Last week, FIRE wrote about how colleges should interpret President Trump’s recent executive orders, Attorney General Pam Bondi’s anti-discrimination memo, and the Department of Education’s Office for Civil Rights newest “Dear Colleague” letter.
At the same time, we asked OCR to give colleges additional guidance so they have a better idea of what type of speech or conduct might run afoul of its “Dear Colleague” letter. OCR has not yet done so, and with the compliance deadline set for tomorrow, we fear institutions will over-correct and engage in campus censorship.
In fact, we’ve already seen evidence of exactly that.
Grand View University in Iowa, for instance, reportedly cancelled its planned International Women’s Day activities, allegedly to comply with federal DEI directives. This, even though Bondi’s Feb. 6 memo exempts “educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
This type of overcompliance — in this case, cancelling activities or events that are expressly exempted from enforcement — unnecessarily degrades the extracurricular educational environment at higher education institutions and harms the student learning experience.
As we said last week: OCR is bound by the First Amendment and cannot order or compel colleges and universities to violate it. If there is a conflict between federal guidance and the First Amendment, the First Amendment prevails. Whether institutions are overcomplying out of fear of losing federal funding, or in an attempt to prove a point about the directive’s vague language, colleges and universities like Grand View must not preemptively shut down speech.
OCR’s new Title VI letter: FIRE’s analysis and recommendations
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The Department of Education should provide more clarity about its ‘Dear Colleague Letter’ to ensure protected speech isn’t censored on campus.
This isn’t the first time institutions have overread government directives to justify censorship. In 2021, for example, Idaho passed the “No Public Funds for Abortion Act.” In implementing the bill, the University of Idaho demanded that faculty not “promote or advocate in favor of abortion” or discuss “abortion or contraception” in classroom conversations unless they remained “neutral.” FIRE wrote to the university explaining that such a reading was flatly at odds with the First Amendment. In a thorough memorandum, Idaho Attorney General Raúl Labrador agreed, explaining that the “plain text of the Act does not prohibit public university employees from engaging in speech relating to academic teaching and scholarship that could be viewed as supporting abortion,” thus ending that censorship policy at the University of Idaho.
In that same vein, OCR cannot force schools to violate the First Amendment, a point we’ve hammered since the Obama-era OCR’s “Dear Colleague” letters forced institutions to adopt harassment policies that did exactly that.
OCR must be clear about the type of conduct that runs afoul of its new directives so that institutions are on notice about what’s permissible and what is prohibited. The office has yet to address vagueness in the “Dear Colleague” letter about “institutional programming” that might violate Title VI. That silence is creating a lot of confusion and preemptive censorship, especially when paired with President Trump’s Jan. 21 executive order declaring that government contractors — which includes many institutions of higher education — cannot “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
FIRE again urges institutions to hold the line on defending the free speech and academic freedom rights of their students and faculty. And we again ask OCR and the federal government to respect those same rights by immediately clarifying that their directives don’t require colleges and universities to violate those well-established rights.
Last week, a federal court enjoined two executive orders — including the Jan. 21 executive order — that prohibit, among other things, “promoting DEI” in violation of federal anti-discrimination law. The district court held the orders violate the First and Fifth Amendments because they discriminate on the basis of viewpoint and content, and are unconstitutionally vague.
While the government will likely appeal and we won’t know the final resolution for some time, the court’s analysis properly identified the orders’ ambiguity as a damning constitutional flaw. What, precisely, constitutes “promoting DEI” in ways that violate anti-discrimination laws? Can colleges host or sponsor speakers on DEI-related topics? Can institutions advertise DEI-related coursework or promote academic research? Restrictions on these activities would violate the First Amendment, but government attorneys were unable to clarify the meaning of the order when asked by the judge. Precision matters, especially when it comes to restrictions on expression. Vague pronouncements that sweep in protected debate, discussion, and programming raise constitutional and practical problems.
The best way forward for colleges is obvious, even if it might not be easy: Irrespective of the federal DEI directives, ditch speech-restrictive, orthodoxy-enforcing DEI bureaucracies and stand up for free expression and academic debate — in every political season.
As Len Gutkin, editor at The Chronicle of Higher Education, recently wrote: “Colleges should draw a sharp distinction between, on the one hand, DEI used in hiring, promotion, and training, and, on the other, curricular and disciplinary offerings.”
That’s the right balance. FIRE again urges institutions to hold the line on defending the free speech and academic freedom rights of their students and faculty. And we again ask OCR and the federal government to respect those same rights by immediately clarifying that their directives don’t require colleges and universities to violate those well-established rights.
