Tag: defense

  • 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 results, inviting 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.


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    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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