Tag: defense

  • Latest Borrower Defense to Repayment Numbers (US Department of Education)

    Latest Borrower Defense to Repayment Numbers (US Department of Education)

    The Higher Education Inquirer has received information today from the US Department of Education about Borrower Defense to Repayment claims.  Here are the results from ED FOIA 25-02047-F.  


     

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  • Legal defense fund will seek to fill gap left by OCR reduction

    Legal defense fund will seek to fill gap left by OCR reduction

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    Education attorneys are set to launch a new organization by fall 2025 that would defend students’ civil rights in court and also track and report civil rights data. The effort, according to its founding nonprofit, aims to fill the gap left by the Trump administration’s dismantling of the U.S. Department of Education and its civil rights enforcement arm. 

    The Public Education Defense Fund will be launched by the National Center for Youth Law, which advocates for educational equity among other youth-related issues. It will contract with former Office for Civil Rights attorneys. 

    “At a time when civil rights protections for students are under unprecedented attack, preserving those rights is not negotiable — it’s vital,” said Johnathan Smith, chief of staff and general counsel at NCYL. “We can’t stand by while the federal government abandons its responsibility to uphold the basic rights of children and young people in this country.”

    As part of the administration’s efforts to “end bureaucratic bloat” and send educational control to the states, U.S. Secretary of Education Linda McMahon laid off half of the Education Department’s staff as part of what she called the agency’s “final mission.” The move was followed by an executive order from President Donald Trump calling for the department to be shut down to “the maximum extent appropriate and permitted by law.”

    The Education Department’s Office for Civil Rights took a major blow, with the department shuttering seven of the 12 regional offices that were in charge of more than half of the nation’s open civil rights cases. Over 200 OCR employees were laid off as part of the reduction in force.

    Under the Biden administration, those employees carried a load of more than 40 cases per person. Attorneys fired as part of the reduction in force were in charge of investigating civil rights complaints related to discrimination and harassment in schools, as well as overseeing resolution agreements with school districts. These agreements guide the school systems involved in making policy changes to improve educational access, especially for historically marginalized students.

    Prior to the announcement of the Public Education Defense Fund, NCYL filed a lawsuit against the Education Department in March to challenge the changes at the OCR. The lawsuit said the civil rights enforcement arm “stopped investigating complaints from the public based on race or sex discrimination, it cherry-picked and, on its own initiative, began targeted investigations into purported discrimination against white and cisgender students.”

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  • Defense Department Caps Universities’ Indirect Cost Rates

    Defense Department Caps Universities’ Indirect Cost Rates

    The Department of Defense is planning to cap indirect cost reimbursement rates for higher education institutions at 15 percent, according to a May 14 memo signed by Secretary of Defense Pete Hegseth. 

    “The Department of Defense (DoD) is the steward of the most critical budget in the Federal Government—the budget that defends our Nation, equips our warfighters, and secures our future. That stewardship demands discipline. It demands accountability. And it demands that we say no to waste,” wrote Hegseth.

    The memo directs the DOD to develop the new policy within 21 days, marking the fourth federal agency—including the National Institutes of Health, the Department of Energy and the National Science Foundation—that has enacted a plan to cap indirect cost rates at 15 percent. For decades, universities have negotiated with the federal government to calculate bespoke indirect cost reimbursement rates to pay for research costs that support multiple grant-funded projects, such as facilities maintenance, specialized equipment and administrative personnel. (The paragraph has been updated.)

    Universities and their trade associations have already sued the NIH, DOE and NSF over these plans, arguing that capping indirect costs would hurt research production and compromise global competitiveness, all while violating multiple aspects of the Administrative Procedure Act, including bypassing congressional authority required to alter indirect cost rates. So far, federal judges have blocked indirect cost caps from taking effect at the NIH and DOE. The NSF agreed to pause the cap until June 13 in order to proceed to summary judgment, which is a way to resolve the case quickly without a full trial.

    Matt Owens, president of COGR, which represents research institutions, condemned the DOD’s newly announced plan. 

    “DOD research performed by universities is a force multiplier and has helped to make the U.S. military the most effective in the world. From GPS, stealth technology, advanced body armor, to precision guided missiles and night vision technology, university-based DOD research makes our military stronger,” Owens said in a statement. “A cut to DOD indirect cost reimbursements is a cut to national security. Less funding for research means less security for our nation.”

    Hegseth’s memo claimed that capping the Defense Department’s indirect cost rate for universities would “save up to $900 [million] per year on a go-forward basis,” while also claiming that the department’s “objective is not only to save money, but to repurpose those funds—toward applied innovation, operational capability, and strategic deterrence.” The NIH has also made similarly incompatible assertions. It touted on social media its indirect rate cap plan’s potential to save taxpayers more than $4 billion, while a lawyer for the NIH told a federal judge that the cut was simply a reallocation of funds. 

    The Defense Department’s plans “will not stop at new grants,” Hegseth wrote, adding that “meaningful savings can also be achieved by revisiting the terms of existing awards to institutions of higher education.” The memo directed the under secretary of defense for research and engineering to do the following within 30 days:

    • Initiate a departmentwide effort to renegotiate indirect cost rates on existing financial assistance awards to institutions of higher education. “Wherever cooperative, bilateral modification is possible, it shall be pursued.”
    • “Where bilateral agreement is not achieved, identify and recommend lawful paths to terminate and reissue the award under revised terms.”
    • “Complete renegotiations or terminations for all contracts by 180 days from the date of this memorandum.”

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  • Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Borrower Defense to Loan Repayment Universal Forms

    Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Borrower Defense to Loan Repayment Universal Forms

    A Notice by the Education Department on 05/19/2025

    Department of Education[Docket No.: ED-2025-SCC-0002]

    AGENCY:

    Federal Student Aid (FSA), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a revision of a currently approved information collection request (ICR).

    DATES:

    Interested persons are invited to submit comments on or before June 18, 2025.

    ADDRESSES:

    Written comments and recommendations for proposed information collection requests should be submitted within 30 days of publication of this notice. Click on this link www.reginfo.gov/​public/​do/​PRAMain to access the site. Find this information collection request (ICR) by selecting “Department of Education” under “Currently Under Review,” then check the “Only Show ICR for Public Comment” checkbox. Reginfo.gov provides two links to view documents related to this information collection request. Information collection forms and instructions may be found by clicking on the “View Information Collection (IC) List” link. Supporting statements and other supporting documentation may be found by clicking on the “View Supporting Statement and Other Documents” link.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Carolyn Rose, 202-453-5967.

    SUPPLEMENTARY INFORMATION:

    The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Borrower Defense to Loan Repayment Universal Forms.

    OMB Control Number: 1845-0163.

    Type of Review: A revision of a currently approved ICR.

    Respondents/Affected Public: Individuals and Households.

    Total Estimated Number of Annual Responses: 83,750.

    Total Estimated Number of Annual Burden Hours: 217,750.

    Abstract: On April 4, 2024 the U.S. Court of Appeals of the Fifth Circuit granted a preliminary injunction against 34 CFR 685.400 et seq. (“2023 Regulation”) enjoining the rule and postponing the effective date of the regular pending final judgment in the case. The current Borrower Defense to Repayment application and related Request for Reconsideration are drafted to conform to the enjoined provisions of the 2023 Regulation. This request is to revise the currently approved information collection 1845-0163 to comply with the regulatory requirements of the borrower defense regulations that are still in effect, 34 CFR 685.206(e) (“2020 Regulation”), 34 CFR 685.222 (“2016 Regulation”), and 34 CFR 685.206(c) (“1995 Regulation”) (together, the “current regulations”). These regulatory requirements are distinct from the 2023 Regulation’s provisions. The revision is part of contingency planning in case the 2023 Regulation is permanently struck down. The Department of Education (“the Department”) is attaching an updated Borrower Defense Application and application for Request for Reconsideration. The forms will be available in paper and electronic forms on studentaid.gov and will provide borrowers with an easily accessible and clear method to provide the information necessary for the Department to review and process claim applications. Also, under the current regulations, the Department will no longer require a group application nor group reconsideration application.

    Dated: May 13, 2025.

    Brian Fu,

    Program and Management Analyst, Office of Planning, Evaluation and Policy Development.

    [FR Doc. 2025-08857 Filed 5-16-25; 8:45 am]

    BILLING CODE 4000-01-P
    Published Document: 2025-08857 (90 FR 21296)

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  • Religious Freedom as a Defense for DEI?

    Religious Freedom as a Defense for DEI?

    Last month, amid a Trump administration broadside against diversity, equity and inclusion initiatives, government officials took aim at Georgetown University’s law school.

    “It has come to my attention reliably that Georgetown Law School continues to teach DEI. This is unacceptable,” interim U.S. attorney for the District of Columbia Ed Martin wrote in a letter.

    Martin announced he had launched “an inquiry into this” and asked Georgetown law school officials, “If DEI is found in your courses or teaching in anyway [sic], will you move swiftly to remove it?” He added that students and others “affiliated with a law school or university” that “continues to teach and utilize DEI” would not be hired “for our fellows program, our summer internship” or other jobs.

    Martin’s letter, which was sent on Feb. 17 and quickly became public, prompted shock and outrage, with many observers noting that it was a clear affront to First Amendment rights at Georgetown. It also drew a quick—and pointed—response from the law school.

    Georgetown Law dean William Treanor invoked both the First Amendment and the tenets of Catholic faith in his March 6 response to Martin, noting that the government cannot control curriculum.

    “As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding,” Treanor wrote in a response that soon spread online. “For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution.”

    Given that multiple institutions have already complied with Trump directives to unwind DEI initiatives, despite numerous outstanding legal questions, Treanor’s response stood out as an uncommon example of a university holding its ground. It also raised a unique question for religiously affiliated institutions: Does religious freedom offer a defense against Trump’s attacks on DEI efforts?

    A Faith-Based Defense for DEI

    It might. For decades, faith-based colleges and universities have cited religious freedom in decrying federal meddling in their policies and practices.

    Some institutions have argued in drawn-out legal battles that they’re exempt from federal rules that chafe against tenets of their faith, such as strictures related to gender and sexual orientation. They’ve similarly asserted in court that whom they hire or fire is within their theological purview. Such legal cases often revolve around the concept of church autonomy doctrine, a legal principle protecting the rights of religious institutions to govern themselves—including their internal operations.

    Now, as Treanor’s letter suggests, the same argument could prove a powerful tool for pushing back against the onslaught of anti-DEI directives coming out of the Trump administration. Religious institutions that view diversity, equity and inclusion as core to their faith missions arguably have a layer of legal protection to defend DEI initiatives that their secular peers do not. They could also ostensibly challenge anti-DEI orders in court on religious freedom grounds at a time when the U.S. Supreme Court has displayed a warm disposition toward religious issues.

    “It’s not an unreasonable argument,” said Charles Russo, Joseph Panzer Chair in Education and research professor of law at the University of Dayton, a Catholic—but not Jesuit—institution in Ohio. He emphasized that he was speaking on his own behalf, not the university’s.

    Church autonomy doctrine is based on the idea that “we have the right to run our institutions consistent with what our beliefs are, and we don’t need people from the outside coming out telling us what we believe,” he added. Most DEI efforts are “certainly consistent with Christian values … to help the underprivileged, the downtrodden, the most in need.”

    Jesuit colleges and universities, such as Georgetown, seem the most likely to consider venturing into this legal battleground, given the religious order’s emphasis on social causes. Many Catholic colleges—and Jesuit institutions in particular—were founded to serve burgeoning Catholic immigrant populations. In recent years, Jesuits founded several new institutions designed explicitly to support low-income students; those colleges, like Arrupe College in Chicago, have emphasized efforts to enroll and retain students from underrepresented groups.

    But even if some Jesuit institutions do view DEI as central to their faith, it remains to be seen whether they’re willing to call on their religious identities to fight for it.

    What Religious Colleges Said

    They’re certainly not keen to do so publicly.

    Of the 27 Jesuit universities that Inside Higher Ed contacted for this story, only two responded by deadline. Fordham University declined to comment, while Seattle University sent a link to a past statement from President Eduardo M. Peñalver that noted the institution “does not plan to make any immediate operational changes in response to [a Feb. 14 Dear Colleague letter] and will await new regulations or formal administrative guidance.” He added that resulting guidance will be studied carefully and the university will “either comply in a manner consistent with our Jesuit Catholic values … or—if that proves impossible—consider other legal avenues.”

    The Association of Jesuit Colleges and Universities is also treading carefully.

    “The member institutions of the Association of Jesuit Colleges and Universities share a mission based on long-standing Catholic religious beliefs and values in the Jesuit traditions, which affirm the equal dignity of every human being and of the human family in all its diversity. As noted by the dean of Georgetown Law, we are all ‘founded on the principle that serious and sustained discourse among people of different faiths, cultures and beliefs promotes intellectual, ethical and spiritual understanding,’” an AJCU spokesperson told Inside Higher Ed by email.

    AJCU did not answer specific questions sent by Inside Higher Ed.

    Raymond Plaza, director of Santa Clara University’s Office for Diversity and Inclusion and chair of AJCU’s Diversity and Equity Network, offered a defense of DEI initiatives. Speaking in his personal capacity, Plaza argued that DEI work has been deliberately misconstrued by its critics.

    “DEI is not about divisions or separation, it’s about how can I create a space where people can be their authentic selves and thrive?” Plaza said. “It’s not that this group thrives while the other one doesn’t.”

    He emphasized the need to create an environment where all students feel welcome. “At the end of the day, it’s really about how we build community on our campuses,” Plaza said.

    A review of university DEI pages shows that many Jesuit institutions cite their religious beliefs in support of such initiatives. Some emphasize social justice and inclusion as tenets of their faith.

    “Inspired by the Catholic and Jesuit tradition, our community believes that every human being is a profound gift of God, deserving of both dignity and opportunity,” Creighton University’s website reads. “We thus strive to acknowledge and celebrate diversity at Creighton—building equitable, inclusive, welcoming spaces and relationships that are required for every person to thrive.”

    Some institutions even note their antiracism efforts.

    “At LMU, the goal of diversity, equity, and inclusion is to actively cultivate an anti-racist institutional climate that supports inclusive excellence and fights systemic oppression,” Loyola Marymount University’s website reads, adding that such values are “intrinsic” to their mission.

    But other Jesuit universities appear to have backtracked in the face of Trump’s attacks on DEI.

    The University of Scranton, for example, overhauled its DEI page in recent weeks, removing references to systemic racism and the “historically unfair and unjust treatment of Black, Indigenous, and People of Color,” according to an archived page available on the Wayback Machine.

    Le Moyne University also removed BIPOC references, identity-based resources and an “oath of diversity and inclusion” from its DEI page, an archive on the Wayback Machine shows. Le Moyne officials also told the student newspaper that the university is considering changing the name of its Equity, Diversity, Inclusion and Belonging office due to federal attacks on DEI efforts.

    An Untested Strategy

    Just because Jesuit institutions aren’t openly using religious freedom as a rationale for preserving DEI, it doesn’t mean the idea is without merit, legal and Catholic higher ed scholars say.

    Russo hasn’t seen any religious college call on its faith mission to defend DEI in court—at least not yet. While the idea is “floating around out there, it has not yet made much of a judicial splash,” he said.

    Still, he believes it’s a plausible legal argument that could receive a “strong reception” in the Supreme Court, provided colleges aren’t defending practices that directly butt up against the court’s ruling on race-conscious admissions. He believes the overall message of Treanor’s letter to Martin is “on the mark.”

    “I don’t think anybody would disagree that helping those most in need, however we describe that, is consistent with Christian values,” Russo said.

    Donna Carroll, president of the Association of Catholic Colleges and Universities, agreed equity is a “mission-critical commitment” for most Catholic higher ed institutions.

    “For Catholic colleges and universities, DEI work is a long-held expression of mission and of the Catholic social teaching that anchors it—including a commitment to the dignity of each person, a solidarity with the vulnerable and less advantaged, and a care for the common good,” Carroll wrote to Inside Higher Ed. “All this is foundational to who we are, what and how we teach, and the services that we provide.”

    She sees Martin’s inquiry into Georgetown Law School as a disturbing challenge to academic freedom but isn’t sure if there’s a “threshold that might trigger concern about religious freedom” for Catholic institutions.

    “With so much uncertainty, it is hard to say,” she said. “And such a determination would require sectorwide discussion.”

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  • A ‘Dear Colleague’ Letter in Defense of DEI, by Shaun Harper

    A ‘Dear Colleague’ Letter in Defense of DEI, by Shaun Harper

    Dear Colleague:

    The U.S. Department of Education’s Acting Assistant Secretary for Civil Rights issued a “Dear Colleague” letter last week that overflowed with misrepresentations of diversity, equity, and inclusion initiatives in our nation’s educational institutions. The threat of losing federal funding has understandably spooked many of you. It is clear to others and me that inciting such fear, as opposed to actually holding institutions accountable for doing right by students and employees whom racial discrimination most persistently harm, was the aim of the Department’s letter.

    I am writing to publicly furnish guidance that I have privately offered to principals, superintendents, college and university presidents, education governing board members, and journalists over the past seven days. But before doing so, I start with a question that I posed in this Forbes article more than a year ago: “What sense does it make to know something is a lie and to have examples of what’s actually true, yet deliberately hide those truths for fear of what liars might do?” Much of what was conveyed in the Department’s letter was largely untrue—at best based on anecdotes, not on credible evidence systematically collected from surveys of students and employees, or from rigorous analyses of discrimination reports disaggregated by race.

    To be sure, persons (no matter how small in number) who experience discrimination, harassment, abuse, and other forms of injustice deserve protections and remedies from their educational institutions and the federal government. But the Department’s letter insists that it is white and Asian students who are most on the receiving end of these experiences. A corpus of evidence published over five decades makes irrefutably clear that Asian American, Black, Indigenous, Latino, and multiracial students and employees most often experience racism on campuses. Paradoxically, the Department’s letter calls for the elimination of policies, offices, programs, and activities that aim to address those historical and contemporary norms. This is guaranteed to result in more discrimination, harassment and abuse. In addition, racialized opportunity and outcomes disparities that disadvantage people of color will widen and new racial inequities will emerge.

    Here are 11 actions I recommend for higher education institutions that are truly committed to anti-discrimination and anti-racism:

    1. Maintain mission fidelity: Many college and university mission statements have long included language about fostering inclusive learning environments, preparing students for citizenship and work in a diverse democracy, and other values that qualify as DEI. If and when the Department probes an institution, you must be prepared to show how and why various DEI efforts are essential for mission actualization.
    2. Show your work: The Department’s letter will compel many of you to hide, rename, or altogether discontinue DEI initiatives. I insist on doing the opposite. Now is the time to showcase DEI activities to confirm that they are not the racist, divisive, discriminatory, and anti-American activities that obstructionists erroneously claim.
    3. Show your racial equity data: Transparency about racial disparities in student outcomes and various employee trends should be used to justify the existence of DEI policies and programs. Black undergraduate men, for instance, are often at the bottom of most statistical measures of educational progress and performance; my and other scholars’ research confirms that it is not because those students were undeserving of admission or are academically less capable. Data like these could help justify the need for Black male student success initiatives.
    4. Show racial discrimination data trends: Educational institutions are required to have reporting and investigation processes for claims of racial discrimination. As previously noted, the Department’s letter makes is seem as if white and Asian students are being most routinely discriminated against. It might just be that your campus data shows something different. It is important to present year-over-year trends, as opposed to a one-time snapshot. These data could be used to justify the existence of various DEI policies and programs.
    5. Assess the campus racial climate: The National Assessment of Collegiate Campus Climates (NACCC) is a suite of peer-reviewed, expert-validated quantitative surveys that are administered to every student or employee at a participating institution, including white people. Whether you use the NACCC or some other data tool, now is the time to formally assess the climate to determine if and how persons from different racial groups are experiencing the institution. The NACCC has been administered on hundreds of campuses over the past six years—very few white respondents have reported what the Department’s letter alleges. It is important for institutions to provide climate survey data about which groups most frequently encounter discrimination, harassment, abuse, and exclusion.
    6. Rely on evidence: A dozen highly respected researchers contributed to Truths About DEI on College Campuses: Evidence-Based Expert Responses to Politicized Misinformation, a report published last March. This document is just one of several hundred research-based resources (including peer-reviewed studies published in top academic journals) that confirm the educational and democratic value of DEI in higher education. You should use these evidence-based resources to justify the continuation of your institution’s policies and programs.
    7. Insist on evidence: DEI attackers make numerous untrue and exaggerated claims about what is occurring on campuses. Educational leaders have the right to insist that outside accusers furnish evidence of widespread discrimination, harassment, and abuse. Data sources must be rigorous, trustworthy, and verifiable. One-off examples and small numbers of anecdotes ought not be accepted as evidence of pervasive wrongdoing. Imagine if someone told lies about you as an individual person—you would demand proof. Institutions that have committed themselves to DEI deserve this, too.
    8. Articulate consequences: As the federal government, state legislators, and others scrutinize campus DEI efforts, it behooves leaders and employees not only to amplify the value of these policies and programs, but also to forecast what would occur in their absence. For example, how the discontinuation of a first-year transition program for Indigenous students would widen first-to-second-year persistence rate disparities between them and peers from other racial groups. Or how financially devastating lawsuits would be to institutions if less attention was paid to improving the workplace climate for the groups of employees whom years of investigations data confirms experience the highest levels of discrimination and harassment on campus.
    9. Ensure reporting equity: The Department’s letter includes a link to this webpage where “anyone who believes that a covered entity has unlawfully discriminated may file a complaint with OCR.” It is important for white and Asian American, as well as for Black, Indigenous, Latino, and multiracial people to know this reporting site exists. If it is distributed through only a limited number of cable news and social media channels, then there is a chance that those who experience discrimination most often will not be aware of its existence. It is similarly important to remind students and employees of how to access campus-level reporting resources.
    10. Humanize DEI professionals: As many DEI professionals were being fired from their federal jobs last month, I recognized their humanity in this TIME article. I specifically noted the following consequences for them: “Some of these workers now won’t be able to afford daycare for their kids or elder care for their aging parents. Others have children in college whose tuition payments are suddenly in limbo because of politics. Some will lose their healthcare benefits. Too many of these workers will struggle to find other jobs because of the false narratives that are being told about DEI.” Professionals who do DEI work everywhere, including in higher education, deserve greater protections from their employers. These innocent people deserve colleagues like you who use your platforms to communicate threats to their lives and careers.
    11. Form coalitions: The tone of the Department’s letter is serious. It has many people scrambling on their individual campuses. We need institutions to come together to collectively strategize, defend their DEI commitments, push back and sue. Attempting to do this in isolation will not yield the macro-level outcomes that our democracy and its educational institutions deserve. Last fall, I launched the National DEI Defense Coalition. So far, hundreds of scholars, leaders, and DEI professionals have contributed. In the next few weeks, I will publicly announce ways for others to participate. But meanwhile, please leverage existing networks (professional associations, athletic conference memberships, and so on).

    These are not the only ways institutions can defend DEI policies and programs, but my hope is that they provide some helpful guidance in response to the Department’s letter as well as to other politicized misinformation, disinformation and anecdotal exaggerations about who is being most frequently discriminated against on campuses.

    For Democracy,

    Shaun Harper

    Shaun Harper is university professor and provost professor of Education, Business and Public Policy at the University of Southern California, where he holds the Clifford and Betty Allen Chair in Urban Leadership.

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  • FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

    FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

    It is hard to imagine a legal claim that violates basic First Amendment principles more thoroughly than does President-elect Donald Trump’s lawsuit against veteran Iowa pollster J. Ann Selzer and The Des Moines Register. 

    His civil lawsuit arises from a poll published before the November 2024 election that predicted Vice President Kamala Harris in the lead in Iowa. It seeks damages and a court order to prevent the newspaper from publishing any future “deceptive polls” that might “poison the electorate.”  

    Trying to punish newspapers for supposedly “false” reports is not a new phenomenon. Backlash to the Sedition Act of 1798, in which Congress criminalized “false” criticism of some politicians, laid the foundation of First Amendment doctrine. This lawsuit is just a new name for the same theory long rejected under the First Amendment.

    Trump’s lawsuit, brought under an Iowa law against “consumer fraud,” violates long-standing constitutional principles. It’s also entirely meritless under the Iowa law. 

    Enlisting the courts to settle political grudges is directly at odds with the First Amendment’s protection for political speech.

    The lawsuit is the very definition of a “SLAPP” suit — a Strategic Lawsuit Against Public Participation. Such tactical claims are filed purely for the purpose of imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success. In other words, the lawsuit is the punishment. And it’s part of a worrying trend of activists and officials using consumer fraud lawsuits to target political speech they don’t like. 

    FIRE opposes SLAPP suits and is representing Selzer in order to vindicate her — and your — First Amendment rights.

    Every election has its outlier polls.

    Election polling is core First Amendment activity. It asks people how they will vote and shares an opinion — an educated guess — predicting the likely outcome. Every presidential election cycle brings hundreds of polls, and every cycle has outliers giving false hope (or added anxiety) to supporters of a given candidate.

    Selzer’s Iowa polls have long enjoyed “gold standard” status, accurately predicting Donald Trump’s victories in Iowa in 2016 and 2020. But despite using the same methodology as her previous polls, Selzer’s final 2024 poll, commissioned by the Register, was this cycle’s outlier, predicting a narrow Harris victory. 

    Selzer owned up to the margin between her poll and the eventual outcome of Trump comfortably winning Iowa. She acknowledged the “biggest miss of my career” and did what good pollsters do: She explained her methodology and publicly shared the poll’s crosstabs (results reported out by demographic and attitudinal subgroups), its questionnaire (with demographic information and weighted and unweighted responses), and her theories on the resultsinviting others to offer theirs in turn

    A bogus ‘consumer fraud’ lawsuit

    The post-election transparency Selzer provided wasn’t enough for Trump, despite his winning the presidency.

    During a press conference last month, Trump theorized that the poll was fabricated entirely and pledged to “straighten out the press” because it was “almost as corrupt as our elections are.” That evening, he sued Selzer, her polling company, the Register, and the newspaper’s parent company, Gannett, claiming the poll’s publication violated Iowa’s consumer fraud statute

    This lawsuit uses an inapplicable state statute as a cudgel to force Selzer and the Register to waste time and money on lawyers to respond to the allegations. Enlisting the courts to settle political grudges is directly at odds with the First Amendment’s protection for political speech. 

    Trump’s calls to investigate pollster put First Amendment at risk

    News

    President-elect Donald Trump called for an investigation after Des Moines Register pollster Ann Selzer predicted just days before the election that he would lose Iowa by three points.


    Read More

    Start with the law. Consumer fraud laws target sellers who make false statements to get you to buy something. They’re about the scam artist who rolls back the odometer on a used car, not a newspaper poll or TV weather forecast that gets it wrong.

    Just read the Iowa statute. Trump must identify a fraudulent or deceptive statement “in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes.” Selzer’s poll did not advertise or solicit anything, much less “consumer merchandise,” which Iowa law defines as that intended for “personal, family, or household uses.” 

    Trump’s complaint also argues Selzer engaged in “brazen election interference.” But publishing a poll doesn’t constitute “election interference.” Under Iowa law, election “interference” is conduct like submitting a “counterfeit official election ballot,” encouraging someone to vote when you know they legally cannot, or other forms of direct interference with the conduct of the election. 

    Conducting and publishing a poll is protected First Amendment speech. It has nothing to do with “election interference.”

    The use of consumer fraud lawsuits collides with the First Amendment

    The notion that officials can recast the electorate as “consumers” to punish political speech or news they don’t like is squarely at odds with the First Amendment — yet it’s a theory increasingly advanced by partisans on both the left and the right. From the left, there are calls to regulate “misinformation” on social issues and, from the right, calls to impose “accountability” on news media for their political commentary. 

    Consumer fraud statutes have no place in American politics, or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech. For example, a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary. And attorneys general on the right used the same “we’re just punishing falsehoods” theory to target progressive outlets. Right now, Texas is arguing in a federal appellate court that it can use the state’s Deceptive Trade Practices Act to punish political speech even if it is “literally true,” so long as officials think it’s misleading.

    Any attempt — by Democrats, Republicans, or anyone else — to punish and chill reporting of unfavorable news is an affront to the First Amendment.

    Attempts to prohibit purportedly false statements in politics are as old as the republic. In fact, our First Amendment tradition originated from colonial officials’ early attempts to use libel laws against the press. 

    America rejected this censorship after officials used the Sedition Act of 1798 to jail newspaper editors for publishing “false” and “malicious” criticisms of President John Adams. Thomas Jefferson pardoned and remitted the fines of those convicted, writing that he considered the Act “to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.” 

    The Supreme Court has since described our experience with the Sedition Act as the event that “first crystallized a national awareness of the central meaning of the First Amendment.” And it has held that government efforts to bar the publication of news reports are “the essence of censorship.” 

    Since then, courts have soundly and repeatedly rejected modern campaigns to regulate “false” speech because, under the First Amendment, “the citizenry, not the government, should be the monitor of falseness in the political arena.”

    SLAPPs chill speech because lawyers are expensive and lawsuits are stressful

    Even when a court dismisses a meritless lawsuit against a speaker, the person filing the lawsuit still “wins” because their critics must spend time and money on the legal process. As Trump once colorfully put it after losing a lawsuit: “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” 

    Some states have anti-SLAPP statutes that require a plaintiff suing over speech to show his case has merit. If he cannot, the plaintiff has to pay the defendant’s legal fees — discouraging plaintiffs from chilling speech through the cost of a lawsuit. But Iowa is not among those states.

    So FIRE is stepping in to represent Selzer and her polling company, Selzer & Company, against this baseless suit. By providing pro bono support, we’re helping to remove the financial incentive of SLAPP suits — just as we’ve done when a wealthy Idaho landowner sued over criticism of his planned airstrip, when a reddit moderator was sued for criticizing a self-proclaimed scientist, and when a Pennsylvania lawmaker sued a graduate student for “racketeering.” (If you are a lawyer who wants to help provide pro bono support to people facing lawsuits for their speech, please join FIRE’s Legal Network.)

    Any attempt — by Democrats, Republicans, or anyone else — to punish and chill reporting of unfavorable news is an affront to the First Amendment. Hearing an opinion or prediction that turns out to be “wrong” is the price of living in a free society. And no American should fear that their commentary on American elections should subject them to liability.

    FIRE protects the First Amendment, whether it’s threatened by the president of the United States or your local mayor. And we do so for all Americans, whether you’re a conservative student unable to wear a “Let’s Go Brandon” sweatshirt, a professor censored under Florida’s STOP WOKE Act, or a libertarian mother arrested for criticizing her city’s mayor

    If your First Amendment rights are threatened, contact FIRE.

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