A bipartisan effort to update the nation’s workforce development law is dead, depriving hundreds of community colleges of increased funds and opportunities to cut through the red tape surrounding short-term job training.
The Stronger Workforce for America Act would have given community colleges automatic eligibility to enter into training contracts with local workforce development offices, introduced a new federal grant and protected several existing programs from potential budget cuts in the new fiscal year.
The bill’s sponsors were hopeful that the bipartisan legislation to reauthorize the Workforce Innovation and Opportunity Act would pass Congress before the end of the year, as it was included in a wider spending package to fund the government. But when Republicans voiced opposition to the omnibus spending bill just over 24 hours before the government shutdown deadline, lawmakers reversed course. They instead passed a pared-down continuing resolution to fund the government through mid-March, and WIOA reauthorization didn’t make the cut.
Leaders on the House education and workforce committee had said the Stronger Workforce for America Act would create “transformative change” for the American workforce, pointing to how WIOA helps American workers keep pace with an ever-changing job market and gain high-demand skills. Reauthorizing WIOA was a top priority for Representative Virginia Foxx, the North Carolina Republican who chaired the committee until December.
Members of the House and Senate education and workforce committees worked for the last two years to update the workforce bill, which expired in 2020. The House plan overwhelmingly passed last spring, and the Senate released a draft plan over the summer. The Senate bill didn’t move forward, but key lawmakers in the House and Senate reached a compromise in late November to update WIOA.
Groups like the National Association of Workforce Boards and the American Association of Community Colleges say the death of the Stronger Workforce act won’t kill their programs, but nonetheless they expressed concerns about how a lack of reauthorization makes their programs vulnerable. They are trying to remain hopeful that reauthorization will be a priority for this Congress.
“As the session waned, it was clear that getting a bill enacted in 2024 was going to be extremely difficult,” David Baime, senior vice president of government relations at AACC, said in a statement. “However, we are grateful for WIOA’s champions and very optimistic that a reauthorization will be enacted by the next Congress.”
Until then, Inside Higher Ed called Baime to talk about the bill and what it means for community colleges and short-term workforce training. Here are three key obstacles he said remain until WIOA gets an update.
Bureaucracy and Eligibility
One of the largest benefits for community colleges under the Stronger Workforce act was that their training programs would have automatically qualified for federal WIOA grants.
Currently, any training provider—be it a community college, an employer or a for-profit technical institution—must meet certain performance criteria in order to receive WIOA dollars. About $500 million is available for job training vouchers each year.
Often, colleges receive funds by entering a contract with a local workforce board. The process begins with local workforce development agencies identifying key trades or certifications that are in high demand among their community. Then the board picks an approved training provider and contracts with them to train a set number of workers.
But for years, jumping through the hoops required to make that eligibility list kept many underresourced community colleges from receiving those contracts and federal funds.
“The bureaucratic nature of WIOA has made for some presidents not being as engaged as they might be,” Baime said. “In these cases, they just don’t find it worthwhile to invest a lot of time in their local workforce boards.”
The WIOA update would have cut down that red tape.
Increased Funds
But even if community colleges did automatically qualify, Baime said, the funding set aside specifically for training programs is limited, and competition with other providers like for-profit technical institutions and employers is steep.
“In fact, a lot more money for training goes to our students through Pell than through WIOA,” Baime explained.
Since 2020, the Strengthening Community Colleges Training Grant program has provided dedicated funding for training programs at community colleges. Most recently, the Labor Department awarded $65 million to 18 colleges. Through five rounds of funding, more than 200 colleges have received a total $265 million.
But the grant program was never formally authorized. That means there is no mandate requiring Congress to set aside a certain amount of funds each year, and the grant depends entirely on advocacy from specific lawmakers.
The WIOA update would have authorized the grant, providing statutory protection for the funds.
“SCCTG is a really important program for us. The program relies upon a tested model of community colleges working directly with businesses, in coordination with the federal workforce system. It’s not funded at the level we would like, but it reflects an appropriate prioritization of the role that community colleges play in job training,” Baime said.
A few other, less direct funding increases were also lost when the legislation died. For example, one policy would have required 50 percent of all WIOA funds to be spent on training rather than administrative fees, leading local workforce boards to invest more in contracts with outside providers.
Another would have specified that historically broad H1-B grants, which use the revenue from skills-based visas to train American workers, must be used to upskill individuals forced out of their current roles by innovations like AI. Workers would have received up to $5,000 through that change.
“We think a voucher that size may be an attractive inducement for dislocated workers to receive training at community colleges,” Baime said.
Future Vulnerability
Finally, for community colleges, a key concern is how the incoming Congress and Trump administration will approach WIOA, especially now that legislation has failed.
Republicans in Congress have made it clear they want to “substantially reduce funding,” so Baime fears that WIOA funding of all types could face serious cuts.
The SCCTG, for example, which has historically been advocated for by Democrats, may no longer get a budget line at all.
“The importance of workforce education is appreciated by lawmakers across the Hill,” he explained. “But we certainly would have rather gotten that bipartisan, bicameral demonstration of support by being part of this bill and enacted into statute going into the [fiscal year 2026] appropriations process.”
From time to time, we here at FAN post op-eds on various timely issues. One such issue is who decides what is taught in public schools and what are the applicable constitutional restraints placed on attempts to restrict teachers’ educational objectives. A recent court ruling in Concerned Jewish Parents & Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, et al. (Cen. Dist., Nov. 30, 2024) places this issue in bold relief.
In the piece below,Stephen Rohde, a First Amendment authority, analyzes the case and the First Amendment issues raised in it.
News items and the Supreme Court’s docket follow the op-ed. – rklc
Stephen Rohde
An important recent court ruling rejected attempts by Jewish parents and teachers in the Los Angeles Unified School District to remove an ethnic studies curriculum they labelled “anti-Semitic” and “anti-Zionist.” On Nov. 30, 2024, a federal judge reaffirmed that a system of education “which discovers truth out of a multitude of tongues” must allow teachers and their students “to explore difficult and conflicting ideas.”
In his 49-page ruling, U.S. District Judge Fernando M. Olguin wrote: “[W]e must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.” Moreover, he stressed that “teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority,” but they “must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities” (citing C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist. (9th. Cir., 2019)).
An international controversy
The lawsuit (filed by Lori Lowenthal Marcus and Robert Patrick Sticht) came in the midst of a national — and indeed international — debate surrounding who controls the telling of the complicated history of Israel and the Palestinians and how criticism of Israel and its policies is being attacked with epithets such as “anti-Semitism” and “anti-Zionism.” It was an unprecedented attempt to convince a federal court to force the second largest public school system in the United States to adopt a single, one-sided interpretation of the hotly-contested political, religious, legal, military, and cultural histories of Judaism (spanning thousands of years), Zionism (which emerged in the late nineteenth century), and the State of Israel (founded in 1948). And all of this has been marked throughout the years by an endless variety of shifting perspectives by Jews and non-Jews alike.
Lori Lowenthal Marcus (Plaintiff’s counsel)
Not incidentally, the ruling also represents a welcome rebuke to the efforts of Republican state legislators and conservative parent groups to restrict the teaching of comprehensive American and world history in public schools. This campaign includes attempts to ban books that examine racism, sexism, and LGBTQ issues as well as their efforts to eliminate programs that seek to ensure diversity, equity, and inclusion in American education.
The LAUSD lawsuit is part of a well-financed, well-resourced campaign in the United States and around the world to impose an official, dogmatic pro-Israel narrative not only on Israel’s current war in Gaza and the West Bank, but on its entire 76-year history, and to silence any contrary or pro-Palestinian perspectives in the name of fighting “anti-Semitism.”
Ominous nature of lawsuit
The ominous nature of the lawsuit can be seen in the breathtakingly overbroad injunction the plaintiffs had requested. Had it been granted, the injunction, as described in the plaintiffs’ own words, would have enlisted the powerful authority of a federal court to require the indoctrination of an entire school district, and all of its teachers and students, with false, misleading, highly-contested, and controversial claims, by prohibiting the following:
[A]ny language, in any teaching materials, asserting that Zionism is not a Jewish belief; denouncing the Jewish belief in the land of Israel as the land promised by God to the Jewish people, or the Jewish belief in Zionism, or asserting that the State of Israel, as the Nation-State of the Jewish people, is illegitimate, or asserting as a fact that the Jewish State is guilty of committing such horrific crimes against others as ethnic cleansing, land theft, apartheid or genocide, or that the Jewish people are not indigenous to the land of Israel or to the Middle East, or denying the State of Israel the right to self-defense; and/or denying the historical or religious connection between the Jewish people and the land of Israel.
Had this handful of parents and teachers succeeded, more than 24,000 LAUSD teachers would have been forced by court order to teach more than 565,000 students the single dogma that Zionism, a movement that emerged a little over a hundred years ago, is “a Jewish belief,” when in fact there is a wide diversity of views among Jews on the issue of Zionism.
In addition, if the injunction had been granted, all LAUSD teachers would have been banned by law from teaching or debating, for example, the fact that in Feb. 2022 Amnesty International issued a comprehensive 280-page investigative report entitled “Israel’s Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity.”As its title indicates, this report “analysed Israel’s intent to create and maintain a system of oppression and domination over Palestinians and examined its key components: territorial fragmentation; segregation and control; dispossession of land and property; and denial of economic and social rights.” The report then concluded that “Israel imposes a system of oppression and domination against Palestinians across all areas under its control: in Israel and the OPT [Occupied Palestinian Territory], and against Palestinian refugees, in order to benefit Jewish Israelis,” which “amounts to apartheid as prohibited in international law.”
And if the plaintiffs had had their way, all LAUSD teachers would have been breaking the law if they taught that on Jan. 26, 2024, the United Nations International Court of Justice issued a detailed ruling, which found it “plausible” that Israel has committed “acts of genocide” that violated the Genocide Convention and ordered Israel to ensure that the IDF not commit any of the acts of genocide prohibited by the convention.
And all those teachers would have been prohibited from teaching that on Nov. 21, 2024, the International Criminal Court issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Yoav Gallant, former Minister of Defence of Israel, accusing them of being “responsible for the war crimes of starvation as a method of warfare and of intentionally directing an attack against the civilian population; and the crimes against humanity of murder, persecution, and other inhumane acts from at least 8 October 2023 until at least 20 May 2024.”
The plaintiffs and their lawsuit
In May 2022 a group calling itself “Concerned Jewish Parents and Teachers of Los Angeles,” comprised of what the lawsuit called “Jewish, Zionist” teachers in the LAUSD and “Jewish, Zionist” parents of students in the LAUSD, sued the school district, the United Teachers of Los Angeles, its president Cecily Myart-Cruz, the Liberated Ethnic Studies Model Curriculum Consortium, the Consortium’s secretary Theresa Montaño, and Guadalupe Carrasco, its co-founder. The defendants were represented by Mark Kleiman.
As summarized by Judge Olguin, the plaintiffs claimed that the ethnic studies curriculum “denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]” and is designed “to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]” They claimed that the challenged curriculum “seeks to make it unsafe and ultimately impossible for any person to express Zionist ideas or Zionist commitment in public in general and within LAUSD public schools in particular.”
In addition to taking issue with the content of the challenged curriculum, the plaintiffs decried the individual defendants’ support for the challenged curriculum. According to the plaintiffs: “Defendants are injecting their views into the LAUSD curriculum” and “disseminating [the challenged curriculum] to teachers throughout Los Angeles” under the authority of the LAUSD, and “at times through stealth[.]” Plaintiffs also alleged that the defendants supported or participated in workshops that “led teachers to bring the [challenged curriculum] to their own classrooms.”
It is noteworthy that the plaintiffs did acknowledge that the LAUSD “has the right to control the content of all Ethnic Studies classes taught in LAUSD schools” and specifically admitted that the LAUSD “has ultimate control over and responsibility for the use and public disclosure of any teaching materials in Los Angeles public schools other than those materials whose use is directed by the California State Board of Education.”
Mark Kleiman (Defense counsel)
The plaintiffs also conceded that the challenged curriculum had not been formally adopted by LAUSD, but nevertheless they claimed that they “are being harmed” and “will be harmed” by it. And they alleged that the challenged curriculum is being taught by at least two LAUSD teachers, one of whom is currently “using the LESMC including the discriminatory, hateful material on Israel at issue in this case.” Additionally, they alleged that defendant Cardona confirmed that “she is teaching from LESMC materials and would continue doing so in her LAUSD classroom.”
As for their legal claims, the plaintiffs alleged that the challenged curriculum is “discriminatory” and violates their rights under the Equal Protection Clauses of the U.S. Constitution and California Constitution, the Free Exercise Clause of the U.S. Constitution, Title VI of the Civil Rights Act, and California Education Code.
The court ruling
At the outset of his decision, Judge Olguin called the lawsuit “confusing” and noted that the complaint is “difficult to understand and contains a morass of largely irrelevant — and sometimes contradictory — allegations, few of which state with any degree of clarity precisely what plaintiffs believe defendants have done or, more importantly, how plaintiffs have been harmed.” He pointed out that the lack of clarity was particularly troubling given that this was the plaintiffs’ fourth attempt to allege a valid complaint.
The lack of standing issue
Addressing threshold procedural issues, Judge Olguin found that the plaintiffs did not have standing to bring the lawsuit in the first place and that their claims were not ripe for adjudication. He observed that the “essence of plaintiffs’ alleged injuries appears to be that they are aware of the challenged curriculum, disagree with it, and fear it will be adopted or used in LAUSD classrooms.” But he found “it is far from clear that learning about Israel and Palestine or encountering teaching materials with which one disagrees constitutes an injury, citing long-standing Supreme Court and appellate precedents.” And he found that neither the parent-plaintiffs nor the teacher-plaintiffs identified “any personal injury suffered by them as a consequence of the alleged constitutional error.” Plaintiffs may not “sue merely because their legal objection is accompanied by a strong moral, ideological, or policy objection to a [purported] government action.” In other words, “the individual plaintiffs’ potential exposure to ideas with which they disagree is insufficient to support standing.”
At its core, plaintiffs’ lawsuit sought to have the court “weigh in on whether instruction that may be critical of Zionism or Israel is antisemitic.” Judge Olguin recognized that courts do on occasion determine whether beliefs are religious in nature and whether they are sincerely held, but here, without a justiciable case or controversy that presented a cognizable, redressable injury, he could not — and would not — entertain “a generalized grievance.”
Throughout his decision, Judge Olguin relied heavily on the Ninth Circuit appellate decision in Monteiro v. Tempe Union School District(1998). In that case, a parent sued a school district, on behalf of her daughter and other Black students, over the high-school curriculum’s inclusion of certain literary works, such as The Adventures of Huckleberry Finn and A Rose for Emily. The plaintiff in that case argued that because these works contain racially derogatory terms, their inclusion in the curriculum violated the Black students’ rights under the Equal Protection Clause. The Ninth Circuit rejected this argument and held that “objections to curriculum assignments cannot form the basis of a viable Equal Protection claim, because curriculum decisions must remain the province of school authorities.” Absent an allegation of an underlying racist policy, “plaintiffs cannot challenge the assignment of material deemed to have educational value by school authorities.”
In Monteiro, no underlying racist policy was found. Similarly, in the LAUSD case, Judge Olguin found that the plaintiffs “do not allege the existence of an underlying racist policy; instead, they challenge unspecified portions of a hypothetical curricular offering.” Although the plaintiffs asserted that they were targeting a curriculum “infected from top to bottom with racism and bias[,]” they did not direct the court to any allegations that supported their assertion. Nor were there any allegations to support an inference of a discriminatory policy. Thus, the lawsuit was a direct attack on curricula, and under Monteiro, “absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content.”
Failure to raise a free exercise claim
Judge Olguin also found that the plaintiffs failed to allege a violation of their right to the free exercise of religion. According to the Supreme Court, “a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not neutral or generally applicable.” But the courts have also held that “offensive content” that “does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights,” even where such content contains material that plaintiffs may find “offensive to their religious beliefs.”
In the LAUSD case, the plaintiffs did not allege that they “have somehow been prevented from practicing their faith, or that the parent-plaintiffs have been barred in any way from instructing their children at home.” In effect, the only hardship plaintiffs alleged was that the existence of the challenged curriculum — and its possible adoption — offended them. “But mere offense is insufficient to allege a burden on religious exercise,” stated Judge Olguin, citing court decisions holding that class materials offensive to Hindu or Muslim plaintiffs did not violate Free Exercise Clause. As Chief Judge Pierce Lively put it in a 1987 case: “[D]istinctions must be drawn between those governmental actions that actually interfere with the exercise of religion, and those that merely require or result in exposure to attitudes and outlooks at odds with perspective prompted by religion.”
It is important to note that Judge Olguin could have simply found that the plaintiffs lacked standing to bring the lawsuit and dismissed it entirely. Instead, he went on to explain that even if the plaintiffs had established standing, they could not overcome the “significant First Amendment” obstacles their complaint presented. Because the non-LAUSD defendants are private parties, their speech and conduct are protected by the First Amendment. The court “cannot enjoin private parties from expressing their views on what an ethnic studies curriculum should or should not contain, let alone from using any ‘elements’ of the challenged curriculum, because doing so would violate the First Amendment.”
Three First Amendment issues
Judge Olguin then explained in detail the various First Amendment violations that the plaintiffs’ requests raised:
First, plaintiffs “take issue with the non-District defendants’ forms of discussion, expression, and petitioning in relation to the challenged curriculum,” such as “various UTLA and Consortium activities, including funding, supporting, promoting, and hosting of workshops and events that discuss Palestine and Israel.” The plaintiffs sought to have the court impose restrictions on the non-District defendants’ protected speech by requesting an injunction “prohibiting all Defendants from using the elements of the LESMC at issue in this case . . . in any training sessions funded by public funds, or for which salary points are awarded by LAUSD.
Judge Olguin made it clear, however, that “the non-District defendants have a right to express their views about the curriculum under the First Amendment and to petition for curricular changes.” And he went even further: “[E]ven if teaching the challenged curriculum were unlawful, and the non-District defendants encouraged the material to be taught, the non-District defendants’ activities would be protected, as plaintiffs have not alleged incitement to imminent lawlessness action.”
Second, the plaintiffs had relied on the seminal 1969 Supreme Court decision in Brandenburg v. Ohio, arguing that the court may “prevent a speaker from counseling the commission of imminent lawless action [by LAUSD] when such counseling is likely to incite or produce such action.” But Judge Olguin found there were “no plausible allegations” in the complaint “to support such an assertion.” And in any event, “the assertion conflicts with plaintiffs’ contention that they, for example, ‘do not claim that UTLA is acting wrongfully by petitioning the government to include the challenged materials in the classroom, or to discuss with others what the curriculum should be or whether the law should be changed to allow Defendants to teach what they want.” Indeed, according to plaintiffs, “[t]here is no claim that it is illegal for UTLA to speak to teachers about Ethnic Studies and there is no request that this Court order UTLA to stop doing so.” Nor is there any claim “that the law is violated by Defendants’ conduct of seminars showing teachers how to teach [the challenged curriculum], and no relief is sought from the Court asking anyone to stop conducting such seminars.”
Third, plaintiffs specifically targeted “classroom expression by public school teachers, on the clock and paid for with public money” and asked the court to enjoin LAUSD teachers from teaching the challenged curriculum.
Judge Olguin held that “this request raises serious concerns about the First Amendment and principles of academic freedom.” Although high school teachers do not have freedom of speech to the full extent of the First Amendment, nonetheless according to Monteiro, there is no doubt that “allowing the judicial system to process complaints that seek to enjoin or attach civil liability to a school district’s assignment of” curricular material could have broader, potentially chilling effects on speech. In other words, “while teachers’ speech rights in the classroom may be reasonably abridged by their employers, such limitations are fundamentally different than speech restrictions imposed by a court at the behest of a group of private citizens.”
He added: “[S]tudents have a right to receive information and ‘lawsuits threatening to attach civil liability on the basis of the assignment of [curricular material] would severely restrict a student’s right to receive material that his school board or other educational authority determines to be of legitimate educational value,’” citing Monteiro.
Judge Olguin recognized that “determining the content of curricula is a complicated, important matter, and it is for this reason that school boards generally retain broad discretion in doing so.” He stressed that “teachers must have some discretion and academic freedom in implementing and teaching the curriculum,” because “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” He also warned that “it would be of great concern for the educational project and for academic freedom if every offended party could sue every time they did not like a curriculum or the way it was taught.”
Teaching provocative and challenging ideas is painful but necessary
Citing a 1949 Supreme Court decision that recognized that “[s]peech is often provocative and challenging,” Judge Olguin recognized that while the plaintiffs clearly considered the challenged curriculum to be “provocative and challenging,” nonetheless, “our legal tradition recognizes the importance of speech and other expressive activity even when — perhaps especially when — it is uncomfortable or inconvenient.”
Consequently, Judge Olguin dismissed all of plaintiffs’ claims with prejudice, preventing them from filing a fifth amended complaint.
No doubt the Jewish parents and teachers who brought this lawsuit were deeply concerned that their children and students would be exposed to sharply different and indeed highly negative perspectives about the State of Israel and the nature and history of Zionism — perspectives that conflict with what may have been taught at home. But when it comes to public education in America, no particular group of parents or teachers can restrict the curriculum designed for all students based on their personal views or because they are offended by some aspect of the curriculum.
“At their best, public schools in the United States serve to produce a literate and informed citizenry imbued not only with knowledge but with a spirit of inquiry,” according to Jonathan Friedman, Director of Free Expression and Education at PEN America. “Diversity of thought has been the core of our pluralistic identity, and free expression — one of the central tenets of American democracy — is an essential value that ensures both the quality of our children’s education and the ability of our schools to prepare them to become engaged citizens in an increasingly complex world.”
Friedman went on to explain that while there is no question that “parents have a central role in guiding, supporting, nurturing, and educating their children,” the so-called “parents’ rights” movement seeks to elevate “individual parents’ beliefs or preferences over the rights of all other parents.” He also noted that in many parts of the country, “individual parents are demanding the removal of books from schools they find unfavorable.” But in the United States, “it has been an abiding principle of our democracy to side with free speech over those who wish to restrict it. The freedom to learn, the freedom to read, and the freedom to think are inextricably bound.”
“Preventing students from learning about the real world won’t protect them from it,” Friedman pointed out. Students “don’t deserve a chilled environment where teachers are unable to speak honestly for fear of upsetting any one parent.”
Thirty-three years ago, the American Association of University Professors reiterated its long-held view that the “freedom of thought and expression” upon which education is based “often inspires vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.”
The AAUP reminded us that on “a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.”
The debate over Israel, Zionism, and the Palestinians, like all debates on serious issues, will not be resolved by convincing courts to mandate the views of one side or to silence the voices of the other side. The debate must be a free and open discussion informed by a rigorous and unflinching examination of history that respects the human rights and dignity of everyone.
Sixth Circuit rules FCC lacked the authority to reinstate Net Neutrality rules
A federal appeals court struck down the Federal Communications Commission’s landmark net neutrality rules on Thursday, ending a nearly two-decade effort to regulate broadband internet providers as utilities.
The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said the F.C.C. lacked the authority to reinstate rules that prevented broadband providers from slowing or blocking access to internet content. In its opinion, a three-judge panel pointed to a Supreme Court decision in June, known as Loper Bright, that overturned a 1984 legal precedent that gave deference to government agencies on regulations.
“Applying Loper Bright means we can end the F.C.C.’s vacillations,” the court ruled.
Levine and Schafer on ‘central meaning of the First Amendment’
Last month, Carson Holloway argued in Law & Liberty’s forum on New York Times v. Sullivan that the Supreme Court “owes it to the nation” to reconsider and ultimately overrule this defining First Amendment case. He has madethis argument in Law & Liberty before. He is mistaken.
Sullivan declared that the First Amendment has a “central meaning”: that citizens in a democracy have a right to criticize government officials without fear of ruin. The Court made this principle a reality by establishing the “actual malice” requirement. Before enforcing a damages judgment or sending a citizen to jail, courts going forward were to require clear and convincing proof that the alleged defamer of a public official published the defamatory statement knowing it was false or with a high degree of awareness of its probable falsity.
The rule has proven a potent protection for press freedom. But for Holloway, it is a modern invention that is not “based on the original understanding of the First Amendment.” We agree with Angel Eduardo that this argument is “at best . . . highly contested.” Having spent our careers defending press freedom (in the case of one of us, that includes two trips to the Supreme Court), we write to explain what exactly Holloway got wrong.
Initially, Holloway’s originalism argument is a red herring. The defamation tort is a creature of state law and the First Amendment at the Founding only imposed limits on the federal government. (It is noteworthy, though, that Madison viewed his unsuccessful amendment that would have prohibited state infringements on liberty of the press as more valuable than the First Amendment.) So it should be expected that there is no evidence that the Founding generation understood the First Amendment as a limit on state libel law. (Even so, Jefferson, perhaps anticipating the Sedition Act of 1798, thought the First Amendment ought to impose limits on libel.)
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).”)
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.
What is a climate justice university, and how can our universities transform into institutions that truly promote the well-being of the earth and humanity? Jennie C. Stephens’s new book, Climate Justice and the University: Shaping a Hopeful Future for All (Johns Hopkins University Press, 2024), sets out to answer that question. It outlines where today’s universities fall short in their handling not only of the climate crisis but also a wealth of other modern social issues.
The book lays out broad ideas for transforming how universities function in society, such as shifting research practices to collaborate with people and communities affected by the issues, like the climate crisis, at the center of that research. Stephens, who is a professor at both the National University of Ireland Maynoonth and Northeastern University, acknowledges in the introduction that such a transformation would be a major undertaking, and one that many universities would be disinclined to tackle. “Because of the internal pressure within higher education to maintain institutional norms, this book and its proposal for climate justice universities are, in some ways, radical acts of resistance,” she writes.
In a phone interview, Stephens spoke with Inside Higher Ed about her vision for climate justice universities—and how modern institutions fail to meet it. The conversation has been edited for length and clarity.
Q: It was interesting reading that your perspective on these issues comes both from your scholarly work and from a time that you worked on the administrative side of academia. Could you describe how those experiences came together to inspire this book?
A: I’ve been working in academia my whole career—more than 30 years—and during that time, I’ve been focused on climate and energy issues and sustainability from a very social justice perspective. What has happened through my experiences over time is that I see part of society’s inadequate response to the climate crisis mirrored in academia.
I think higher education has a really big role in society—in what we are doing and what we’re not doing, in how we’re teaching and learning, in what we’re doing research on and what we’re not doing research on—and I think that our collective insufficient response to the climate crisis is related to what’s been happening in our higher education institutions, which are increasingly very financialized. They’re driven by profit-seeking priorities and new tech and start-ups and focused on job training. We’ve drifted away from a public-good mission of higher education: What does society need in this very disruptive time, and how can our higher education institutions better respond to the needs of society, particularly of vulnerable and marginalized communities and people and households who are increasingly struggling with all kinds of precarity and vulnerabilities?
Q: How would you define the term “climate justice university”?
A: The idea of a climate justice university is a university with a mission and a purpose to create more healthy, equitable, sustainable futures for everyone. So, that is a very public-good mission. The idea is to connect the climate crisis with all the other injustices and the … multiple different crises that are happening right now; the climate crisis is just one among many. We also have a cost of living crisis; we have a mental health crisis, we have financial crises; we have a plastic pollution crisis and a biodiversity crisis; we have a crisis in international law and a militarization crisis. We have all of these crises, and yet what we’re doing in our universities tends to continue to be quite siloed and trying to address parts of specific problems, rather than acknowledging that these crises are symptoms of larger systemic challenges.
For me, climate justice is a paradigm shift toward a transformative lens, acknowledging that things are getting worse and worse in so many dimensions, and that if we want a better future for humanity and for societies around the world, we actually need big, transformative change. A lot of things we do in our universities are reinforcing the status quo and not promoting or endorsing transformative change. So, climate justice is a paradigm shift with a transformative lens that focuses less on individual behavior, more on collective action, less on technological change, more on social change, and less on profit-seeking priorities, more on well-being priorities. What do human beings need to live meaningful, healthy lives, and how can society be more oriented toward that?
Q: Can you talk a bit more about how the current structure of the university maintains the status quo with regard to climate?
A: One of the ways that I think universities kind of perpetuate the status quo is by not acknowledging what a disruptive time we’re in with regard to climate crisis, but other crises as well. There’s an encouragement on many campuses for kind of being complacent, like, “Oh, this is the way the world is.” Not necessarily encouraging students and researchers to imagine alternative futures.
There’s also a focus on doing research that billionaires or corporate interests want us to do, and—in particular, in the climate space—what this has led to is a lot of climate and energy research that is funded by big companies and other wealthy donors who actually don’t want change. We have more and more research to show who has been obstructing climate action and transformative change for a more stable climate future. We know many of those same companies and same fossil fuel interests have also been very strategically investing in our universities. What that does is constrain the research and also the public discourse about climate and energy futures toward very fossil fuel–friendly futures.
Early on in my own career, I worked on projects that were funded by the fossil fuel industry on carbon capture and storage, and a lot of the climate and energy research in our universities is focused on carbon capture and storage, carbon dioxide removal technology, geoengineering—all these technical fixes that assume we’re just going to keep using fossil fuels. What we really need, if we had more climate justice universities that were focused on the public good and what the climate science has been telling us for decades, is to phase out fossil fuels. We need a global initiative to phase out fossil fuels. But we don’t have in our universities much research on how to phase out fossil fuels.
Q: In your book, you discuss the concept of exnovation—the process of phasing out inefficient or harmful technologies. Why is research into exnovation not already more common in higher education, and what are the main barriers for researchers who want to take this approach?
A: I do think funding has a lot to do with it. There’s a whole chapter in the book about the financialization of higher education institutions, which has resulted from kind of a decline in public support toward more private sector support, which means that universities are beholden to private sector interests, increasingly, and they’re encouraged and incentivized to cater to and partner with … private sector interests. I think that has really changed the kinds of impact that higher education institutions and research has had.
Of course, there are a lot of people within universities who are interested in the public good and doing research on exnovation. But the incentive structure, even among those of us who would want to contribute in those ways, is such that we are increasingly incentivized and promoted based on how much money we can bring in, how many papers can we get published and the scale of resources available to do research. So, there’s a larger, long-term strategy to orient research toward the technical fixes, particularly when it comes to climate and energy, and a lot less funding available for social change or governance research on how to bring back the public-good priorities in our policies, our funding, in our universities. It’s really a longer-term trend that has led to this financialization.
Q: You lay out a lot of alternative ideas for financing universities, which is important given that anxiety over funding is at an all-time high at some institutions. Walk me through some of your ideas and talk about the feasibility of restructuring how universities are funded.
A: One idea in the chapter on new ways of engaging and being more relevant is what if we imagine higher education institutions more like public libraries? Public libraries, we all kind of recognize as valuable resources for everyone; every community should have some access to a public library. What if higher education could be [better] invested in that sense of being a resource and not being an ivory tower that is really hard to get into and only some privileged people get access to? What if our higher education institutions were designed and funded to provide more accessible and relevant resources, co-created with communities? That’s kind of one of the big ideas of imagining what this really valuable resource could be more relevant and more connected to the needs of society and of communities.
You also asked about feasibility, and one of the things that I want to point out is that this book is not a how-to; every context and region and different place in the world has different things going on with their higher education institutions. The idea with this book is to invite us all to kind of think about, what is the purpose of higher education institutions? And how can we better leverage all the public investment that is already spent on higher education institutions? How can that be oriented toward better futures for everyone?
At higher education institutions that are feeling very vulnerable, having a lot of anxiety about funding levels—the ideas in this book don’t provide a prescription on how to fix that in the near term. But the ideas in the book are really to encourage us all—and especially those involved in higher education policy and higher education funding—to re-evaluate and reclaim the public-good mission of higher education and reconsider how to restructure higher education so that the value and the resources are more accessible, more relevant and more transformative, in terms of fitting the needs of a very disruptive time for humanity and for societies and communities around the country and around the world.
The Dartmouth College men’s basketball team is dropping its historic bid to form a union, months after voting to do so.
The decision, announced Tuesday, comes as Republicans are poised to take control of the National Labor Relations Board, which could affect who is allowed to unionize on college campuses. A regional office of the board cleared the way earlier this year for the players to vote on the petition, ruling that the student-athletes were employees and thus allowed to unionize.
Dartmouth disagreed with that opinion and refused to bargain with the team until the five-member NLRB ruled on the issue. Currently, the five-member panel has two vacancies, so incoming President Donald Trump could quickly reshape the board. In withdrawing the petition, the Service Employees International Union, Local 560, which represents the players, decided not to gamble with the new board and potentially risk a negative opinion.
“By filing a request to withdraw our petition today, we seek to preserve the precedent set by this exceptional group of young people on the men’s varsity basketball team,” local president Chris Peck said in a statement to the Associated Press. “They have pushed the conversation on employment and collective bargaining in college sports forward and made history by being classified as employees, winning their union election 13-2, and becoming the first certified bargaining unit of college athletes in the country.”
The Dartmouth team union threatened to upend college sports and added more urgency to the National Collegiate Athletic Association’s efforts to settle the question of whether student athletes are employees who can collectively bargain. The NCAA has lobbied Congress to pass a law affirming that college athletes aren’t employees. The incoming Congress seems likely to grant that request.
The Biden administration’s regulations changing how colleges are held accountable and adding new requirements for institutions to access federal financial aid are now in place, though legal challenges loom.
Demetrius Freeman/The Washington Post/Getty Images
Colleges will have to submit to the federal government new data on their distance education programs under a batch of new rules the Biden administration finalized Monday.
The rules, which will take effect July 1, 2026, will likely be the president’s last package of new regulations for colleges and universities before Trump takes office Jan. 20.
The new regulations carry out Biden’s plan to increase federal oversight of online programs, but the final version doesn’t go as far as the president initially intended After receiving significant pushback from online education lobbyists, the Education Department conceded, backing off a plan to disallow asynchronous options for clock-hour courses or require colleges to take attendance in online classes.
The package does, however, still include rules that require colleges to report more data on enrollment in distance education classes, which include those offered online or via correspondence. Higher ed institutions won’t have to begin submitting the data until July 1, 2027.
“Online learning can reach more students and sometimes at a lower cost to students, but what we know about the outcomes of online education compared to traditional in-person instruction is woefully inadequate,” Under Secretary James Kvaal said in the release. “The new reporting in this final rule will help the department and the public better assess student outcomes at online programs and help students make informed choices.”
The final rule also included technical changes to federal college prep programs known as TRIO. But the department decided not to move forward with a plan to open eligibility to some TRIO programs to undocumented students—a long-sought goal of some TRIO directors and advocates, as well as higher education associations.
Distance Education
But one of the most controversial parts of the rule for colleges and universities was whether Biden would decide to end any asynchronous options for students in online clock-hour programs, which are typically short-term workforce training programs that lead to a certificate.
A Trump-era rule allowed asynchronous learning activities—such as watching a prerecorded video—to count toward the required number of credits in short-term clock-hour programs. But the department said in its proposal that because of the hand-on nature of many clock-hour programs, the change often results in a “substandard education” that “puts students and taxpayers at risk.”
Hundreds of professors and higher education groups disagreed. Some, particularly those representing for-profit programs, argued in public comments that the proposal exceeded the department’s authority and would burden institutions. Others said the new rules reflected an antiquated mindset about college modality, arguing that disallowing asynchronous options could limit access for students who benefit from the flexibility that online education provides.
While the department decided not to end asynchronous distance ed programs, the agency intends to keep a close eye on the courses.
“The department refined these final rules based upon extensive public comment on a notice of proposed rulemaking published over the summer,” department officials said in a news release. “However, we remind institutions that asynchronous clock hours cannot be used for homework and that there must be robust verification of regular and substantive interaction with an instructor.”
No Expanded TRIO
Although the decision not to expand eligibility for TRIO has fewer implications for colleges, the move is a blow for the TRIO directors and immigration equity advocates who have been working for years to open up the program.
Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, told Inside Higher Ed that nearly 100,000 undocumented students graduate from high school each year, many of whom could benefit from TRIO services.
But Republicans opposed the idea. Six GOP members of Congress, including Virginia Foxx, a North Carolinian and former chair of the House education committee, blasted the concept in a letter to Secretary Miguel Cardona in August.
“The proposed expansion is a blatant attempt to provide additional taxpayer-funded services to those not seeking citizenship in the name of reducing ‘burden.’ The department’s proposed expansion will stretch funding thin and risk those currently eligible for TRIO,” they wrote.
Some college administrators and TRIO directors in red states are worried about the potential political backlash Biden’s new regulation could cause for their programs.
“The fighter in me thinks that this is a tough time to go to battle and have an unforced error or a target on our backs and [on] TRIO, given the contentious nature of immigration policy right now,” Geoffrey Garner, a TRIO program director from Oregon, said in at January 2024 advisory committee meeting. “We just think right now is not the best time for this proposal, as much as it breaks my heart to say that out loud.”
That advisory committee ended up backing the changes to expand some TRIO programs to undocumented students.
Education Department officials said its decision wasn’t due to political tensions. Rather, they said the proposal “was too narrow … in scope of additional populations to be served.”
Under the department’s proposed rule, high school students who aren’t citizens or permanent residents could qualify for Upward Bound, Talent Search and Educational Opportunity Centers but not Student Support Services or the McNair Scholars Program.
“An expansion of student eligibility under only certain TRIO programs would create confusion, as many grantees administer grants under more than one TRIO program,” officials wrote in the final rule. “Eligibility for only certain TRIO programs would increase administrative burden by requiring grantees to deny similarly situated noncitizens from participating under certain TRIO programs, but not others.”
In a recent article, “Dear Prospective UAGC Students: Stay Away,” a professor from the University of Arizona discourages students from attending the University of Arizona Global Campus (UAGC). Unfortunately, this article was based on the author’s perspective rather than on facts and thus lacked the academic rigor of factual data from credible sources. This opinion piece was a collection of baseless assumptions, completely overlooking the true mission of UAGC, its faculty, and the diverse students we proudly serve. Frankly, the article has no merit.
There is power in knowledge and truth. As such, the article could have accurately depicted the realities of UAGC instead of relying on inaccurate critiques about educational quality, enrollment numbers, adjunct faculty, and alleged student dissatisfaction. To set the record straight, UAGC is committed to providing online higher education for non-traditional students, including working adults, military personnel, parents, and underserved communities. Our students juggle countless responsibilities, and UAGC offers the flexibility and support they need. UAGC is vital in making higher education accessible to those who need it most, breaking barriers that traditional institutions often ignore.
Furthermore, UAGC is unwavering in its commitment to supporting students, staff, and faculty, ensuring consistent educational quality and professional growth. As we continue to evolve, we focus on transparent evolution and collaboration, learning from past oversights to create an environment where our students can improve employment opportunities. Our pursuit of high-quality education is not a destination but an ongoing journey to which UAGC is deeply committed. Like any reputable university, we conduct regular course and program reviews, embrace continuous improvement, and acknowledge areas for development as a perpetual process. This commitment to educational quality is a cornerstone of our institution, ensuring our students receive the best education possible and can be confident in our dedication to their success.
The UAGC faculty, the backbone of our institution, is growing increasingly weary of misleading and disparaging remarks against the university and the faculty. It is time to move forward constructively and collegially. In the name of higher education, we implore you to stop defaming our university, staff, faculty, and students. To that end, we welcome meeting and educating any skeptical faculty or staff on our university’s mission and approach to serving non-traditional adult learners. Above all, we’re eager to clear any misconceptions by providing accurate data, helping to ensure that your words align more closely with the truth moving forward.
As we look to the future (Dr. Cabrera), the late President Franklin D. Roosevelt, who signed the unprecedented G.I. Bill into legislation, stated, “A smooth sea never made a skilled sailor” (Roosevelt, n.d.).”
Yvonne M Lozano, Ph.D. UAGC Faculty Council Co-Chair Teresa Handy, Ph.D. UAGC Faculty Council Representative Deanna Lauer, UAGC Associate Faculty Council Representative Carl Marquez, UAGC Faculty Council Representative Cara Metz, Ph.D. UAGC Faculty Council Co-Chair Darla Branda, Ph.D. UAGC Program Chair
President Biden has so far forgiven $180 billion in student loans for 4.9 million borrowers. Much more relief is unlikely now.
Andrew Caballero-Reynolds/AFP via Getty Images
The Biden administration’s ambitious plans to provide debt relief for millions of Americans is officially dead along with a number of other proposed regulatory changes.
The administration said Friday it’s withdrawing two debt relief proposals from consideration. The Education Department had been reviewing thousands of comments on the plans and preparing to finalize at least one proposal before Friday’s announcement. The Associated Press first reported on the decision.
The department is also scraping its proposal to amend Title IX to prohibit blanket bans barring transgender students from participating in the sport consistent with their gender identity. That proposal proved controversial, receiving more than 150,000 comments and prompting legal challenges to the department’s separate overhaul of Title IX. added
“In light of the comments received and those various pending court cases, the department has determined not to regulate on this issue at this time,” officials wrote in a notice on the Federal Register. added
The department also said Friday that it’s abandoning the effort to update the rules for accreditation, state authorization and cash management. Regulatory proposals were hashed out in the spring but have stalled since. Proposals to gather more data about distance education and open up college-prep programs to undocumented students appear to be moving forward. added
The department said terminating the rule-making process or those three areas will “allow for additional evaluation of recent changes in other regulations and industry practices.” added
The debt relief plans have been in the works since summer 2023 after the Supreme Court struck down President Biden’s first attempt at providing student loan forgiveness. Republicans and other critics said these latest debt relief plans, which would have benefited 36 million Americans, were unconstitutional and amounted to an unfair wealth transfer.
Education Department officials maintain that they have the authority to forgive student loans for borrowers who meet certain criteria or are facing financial hardship, but they concluded that they don’t have the time to implement the proposals before Biden leaves office Jan. 20.
“With the time remaining in this administration, the Department is focused on several priorities including court-ordered settlements and helping borrowers manage the final elements of the return to repayment,” officials wrote in a Federal Register notice. “At this time the Department intends to commit its limited operational resources to helping at-risk borrowers return to repayment successfully.”
Withdrawing the rule “will assure agency flexibility in reexamining the issues,” officials added. The move means that the incoming administration would have to start from scratch on a rulemaking process rather than just rewrite the pending proposal.
Some Republican attorneys general sued the administration over one of the plans, which would have provided targeted debt relief to borrowers who owe more than they initially borrowed or have been repaying their loans for more than 20 years, among other groups. That plan was blocked by a federal judge before the department could finalize it.
The department’s decision came on the same day the Biden administration announced another round of loan forgiveness. The Education Department announced Friday morning that it would forgive loans for 55,000 borrowers who reached eligibility through Public Service Loan Forgiveness. A program created in 2007 and retooled under Biden, PSLF relieves an individual’s remaining debt if they properly complete 120 monthly payments while working full-time in a public interest career like law enforcement, health care or education.
Including Friday’s batch of relief, which totaled $4.28 billion, the Biden administration has now forgiven $180 billion in student loans for 4.9 million borrowers.
Borrower advocacy groups like the Student Borrower Protection Center say that while they are deeply disappointed the Biden administration has to withdraw its regulations in response to legal pushback from right-wing attorneys, they appreciate Biden’s efforts and celebrate the regulations he was able to finalize.
“President Biden’s fixes to the Public Service Loan Forgiveness program and other student loan relief programs have once again delivered lasting change and will benefit millions of borrowers for years to come,” said Persis Yu, deputy executive director of the Student Borrower Protection Center, in a statement. But, at the same time, Yu added that “the actions of right-wing attorneys general have blocked tens of millions of borrowers from accessing critical student debt relief.”
Meanwhile, Republican lawmakers, including Senator Dr. Bill Cassidy of Louisiana, described Biden’s unfinalized attempts at student debt relief as a “scheme to transfer student debt onto American taxpayers.”
“The Biden-Harris administration’s student loan schemes were always a lie,” the senator said in a statement. “With today’s latest withdrawal, they are admitting these schemes were nothing more than a dishonest attempt to buy votes by transferring debt onto taxpayers who never went to college or worked to pay off their loans.”
