– Lindsie
Rank, FIRE’s director of campus rights advocacy
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“Global law firms have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles.” —Executive Order (3-14-25)
“Law firms refuse to represent Trump opponents in the wake of his attacks” — The Washington Post (3-25-25)
The wolf is at the door.
Those who do not yet realize this may be forgiven for perhaps two reasons: They do not know the wolf is ravenous, and they do not know the door is ajar.
To get but a whiff of this, just read Brad Karp’s March 23 memo to his colleagues at the Paul Weiss firm, from which the title of this edition of FAN gets its title.
Also this, from MSNBC legal correspondent Lisa Rubin:
[The attacks on law firms] began with Trump issuing executive actions punishing three firms — Covington & Burling, which did not react; Perkins Coie, which fought back and won a partial temporary restraining order; and Paul Weiss, which ultimately capitulated to a deal announced last Thursday, the terms of which are still a matter of some debate. But the president has now directed Attorney General Pam Bondi, in a memo issued Friday night, to seek sanctions “against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States.”
Now back to the Paul, Weiss controversy.
A little background at the outset to help set the retributive stage: According to Wikipedia, Karp “is a bundler for Democratic Party presidential candidates . . . having raised sums for the presidential campaigns of Kamala Harris, Cory Booker, Joe Biden, Amy Klobuchar, and others.”
In other words, if Trump was out for political retribution, Karp was a perfect target. And then consider this: One of Karp’s former partners was Mark Pomerantz, author of “People vs. Donald Trump: An Inside Account,” which details the attempt to prosecute former president Donald Trump, written by one of the lawyers who worked on the case and who resigned in protest when Manhattan’s district attorney refused to act.
And now on to the Executive Order from March 14, “Addressing Risks from Paul Weiss.” Excerpts below:
In 2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me. After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.
Additionally, Paul Weiss discriminates against its own employees on the basis of race and other categories prohibited by civil rights laws. Paul Weiss, along with nearly every other large, influential, or industry leading law firm, makes decisions around ‘targets’ based on race and sex.
My Administration is committed to ending such unlawful discrimination perpetrated in the name of “diversity, equity, and inclusion” policies and ensuring that Federal benefits support the laws and policies of the United States, including those laws and policies promoting our national security and respecting the democratic process.
Now, the Weiss law firm’s memo in response, from Brad Karp:
Brad Karp
Only several days ago, our firm faced an existential crisis. The executive order could easily have destroyed our firm. It brought the full weight of the government down on our firm, our people, and our clients. In particular, it threatened our clients with the loss of their government contracts, and the loss of access to the government, if they continued to use the firm as their lawyers. And in an obvious effort to target all of you as well as the firm, it raised the specter that the government would not hire our employees.
We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the President’s executive order targeting Paul, Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys.
We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration. We could prevent the executive order from taking effect, but we couldn’t erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.
Commentary:
President Donald Trump’s crackdown on lawyers is having a chilling effect on his opponents’ ability to defend themselves or challenge his actions in court, according to people who say they are struggling to find legal representation as a result of his challenges.
[Such executive orders and pressured settlements set] an ominous precedent for future presidents to exploit. . . . [H]ow can a lawyer who is considering representing a politically controversial client know that she will not be targeted the next time control of the White House changes hands? The safest course of action will be to avoid representing clients of any political salience, right or left, even if their cause is just.
Related
Constitutional scholars on the Trump Administration’s threats against Columbia University
We write as constitutional scholars — some liberal and some conservative — who seek to defend academic freedom and the First Amendment in the wake of the federal government’s recent treatment of Columbia University.
The First Amendment protects speech many of us find wrongheaded or deeply offensive, including anti-Israel advocacy and even antisemitic advocacy. The government may not threaten funding cuts as a tool to pressure recipients into suppressing such viewpoints. This is especially so for universities, which should be committed to respecting free speech.
At the same time, the First Amendment of course doesn’t protect antisemitic violence, true threats of violence, or certain kinds of speech that may properly be labeled ‘harassment.’ Title VI rightly requires universities to protect their students and other community members from such behavior. But the lines between legally unprotected harassment on the one hand and protected speech on the other are notoriously difficult to draw and are often fact-specific. In part because of that, any sanctions imposed on universities for Title VI violations must follow that statute’s well-established procedural rules, which help make clear what speech is sanctionable and what speech is constitutionally protected.
Yet the administration’s March 7 cancellation of $400 million in federal funding to Columbia University did not adhere to such procedural safeguards. Neither did its March 13 ultimatum stipulating that Columbia make numerous changes to its academic policies — including the demand that, within one week, it “provide a full plan” to place an entire “department under academic receivership for a minimum of five years” — as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.”
Signatories
Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Law School
Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of Law, Berkeley Law School
David Cole Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center
Michael C. Dorf Robert S. Stevens Professor of Law, Cornell Law School
Richard Epstein Laurence A. Tisch Professor of Law, NYU School of Law
Owen Fiss Sterling Professor Emeritus of Law, Yale Law School
Aziz Huq Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School
Pamela Karlan Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Randall Kennedy Michael R. Klein Professor of Law, Harvard Law School
Genevieve Lakier Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Michael McConnell Richard and Frances Mallery Professor of Law, Stanford Law School
Michael Paulsen Distinguished University Chair and Professor, St. Thomas Law School
Robert Post Sterling Professor of Law, Yale Law School
David Rabban Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law, University of Texas Law School
Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Nadine Strossen John Marshall Harlan II Professor of Law Emerita, New York Law School
Eugene Volokh Thomas M. Siebel Senior Fellow, Hoover Institution, Stanford University
Keith Whittington David Boies Professor of Law, Yale Law School
SCOTUS denies review in case urging that Sullivan be overruled
Wynn v. Associated Press (issue: Whether this Court should overturn Sullivan’s actual-malice standard or, at a minimum, overrule Curtis Publishing Co.’s expansion of it to public figures)
On the Trump administration targeting campuses
The United States is home to the best collection of research universities in the world. Those universities have contributed tremendously to America’s prosperity, health, and security. They are magnets for outstanding talent from throughout the country and around the world. The Trump administration’s recent attack on Columbia University puts all of that at risk, presenting the greatest threat to American universities since the Red Scare of the 1950s. Every American should be concerned.
Until recently, it was a little-known program to help Black and Latino students pursue business degrees.
But in January, conservative strategist Christopher Rufo flagged the program known as The PhD Project in social media posts that caught the attention of Republican politicians. The program is now at the center of a Trump administration campaign to root out diversity, equity and inclusion programs in higher education.
The U.S. Education Department last week said it was investigating dozens of universities for alleged racial discrimination, citing ties to the nonprofit organization. That followed a warning a month earlier that schools could lose federal money over “race-based preferences” in admissions, scholarships or any aspect of student life.
The investigations left some school leaders startled and confused, wondering what prompted the inquiries. Many scrambled to distance themselves from The PhD Project, which has aimed to help diversify the business world and higher education faculty.
Zoom webinar on strategies to combat attacks on free speech in academia
Thursday, March 27, 2025, 1:00 – 2:00 PM ET
As efforts to silence dissent grow more aggressive, the immediate and long-term threats to our constitutional freedoms — especially in educational institutions — cannot be ignored.
This virtual panel will bring together top legal minds and policy experts to examine how these actions affect student activists, journalists, and marginalized communities. Together, we’ll explore the legal strategies needed to safeguard First Amendment rights and resist the erosion of civil liberties.
Featured Panelists: Maria Kari, Human Rights Attorney Rep. Delia Ramirez (IL-03) Jenna Leventoff, Senior Policy Counsel, ACLU Stephen F. Rohde, MPAC Special Advisor on Free Speech and the First Amendment Whether you’re a student, educator, advocate, or supporter of civil rights, this is a conversation you won’t want to miss.
➡️ Register today and join us in defending the values that define our democracy.
Whittington on diversity statements and college hiring
Keith Whittington
The University of California is the godfather of the use of so-called diversity statements in faculty hiring. I have a piece forthcoming at the Nebraska Law Review arguing that such diversity statement requirements for general faculty hiring at state universities violate the First Amendment and violate academic freedom principles everywhere. It seems quite likely that in practice such diversity statement requirements are also used to facilitate illegal racial discrimination in faculty hiring.
The University of California system’s board of regents has now put an end to the use of such diversity statements at those schools. This is a truly remarkable development. Not unreasonably, this decision is being put in the context of the Trump administration’s extraordinary attack on Columbia University, a move that I think is both lawless and itself a threat to academic freedom. But there’s no question that it got the attention of university leaders across the country, and if it encourages some of them to rededicate themselves to their core institutional mission and its central values then at least some good will come of it. So silver linings and all that.
Trump rails against portrait at the Colorado Capitol
Institute for Free Speech files brief in campaign disclosure-fee case
The case is Sullivan v. Texas Ethics Commission. The issue in the case is whether — and if so, under what circumstances — the First Amendment permits the government to require ordinary citizens to register and pay a fee to communicate with their government representatives.
Amicus brief here. Counsel of record: Alan Gura. The Institute’s brief argues that the 1954 precedent of United States v. Harriss no longer reflects modern First Amendment jurisprudence and fails to protect the right to speak anonymously about matters of public policy.
Forthcoming book by Princeton’s president on campus free speech
The president of Princeton, a constitutional scholar, reveals how colleges are getting free speech on campuses right and how they can do better to nurture civil discourse and foster mutual respect
Conversations about higher education teem with accusations that American colleges and universities are betraying free speech, indoctrinating students with left-wing dogma, and censoring civil discussions. But these complaints are badly misguided.
In Terms of Respect, constitutional scholar and Princeton University president Christopher L. Eisgruber argues that colleges and universities are largely getting free speech right. Today’s students engage in vigorous discussions on sensitive topics and embrace both the opportunity to learn and the right to protest. Like past generations, they value free speech, but, like all of us, they sometimes misunderstand what it requires. Ultimately, the polarization and turmoil visible on many campuses reflect an American civic crisis that affects universities along with the rest of society. But colleges, Eisgruber argues, can help to promote civil discussion in this raucous, angry world — and they can show us how to embrace free speech without sacrificing ideals of equality, diversity, and respect.
Urgent and original, Terms of Respect is an ardent defense of our universities, and a hopeful vision for navigating the challenges that free speech provokes for us all.
Forthcoming scholarly article on AI and the First Amendment
This paper challenges the assumption that courts should grant outputs from large generative AI models, such as GPT-4 and Gemini, First Amendment protections. We argue that because these models lack intentionality, their outputs do not constitute speech as understood in the context of established legal precedent, so there can be no speech to protect. Furthermore, if the model outputs are not speech, users cannot claim a First Amendment right to receive the outputs.
We also argue that extending First Amendment rights to AI models would not serve the fundamental purposes of free speech, such as promoting a marketplace of ideas, facilitating self-governance, or fostering self-expression. In fact, granting First Amendment protections to AI models would be detrimental to society because it would hinder the government’s ability to regulate these powerful technologies effectively, potentially leading to the unchecked spread of misinformation and other harms.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz(Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Pending petitions
Petitions denied
Free speech related
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito and Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
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 Sept. 23, 1952, Mugo Gatheru had just finished English class when an American official approached him and flashed a United States Immigration Services badge. Gatheru, a young Kenyan student at Lincoln University, quickly realized that his education was not the officer’s concern. His politics were. The officer interrogated him about his role as an editor of the Kenya African Union’s newspaper, The African Voice, and about whether he had ever engaged in political agitation against government officials in Kenya, India, England or the United States.
In the 1950s, the Cold War logic of American immigration enforcement sought to place Gatheru into a rigid political binary: communist or anticommunist, agitator or ally. But Gatheru challenged these political borders. When accused of being an agitator, the young Kenyan student reframed the terms of the interrogation. Agitation, he argued, was a matter of perspective. British colonial authorities may have seen him as disruptive, but what he was doing was simply a continuation of the democratic ideals he had learned in America. “After all,” he told the immigration officer, “even George Washington was an agitator here in your country.”
Seventy-three years later, it’s old wine in a new bottle.
The same Immigration and Nationality Act that was used to justify deportation proceedings against Mugo Gatheru in the 1950s is now being wielded against Mahmoud Khalil. In Gatheru’s time, the target was anticolonial activists suspected of communist ties; today, it’s Palestinian advocates accused of supporting terrorism. The global politics are different, but the playbook remains the same: Silence dissent, rebrand it as a security threat and use immigration law to make it disappear.
These cases are not just about two individuals. They are part of a much longer history of using immigration enforcement as a tool of political suppression on college campuses. Gatheru was one of many African, Latin America, Asian and Caribbean students in the mid-20th century whose presence in U.S. universities became politically suspect. Fueled by Cold War anxieties, U.S. authorities from across the political spectrum saw anticolonial activism as inherently subversive to American geopolitical interests. In the late 1970s, the Carter administration, which professed a strong commitment to human rights, employed the same tools of immigration enforcement to investigate and silence Iranian students who denounced U.S. complicity in the shah’s regime. And in the mid-1980s, the Reagan administration also utilized those same tools to prosecute young Palestinian activists in Los Angeles.
The history of immigration and student activism is thus also a history of global racial politics. White European students were welcomed into American universities while Black and brown international students from the Global South were scrutinized for their political beliefs. In effect, academic freedom was never truly universal for international students. It was selectively granted and shaped by a racialized global hierarchy that mirrored U.S. Cold War priorities. Ultimately, an uncomfortable truth might be this: American universities are deeply entangled in America’s geopolitical agenda, and their commitment to academic freedom rarely extended to those who challenged U.S. hegemony.
Today, the U.S. government is deploying a similar logic. In addition to Khalil’s arrest, the government has trumpeted the arrest of another international student tied to the Columbia protests, Leqaa Kordia, and the visa revocation and “self-deportation” of Ranjani Srinivasan, who says she got mistakenly swept up in arrests of protesters during the occupation of Columbia’s Hamilton Hall last spring. A Georgetown University postdoctoral scholar from India, Badar Khan Suri, was also arrested last week, targeted, according to his lawyer, for his wife’s “identity as a Palestinian and her constitutionally protected speech.”
In other words, these are not isolated incidents but part of a deliberate policy effort to criminalize Palestinian advocacy and antiwar protest.
In the past two years alone, we have seen student groups labeled as extremist, faculty members investigated for their political speech and foreign nationals facing heightened scrutiny for their views on the ongoing war in Israel-Palestine. The arrest of Khalil, even if dropped, has had its intended effect: It sends a chilling message that political dissent, particularly when voiced by students from politically fraught regions, comes at a cost.
The echoes between these cases should prompt us to reflect on the historical legacies at play. Both Gatheru’s and Khalil’s experiences show how governments, fearing the power of certain ideas, attempt to control the discourse by criminalizing student activists. Both demonstrate how racialized and colonialist logics shape the policing of dissent, whether in the 1950s, under the specter of communism, or in 2025, under the guise of counterterrorism. And, most significantly for those in higher education, both reveal the ways in which universities serve as battlegrounds for global political struggles.
Yet both cases also highlight the potential role of academic communities and activist networks in resisting such overt suppression of political activism. When Gatheru faced deportation, university allies and civil rights leaders and groups, including Thurgood Marshall and the NAACP, mobilized on his behalf. Faculty and students at Lincoln University established the Friends of Mugo Gatheru Fund. They reframed his case as a fight for both racial justice and academic freedom. Their efforts eventually led to the U.S. government dropping its case.
Khalil’s arrest has likewise sparked widespread resistance. Student organizations and faculty at Columbia have mobilized swiftly, with Jewish faculty members holding a campus rally under the banner “Jews say no to deportations.” Meanwhile, an online petition demanding Khalil’s release has amassed more than three million signatures. These responses underscore the broader stakes of Khalil’s case: It is not just about one student but about the right to dissent in an era in which protest is again being reframed as a national security threat.
Gatheru’s case, once seen as a national security risk, is now remembered as an example of state overreach. Will we look back on Khalil’s case the same way? If so, it will be because students, faculty and advocates refused to allow immigration enforcement to dictate the terms of political activism. As Gatheru reminded his interrogator, George Washington was an agitator, too. The question is whether we will continue to punish today’s agitators for following in that tradition.
David S. Busch is the author of Disciplining Democracy: How the Modern American University Transformed Student Activism (Cornell University Press).
AI has taken the world by storm, and the education field is no exception. After over two decades teaching at The Paul Merage School of Business at the University of California, Irvine, I have seen lots of changes related to curriculum, teaching resources and students. However, I’ve seen nothing quite like the wave of AI tools popping up in classrooms. It’s exciting, a little daunting and definitely something we all need to talk about.
So, here’s the deal: I’m not an AI expert. But I have spent a lot of time experimenting with AI, learning from my mistakes and figuring out what works and what doesn’t. I’d like to share some of these experiences with you.
AI in education: What’s the big deal?
AI is already here, whether we’re ready for it or not. According to Cengage research, use of AI has nearly doubled among instructors, from 24% in 2023, to 45% in 2024. Many of us are using AI to create lectures, craft assignments and even grade assessments. The challenge is not whether we adopt AI. Rather, it’s doing so in a way that enhances our students’ learning outcomes, while maintaining academic integrity in our courses.
In my online undergraduate business law course, I have always required my students to take written assessments, where they analyze a set of facts to reach a legal conclusion. Not only am I trying to teach them the principles of law, but I want them to improve their writing skills.
A shift in focus
A few years ago, I noticed a subtle increase in the overall scores for these written assessments. I have taught this course for over 20 years, so I knew what the historical scores were. Looking into it further, I started hearing about how some students were using ChatGPT in their courses. This got me wondering whether some of my students had already been using it to take my written assessments. Quick answer: yes, they were. This now presented a problem: what do I do about it? In an online course, how can I prohibit the use of AI tools on a written assessment while effectively enforcing that ban? I shifted my focus from policing and enforcing a ban on the use of AI in my courses to teaching my students how to use AI responsibly.
Teaching students to use AI responsibly
In my course, I developed assignments called “Written ApprAIsals.” These three-part writing assignments combine traditional learning with AI-assisted refinement. These teach students how to use AI responsibly while improving their critical thinking and writing skills. Here’s how it works:
Step 1: Write a first draft without AI
Students are given a law and related news article about a current legal issue. They must write a memo which analyzes the constitutionality of this law. I also provide them with guidance on utilizing the standard legal memo format, known as IRAC (Issue, Rule, Analysis, Conclusion), to help organize their thoughts and writing.
Students are permitted to use whatever materials they have, including eBooks, my lecture videos and outlines, Cengage’s online learning platform, MindTap and its resources, and any other information they ethically obtain online. But, they’re not permitted to use AI.
The purpose of this first draft is for them to demonstrate the foundational knowledge they should have already learned. Students must attest to completing this first draft without using AI, and it’s worth 30% of the total “Written ApprAIsal” grade.
Step 3: Integrate AI to resolve deficiencies
Once I have given them feedback on their first drafts, students are required to use AI to improve their first draft. Students must submit the URL to their AI queries and responses (“AI log”). Or less ideally, they can submit a PDF or screenshot of them. I can assess the effort they put in, evaluate their queries, and provide guidance on how to more effectively use AI. This part is worth 40% of the total “Written ApprAIsal” grade.
Step 3: Use AI to help write a final draft
Using what they’ve obtained from AI, along with my feedback, students must transform their first draft into an improved final draft. Students are permitted to continue using AI as well. They must turn on track changes in their document so I can see what changes they’ve made to the first draft.
Why has this approach worked in my course?
It makes students aware of my familiarity with AI and how it’s used. Students now know I am on the lookout for improper usage of AI in our course.
It encourages their acquisition of foundational knowledge. Students quickly figure out that they must know the basic legal principles. Without them, they will have no idea if AI is providing them with inaccurate information, which can happen sometimes, especially when it comes to legal cases
This approach promotes academic integrity. Students recognize their first drafts must reflect their genuine understanding. There is no benefit to using AI for the first draft. Because the remaining parts are based on their use of AI to improve the first draft, there will not be much room for improvement if the first draft is too good. And because students must submit their AI logs, I can easily ascertain if they actually did the work.
Students build necessary skills for their future careers. They can improve their writing and analysis skills in a low stakes’ way, while receiving useful feedback.
It helps me focus my efforts on helping them understand the law, rather than having to enforce a ban on the use of AI.
Issues related to this approach
It takes a lot of effort to find the right law and related news article to use. Not only does the law have to be current, but it also must be interesting and relevant to the students. Legal issues must be presented in a way which are factually neutral to avoid bias. And, the news articles must be factual and not cluttered with distracting commentary or opinions.
Additionally, rapid feedback is required. With up to 150 students in my course, I only have a little more than 24 hours to turn around written feedback and comments on their first drafts and AI logs. Frankly, it can be overwhelming.
Tips on integrating AI into your course
I have learned a few things along the way about integrating AI into my courses.
Establish clear rules: Be upfront and clear about when, and how, AI can be used. Stick to those rules and enforce them.
Consider accessibility: Not every student has easy or affordable access to AI tools. Make sure you have alternatives available for these students.
Teach foundational knowledge first: Students need to know the core concepts so they can critically evaluate any AI-generated content.
Require transparency: Students must show how they used AI. It is a great way to keep them honest.
Be flexible and open to experimentation, most importantly: Mistakes are inevitable. There will be times where something you thought would work just doesn’t. That’s ok. Adjust and keep innovating.
Final Thoughts
AI is here to stay, and that’s not necessarily a bad thing. AI is a tool that can help students learn. But, it’s up to us to show our students how to use AI responsibly. Whether it’s helping them improve their writing skills, gain foundational knowledge or develop critical thinking skills, AI has so much potential in our courses. Let’s embrace it and figure out how to make it work for each of us.
Got ideas or experiences with AI in your courses? Let’s connect. I would love to hear how you are using it!
Machiavelli (Max) Chao is a full-time Senior Continuing Lecturer at the Paul Merage School of Business at the University of California, Irvine and Cengage Faculty Partner.
SALT LAKE CITY — Nineteen-year-old Nevaeh Parker spent the fall semester at the University of Utah trying to figure out how to lead a student group that had been undercut overnight by matters far beyond student control.
Parker, the president of the Black Student Union, feared that a new Utah law banning diversity, equity and inclusion efforts at public colleges had sent a message to students from historically marginalized groups that they aren’t valued on campus. So this spring, while juggling 18 credit hours, an internship, a role in student government and waiting tables at a local cafe, she is doing everything in her power to change that message.
Because the university cut off support for the BSU — as well as groups for Asian American and for Pacific Islander students — Parker is organizing the BSU’s monthly meetings on a bare-bones budget that comes from student government funding for hundreds of clubs. She often drives to pick up the meeting’s pizza to avoid wasting those precious dollars on delivery fees. And she’s helping organize large community events that can help Black, Asian and Latino students build relationships with each other and connect with people working in Salt Lake City for mentorship and professional networking opportunities.
Nineteen-year-old University of Utah student Nevaeh Parker is working hard to keep the Black Student Union going after the organization lost financial support. Credit: Image provided by Duncan Allen
“Sometimes that means I’m sacrificing my grades, my personal time, my family,” Parker, a sophomore, said. “It makes it harder to succeed and achieve the things I want to achieve.”
But she’s dedicated to keeping the BSU going because it means so much to her fellow Black students. She said several of her peers have told her they don’t feel they have a place on campus and are considering transferring or dropping out.
Utah’s law arose from a conservative view that DEI initiatives promote different treatment of students based on race, ethnicity, gender or sexuality. House Bill 261, known as “Equal Opportunity Initiatives,” which took effect last July, broadly banished DEI efforts and prohibited institutions or their representatives speaking about related topics at public colleges and government agencies. Violators risk losing state funding.
Now President Donald Trump has set out to squelch DEI work across the federal government and in schools, colleges and businesses everywhere, through DEI-related executive orders and a recent “Dear Colleague” letter. As more states decide to banish DEI, Utah’s campus may represent what’s to come nationwide.
Related: Interested in more news about colleges and universities? Subscribe to our free biweekly higher education newsletter.
Because of the new state law, the university last year closed the Black Cultural Center, the Center for Equity and Student Belonging, the LGBT Resource Center and the Women’s Resource Center – in addition to making funding cuts to the student affinity groups.
In place of these centers, the university opened a new Center for Community and Cultural Engagement, to offer programming for education, celebration and awareness of different identity and cultural groups, and a new Center for Student Access and Resources, to offer practical support services like counseling to all students, regardless of identity.
For many students, the changes may have gone unnoticed. Utah’s undergraduate population is about 63 percent white. Black students are about 1 percent, Asian students about 8 percent and Hispanic students about 14 percent of the student body. Gender identity and sexuality among students is not tracked.
For others, however, the university’s racial composition makes the support of the centers that were eliminated that much more significant.
In response to a new state law that broadly banned diversity, equity and inclusion efforts, the University of Utah closed its Center for Equity and Student Belonging, the Black Cultural Center, the Women’s Resource Center and the LGBT Resource Center. Credit: Olivia Sanchez/The Hechinger Report
Some — like Parker — have worked to replace what was lost. For example, a group of queer and transgender students formed a student-run Pride Center, with support from the local Utah Pride Center. A few days a week, they set up camp in a study room in the library. They bring in pride flags, informational fliers and rainbow stickers to distribute around the room, and sit at a big table in case other students come looking for a space to study or spend time with friends.
Lori McDonald, the university’s vice president of student affairs, said so far, her staff has not seen as many students spending time in the two new centers as they did when that space was the Women’s Resource Center and the LGBT Resource Center, for example.
“I still hear from students who are grieving the loss of the centers that they felt such ownership of and comfort with,” McDonald said. “I expected that there would still be frustration with the situation, but yet still carrying on and finding new things.”
One of the Utah bill’s co-sponsors was Katy Hall, a Republican state representative. In an email, she said she wanted to ensure that support services were available to all students and that barriers to academic success were removed.
“My aim was to take the politics out of it and move forward with helping students and Utahns to focus on equal treatment under the law for all,” Hall said. “Long term, I hope that students who benefitted from these centers in the past know that the expectation is that they will still be able to receive services and support that they need.”
The law allows Utah colleges to operate cultural centers, so long as they offer only “cultural education, celebration, engagement, and awareness to provide opportunities for all students to learn with and from one another,” according to guidance from the Utah System of Higher Education.
Given the anti-DEI orders coming from the White House and the mandate from the Department of Education earlier this month calling for the elimination of any racial preferences, McDonald said, “This does seem to be a time that higher education will receive more direction on what can and cannot be done.”
But because the University of Utah has already had to make so many changes, she thinks that the university will be able to carry on with the centers and programs it now offers for all students.
Research has shown that a sense of belonging at college contributes to improved engagement in class and campus activities and to retaining students until they graduate.
“When we take away critical supports that we know have been so instrumental in student engagement and retention, we are not delivering on our promise to ensure student success,” said Royel M. Johnson, director of the national assessment of collegiate campus climates at the University of Southern California Race and Equity Center.
Creating an equitable and inclusive environment requires recognizing that there is no one-size-fits-all approach to supporting students, said Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education. A student who grew up poor may not have had the same opportunities in preparing for college as a student from a wealthy or middle-class family. Students from some minority groups or those who are the first in their family to go to college may not understand how to get the support they need.
“This should not be a situation where our students arrive on campus and are expected to sink or swim,” she said.
Student Andy Whipple wears a beaded bracelet made at a “Fab Friday” event hosted by the LGBT Resource Center at the University of Utah. The LGBT Resource Center was closed recently to comply with a new state law that limits diversity, equity and inclusion work. Credit: Olivia Sanchez/The Hechinger Report
Kirstin Maanum is the director of the new Center for Student Access and Resources; it administers scholarships and guidance previously offered by the now-closed centers. She formerly served as the director of the Women’s Resource Center.
“Students have worked really hard to figure out where their place is and try to get connected,” Maanum said. “It’s on us to be telling students what we offer and even in some cases, what we don’t, and connecting them to places that do offer what they’re looking for.”
That has been difficult, she said, because the changeover happened so quickly, even though some staffers from the closed centers were reassigned to the new centers. (Others were reassigned elsewhere.)
“It was a heavy lift,” Maanum said. “We didn’t really get a chance to pause until this fall. We did a retreat at the end of October and it was the first time I felt like we were able to really reflect on how things were going and essentially do some grief work and team building.”
Before the new state law, the cultural, social and political activities of various student affinity groups used to be financed by the university — up to $11,000 per group per year — but that money was eliminated because it came from the Center for Equity and Student Belonging, which closed. The groups could have retained some financial support from the university if they agreed to avoid speaking about certain topics considered political and to explicitly welcome all students, not just those who shared their race, ethnicity or other personal identity characteristics, according to McDonald. Otherwise, the student groups are left to fundraise and petition the student government for funding alongside hundreds of other clubs.
Parker said the restrictions on speech felt impossible for the BSU, which often discusses racism and the way bias and discrimination affect students. She said, “Those things are not political, those things are real, and they impact the way students are able to perform on campus.”
She added: “I feel as though me living in this black body automatically makes myself and my existence here political, I feel like it makes my existence here debatable and questioned. I feel like every single day I’m having to prove myself extra.”
In October, she and other leaders of the Black Student Union decided to forgo being sponsored by the university, which had enabled traditional activities such as roller skating nights, a Jollof rice cook-off (which was a chance to engage with different cultures, students said) and speaker forums.
Alex Tokita, a senior who is the president of the Asian American Student Association, said his group did the same. To maintain their relationship with the university by complying with the law, Tokita said, was “bonkers.”
Alex Tokita, a senior at the University of Utah, is the president of the Asian American Student Association. The organization chose to forgo university sponsorship because it did not want to comply with a new state law that restricts speech on certain topics. Credit: Olivia Sanchez/The Hechinger Report
Tokita said it doesn’t make sense for the university to host events in observation of historical figures and moments that represent the struggle of marginalized people without being able to discuss things like racial privilege or implicit bias.
“It’s frustrating to me that we can have an MLK Jr. Day, but we can’t talk about implicit bias,” Tokita said. “We can’t talk about critical race theory, bias, implicit bias.”
As a student, Tokita can use these words and discuss these concepts. But he couldn’t if he were speaking on behalf of a university-sponsored organization.
LeiLoni Allan-McLaughlin, of the new Center for Community and Cultural Engagement, said that some students believe they must comply with the law even if they are not representing the university or participating in sponsored groups.
“We’ve been having to continually inform them, ‘Yes, you can usethose words. We cannot,’” Allan-McLaughlin said. “That’s been a roadblock for our office and for the students, because these are things that they’re studying so they need to use those words in their research, but also to advocate for each other and themselves.”
Last fall, Allan-McLaughlin’s center hosted an event around the time of National Coming Out Day, in October, with a screening of “Paris Is Burning,” a film about trans women and drag queens in New York City in the 1980s. Afterward, two staff members led a discussion with the students who attended. They prefaced the discussion with a disclaimer, saying that they were not speaking on behalf of the university.
Center staffers also set up an interactive exhibit in honor of National Coming Out Day, where students could write their experiences on colorful notecards and pin them on a bulletin board; created an altar for students to observe Día de los Muertos, in early November, and held an event to celebrate indigenous art. So far this semester, the center has hosted several events in observance of Martin Luther King Jr. Day and Black History Month, including an educational panel, a march and a pop-up library event.
Such events may add value to the campus experience overall, but students from groups that aren’t well represented on campus argue that those events do not make up for the loss of dedicated spaces to spend time with other students of similar backgrounds.
Sophomore Juniper Nilsson looks at a National Coming Out Day exhibit in the student union at the University of Utah. The exhibit was set up by the new Center for Community and Cultural Engagement. Credit: Olivia Sanchez/The Hechinger Report
For Taylor White, a recent graduate with a degree in psychology, connecting with fellow Black students through BSU events was, “honestly, the biggest relief of my life.” At the Black Cultural Center, she said, students could talk about what it was like to be the only Black person in their classes or to be Black in other predominantly white spaces. She said without the support of other Black students, she’s not sure she would have been able to finish her degree.
Nnenna Eke-Ukoh, a 2024 graduate who is now pursuing a master’s in higher educational leadership at nearby Weber State University, said it feels like the new Center for Community and Cultural Engagement at her alma mater is “lumping all the people of color together.”
“We’re not all the same,” Eke-Ukoh said, “and we have all different struggles, and so it’s not going to be helpful.”
Contact staff writer Olivia Sanchez at 212-678-8402 or [email protected].
The Hechinger Report provides in-depth, fact-based, unbiased reporting on education that is free to all readers. But that doesn’t mean it’s free to produce. Our work keeps educators and the public informed about pressing issues at schools and on campuses throughout the country. We tell the whole story, even when the details are inconvenient. Help us keep doing that.
When the University of Hawai‘i at Manoa planned a Black History Month event in February 2023 that lacked any black facilitators, law professor Kenneth Lawson publicly challenged a dean about it at a faculty meeting. Nearly two years later, and shortly after clashing with administrators over their decision to doctor one of his class presentations, Lawson suddenly must defend himself against a defamation lawsuit over his remarks — one filed by that same dean.
On Feb. 20, Lawson’s legal team filed an anti-SLAPP motion to dismiss the dean’s lawsuit, in which she alleged that Lawson’s heated arguments with her concerning the Black History Month event, as well as Lawson’s call to boycott the event, were defamatory. Lawson’s legal team argues that the defamation suit is “an attempt to chill and silence Professor Lawson’s constitutionally protected speech.” And the fact that it came fast on the heels of a curriculum dispute raises further questions of retaliation.
2023: Lawson files First Amendment lawsuit against university following imbroglio over Black History Month event
The threats to Lawson’s expressive freedoms date to a faculty meeting back in February 2023, where he voiced vehement objections to a scheduled Black History Month event that was to feature a panel with no black facilitators. (Lawson is black.)
At the meeting, UH Dean Camille Nelson clashed with Lawson over the issue. Lawson claimed Nelson (who is also black) didn’t have sufficient experience in or understanding of the Civil Rights Movement. Nelson retorted that her experience as a black woman gave her perspective to understand racism, but that she did not want to litigate that issue during the meeting. In a follow-up email, Lawson accused Nelson of being “highly dismissive” of his objections, and a few days later, he called for a boycott of the panel via a university listserv.
Law professor challenges university after campus ‘shooting’ hypothetical changed in lesson plan
News
The University of Hawai’i violated academic freedom and set a dangerous precedent with unilateral revisions to a law professor’s presentation on a legal concept.
UH banned Lawson from campus and launched an investigation to determine whether he had created a “hostile work environment” for his colleagues. The university also issued no-contact orders barring Lawson from contacting certain administrators and restricting his use of university listservs.
Lawson, in turn, sued UH for violating his First Amendment rights to speak on a matter of public concern: racism and inclusion at the university.
The university eventually sanctioned Lawson for the February 2023 incident, requiring him to complete mandatory training and serve a one-month suspension without pay. Lawson returned to teaching in August of 2024, after completing the university’s sanctions under protest as his legal case proceeded.
2025: Lawson becomes locked in conflict over academic freedom violations
Last month, we told readers about Lawson’s clash with the university over an in-class PowerPoint presentation. Last September, Lawson used a hypothetical involving himself and two deans — one of whom shoots at the other, misses, and hits Lawson accidentally — to teach his law students the legal concept of transferred intent. The accompanying slide included website portraits of himself and the two deans to illustrate the example.
When an anonymous student filed a complaint about the example, the university’s response to the complaint presented a master class in how to violate academic freedom. The university ordered Lawson to change the hypothetical because it could be “disturbing and harmful,” despite the fact that he had not violated any policy. When Lawson rightfully demurred, the university unilaterally changed Lawson’s slides, removing images of the two deans—but leaving Lawson as the victim of the shooting. (Why students would be less disturbed by a hypothetical that still depicted their professor as a shooting victim was not explained.)
FIRE sent twoletters to the university urging it to restore the hypothetical to its original state. We argued that unilaterally changing a faculty member’s teaching materials raised serious concerns about the university’s fealty to the basic tenets of academic freedom. Those tenets protect the right of faculty members to determine how best to teach their subjects. This freedom is even more important when those topics are complicated, difficult, or potentially upsetting to students. Going over Lawson’s head to change the hypothetical without his consent also raises serious concerns for future academic freedom issues. Would UH consistently bypass faculty rights to change instruction until the teaching satisfied administrators?
UH dean files defamation lawsuit
Shortly after Lawson filed his censorship grievance, and nearly two years after the case’s original filing, Nelson hit Lawson with a lawsuit of her own: She alleged that Lawson’s behavior at the meeting nearly two years earlier, and his subsequent email to the university listserv, had defamed her.
She suffered significant emotional distress and reputational harm, she says, because of Lawson’s alleged accusations of her of being a silent “Intellectual Negro.”
We hope this motion will give UH the sharp reminder it needs that faculty members have a right to speak on matters of public concern. Faculty members also have the right to determine how to approach their courses. And faculty members shouldn’t have to fear retaliation — in the university setting or in the court of law — for exercising their First Amendment rights.
We’ll continue to keep readers apprised of Lawson’s battle against his university.
In a Jan. 14 lecture, Ken Levy, Holt B. Harrison Distinguished Professor of Law at Louisiana State University, dropped f-bombs against then–president-elect Donald Trump and Louisiana governor Jeff Landry and told students who like Trump that they need his “political commentary.”
Some students found the apparent attempt at political humor funny, according to an audio recording of the class obtained by Inside Higher Ed from a student who supports Levy.
But at least one student in the administration of criminal justice class who subsequently complained, according to LSU, wasn’t amused—and neither were the university and the governor. An LSU spokesperson said the institution “took immediate action to remove Professor Levy from the classroom after complaints about the professor’s remarks.”
Levy got a lawyer and took immediate action himself, pulling LSU into court instead of waiting for the university to take further steps internally regarding his job.
In the month since that lecture, state district court judges have twice ruled that Levy should return to the classroom, only for a state appeals court to twice overrule that. The back-and-forth nature of the case has attracted attention in Louisiana and in law circles, including via headlines such as “The LSU Law School Professor Free Speech Hot Potato Saga Continues.”
Landry also continues to discuss the case. A Republican governor who’s repeatedly insertedhimself in LSU affairs, Landry used social media in the fall to call on the university to punish one of Levy’s law school colleagues for alleged in-class comments about Trump-supporting students. Landry has now repeatedly posted about Levy, recently saying an alleged exam he gave was incendiary and suggesting that “maybe it’s time to abolish tenure.”
In and Out
In the lecture in question, Levy referenced Landry’s previous criticism of his LSU colleague Nick Bryner, adding that he “would love to become a national celebrity [student laughter drowns out a moment of the recording] based on what I said in this class, like, ‘Fuck the governor!’”
Levy also referenced Trump. “You probably heard I’m a big lefty, I’m a big Democrat, I was devastated by— I couldn’t believe that fucker won, and those of you who like him, I don’t give a shit, you’re already getting ready to say in your evaluations, ‘I don’t need his political commentary,’” Levy told students. “No, you need my political commentary, you above all others.”
A few days after that lecture, LSU notified Levy he was suspended from teaching pending an investigation into student complaints, according to a letter from the university provided by Levy’s attorney, Jill Craft.
On Jan. 28, Craft filed a request for a temporary restraining order against LSU to get Levy back in the classroom. The filing alleged that a student complained to the governor, not LSU, and calls were then made to LSU. A state district court judge granted the restraining order Jan. 30 without a hearing.
In the first reversal, a panel of appellate judges wrote Feb. 4 that the lower court shouldn’t have approved the return-to-teaching part of the temporary restraining order without a full evidentiary hearing. But after the lower court held a two-day hearing last week, a different group of appellate judges overruled Levy’s return to teaching again—without explaining why.
Local journalists who covered last week’s hearing reported that district court judge Tarvald Anthony Smith kicked an LSU deputy general counsel out of the courtroom because the lawyer told the law school dean, who was a scheduled and sequestered witness, about a student witness’s earlier testimony. The testimony was reportedly that the student had recorded a conversation with the dean.
Smith ruled Feb. 11 that LSU policy required the university to keep Levy in class during the investigation of his comments, WBRZ reported. But a Feb. 4 statement from university spokesman Todd Woodward to Inside Higher Ed suggested the investigation was already over: “Our investigation found that Professor Levy created a classroom environment that was demeaning to students who do not hold his political view, threatening in terms of their grades and profane.” The university didn’t make anyone available for an interview about the case.
Amid this legal back-and-forth, Landry continues to denounce Levy on social media. Last week, Landry posted on X an alleged exam from Levy that included potential sexual and other crimes committed by various fictitious individuals and asked students at the end to “discuss all potential crimes and defenses.” The narrative included a teen who put his penis into pumpkins on Halloween and was seen by trick-or-treating children, and a powerful Republican and suspected pedophile who invited the children inside to dance for him.
“Disgusting and inexcusable behavior from Ken Levy,” Landry wrote on X regarding what he claimed was Levy’s test. “Deranged behavior like this has no place in our classrooms! If tenure protects a professor from this type of conduct, then maybe it’s time to abolish tenure.” Asked about this document, Craft said she believes the assignment was part of the sex crimes portion of Levy’s criminal law exam years ago, but she did not confirm it.
After the latest appellate ruling in LSU’s favor, Landry wrote on X that “Levy should stay far, far away from any classroom in Louisiana!”
Craft said Levy has received death threats on X due to Landry’s comments there. “This seems to be a situation entirely of the governor’s making,” she said. “He has been active on social media, trying to accuse my client of all kinds of bad things. He’s a lawyer himself. He attacked the courts and the judge.”
Landry’s office didn’t respond to requests for comment.
Craft also said Levy’s roughly 80 students remain with another 80 in another professor’s classroom.
“I’m not sure how he can handle office hours for 160 law students,” Craft said of that second professor. The university says it’s doubled the number of student tutors for the course.
No Longer the U.S.?
Craft said Levy was set to return to the classroom Feb. 13, but Louisiana’s First Circuit Court of Appeal issued its two-sentence order around 9:30 a.m. that appeared to stay the part of the lower court’s order that returned Levy to teaching.
LSU again kept Levy out of the classroom Tuesday, Craft said. But she said the rest of the lower court order remains in place, at least for now, and that prevents LSU from taking further employment action against Levy due to his expression.
“This is a critical issue, and I feel like we have got to, as a nation, understand that there has to be academic freedom, there has to be free speech in this country, and there have to be protections against governmental intrusions without due process,” she said. “We take all that away and we are no longer the United States of America.”
There has been much discussion in recent months about financial pressures in the higher education sector and what could be done by stakeholders in the sector – government, regulators and higher education institutions themselves – to address these.
One such proposal is a strategy of “radical collaboration” between institutions, ranging from mergers to federations, or shared services and centrally operated services. Indeed, the Office for Students (OfS) has cited radical collaboration as a likely response to the financial challenges in the sector:
Where necessary, providers will need to prepare for, and deliver in practice, the transformation needed to address the challenges they face. In some cases, this is likely to include looking externally for solutions to secure their financial future, including working with other organisations to reduce costs or identifying potential merger partners or other structural changes.
This notion of radical collaboration goes beyond the traditional practice of academically driven collaboration. Instead, in this context radical collaboration refers to deeper, more extensive and far-reaching strategic collaboration, involving institutions working together to achieve a strategic shared mission and/or efficiencies. This might include, for example, curriculum sharing, or collaborating on a regional basis where institutions collectively decide which is best placed to deliver particular courses or subject areas.
While the notion of “radical collaboration” may present a potentially appealing way of responding to the challenges that the sector is facing, there is, however, a significant tension between the principles of such transformational integration and the principles of competition law. As things currently stand, many forms of greater integration between institutions, particularly in relation to curriculum mapping and sharing the provision of courses, would breach the competition rules.
UK competition law and higher education
Competition laws seek to safeguard free and fair competition between “undertakings” (ie any entity that is engaged in economic activity) for the benefit of consumers, with the aim of creating competitive markets which benefit from the efficient allocation of resources; innovation; lower prices; increased choice; and better-quality products and services for customers.
Competition laws therefore prohibit agreements and understandings between independent “undertakings” that have, as their object or effect, the prevention, restriction or distortion of competition. Some agreements are regarded as being so harmful to competition in their nature that they are prohibited outright, for example, agreements between competitors to fix prices, share markets, limit output, or co-ordinate or rig tenders. These types of agreements are highly likely to attract vigorous enforcement action by the competition authorities, including the imposition of substantial fines. A finding that an organisation has breached competition rules (or even an allegation of a breach) would inevitably lead to negative publicity and reputational harm.
While the higher education sector may not bear all the hallmarks of a traditional, fully competitive market, it does fall within the scope of the UK’s competition law regime. Higher education institutions are “undertakings” for the purposes of competition law because they are engaged in “economic activities”; they provide education and other ancillary services to undergraduate and postgraduate students, create jobs which benefit their local and the national economy, as well as develop new products and services.
Moreover, higher education institutions have to compete to “win” students, competing to a certain extent on price, in the context of international or postgraduate provision, but primarily on non-price factors of competition, such as choice of course/course content; quality of provision; reputation; and the range and quality of ancillary services, such as sports provision, accommodation and other student services. Higher education institutions also compete in “upstream” labour markets to attract and retain talent (ie teaching and research staff).
Collaboration between sector participants can undoubtedly be positive and pro-competitive. Such arrangements may be permitted by competition law if (among other things) the collaboration produces efficiencies which benefit consumers. For example, when properly structured, benchmarking exercises or arrangements between institutions to share facilities can lead to the more efficient allocation of resources. However, collaboration between sector participants which dampens or reduces the levels of competition that would otherwise exist between them, and/or which produces no clear benefits for consumers, risks breaching the competition rules.
A clear understanding of where the line is drawn between collaboration which promotes competition and delivers consumer/student benefits, and collaboration which reduces or distorts competition, is therefore important. If this boundary is not well understood, or the boundary itself is not appropriately drawn, the competition rules could act as a barrier to the very innovation and collaboration which the OfS and the government are relying upon to alleviate some of the pressures facing the sector. Indeed, in an interview last week, vice chancellor of Cardiff University Wendy Larner commented that competition law was preventing the kind of collaboration on course provision that she felt was necessary.
Competition regulation from OFT to CMA
More recent regulatory scrutiny of the sector has focused on consumer law aspects. Nonetheless, the Competition and Markets Authority (CMA) and its predecessor, the Office of Fair Trading (OFT), have reviewed mergers between higher education institutions – for example, the University of Manchester / Victoria Manchester / University of Manchester Institute of Science and Technology merger in 2005. And in 2014, the OFT conducted a call for evidence in order to gain a better understanding of how choice and competition were working in the higher education sector in England in response to policy developments that sought to foster the development of a competitive market.
The OFT’s report, following the call for evidence, noted that the most “serious and prevalent” concerns raised by stakeholders related to the extent to which fears of breaching competition law might hinder beneficial cooperation between institutions. However, the report also noted that despite “many generic references” by stakeholders to the potential (perceived) tensions between collaboration and competition, “there were no substantive examples that would justify, because of their relevance and/or novel nature, the production of specific OFT guidance beyond that already available.”
That said, the report also noted that there was scope for the (then incoming) CMA to highlight that:
cooperation which delivers countervailing consumer benefits (ie benefits to students) may not pose a problem – examples given included benchmarking data; academic partnerships; sharing facilities; joint procurement activities.
where cooperation between higher education institutions can promote efficiencies, collaboration should be allowed to take place.
The OFT’s report was published a decade ago at a time when the sector was arguably in a different place. The types of collaborative activities identified by the OFT in its report as being beneficial and delivering benefits to students were very much the more traditional forms of cooperation and certainly some way removed from the radical collaboration concepts being discussed at present.
It also appears to be the case that a lack of concrete examples demonstrating where the competition rules had, in practice, posed a barrier to beneficial collaboration influenced the OFT’s thinking. It is perhaps for this reason that the OFT’s findings were limited to acknowledging that cooperation which results in efficiencies should be allowed to take place and reminding institutions of the possibility of relying on an individual exemption from the competition rules.
An individual exemption involves the institution(s) in question conducting a self-assessment of whether the proposed agreement restricting competition will benefit consumers to an extent that outweighs the harm to competition. In practical terms the notion of relying on a self-assessed individual exemption may not be attractive to many institutions. Four cumulative criteria must be met for the exemption to apply and, if the agreement is challenged, the party relying on the exemption bears the burden of proof for substantiating, with specific evidence, that the exemption criteria are met.
Undertaking the self-assessment process in advance of entering into any agreement around radical collaboration would be a significant, evidence driven compliance exercise involving financial and economic modelling. However, even if institutions (and their advisors) were to conclude that it is likely that the exemption criteria are met, there would always be the risk that the CMA or a court might take a different view of the evidence and would disagree. Institutions may not be prepared to proceed with a high-stakes radical collaboration against this backdrop of uncertainty.
Moreover, the criteria for individual exemption include the requirement that an agreement must improve production or distribution, or promote technical or economic progress, “while allowing consumers a fair share of the resulting benefit.” Consumers in this scenario means students. In other words, to rely on the exemption, any benefits accruing to the participating institutions from the collaboration must be passed on to a sufficient extent to the students. It would have to be demonstrated, with evidence, that the collaboration would result in lower prices, or better choice and quality, for students. It would not be enough for participating institutions to demonstrate that benefits merely accrue to them.
It is also worth remembering that the CMA may offer non-binding views on the application of the competition rules to “novel” questions. The CMA has in fact expressed that it is open to hearing from the sector, perhaps in response to the vice-chancellor of Cardiff University’s critical comments.
While seeking a non-binding view on a proposed form of radical collaboration may sound appealing, it is open to debate whether some of the collaboration proposals which have been mooted are genuinely “novel” in competition terms. For example, an agreement between competing institutions about who will offer certain courses would almost certainly be characterised as market sharing, a serious breach of the competition rules.
What will it take to get things moving
There’s an argument to be made about whether a wider national agenda from government on driving forward radical collaboration in higher education is needed, which takes into account the competition law issues. Similar questions to those facing higher education were recently debated in the competition law community in the context of how the competition rules apply to sustainability agreements – agreements between industry participants which are aimed at preventing, reducing or mitigating the adverse impact that economic activities have on the environment, or assist with the transition towards environmental sustainability. Specifically, a number of organisations had voiced concerns that the fear of inadvertently breaching the competition rules was preventing beneficial sector and industry collaborations aimed at delivering sustainability goals.
In response, a number of competition authorities – including the CMA – proactively published guidance to help organisations apply the competition rules to sustainability agreements and collaborations. The CMA published its Green Agreements Guidance in October 2023 containing a clear statement of intent, along with practical and user-friendly guidance, that competition law should not impede legitimate collaboration between businesses that is necessary for the promotion or protection of environmental sustainability.
The guidance also sets out welcome details of an open-door policy, by which businesses considering entering into an environmental sustainability agreement can approach the CMA for informal guidance on their proposed agreement if there is uncertainty on the application of the guidance. This policy also provides some reassurance that the CMA would not expect to take enforcement action against environmental sustainability agreements that correspond clearly to the principles set out in the guidance.
To date the CMA has published two opinions under its open-door policy. These in turn form the beginnings of a body of decisional practice which will help inform organisations, as well as advisors, on the CMA’s approach to collaboration in this area, aiding self-assessment and informed decision-making.
Given the extensive challenges facing the higher education sector, and the passage of time since the OFT’s call for information in 2014, this might be an opportune moment for the CMA to consider the specific issues facing the sector and to engage with the sector more extensively on how the competition rules apply in the sector.
Taking steps to support a viable, flourishing higher education sector which, among other public goods, boosts economic growth, would undoubtedly be aligned with the government’s growth mission and, in turn, aligned with a key pillar of the CMA’s strategy of driving productive and sustainable growth. To the extent that the competition rules are perceived by institutions as presenting a barrier to collaboration that would deliver benefits to students, and where there are examples which show this, there may now be a case for specific higher education focused guidance, similar to the approach taken to the Green Agreements Guidance. Clear guidance, including worked examples on how the individual exemption should be applied and understood in the context of the higher education sector, could be a positive and welcome step forward.
In a recent speech interim Executive Director for Competition Enforcement at the CMA Juliet Enser noted the work of the CMA in ensuring that its enforcement activities do not have a chilling effect on pro-competitive collaborations between competitors, referring to the sustainability guidance and the CMA’s work on competitor collaborations in the pharmaceutical sector. Enser said “where we are convinced on the evidence that there is a real risk, that absent our providing appropriate comfort, the economy will lose out on beneficial collaboration then we are prepared to act.”
This is a positive statement from the CMA, signalling a proactive willingness to engage. In turn, the higher education sector could seize upon this invitation and commence a dialogue with the CMA, providing examples and evidence of where clarity on the application of the competition rules to the sector is needed, so that stakeholders can work towards pro-competitive collaborations which may ultimately benefit students, the higher education sector and the economy at large.
This article is published in association with Mills & Reeve. Join us on Tuesday 4 March 12.00-1.00pm for Connect more, a free online event exploring the potential for more system-wide collaboration in higher education in England. Find out more and register here.
AUSTIN, Texas, Feb. 7, 2025 — After a lawsuit from the Foundation for Individual Rights and Expression and Davis Wright Tremaine, a district court today stopped enforcement of a Texas law that would have blocked access to broad categories of protected speech for minors and forced websites to collect adults’ IDs or biometric data before they can access social media sites.
Northern District of Texas Judge Robert Pitman granted FIRE’s motion for a preliminary injunction against provisions of the Securing Children Online through Parental Empowerment Act (SCOPE Act) requiring content monitoring and filtering, targeted advertising bans, and age-verification requirements, ruling that these measures were unconstitutionally overbroad, vague, and not narrowly tailored to serve a compelling state interest.
“The court determined that Texas’s law was likely unconstitutional because its provisions restricted protected speech and were so vague that it made it hard to know what was prohibited,” said FIRE Chief Counsel Bob Corn-Revere. “States can’t block adults from engaging with legal speech in the name of protecting children, nor can they keep minors from ideas that the government deems unsuitable.”
The SCOPE Act would have required social media platforms to register the age of every new user. Platforms would have been forced to track how much of their content is “harmful” to minors and, once a certain percentage is reached, force users to prove that they are 18 or older. In other words, the law would have burdened adults who wanted to view content that is fully legal for adults, serving as an effective ban for those who understandably don’t trust a third-party website with their driver’s license or fingerprints.
The law also required websites to prevent minors from being exposed to “harmful material” that “promotes, glorifies, or facilitates” behaviors like drug use, suicide, or bullying. That definition was far too vague to pass constitutional muster: whether speech “promotes” or “glorifies” an activity is inherently subjective, and platforms had testified that they would be forced to react by censoring all discussions of those topics.
Today’s ruling should serve as yet another warning to states tempted to jump on the unconstitutional bandwagon of social media age verification bills.
“At what point… does alcohol use become ‘substance abuse?’” asked Judge Pitman in his ruling. “When does an extreme diet cross the line into an ‘eating disorder?’ What defines ‘grooming’ and ‘harassment?’ Under these indefinite meanings, it is easy to see how an attorney general could arbitrarily discriminate in his enforcement of the law.”
FIRE sued on August 16 on behalf of three plaintiffs who use the Internet to communicate with young Texans and keep them informed on issues that affect them. A fourth plaintiff, M.F., is a 16-year-old rising high school junior from El Paso who is concerned that Texas is blocking his access to important content.
Lead plaintiff Students Engaged in Advancing Texas represents a coalition of Texas students who seek to increase youth visibility and participation in policymaking.
Nope to SCOPE: FIRE sues to block Texas’ unconstitutional internet age verification law
Press Release
Texans browsing your favorite websites, beware. If the state has its way, starting next month, the eyes of Texas may be upon you.
“Young people have free speech rights, too,” said SEAT Executive Director Cameron Samuels. “They’re also the future voters and leaders of Texas and America. The SCOPE Act would make youth less informed, less active, and less engaged on some of the most important issues facing the nation.”
Earlier, Judge Pitman enjoined the content moderation requirements while ruling on a separate lawsuit from the Computer & Communications Industry Association and Netchoice. Judge Pitman ruled in August that Texas “cannot pick and choose which categories of protected speech it wishes to block teenagers from discussing online.”
“This is a tremendous victory against government censorship, especially for our clients—ordinary citizens—who stood up to the State of Texas,” said Adam Sieff, partner at Davis Wright Tremaine. “The Court enjoined every substantive provision of the SCOPE Act we challenged, granting even broader relief than its first preliminary injunction. We hope this decision will give other states pause before broadly restricting free expression online.”
Texas lawmakers perhaps could have predicted today’s ruling. Age verification laws have been enjoined by courts across the country in states like California, Arkansas, Mississippi, Ohio, and even initially in Texas, in another law currently before the Supreme Court for review.
“Today’s ruling should serve as yet another warning to states tempted to jump on the unconstitutional bandwagon of social media age verification bills,” said Corn-Revere. “What these laws have in common is that they seek to impose simplistic one-size-fits-all solutions to address complicated problems.”
The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.
CONTACT:
Alex Griswold, Communications Campaign Manager, FIRE: 215-717-3473; [email protected]
Those concerned that law schools are shying away from teaching some areas of law to avoid controversy just got more reasons to worry, this time courtesy of the University of Hawai’i at Manoa and its absurd treatment of law professor Kenneth Lawson.
Lawson, an accomplished faculty member at UH, used a simple hypothetical to teach the idea of “transferred intent,” a legal concept invoked when a defendant intends to harm one person, but ends up harming a second person instead. As is common in law school, Lawson offered a hypothetical to convey this idea: Imagine if a dean at his institution tried to shoot another dean, missed, and hit Lawson instead.
Here’s a screenshot from part of his lesson:
Those who have been to law school will understand that using campus figures to illustrate hypotheticals is not at all unusual, and is intended to add a bit of levity and grounding to what can be pretty esoteric topics.
But when an anonymous student filed a complaint, calling the hypothetical “extremely disturbing” and citing the context of some shootings near the university’s campus, administrators summoned Lawson to a meeting near the end of last semester. Though they acknowledged he had not violated any university policy, they nevertheless mandated that he remove the thought experiment from a posted video of the class — or they would change it for him.
The ability of administrators to forcibly alter course materials is positively ripe for abuse.
Lawson hadn’t thought twice about including the example, and had been using the example for years, not simply because it wasn’t unusual but because the protections of academic freedom give faculty wide latitude in determining how to approach controversial or potentially difficult material. When Lawson refused to alter the video of his presentation, given that he had not violated any policy, and using the hypothetical was well within his academic freedom rights, administrators just went on the school’s online curriculum system, where faculty submit presentations, to make the changes themselves.
Remember: these changes were being made because, supposedly, some found a hypothetical of campus figures being shot to be disturbing. So this is what the administration came up with.
You will note that there is still a campus figure on that slide, and it’s the person who was (hypothetically) shot: Professor Lawson. Only the deans have been removed. It seems that at UH, some hypothetical victims are more equal than others.
There’s no denying that this is silly, and many will be tempted to chalk it up as just more campus craziness. But there’s a disturbing wrinkle here, which is that the ability of administrators to forcibly alter course materials is positively ripe for abuse. The university’s administrators have granted themselves unilateral authority to interfere with faculty teaching decisions, despite the fact that UH is a public institution bound by the First Amendment, which views academic freedom, which protects that right, as a “special concern.” If administrators can “memory hole” bits and pieces of curricula they don’t like, even when it violates no rule, where does it stop?
UH still has an opportunity to do the right thing. It’s easy, too — all it has to do is step back and let faculty teach, and save the video editing for film class.
FIRE wrote the university on Dec. 13, urging it to reverse course and restore Lawson’s original hypothetical. The university responded in early January, declining to substantively engage with our concerns or detail specific issues with our argument. Lawson, and all UH students, deserve better. As our second letter states:
FIRE’s concerns are only amplified by the fact that this alleged capitulation to sensitivity is occurring in a law school. To receive a proper education in the law, students will inevitably encounter difficult topics like sexual assault, homicide, physical assault, domestic violence, and may be faced in school and in their careers with descriptions of personal injuries far more graphic than those in Lawson’s hypothetical. Where do UH administrators draw the line regarding their interference in faculty instruction if they feel free to operate under a nebulous standard of protecting students from “disturbing and harmful” material?
Lawson has submitted a grievance about the situation, so UH still has an opportunity to do the right thing. It’s easy, too — all it has to do is step back and let faculty teach, and save the video editing for film class.
