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Dive Brief:
Diversity, equity, inclusion and accessibility best practices are not illegal, said Massachusetts Attorney General Andrea Joy Campbell and Illinois AG Kwame Raoul, in a multi-state DEIA at work guidance.
In the Feb. 13 letter, the AGs said the federal government lacks the power to issue executive orders that prohibit “otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants.”
The AGs of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island and Vermont joined in issuing the guidance.
Dive Insight:
The letter came as a response to constituent concerns about the continued viability of DEIA, the AGs said, mainly in light of President Donald Trump’s executive orders.
The primary EO in question, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” includes a directive that “order[s] all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
The executive order alleges that colleges, along with other organizations, have “adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called … ‘diversity, equity, inclusion, and accessibility.’”
Campbell and Raoul said the order “conflates unlawful preferences in hiring and promotion with sound and lawful best practices for promoting diversity, equity, inclusion, and accessibility in the workforce.”
While the judge did not prevent the U.S. Department of Justice from proceeding with its investigation of private-sector DEI programs, Judge Adam Abelson held that the plaintiffs would likely succeed with their First and Fifth amendment claims, as well as claims alleging violations of the separation of powers clause.
Prior to the most recent guidance, Democrat attorney generals have made it their priority to speak up about DEI: Last summer, the AGs defended the American Bar Association’s diversity requirements for law schools.
More recently, the Democrat AGs said that the U.S. is “on the brink of dictatorship” due to Trump’s executive orders challenging the scope of the Constitution.
A key takeaway for HR? “Properly developed and implemented initiatives aimed at ensuring that diverse perspectives are included in the workplace help prevent unlawful discrimination,” the AGs said.
On February 21, a U.S. district judge issued a preliminary injunction against portions of two of the Trump administration’s executive orders regarding DEI programs. The decision, issued in U.S. District Court for the District of Maryland, blocks federal agencies from taking action to withhold federal funding from federal contractors that conduct programs or initiatives related to DEI.
The preliminary injunction strikes down three separate provisions across these executive orders:
EO 14151 requires the federal government to terminate all equity-related grants or contracts within 60 days (known as the “Termination Provision”).
EO 14173 requires that every grant recipient or federal contractor affirm its compliance with all federal antidiscrimination laws and that it does not operate any DEI programs (known as the “Certification Provision”).
EO 14173 directs the attorney general, in consultation with other relevant agencies, to promulgate a report with recommendations to enforce civil rights laws and encourage the private sector to end DEI practices. The report is required to identify “the most egregious and discriminatory DEI practitioners in each sector of concern.” It also requires each agency to identify up to nine potential civil compliance investigations as a way to deter DEI programs or principles. The EO lists institutions of higher education with endowments over $1 billion as potential targets for the civil compliance investigations (known as the “Enforcement Threat Provision”).
The National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the mayor and city council of Baltimore, Maryland, challenged these three provisions, arguing that they violate free speech rights under the First Amendment and are unconstitutionally vague — violating the Fifth Amendment. Plaintiffs additionally alleged four types of irreparable harm: threat of loss of funds, uncertainty regarding future operations, loss of reputation, and chilled speech.
The court ultimately ruled that the plaintiffs were likely to succeed on their constitutional complaints and adequately demonstrated a sufficient likelihood of irreparable harm. The decision concluded that EO 14173 offers no guidance or notice of what the government now considers illegal DEI, and that plaintiffs showed “substantial evidence of the risks of such arbitrariness,” and that by “threatening the private sector with enforcement actions based on those vague, undefined standards, the Enforcement Threat Provision is facially unconstitutional under the due process clause of the Fifth Amendment.”
The preliminary injunction means that federal agencies may not:
pause, freeze, impede, block, cancel or terminate any awards, contracts or obligations, or change any current obligation terms on the basis of the Termination Provision;
require any contractor to make any certification or other representation pursuant to the Certification Provision; or
bring any enforcement action under the False Claims Act in relation to the Enforcement Threat Provision.
The injunction does not speak to actions that federal agencies may have already taken in response to both executive orders. Nonetheless, the Trump administration will likely appeal the ruling. Given that the policies raised in these executive orders will hold widespread implications for federal contractors in the higher education community, CUPA-HR will continue to share further developments.
The appointment of a new chief executive for UK Research and Innovation (UKRI) could not happen at a more crucial time.
With public finances under strain, the case for public investment in R&D needs to be made cogently and needs to focus both on addressing the UK’s five government missions and on sustaining the fantastic research asset which the UK university sector represents. The list of issues for the new appointee will no doubt be lengthy, but we put forward the following as a possible shortlist of priorities.
1. The interface (pipeline) between research councils and Innovate UK
One of the main goals in establishing UKRI was to ensure a smooth pipeline from the research undertaken by the individual research councils to the industrial/end user base thereby bringing both economic and societal benefit. However, despite years of intent this pipeline seems as obstructed as ever. The fundamental question remains: to what extent is the role of Innovate UK to aid the transition of the outcomes resulting from research council funding versus simply supporting UK-based enterprises in their own research?
Currently there are disconnects between the research priorities, often defined by government and implemented by the research councils, and the Innovate UK funding mechanism to ensure they are exploited. There are some exceptions here of course: the Creative Industries Clusters was a good example of a joint initiative between AHRC and Innovate UK which did integrate industry demand to local research strengths.
A key priority for the new chief executive is to join up the pipeline more effectively across the whole range of industry sectors and ensure a very clear role for Innovate UK in partnership with the research councils and the subsequent interface to the National Wealth Fund or British Business Bank.
2. Articulating and agreeing the balance between UKRI spend on government priorities and investment in the research base of the future
As we have argued elsewhere on Wonkhe, the nation needs UKRI to fund both the research required by current government priorities relating to industrial strategies or societal challenges, and invest in the broader research base that, in the words of science minister Patrick Vallance, will feed the “goose that lays the golden egg” of our research base and the opportunities of tomorrow.
Currently, this balance is, at best, hidden from view, suiting neither the needs of government nor the future aspirations of the sector. We urge UKRI to quantify this balance historically and to articulate a proposal to government for moving forward. We also require balance between the budget committed in the long-term to institutes, infrastructure, international subscriptions, and facilities vs. the shorter-term funding into the wider research and innovation community. Balancing these priorities requires a strengthening of the relationship, and open discussion, between UKRI, DSIT and wider government.
3. Ensuring UKRI is relevant to the government’s regional economic development agenda
As part of the government’s economic agenda, driving productivity growth in the tier-2 cities outside the South-East and the wealthier places in the UK is key to executing its growth mission. There is a clear tension here in UKRI acting as the key funding agency for public R&D spending driven solely by excellence, and a regional economic development mission, for which additional criteria apply. This tension must be addressed and not ignored.
The creation of innovation accelerators in which additional funding was provided by government, but UKRI was involved in evaluating the merit of proposals, is a good example of how UKRI can drive change. As the government develops new levers to address and fund regional economic development, UKRI should play a key role in ensuring that this dovetails with the research and innovation base of the nation.
4. Creating a highly skilled workforce
As is becoming clear, the number of doctoral students supported by UKRI continues to fall – an issue highlighted, for example, by Cambridge vice chancellor Deborah Prentice in a recent Guardian interview. This is particularly clear in areas which have traditionally relied upon UKRI funding, such as the engineering and physical sciences. The corresponding research effort is in part bolstered by an increase in the number of fee-paying overseas students, but this does little to create the UK-based workforce industry needs.
UKRI needs to prioritise funding and work with government to find new ways of addressing the skills the nation needs if we are to drive a productive knowledge-based economy. The skills required extend beyond doctoral degrees to include technical professionals and engineers.
5. Sector confidence around REF as a rigorous, fair process, supportive of excellence
The HE sector is in financial turmoil, manifested in the unprecedented number of UK higher education institutions currently implementing severance schemes. Ongoing uncertainties over the REF process, from the portability of outputs and the lack of an essential mechanism to ensure a diversity of authors (current proposals have no cap on the number of outputs that can be submitted from any one individual) to the absence of clarity on the people, culture and environment template’s support for excellence need resolution.
This resolution is required, firstly so that research strategies institutions put in place prior to any census date have time to drive the changes required given that REF is meant to be formative as well as summative; and secondly so that institutions can efficiently deliver their REF returns to a standard and detail a government should expect to provide assurance over the future quality related (QR) spend.
6. The importance and accountability of QR
Virtually everyone in the sector embraces the notion that QR is central to the agility and sustainability of the UK research base. This certainty is matched with uncertainty within government as to the value for money this investment provides. If we are to maintain this level of trust in the sector’s ability to derive benefit from this investment, collectively we need to do a better job at showing how QR is central to the agility of our investment in the research outcomes of tomorrow and not simply a plugging of other, non-research related, financial holes. As both assessor and funder UKRI can lead and co-ordinate this response.
7. Completion of the new funding service (the software needs to work!)
The joint electronic submission system (Je-S) was outdated and potentially no longer supportable. Its back room equivalent, Siebel, even worse. Their replacement, the new funding service is an acceptable portal to applicants but seemingly still provides inadequate assurances for a system from which to make financial commitments. This shortcoming seems almost incomprehensible given it was an in-house development.
Moving beyond the essential financial controls it seems to offer little by way of the AI assistance in the identification of reviewers that the software behind the submission systems for many of our research publications has offered for decades. Whether we lack the skills or investment to solve these issues is unclear, but the inefficiency of the current situation is wasteful of perhaps an even more precious resource, namely the time of UKRI staff to add human value to our research landscape. This seeming lack of skills and the systems we require is worrying too to the future REF exercise, even once the framework is known.
8. Evidencing the effects of change
Of course the world should and must move on. As a funder of research, it is appropriate that UKRI experiments with better ways of funding, becoming an expert in metascience. Changes inspired by ideology are fine, but it is essential that these changes are then assessed to see if the outcomes are those we desired.
One example is the narrative CV, a well-meaning initiative to recognise a wider definition of excellence and an equality of opportunity. Is this what it achieved? Do we acknowledge the risks associated with AI or the unintended consequence of favouring the confident individual with English as their first language? While not advocating a return to the tradition of lists CV, we urge a formal reporting of outcomes achieved through the narrative CV using both quantitative and qualitative data and an evidenced based plan to move forward.
Looking to the future
We realise that criticism is easy and solutions are hard to find. So in case of doubt, we would like to finish with a call out to UKRI’s greatest resource, namely at all levels its committed and highly professional staff. We know at first hand the dedication of its workforce which is committed to fairly supporting the community, the research they do and the impact it creates.
The role of chief executive of UKRI provides vital leadership not just to UKRI but to the sector as a whole, and the sector must unite to stand behind the new incumbent in solving the challenges that lie ahead.
As President Donald Trump churned out more than 80 executive orders over the past three weeks, sending the higher education community into a panic, some students were surprised to see a lack of campus protests—even at institutions traditionally rife with activism.
“I haven’t seen a whole lot, which is kind of uncharacteristic of our campus,” said Alana Parker, a student at American University in Washington, D.C. Though she’s heard of certain student political groups protesting on Capitol Hill, things have been quiet on campus.
“I don’t really know why that is, because, in my opinion, there should be more of an outcry. But from my perspective, I think people feel really disenfranchised and like there’s nothing we can do,” she said.
It’s a stark contrast from two semesters ago, when AU was one of dozens of campuses that made national news after pro-Palestinian students set up encampments in opposition to their universities’ investments in companies with ties to Israel.
Students and faculty at AU—and on campuses across the nation—also protested in 2017 after Trump prohibited individuals from seven majority-Muslim nations from entering the United States, according to a news report from the time.
Angus Johnston, a historian of student protest movements and a professor at Hostos Community College, said that he’s not entirely surprised that campuses seem relatively calm. Over the past 20 years, institutions have grown less and less permissive of student protests, culminating in a harsh crackdown on pro-Palestinian protests in spring 2024—in some cases involving police arrests. Since then, many campuses have introduced new—or enforced existing—rules restricting when, where and how students can demonstrate.
Aron Ali-McClory, a national co-chair of the Young Democratic Socialists of America, said that universities’ restrictions on free speech are “100 percent a factor” in why there aren’t many protests happening on campuses right now.
But they noted that the YDSA is mobilizing, just in different ways. Many campus chapters are currently focused on campaigning for their institutions to become “sanctuary campuses,” in the vein of sanctuary cities, municipalities that do not comply with federal immigration laws. Ali-McClory said the chapters involved in that movement are currently distributing petitions, informing their peers about the movement and handing out “know your rights” materials that aim to inform immigrants of how to handle conversations and interactions with immigration officers.
“Looking at what our YDSA chapters are doing across the country, we’re seeing people pivoting to meet the moment on their campus. A lot of that looks less like, ‘Let’s go out and do a protest’ and more, ‘How do we make material gains when the cards are stacked against us?’” they said.
Parker, the AU student, has also chosen to make her voice heard in a different way. An editor of the student newspaper, The Eagle, she and her colleagues penned a staff editorial calling on the university to speak out against Trump’s executive orders, particularly those targeting immigrants and diversity, equity and inclusion efforts. She said the article seemed to be effective: A few days after its publication, the institution sent an email to the campus community, signed by President Jonathan Alger, outlining resources available for immigrant students and employees.
Alger also addressed DEI, writing, “As we continue fostering an inclusive and welcoming community, we are working with teams across campus to determine the impacts on our inclusive excellence strategy and programs.”
‘A Powerful Force’
A handful of campuses have seen protests, primarily in response to their institutions taking steps to comply with Trump’s executive orders by shuttering DEI offices or removing DEI-related language and resources from webpages, for example.
At Missouri State University, students staged a protest after administrators announced they would close the Office of Inclusive Engagement and end other DEI programs “in response to changes nationwide and anticipated actions regarding DEI at the state level.”
According to the student newspaper, The Standard, 50 students gathered outside the main administrative building on Jan. 31 to call for the removal of the university’s president and to advocate for the passage of two bills that would require Missouri schools to teach about Black history and “the dehumanization of marginalized groups.”
At Stanford University, a group of about 15 students participated in a chalking event, writing messages of dissent, like “DEI makes Stanford Stanford,” on bike paths around White Plaza, a central outdoor area on campus.
“Here at Stanford, the important thing to me was that my leaders at my school knew that there would be people who would resist anything that they did to cave to Trump,” said freshman Turner Van Slyke, who organized the demonstration. “I think those leaders just knowing that there’s going to be resistance can be a powerful force for maintaining decency against Trump.”
Various other studentnewssources have reported that students at their institutions have joined outside groups in protesting at their state capitols, hoping to register their objections to Trump’s orders with governors and state representatives.
Johnston noted that more protests may erupt elsewhere as students begin to see the ways that the executive orders are impacting their campuses more directly.
“There’s a lot of stuff that is happening now that is essentially a hand grenade or a time bomb that’s going to explode in days or weeks or months,” he said. “To a large extent, I think this stuff is not having direct impact on a lot of [students] as of yet. Some stuff may be beginning to percolate down to the campus level. But a lot of this is real stuff that is happening, but the effects of it are not being felt directly by students just yet.”
On February 5, President Trump signed an executive order titled “Keeping Men Out of Women’s Sports.” The order aims to bar transgender women and girls from participating in women’s sports by directing agencies to withdraw federal funding from schools that refuse to comply with the order.
The EO claims that, in recent years, educational institutions and athletic associations have allowed men to compete in women’s sports, which the Trump administration believes denies women and girls equal opportunity to participate in competitive sports, thus violating Title IX. As a result, the EO sets policy to “rescind all funds from educational programs that deprive women and girls of fair athletic opportunities” and to “oppose male competitive participation in women’s sports more broadly.”
With respect to the specific actions ordered, the EO directs the secretary of education to ensure compliance with the court order to vacate the Biden administration’s Title IX rule and to take other actions to ensure that the 2024 regulations do not have effect. It also directs the secretary to take action to “protect all-female athletic opportunities” by setting forth regulations and policy guidance that clearly specifies and clarifies “that women’s sports are reserved for women.”
Notably, the EO further directs all federal agencies to review grants to educational programs and to rescind funding to programs that fail to comply with policy set forth in the EO. Institutions with grant programs deemed to be noncompliant with this order could, therefore, risk losing federal funding for that program.
The EO also seeks quick enforcement by federal agencies. The EO orders the Department of Education to prioritize Title IX enforcement actions against educational institutions and athletic associations that “deny female students an equal opportunity to participate in sports and athletic events.” The Department of Justice is also tasked with providing resources to relevant agencies to ensure “expeditious enforcement” of the policy set forth in the EO.
Finally, the EO directs the assistant to the president for domestic policy to convene both major athletic organizations and state attorneys general to promote policies consistent with Title IX and identify best practices in enforcing equal opportunities for women to participate in sports.
On February 6, the NCAA updated its policy regarding transgender student-athlete participation in response to the EO. According to the NCAA, the new policy limits competition in women’s sports to student-athletes assigned female at birth, but it allows student-athletes assigned male at birth to practice with women’s teams and receive benefits while practicing with them. For men’s sports, student-athletes may participate in practice and competition regardless of their sex assigned at birth or their gender identity, assuming all other eligibility requirements are met.
Institutions should review their policies and practices in light of the EO and the NCAA’s policy change. CUPA-HR will continue to monitor for Title IX updates and keep members apprised of new enforcement under the Trump administration.
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.
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
“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
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 nothingnew. 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.
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’
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.
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.)
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.
On January 29, President Trump signed an executive order titled “Additional Measures to Combat Anti-Semitism.” The order directs certain federal agencies to use appropriate legal tools to “prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
Background
The new EO directly connects to and expands upon Trump’s EO 13899, “Combating Anti-Semitism,” that was signed in December 2019. The 2019 EO tasks federal departments and agencies charged with enforcing Title VI of the Civil Rights Act to use the law to investigate potential cases of discrimination against Jewish individuals where such action does not run contrary to rights protected under other federal laws.
The Biden administration did not rescind EO 13899, and they pursued regulations at the Department of Education to amend Title VI for cases involving discrimination based on shared ancestry or ethnic characteristics. The proposed rule, which was not published during the Biden administration but was most recently included in the Fall 2024 Regulatory Agenda, indicated that the regulations were in part in response to EO 13899.
2025 Executive Order
The new EO states that it reaffirms EO 13899 and “directs additional measures to advance the policy thereof in the wake of the Hamas terrorist attacks of October 7, 2023.” It takes direct aim at institutions of higher education, stating that the attacks resulted in “an unprecedented wave of vile anti-Semitic discrimination, vandalism, and violence … especially in our schools and on our campuses.”
In response to these claims, the EO directs all federal agencies to submit a report within 60 days of the order that identifies “all civil and criminal authorities or actions within the jurisdiction of that agency, beyond those already implemented under Executive Order 13899, that might be used to curb or combat anti-Semitism.” Notably, the order directs these agency reports to include “an inventory and analysis of all pending administrative complaints … against or involving institutions of higher education alleging civil rights violations related to or arising from post-October 7, 2023, campus anti-Semitism.”
The EO provides additional requirements for the reports submitted by the U.S. attorney general and the secretary of education. Specifically, the order directs the attorney general’s report to include “an inventory and analysis of all court cases against or involving institutions of higher education alleging civil rights violations related to or arising from” antisemitism that potentially occurred after the October 2023 attacks. The attorney general is also required to indicate whether they intend to or have taken any action with respect to the cases at institutions of higher education. Moreover, the secretary of education is tasked with submitting additional inventory and analysis of Title VI complaints related to antisemitism that were filed to the Office for Civil Rights after the October 7 attacks.
Finally, the EO directs the secretaries of state, education and homeland security to report recommendations to familiarize “institutions of higher education with the grounds for inadmissibility under 8 U.S.C. 1182(a)(3) so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds” and to ensure “that such reports about aliens lead, as appropriate and consistent with applicable law, to investigations and, if warranted, actions to remove such aliens.”
Next Steps
As explained above, the EO directs agencies to promulgate reports for the president within the next 60 days. Additional information and guidance are needed from relevant agencies to determine next steps for institutions of higher education. CUPA-HR will keep members apprised of additional updates related to Title VI enforcement and public policy related to antisemitism on campus.
Since taking office for his second term on Jan. 20, President Trump has issued a flurry of executive orders, including several implicating the First Amendment and freedom of expression. Below, we highlight some of these orders and evaluate the potential ramifications for free speech.
Executive order on protecting freedom of speech is a good start — but more must be done
One of the first executive orders the president signed was titled “Restoring Freedom of Speech and Ending Federal Censorship.” This order aims to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” Specifically, the order notes the government has “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
FIRE welcomes this order’s call to end federal government censorship, including that which is hidden from public view. Leaks, court documents, and other disclosures have revealed instances of federal officials pressuring social media companies to limit controversial but constitutionally protected speech on vigorously disputed topics like the origins of Covid-19, the Hunter Biden laptop story, and election integrity.
We have writtenrepeatedly about the dangers of such government coercion, commonly referred to as “jawboning,” highlighting how this sneaky form of government censorship threatens freedom of expression.
A pledge by the executive branch to respect the free speech of all Americans is a good first step. But any executive order can be modified or reversed on the say-so of one person — the president. It will take actual legislation — such as FIRE’s model transparency bill — to create mechanisms that statutorily require disclosure and bring to light governmental efforts to strong-arm private social media companies into censoring protected speech.
In the meantime, FIRE will monitor the administration’s actions, just as we did during the Biden administration, and hold federal agencies to the standards set forth in the executive order.
Executive orders targeting DEI programs appear to avoid First Amendment pitfalls — but FIRE will be watching their implementation
President Trump also signed two executive orders with the aim of dismantling diversity, equity, inclusion, and accessibility programs. The first, signed on Jan. 20 and titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” calls for “termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”
DEI/DEIA programs and initiatives take many forms. FIRE has no position on the values DEI programs may seek to advance. But our experience defending student and faculty rights on campus demonstrates that DEI administrators and offices haveregularlybeen involved in threats to academic freedom and speech policing, functioning as a way to enforce preferred orthodoxy or ideology. And some DEI initiatives — such as mandatory DEI statements in faculty hiring or student admissions — flatly threaten free expression and academic freedom and should be prohibited. We have previously introduced model legislation designed to eliminate such use of political litmus tests in faculty hiring and student admission decisions.
FIRE has also seen legislation in which overbroad attempts to curtail DEI mandates threaten the very same speech rights of faculty and students they aim to protect. Overbroad restrictions can improperly limit classroom discussions — as we saw in West Virginia’s recent executive order prohibiting faculty from sharing any material that promotes or encourages certain DEI-related views, while at the same time permitting criticism of those views. This allows institutions to continue ideological litmus tests as long as such tests oppose DEI — which just recreates the same problem.
Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.
The president’s executive order appears to avoid these issues by targeting only the government’s own speech and initiatives, which it can constitutionally control. For instance, the Office of Management and Budget must provide a list of “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” This is different from prohibiting any federal grantees from promoting DEI, which would threaten speech. Instead, the order specifically targets federal grants made specifically for the purpose of advancing DEI, and the federal government is free to shut off that funding if it no longer wishes to advance those ideals or views.
A second DEI-related order, signed on January 21, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” aims to eliminate “affirmative action” and “illegal discrimination and illegal preferences” in line with the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which held race-based affirmative action programs in college admissions violated the Fourteenth Amendment. (FIRE takes no position on affirmative action.)
FIRE releases statement on the use of ‘diversity, equity, and inclusion’ criteria in faculty hiring and evaluation
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FIRE’s statement provides guidance to universities to ensure they respect faculty members’ expressive freedom when seeking to advance DEI.
The order helpfully includes two provisions that make clear it does not reach into the college classroom or infringe upon academic freedom:
(b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
(c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.
While these orders avoid constitutional pitfalls on their face, implementation should proceed carefully. Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.
Executive order on “gender ideology” invites possible abuse
This executive order focuses on “[defending] women’s rights and [protecting] freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” The order requires federal government agencies to:
remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.
This aspect of the order is limited to the federal government’s own speech. However, there is a risk, similar to that presented by imprecise anti-DEI legislation, that the breadth of such an order could lead to direct or indirect censorship of private actors. The government has the power to control its speech when it is the speaker, such as in a training given to its employees. But its power is much more limited when the speaker is a private citizen.
Of particular concern is this clause: “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”
While the government can choose to change its own messaging on gender issues, it cannot deny funds to grantees for exercising their own First Amendment rights. Further, the imprecise language could encourage government actors to withhold otherwise available grants from those with opinions that do not align with the views expressed in this executive order — chilling constitutionally protected speech. Grantees who would otherwise espouse views agreeing with “gender ideology” may refrain for fear of losing their government grant, even if they do not use the grant itself to promote “gender ideology.”
Executive order intended to “protect” Americans from noncitizens who “espouse hateful ideology” is at odds with our culture of free speech
This executive order makes it federal policy to “protect [American] citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” In addition to requiring agencies to ensure their policies for screening aliens align with the executive order, it requires the secretary of state to:
Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens’ rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists.
The federal government has the authority to refuse entry to or deport people who genuinely present a national security threat. But the broad language of this order implies it may also be used to target people already in the U.S. for engaging in speech that is otherwise constitutionally protected. FIRE haspreviously expressed concern about denials of entry in cases where students and speakers were seemingly barred based on their speech. The ambiguous language of the order, including references to a “replacement of the culture,” suggests an intent to review and potentially punish foreign nationals for speech that would typically be protected.
To be clear, speech that calls for violence is generally protected by the First Amendment. As we have previously written, calls for genocide or chanting “From the river to the sea,” though listeners may be offended or deeply upset, are generally constitutionally protected. Denying visas or deporting anyone who engages in such speech will create a chilling effect, deterring foreign nationals from participating in lawful protests and demonstrations.
But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea.
While the driving force behind this executive order is the current Israel-Hamas conflict, there is no reason other than political whim that efforts to punish foreign nationals for their speech would stay confined to one side of that issue, or to the Israeli-Palestinian issue at all. If those targeted for “espousing hateful ideology” are today likely to be those supporting Hamas, a new government could aim such efforts at supporters of Israel’s military efforts in the coming years. Those from other nations experiencing ethnic or religious conflict, from Ukraine to Myanmar to Burkina Faso, could also face adverse immigration decisions for expressing their views.
Why (most) calls for genocide are protected speech
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Creating a “genocide” exception to free speech only opens the door to more speech restrictions and selective enforcement.
Because this executive order is directed at foreign nationals, the legal First Amendment issues (as distinct from the cultural free speech questions) are complicated. The Supreme Court noted in Bridges v. Wixon that the freedom of speech is accorded to resident aliens, but other precedent upholds immigration consequences based on viewpoint, and immigration officials have targeted foreign nationals for deportation for otherwise-protected speech.
In the 1904 caseUnited States Ex. Rel. John Turner v. Williams, the Court upheld a law that allowed the deportation of “anarchists.” In the 1954 case Galvan v. Press, the Court upheld a law that allowed the deportation of non-citizens for belonging to the Communist Party. (Interestingly, statutory prohibitions on the naturalization of anarchists and members of the Communist Party still exist.)
But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea. Establishing a system that allows for the routine deportation of foreign nationals based solely on their otherwise protected speech would erode our national commitment to freedom of expression as a uniquely American cultural value.
In the wake of the recent Executive Orders on DEI, gender identity and immigration, higher ed institutions, like so many other organizations, are assessing the impacts and formulating next steps.
Amid the inevitable changes that lie ahead, it’s important to remember that the role of HR in creating and sustaining a higher ed workplace that provides access and opportunity for all employees hasn’t changed. The programs, policies, processes and language we use to support this work may need to evolve, but the work and the institutional values it supports remain the same.
We can still:
Promote equitable work and career pathing opportunities and pay for all employees.
Cultivate inclusive learning and working communities.
Create a workplace culture that embraces respect and civil discourse.
Level the playing field for everyone by working to remove bias, reviewing outdated policies, and creating transparency.
Reinforce institutional values by ensuring that all employees feel connected and supported.
However, as we review and evaluate the work we’re doing, we have the opportunity to do so with fresh eyes, reframing it in ways that are both purpose-driven and inclusive. For example:
Communities of people with diverse backgrounds and life experiences create opportunities for community members to grow, both personally and professionally. To support a diverse workforce, institutions must explore ways to generate a more diverse applicant pool.
Access, opportunity and equitable pay for all employees promote job satisfaction, recruitment and retention. To support access and opportunity, institutions must identify and remove roadblocks to opportunity. To support equity in pay, institutions must ensure their compensation structures support these efforts.
A safe and welcoming work environment fosters community and collaboration. To create a work environment that’s welcoming and psychologically safe, institutions must ensure that systems, policies and processes are free from discriminatory practices.
If you have resources or ideas to share with other CUPA-HR members regarding ways that you and your HR colleagues are refining your approach to creating and sustaining an inclusive campus community, please email them to [email protected]. Your submission will be treated as confidential and, if shared, will be described in terms that will not identify your institution.
You’re Not Alone
We know that HR leaders are often caught in the middle as different groups of employees and administrators express strong opinions and feelings regarding changes we must implement. In the coming weeks, CUPA-HR will share guidance and support to help you make changes to programs, policies and procedures and communicate these changes to the campus community.
We are also hosting webinars focused on the recent Executive Orders, as well as the rollback of the Title IX regulations. And we’ll continue to keep you informed about future Executive Orders and legislation, as well as potential actions we should take as higher education HR leaders.
The higher ed HR community has proved time and again how strong and resilient it is. Thanks for all the ways you lead and support your organizations, your employees and your CUPA-HR community.
President Donald Trump is expected to sign an executive order today threatening action against international students in the United States for their involvement in campus protests related to Israel and Hamas.
Per reports, President Trump promises to “quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before,” and to deport students who joined “pro-jihadist protests.”
The revocation of student visas should not be used to punish and filter out ideas disfavored by the federal government. The strength of our nation’s system of higher education derives from the exchange of the widest range of views, even unpopular or dissenting ones.
Students who commit crimes — including vandalism, threats, or violence — must face consequences, and those consequences may include the loss of a visa. But if today’s executive order reaches beyond illegal activity to instead punish students for protest or expression otherwise protected by the First Amendment, it must be withdrawn.
