Pamela Magee, executive director and principal of Palisades Charter High School, in a statement Jan 13. “By coming together, we can ensure that our students can stay in their learning environment, with their friends and mentors, at a time when they need it most.” 

    Schools in Malibu are closed through at least Jan. 21, while Santa Monica schools are open, according to the Santa Monica-Malibu Unified School District. The district and its partners have organized optional gathering spaces for children and teens displaced by the fires and not in school.

    In the Pasadena Unified School District, more than 1,300 Pasadena USD staff members had homes within the burn zone, and the district is still determining the exact number of students and families impacted. That number is anticipated to be in the thousands, according to the California Department of Education. 

    The district is closed through Jan. 17, although students had access to optional, self-directed learning options, Superintendent Elizabeth Blanco wrote in a statement to the school district community Jan. 10. 

    “The health and safety of our PUSD community remain our highest priority as we navigate the significant impact of the fire on so many of our students, families, and staff,” said Blanco, adding that nearly half of the district’s employees live within the fire evacuation zone and that many staff, students and families lost their homes.

    Odyssey Charter Schools, South Campus, in Altadena, California, and authorized by PUSD, was destroyed by the Eaton fire on Jan. 8. The 7-year-old school served about 375 students in grades TK-8. 

    “While our campus is closed, Odyssey Charter Schools South continues and will move forward stronger than ever. We’ve already built this school from an idea to a full institution. Then we rebuilt it again online during COVID and we built it a third time when we had to relocate so we are a resilient community and we already weathered many challenges,” said a video showing the fire’s destruction to the campus.

    https://www.youtube.com/watch?v=/Q9sOZLdDcBg

    Providing basic needs, making adjustments

    With the widespread impact of the wildfires and ongoing firefighting, the focus on learning is taking a backseat to supplying students, families and school employees with basic needs.  

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