Tag: rights

  • University Autonomy Stems From Corporate Rights (opinion)

    University Autonomy Stems From Corporate Rights (opinion)

    In an April 21 article entitled “We Haven’t Seen a Fight Like Harvard vs. Trump in Centuries,” Steven Brint wrote that the ongoing dispute between Harvard University and the federal government is “the most important showdown between state power and college autonomy since 1816, when the New Hampshire Legislature attempted to convert Dartmouth College into a public entity.”

    While the Dartmouth College case, which the U.S. Supreme Court decided in 1819 in Dartmouth’s favor, looms large in American history, universities have, prior to and since that decision, regularly fought for their rights—their corporate rights.

    Today, we call this institutional academic freedom. But, as Richard Hofstadter wrote in his portion of The Development of Academic Freedom in the United States (1955), co-authored with Walter Metzger, “academic freedom is a modern term for an ancient idea.” That ancient idea holds that university freedom is based on corporate rights, which is why Hofstadter begins with a section subtitled “Corporate Power in the Middle Ages.” Recovering that old idea could not be more important today.

    It is no exaggeration to say that, in spring 2025, we may have entered the nadir of American academic freedom. Austin Sarat rightfully urged us, even before then, to find new ways to guard academic freedom “against external threats.” Now, in the face of ongoing hostility from both state and federal governments, it is imperative that universities deploy the full range of arguments at their disposal, including those based on their forgotten corporate rights. In other words, it’s time for universities to invoke their corporate rights. Allow me to explain.

    Corporateness is the university’s hidden superpower. While every university is constituted differently, they are all corporations, regardless of whether they present themselves as public or private. That is because “corporation” is a general legal term denoting a unity at law.

    “Incorporation,” David Ciepley has written, “is a powerful tool.” Corporations can sue and be sued in their own names, hold property, enter contracts, use their own seals and legislate. Importantly, the university’s corporateness bears no necessary relationship to its current autocratic constitution, whereby, according to Timothy V. Kaufman-Osborn, universities are “ruled by external lay governing boards vested with the panoply of powers customarily granted to corporations, including the power to adopt, amend, and revoke its basic rules of institutional governance.” Thus, we can use the university’s corporateness to rebuff external attacks, while also working, as Arjun Appadurai wrote recently, “to break the unilateral power of boards of trustees.”

    The university’s cherished autonomy springs from its corporate rights. In the U.S., these rights were first articulated in a now-forgotten line of cases starting with the 1805 North Carolina Supreme Court case Trustees of University of North Carolina v. Foy, a decision issued more than a century before the American Association of University Professors’ famous 1915 Declaration of Principles on Academic Freedom and Academic Tenure—and the U.S. Supreme Court’s 1957 discovery of a theretofore unknown academic freedom right in the First Amendment to the U.S. Constitution.

    Like Dartmouth College, these cases were about corporate rights. But, unlike Dartmouth College, they concerned universities we now consider public; they were decided by state supreme courts, rather than by the U.S. Supreme Court; and, when they implicated constitutional rights, they implicated rights protected by state constitutions, rather than by the federal one.

    What I call the corporate theory of academic freedom explains why the rights that originally protected the American scholarly enterprise, including in the Dartmouth College case, were corporate rights by emphasizing that universities are, by law, corporations. (It’s actually in the name itself: “university,” derived from the Latin universitas, simply means “corporation.”)

    Rather than an individual right, academic freedom is, properly understood, what Stanley Fish called “a guild concept.” More specifically, it is a concept belonging to the incorporated guild of professors and students (and others). This theory bases academic freedom not on freedom of speech—a troublesome basis for academic freedom—but on the university’s corporate rights. These corporate rights, not infrequently finding expression in constitutions, are also sometimes constitutional rights. By substituting corporate rights for freedom of speech, we turn a foundation of sand into stone.

    It might prove difficult for some in the university to embrace a term they associate only with business corporations, but corporate rights have been, and still can be, used to protect universities. In this connection, it might help to recall the many corporations that are not business corporations, including municipal corporations, nonprofit corporations (often euphemized as “organizations”), church corporations and university corporations.

    At a moment when the U.S. Supreme Court seems keen on granting corporate rights to business corporations, one might wonder why business corporations should get all the rights. With state and federal governments increasingly targeting universities, we simply cannot afford to leave these arguments on the table. Understanding and utilizing these neglected corporate rights cases requires shifting our focus, on the one hand, from private to public universities, and, on the other hand, from federal to state courts (where Dartmouth College began).

    While the federal government’s recent attacks on Columbia and Harvard have captured headlines across the country, state legislatures continue to menace public universities. Although these universities have, through centuries of experience, become highly familiar with governmental intrusion, they have become less adept at repulsing it than they once were. As a result, one recent article in The Chronicle of Higher Education could observe that “it’s well understood that public colleges are in the thrall of their state lawmakers.” The corporate theory of academic freedom challenges this understanding.

    Consider two post–Dartmouth College cases about universities we call public today. The first is an 1887 Indiana Supreme Court case about Indiana University. The second is an 1896 Michigan Supreme Court case about the University of Michigan. Each case furnishes ideas about how to address academic freedom’s most vexing and persistent challenge: protecting public universities from state legislatures.

    In an 1887 case called Robinson v. Carr, the Indiana Supreme Court considered what interest rate applied to a fund established by the Indiana Legislature for Indiana University. The statute that established the university fund indicated that any loan made from the university fund would carry a 7 percent interest rate. The trustees of Indiana University, who were established as a “body politic” by the Indiana Legislature, could then use the interest to cover annual university expenses. But a later statute repealed laws concerning certain funds, including “public funds,” and applied an 8 percent interest rate instead. The question as to which interest rate applied therefore turned on whether the university fund was a “public fund.” If it was a public fund, an 8 percent rate would apply; if it was not, the 7 percent rate would remain.

    The Indiana Supreme Court concluded that the university fund was not a public fund because “the university, although established by public law, and endowed and supported by the state, is not a public corporation, in a technical sense.” The court meant by this that the Board of Trustees “has none of the essential characteristics of a public corporation.” The university was “not a municipal corporation,” and “its members are not officers of the government, or subject to the control of the legislature in the management of its affairs.”

    The court reasoned, “That the university was established under the direct authority of the state, through a special act of the legislature, or that the charter contains provisions of a purely public character, nor yet that the institution was wisely established, and is and should be perpetually maintained at the public expense, for the public good, does not make it a public corporation, or constitute its endowment fund a public fund.” In the final analysis, “the legal status of the state university being that of a technically private, or at most a quasi public, corporation, the university fund, of which it is the sole beneficiary, is therefore not a public fund, within the meaning of the law.” In short, the court’s careful analysis under the corporate framework led it to conclude that the university’s legislative establishment and public funding did not make it public.

    Less than a decade after Robinson, the Michigan Supreme Court decided a case called Regents of the University of Michigan v. Sterling. There, the court had to decide whether the Michigan Legislature could require the University of Michigan Board of Regents to relocate its homeopathic medical college from Ann Arbor to Detroit. The Michigan regents had refused to comply with the Legislature’s relocation law, and Charles Sterling, a private citizen, then asked the Michigan Supreme Court to order the Regents to comply.

    The court denied Sterling’s request, noting that, “under the [Michigan] constitution of 1835, the legislature had the entire control and management of the university and the university fund. They could appoint regents and professors, and establish departments.” But, after the university languished under this governance model, the people of Michigan withdrew the power of the Legislature to control the university. To that end, the 1850 Michigan Constitution ordained that “the board of regents shall have the general supervision of the university, and the direction and control of all expenditures from the university interest fund.”

    The court offered three “reasons to show that the legislature has no control over the university or the board of regents.” First, both entities “derive their power from the same supreme authority, namely, the constitution,” and, “in so far as the powers of each are defined by that instrument, limitations are imposed, and a direct power conferred upon one necessarily excludes its existence in the other, in the absence of language showing the contrary intent.”

    Second, the Board of Regents “is the only corporation provided for in the constitution whose powers are defined therein”—whereas “in every other corporation provided for in the constitution it is expressly provided that its powers shall be such as the legislature shall give.” Third, “in every case except that of the regents the constitution carefully and expressly reposes in the legislature the power to legislate and to control and define the duties of those corporations and officers.”

    Because the constitution entrusted “the general supervision” of the university to the regents, “no other conclusion … is possible than that the intention was to place this institution in the direct and exclusive control of the people themselves, through a constitutional body elected by them.” The people of Michigan had entrusted the university’s governance to the regents directly, thereby removing the university from the Legislature’s purview. As a result, the Legislature could no longer govern the university.

    These 19th-century cases, together with many other state cases like them, contain resources that universities can use to meet today’s extraordinary challenges. (Edwin D. Duryea lists many, but not all, of these cases in the first appendix to his 2000 monograph, The Academic Corporation: A History of College and University Governing Boards.) Indeed, the cases remain relevant today. The Montana Supreme Court’s 2022 decision affirming the Montana regents’ “exclusive authority to regulate firearms on college campuses” borrowed, with slight alterations and no attribution, one of the aforementioned passages from Sterling.

    Harvard’s battle with the federal government is truly momentous, but it is one of many that American universities—public and private—have consistently waged for centuries. When these universities rose up to defend their corporate rights, state supreme courts across the country often affirmed those rights. The time has come to assert those rights once again. As state governments, along with the federal government, apply new and in some ways unprecedented pressure, universities can no longer ignore their powerful claims to corporate rights. Continuing to do so may incur costs none of us are willing to pay.

    Michael Banerjee, a 2019 graduate of Harvard Law School, is a doctoral candidate in jurisprudence and social policy at the University of California, Berkeley, where his dissertation focuses on universities’ corporate rights.

    Source link

  • No gay rights without free expression

    No gay rights without free expression

    Three dates reliably bring me dread: the first Tuesday in November, April 15, and the day the Foundation for Individual Rights and Expression releases its annual College Free Speech Rankings.

    Each spring offers new reasons to despair, and this year’s report doesn’t disappoint. According to the poll of nearly 60,000 undergraduates at more than 250 schools across the country, the percentage of students who believe that it is at least “rarely” acceptable to shout down a speaker, block other students from hearing a speaker, or violently disrupt a speech has risen to 68%, 52% and 32% respectively. Majorities believe that speeches promoting six out of eight controversial propositions — “Transgender people have a mental disorder,” “Abortion should be completely illegal,” and “Black Lives Matter is a hate group” among them — should be banned from campus. (71%, meanwhile, say that speeches endorsing the genocidal call “From the river to the sea, Palestine will be free” should be allowed.) And while either half or the majority of students believe that 15 out of 17 types of student groups ranging from “Christian” to “Democrat” to “LGBTQ” should be eligible to receive student activity fees, only 40% say the same for “pro-Israeli” ones (49% say pro-Palestinian groups should be eligible to receive student activity fees).

    Five years of FIRE surveys demonstrate that the nation’s future leaders harbor a shocking degree of ignorance about America’s uniquely robust free speech principles, content neutrality foremost among them. To be sure, college students are like many other if not most Americans in this regard. Ask any random person on the street if they believe in free speech, and they’ll probably say “yes,” but dig down and you’ll discover that they adhere to the proposition, “free speech for me, but not for thee.” It’s all well and good to support the right to free speech of people with whom you concur; it’s the willingness to support the rights of those whose message you despise that is the true test of one’s commitment to the principle of free expression.

    Particularly disturbing to me in reading this year’s survey is a trend I’ve been monitoring for some time: the persistently lower support for free speech among LGBT students compared to their heterosexual peers. As in past surveys, this year’s poll found that students in eight categories ranging from Gay/Lesbian to Pansexual (essentially, anything other than “straight”) were more likely than their heterosexual classmates to support censorship. For instance, while 69% of heterosexual students believe it is “never” or “rarely” acceptable to shout down a speaker, that figure stands at 49% for gay and lesbian students and 39% for queer ones. Similarly, 80% of straights oppose blocking other students from hearing a speaker, but only 69% of gays and 68% of queers agree. And while 75% of queer students think that a speech arguing “Collateral damage in Gaza is justified for the sake of Israeli security” should “definitely” or “probably” be banned, a mere 13% say the same for a speech promoting the destruction of Israel.

    Put aside the monumental ignorance that leads some LGBT students, of all people, to take the side of murderous religious fanatics over the sole democracy in the Middle East. What makes these figures so tragic is that, were it not for the First Amendment and the robust protections it affords for free expression, none of these students would be enjoying the freedoms they so blithely take for granted today. For the legal equality and social acceptance that LGBT people now have is entirely a product of America’s free speech culture.

    Consider that, in postwar America, homosexuality was a crime in every state, a sin according to organized religion, and a mental disorder in the eyes of the medical establishment. Gay bars and other gathering places were routinely raided by police and gay men and women were subjected to horrific medical experiments in a sadistic attempt to “cure” them of their “disease.” When Senator Joe McCarthy launched his crusade against communists and homosexuals in the State Department, it was reported that three-fourths of the mail pouring into his office was primarily fixated on the latter scourge.

    In the 1950s, a small band of incredibly courageous people began a decades-long effort to change this state of affairs, and throughout it they did so by relying upon the Constitutional right to free expression. The first Supreme Court case to deal with the subject of homosexuality, ONE, Inc. vs. Olesen was a challenge to federal government censorship. Beginning in 1953, the U.S. Post Office and the Federal Bureau of Investigation launched a crusade against ONE, the country’s first widely circulated, national gay periodical. The following year, Los Angeles Postmaster Otto Olesen declared the magazine (which contained nary a racy photo or explicitly sexual article) as “obscene, lewd, lascivious and filthy” and therefore unmailable under the Comstock Act of 1873.

    The magazine brought a suit against the Postmaster in federal court in California. Ruling in favor of the defendant, the Court stated that “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.” The case made its way to the Supreme Court, which in 1958 issued a brief per curiam decision overruling the lower court’s decision, effectively legalizing pro-gay political expression in the United States. In its first issue published after the ruling, ONE declared that “For the first time in American publishing history, a decision binding on every court now stands. … affirming in effect that it is in no way proper to describe a love affair between two homosexuals as constitut(ing) obscenity.”

    Several years later, in 1962, the right of gay people to express themselves as freely as their heterosexual countrymen was further advanced with the Supreme Court case MANual Enterprises vs. Day. MANual Enterprises was a publisher of “beefcake” magazines, publications whose images of scantily clad young men were no more prurient than those of the “pin-up” girls popular among American GIs during the Second World War. Following a campaign of government harassment similar to that endured by ONE, the company appealed its case to the Supreme Court. This time, the Court decided to hear the case. The government’s singling out homosexuals and denying them the right to receive certain publications through the mail, the company’s lawyer argued, “reduces a large segment of our society to second class citizenship.” It was a daring argument, utilizing a term popularized by the African American civil rights movement. “If we so-called normal people, according to our law, are entitled to have our pin-ups, then why shouldn’t the second-class citizens, the homosexual group . . . why shouldn’t they be allowed to have their pin-ups?”

    Writing for the majority in a 6–1 decision, Justice John Marshall Harlan II stated that while he personally found the magazines to be “dismally unpleasant, uncouth and tawdry . . . these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates.” However qualified by his expressions of personal distaste, Harlan’s argument that erotic images created for the titillation of homosexuals were not inherently more obscene than those designed to arouse their heterosexual fellow citizens recognized an important principle that laid the groundwork for further gay rights legal victories to come.

    Three years later, another instance of free expression in the furtherance of gay civil rights occurred outside the White House gates. A group of 10 men and women affiliated with the Mattachine Society of Washington, D.C., one of the first gay rights organizations in the country, formed a picket on the sidewalk across the street from Lafayette Square. Marching in an oval-like motion and dressed in business attire, they held signs declaring, “FIFTEEN MILLION U.S. HOMOSEXUALS PROTEST FEDERAL TREATMENT,” “GOVERNOR WALLACE MET WITH NEGROES, OUR GOVERNMENT WON’T MEET WITH US” and “U.S. CLAIMS NO SECOND CLASS CITIZENS, WHAT ABOUT HOMOSEXUAL CITIZENS?” Four years before the much more famous Stonewall Riot erupted in Greenwich Village, this was the first organized public demonstration for gay rights in the United States.

     

    Though the protest garnered scant media attention, it inspired gay men and women across the country more than anything up to that time. “Nothing like these demonstrations has been seen before,” Eastern Mattachine Magazine, a publication of the Mattachine Society, enthused. “The most hated and despised of minority groups has shown its face to the crowds, and it is plain for all to see that they are not horrible monsters. They are ordinary looking, well-dressed human beings!” For one of the picketers, the event was “the most important day of my life” next to her marriage to her partner over two decades later.

    For the leader of the march, Mattachine Society co-founder Frank Kameny, free expression had been a vital tool since the federal government fired him for being gay. In 1957, the Harvard-trained Army Map Service astronomer was recalled from his observatory in Hawaii to Washington. Army officials had discovered an arrest record for “lewd and indecent acts” he allegedly committed in a police entrapment operation while visiting San Francisco. Kameny was fired on the spot and joined the ranks of the thousands of other patriotic American gay men and women rejected by their government solely because of their sexual orientation.

    What distinguished Kameny from the rest was that he had the courage to fight back, and the wherewithal to base his case for equality on the Declaration of Independence and the Constitution. He appealed to the Civil Service Commission (predecessor to the Office of Personnel Management), and when that failed, argued his case all the way to the Supreme Court. Not even the ACLU was willing to defend a homosexual in 1960, however, and so Kameny, who had no formal legal training, represented himself. In his petition to the Court, he wrote:

    The government’s entire set of policies and practices in this field is bankrupt, and needs a searching re-assessment and re-evaluation — a re-assessment and re-evaluation which will never occur until these matters are forced into the light of day by a full court hearing, such as is requested by this petition.

    Kameny was denied his opportunity to expose the irrationality of government discrimination against homosexuals in “the light of day” — the Court refused to hear his case. But the setback was only temporary. Kameny began a lifelong campaign for equality on all fronts that culminated with his receiving a formal apology from OPM Director John Berry — himself a gay man — in 2009.

    The most celebrated moment in the history of the gay rights movement, the Stonewall Riot of 1969, was, at its heart, a protest in defense of the First Amendment’s protection of freedom of association. As in many jurisdictions across the United States at the time, serving alcohol to homosexuals was illegal in New York City, as was dancing between two members of the same sex. This led to a situation in which the only gay bars allowed to operate were controlled by the mafia, who paid the police for the privilege. This arrangement, however, did not stop the police from regularly raiding the bars and carting out patrons for arrest and humiliation before tipped-off newspaper photographers.

    On the evening of June 28, 1969, a group of patrons at the Stonewall Inn said: Enough. According to the Constitution, all Americans have the freedom to associate with one another; nowhere does it state that this right is exclusive to heterosexuals or, for that matter, people with brown eyes or black hair. Patrons forcibly resisted arrest, the NYPD called in backup, and for almost a week, the police and gay people engaged in running street battles outside the Stonewall. The following June, New York City held the world’s first gay pride parade, a tradition that has now extended to an entire month of commemoration and celebration of the freedom to be oneself.

    So much of the widespread acceptance that LGBT people enjoy today is attributable to free expression. Social attitudes were gradually changed by films like 1972’s That Certain Summer, the first gay-themed TV-movie and one of the earliest positive portrayals of gay people, and TV shows like Will & Grace, which brought lovable gay characters into the homes of millions of people across America and around the world. (And which then-Vice President Joe Biden cited as playing a role in his own evolution on the issue, a gaffe that forced President Obama to declare that he, too, now supported marriage equality). The AIDS activism of the 1980s and 1990s, much of it confrontational, awakened the country to the devastating effects of a terrible disease. The decision by celebrities, athletes, politicians, and business leaders to come out continues to have an immeasurably positive impact on the way straight people treat their gay neighbors, colleagues, and family members. Indeed, coming out is itself an act of free expression; every gay person utilizes it when they acknowledge the truth about themselves to others.

    Considering this awe-inspiring history, the sort of thing that ought to make young people proud to be American, how is it that free speech is opposed by so many of the students who have benefitted from it most? One reason is power dynamics. While gay people desperately needed free expression to press their case when they were treated as criminals by their own government, today, pro-LGBT sentiment is widespread throughout corporate America, Hollywood, the non-profit sector, the business world, higher education, labor unions, and white-collar professions. Why, the college sophomore asks, should we allow bigots to challenge this hard-won consensus and potentially drag us back to the proverbial Stone Age? This dynamic is hardly exclusive to the LGBT movement; just look at all the right-wing critics of “woke” censoriousness who have gone silent since Donald Trump returned to the White House and launched an anti-free speech campaign against his critics. This is all the more reason to support content-neutral free speech policies: in a democracy, power changes hands, and smothering the speech of one’s adversaries creates a precedent for them to do the same once they’re in charge.

    Another reason is a total lack of knowledge about the history outlined in this essay. Young LGBT people today are far likelier to know about Marsha P. Johnson, a drag queen who has earned iconic status for “throwing the first brick” at Stonewall despite not even being there when it erupted, than they are Frank Kameny, Elaine Noble, Bayard Rustin, or Martina Navratilova. The early gay rights movement is too heavily composed of “cisgender” white men to serve today’s “intersectional” purposes. Working within the system, using the methods provided by the Constitution, trying to persuade those who disagree with you, all of these are forms of “respectability politics,” the strategy of sell-outs. In this narrative, Stonewall is given primacy, a riot against cops better suited to inspire a radical political agenda than the slow and steady work of lobbying, legislating and litigating.

    Finally, there’s the influence of academic queer theory and the proliferation of “queer” as not so much a sexual identity but a political one. Like other modes of critical theory, queer theory seeks to subvert hierarchies and challenge established knowledge, “queering” them such that they become totally unrecognizable in their original form. It’s through sophistry like this that constitutionally protected speech becomes “violence” to be suppressed. Tolerance, a word once esteemed by gay and lesbian activists seeking a place at the table in a pluralistic society, is now denigrated in the fashion of Herbert Marcuse’s concept of “repressive tolerance,” which argues that because the expression of conservative views is harmful to marginalized groups, it ought to be suppressed.

    As a gay writer who has reported from countries where gay people live under extreme social and legal subjugation, I have witnessed first-hand the inextricable connection between free expression and LGBT rights. Looking at a map of the world, it’s no coincidence that the countries most accepting of LGBT people are liberal democracies that, however imperfectly, ensure freedom of expression, and that by and large the world’s dictatorships and illiberal regimes either criminalize or harshly repress homosexuality. Just as there is no equality for gay people without free expression, the equality of gay people will not be ensured unless the right to free expression applies equally to everyone.

    Source link

  • No gay rights without free expression

    No gay rights without free expression

    Three dates reliably bring me dread: the first Tuesday in November, April 15, and the day the Foundation for Individual Rights and Expression releases its annual College Free Speech Rankings.

    Each spring offers new reasons to despair, and this year’s report doesn’t disappoint. According to the poll of nearly 60,000 undergraduates at more than 250 schools across the country, the percentage of students who believe that it is at least “rarely” acceptable to shout down a speaker, block other students from hearing a speaker, or violently disrupt a speech has risen to 68%, 52% and 32% respectively. Majorities believe that speeches promoting six out of eight controversial propositions — “Transgender people have a mental disorder,” “Abortion should be completely illegal,” and “Black Lives Matter is a hate group” among them — should be banned from campus. (71%, meanwhile, say that speeches endorsing the genocidal call “From the river to the sea, Palestine will be free” should be allowed.) And while either half or the majority of students believe that 15 out of 17 types of student groups ranging from “Christian” to “Democrat” to “LGBTQ” should be eligible to receive student activity fees, only 40% say the same for “pro-Israeli” ones (49% say pro-Palestinian groups should be eligible to receive student activity fees).

    Five years of FIRE surveys demonstrate that the nation’s future leaders harbor a shocking degree of ignorance about America’s uniquely robust free speech principles, content neutrality foremost among them. To be sure, college students are like many other if not most Americans in this regard. Ask any random person on the street if they believe in free speech, and they’ll probably say “yes,” but dig down and you’ll discover that they adhere to the proposition, “free speech for me, but not for thee.” It’s all well and good to support the right to free speech of people with whom you concur; it’s the willingness to support the rights of those whose message you despise that is the true test of one’s commitment to the principle of free expression.

    Particularly disturbing to me in reading this year’s survey is a trend I’ve been monitoring for some time: the persistently lower support for free speech among LGBT students compared to their heterosexual peers. As in past surveys, this year’s poll found that students in eight categories ranging from Gay/Lesbian to Pansexual (essentially, anything other than “straight”) were more likely than their heterosexual classmates to support censorship. For instance, while 69% of heterosexual students believe it is “never” or “rarely” acceptable to shout down a speaker, that figure stands at 49% for gay and lesbian students and 39% for queer ones. Similarly, 80% of straights oppose blocking other students from hearing a speaker, but only 69% of gays and 68% of queers agree. And while 75% of queer students think that a speech arguing “Collateral damage in Gaza is justified for the sake of Israeli security” should “definitely” or “probably” be banned, a mere 13% say the same for a speech promoting the destruction of Israel.

    Put aside the monumental ignorance that leads some LGBT students, of all people, to take the side of murderous religious fanatics over the sole democracy in the Middle East. What makes these figures so tragic is that, were it not for the First Amendment and the robust protections it affords for free expression, none of these students would be enjoying the freedoms they so blithely take for granted today. For the legal equality and social acceptance that LGBT people now have is entirely a product of America’s free speech culture.

    Consider that, in postwar America, homosexuality was a crime in every state, a sin according to organized religion, and a mental disorder in the eyes of the medical establishment. Gay bars and other gathering places were routinely raided by police and gay men and women were subjected to horrific medical experiments in a sadistic attempt to “cure” them of their “disease.” When Senator Joe McCarthy launched his crusade against communists and homosexuals in the State Department, it was reported that three-fourths of the mail pouring into his office was primarily fixated on the latter scourge.

    In the 1950s, a small band of incredibly courageous people began a decades-long effort to change this state of affairs, and throughout it they did so by relying upon the Constitutional right to free expression. The first Supreme Court case to deal with the subject of homosexuality, ONE, Inc. vs. Olesen was a challenge to federal government censorship. Beginning in 1953, the U.S. Post Office and the Federal Bureau of Investigation launched a crusade against ONE, the country’s first widely circulated, national gay periodical. The following year, Los Angeles Postmaster Otto Olesen declared the magazine (which contained nary a racy photo or explicitly sexual article) as “obscene, lewd, lascivious and filthy” and therefore unmailable under the Comstock Act of 1873.

    The magazine brought a suit against the Postmaster in federal court in California. Ruling in favor of the defendant, the Court stated that “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.” The case made its way to the Supreme Court, which in 1958 issued a brief per curiam decision overruling the lower court’s decision, effectively legalizing pro-gay political expression in the United States. In its first issue published after the ruling, ONE declared that “For the first time in American publishing history, a decision binding on every court now stands. … affirming in effect that it is in no way proper to describe a love affair between two homosexuals as constitut(ing) obscenity.”

    Several years later, in 1962, the right of gay people to express themselves as freely as their heterosexual countrymen was further advanced with the Supreme Court case MANual Enterprises vs. Day. MANual Enterprises was a publisher of “beefcake” magazines, publications whose images of scantily clad young men were no more prurient than those of the “pin-up” girls popular among American GIs during the Second World War. Following a campaign of government harassment similar to that endured by ONE, the company appealed its case to the Supreme Court. This time, the Court decided to hear the case. The government’s singling out homosexuals and denying them the right to receive certain publications through the mail, the company’s lawyer argued, “reduces a large segment of our society to second class citizenship.” It was a daring argument, utilizing a term popularized by the African American civil rights movement. “If we so-called normal people, according to our law, are entitled to have our pin-ups, then why shouldn’t the second-class citizens, the homosexual group . . . why shouldn’t they be allowed to have their pin-ups?”

    Writing for the majority in a 6–1 decision, Justice John Marshall Harlan II stated that while he personally found the magazines to be “dismally unpleasant, uncouth and tawdry . . . these portrayals of the male nude cannot fairly be regarded as more objectionable than many portrayals of the female nude that society tolerates.” However qualified by his expressions of personal distaste, Harlan’s argument that erotic images created for the titillation of homosexuals were not inherently more obscene than those designed to arouse their heterosexual fellow citizens recognized an important principle that laid the groundwork for further gay rights legal victories to come.

    Three years later, another instance of free expression in the furtherance of gay civil rights occurred outside the White House gates. A group of 10 men and women affiliated with the Mattachine Society of Washington, D.C., one of the first gay rights organizations in the country, formed a picket on the sidewalk across the street from Lafayette Square. Marching in an oval-like motion and dressed in business attire, they held signs declaring, “FIFTEEN MILLION U.S. HOMOSEXUALS PROTEST FEDERAL TREATMENT,” “GOVERNOR WALLACE MET WITH NEGROES, OUR GOVERNMENT WON’T MEET WITH US” and “U.S. CLAIMS NO SECOND CLASS CITIZENS, WHAT ABOUT HOMOSEXUAL CITIZENS?” Four years before the much more famous Stonewall Riot erupted in Greenwich Village, this was the first organized public demonstration for gay rights in the United States.

     

    Though the protest garnered scant media attention, it inspired gay men and women across the country more than anything up to that time. “Nothing like these demonstrations has been seen before,” Eastern Mattachine Magazine, a publication of the Mattachine Society, enthused. “The most hated and despised of minority groups has shown its face to the crowds, and it is plain for all to see that they are not horrible monsters. They are ordinary looking, well-dressed human beings!” For one of the picketers, the event was “the most important day of my life” next to her marriage to her partner over two decades later.

    For the leader of the march, Mattachine Society co-founder Frank Kameny, free expression had been a vital tool since the federal government fired him for being gay. In 1957, the Harvard-trained Army Map Service astronomer was recalled from his observatory in Hawaii to Washington. Army officials had discovered an arrest record for “lewd and indecent acts” he allegedly committed in a police entrapment operation while visiting San Francisco. Kameny was fired on the spot and joined the ranks of the thousands of other patriotic American gay men and women rejected by their government solely because of their sexual orientation.

    What distinguished Kameny from the rest was that he had the courage to fight back, and the wherewithal to base his case for equality on the Declaration of Independence and the Constitution. He appealed to the Civil Service Commission (predecessor to the Office of Personnel Management), and when that failed, argued his case all the way to the Supreme Court. Not even the ACLU was willing to defend a homosexual in 1960, however, and so Kameny, who had no formal legal training, represented himself. In his petition to the Court, he wrote:

    The government’s entire set of policies and practices in this field is bankrupt, and needs a searching re-assessment and re-evaluation — a re-assessment and re-evaluation which will never occur until these matters are forced into the light of day by a full court hearing, such as is requested by this petition.

    Kameny was denied his opportunity to expose the irrationality of government discrimination against homosexuals in “the light of day” — the Court refused to hear his case. But the setback was only temporary. Kameny began a lifelong campaign for equality on all fronts that culminated with his receiving a formal apology from OPM Director John Berry — himself a gay man — in 2009.

    The most celebrated moment in the history of the gay rights movement, the Stonewall Riot of 1969, was, at its heart, a protest in defense of the First Amendment’s protection of freedom of association. As in many jurisdictions across the United States at the time, serving alcohol to homosexuals was illegal in New York City, as was dancing between two members of the same sex. This led to a situation in which the only gay bars allowed to operate were controlled by the mafia, who paid the police for the privilege. This arrangement, however, did not stop the police from regularly raiding the bars and carting out patrons for arrest and humiliation before tipped-off newspaper photographers.

    On the evening of June 28, 1969, a group of patrons at the Stonewall Inn said: Enough. According to the Constitution, all Americans have the freedom to associate with one another; nowhere does it state that this right is exclusive to heterosexuals or, for that matter, people with brown eyes or black hair. Patrons forcibly resisted arrest, the NYPD called in backup, and for almost a week, the police and gay people engaged in running street battles outside the Stonewall. The following June, New York City held the world’s first gay pride parade, a tradition that has now extended to an entire month of commemoration and celebration of the freedom to be oneself.

    So much of the widespread acceptance that LGBT people enjoy today is attributable to free expression. Social attitudes were gradually changed by films like 1972’s That Certain Summer, the first gay-themed TV-movie and one of the earliest positive portrayals of gay people, and TV shows like Will & Grace, which brought lovable gay characters into the homes of millions of people across America and around the world. (And which then-Vice President Joe Biden cited as playing a role in his own evolution on the issue, a gaffe that forced President Obama to declare that he, too, now supported marriage equality). The AIDS activism of the 1980s and 1990s, much of it confrontational, awakened the country to the devastating effects of a terrible disease. The decision by celebrities, athletes, politicians, and business leaders to come out continues to have an immeasurably positive impact on the way straight people treat their gay neighbors, colleagues, and family members. Indeed, coming out is itself an act of free expression; every gay person utilizes it when they acknowledge the truth about themselves to others.

    Considering this awe-inspiring history, the sort of thing that ought to make young people proud to be American, how is it that free speech is opposed by so many of the students who have benefitted from it most? One reason is power dynamics. While gay people desperately needed free expression to press their case when they were treated as criminals by their own government, today, pro-LGBT sentiment is widespread throughout corporate America, Hollywood, the non-profit sector, the business world, higher education, labor unions, and white-collar professions. Why, the college sophomore asks, should we allow bigots to challenge this hard-won consensus and potentially drag us back to the proverbial Stone Age? This dynamic is hardly exclusive to the LGBT movement; just look at all the right-wing critics of “woke” censoriousness who have gone silent since Donald Trump returned to the White House and launched an anti-free speech campaign against his critics. This is all the more reason to support content-neutral free speech policies: in a democracy, power changes hands, and smothering the speech of one’s adversaries creates a precedent for them to do the same once they’re in charge.

    Another reason is a total lack of knowledge about the history outlined in this essay. Young LGBT people today are far likelier to know about Marsha P. Johnson, a drag queen who has earned iconic status for “throwing the first brick” at Stonewall despite not even being there when it erupted, than they are Frank Kameny, Elaine Noble, Bayard Rustin, or Martina Navratilova. The early gay rights movement is too heavily composed of “cisgender” white men to serve today’s “intersectional” purposes. Working within the system, using the methods provided by the Constitution, trying to persuade those who disagree with you, all of these are forms of “respectability politics,” the strategy of sell-outs. In this narrative, Stonewall is given primacy, a riot against cops better suited to inspire a radical political agenda than the slow and steady work of lobbying, legislating and litigating.

    Finally, there’s the influence of academic queer theory and the proliferation of “queer” as not so much a sexual identity but a political one. Like other modes of critical theory, queer theory seeks to subvert hierarchies and challenge established knowledge, “queering” them such that they become totally unrecognizable in their original form. It’s through sophistry like this that constitutionally protected speech becomes “violence” to be suppressed. Tolerance, a word once esteemed by gay and lesbian activists seeking a place at the table in a pluralistic society, is now denigrated in the fashion of Herbert Marcuse’s concept of “repressive tolerance,” which argues that because the expression of conservative views is harmful to marginalized groups, it ought to be suppressed.

    As a gay writer who has reported from countries where gay people live under extreme social and legal subjugation, I have witnessed first-hand the inextricable connection between free expression and LGBT rights. Looking at a map of the world, it’s no coincidence that the countries most accepting of LGBT people are liberal democracies that, however imperfectly, ensure freedom of expression, and that by and large the world’s dictatorships and illiberal regimes either criminalize or harshly repress homosexuality. Just as there is no equality for gay people without free expression, the equality of gay people will not be ensured unless the right to free expression applies equally to everyone.

    Source link

  • Senate Dems Grill Trump’s Pick to Lead Civil Rights Office

    Senate Dems Grill Trump’s Pick to Lead Civil Rights Office

    Kimberly Richey, a Florida education official, made her case Thursday about why she should lead the Education Department’s Office for Civil Rights, pledging “unwavering” support of the administration’s priorities such as protecting Jewish students.

    “Should I be confirmed as assistant secretary for civil rights, I will proudly be joining an administration that will not allow students to be intimidated, harassed, assaulted or excluded from their institutions,” she said in her opening remarks.

    But repeatedly throughout the hearing, Democratic senators interrogated her on how she plans to address a massive backlog in complaints—which one senator said has more than doubled since Trump took office, to 25,000—with a reduced staff.

    “This administration has fired more than half of the staff at OCR, and President Trump is now asking, in his budget, to slash that by $49 million next year, so explain to me how those firings and that funding cut will help reduce that backlog? I want to understand how you’re going to square that circle,” Sen. Patty Murray, a Democrat from Washington, asked early on in the hearing.

    Richey mostly avoided answering the questions, arguing that she had not yet assumed the role of assistant secretary and, therefore, had no say in the recent changes to OCR.

    “As a nominee, I do not have access to information with regard to the decisions that are being made at the department,” Richey responded. “I’m not in communication with OCR leadership or the secretary. One of the reasons why this role is so important to me is because I am always going to advocate for OCR to have the resources it needs to do its job. I think that what it means is I’m going to have to be really strategic, if I’m confirmed, stepping into this role, helping come up with a plan where we can address these challenges.”

    Several others doubled down on Murray’s line of questioning, including Sen. Andy Kim, a New Jersey Democrat, who asked Richey if antisemitism was getting worse in America. When she said it was, he questioned how cutting OCR staff is conducive to fighting antisemitism on college campuses. She reiterated her answer to Murray’s question, saying, “I can’t explain or provide information on decisions I wasn’t involved in.”

    Richey was one of four people who testified Thursday before the Senate Health, Education, Labor and Pensions Committee. She and the nominee for deputy secretary of education, Penny Schwinn, fielded the bulk of the committee’s questions as lawmakers pressed for answers about the OCR’s operations and priorities, proposed budget cuts, and the president’s plans to dismantle the Education Department. The senators didn’t vote on whether to advance the nominations to the Senate floor; that step will likely occur at a later meeting.

    Richey is currently senior chancellor for the Florida Department of Education and has twice served in OCR before, including a brief stint as acting secretary of civil rights at the end of Trump’s first term and the beginning of Biden’s presidency. Her confirmation hearing comes months after the Trump administration slashed more than half of OCR’s staff, including shuttering seven of the 12 regional offices dedicated to investigating complaints. The office has also reportedly begun prioritizing opening cases regarding trans women athletes and antisemitism since Trump’s second term began, letting other cases pile up and go unaddressed, according to multiple news reports.

    In the confirmation hearing, Richey expressed strong support for those causes, stressing that she led OCR when it investigated one of the federal government’s earliest cases against a school for allowing a trans woman to play on a women’s sports team.

    “I’m certainly committed to vigorously enforcing it and continuing to pursue these cases,” she said.

    In response to a different question, though, she did say that OCR would investigate certain complaints of discrimination related to gender identity and sexual orientation—an answer that appeared to incense Republican senator Josh Hawley of Missouri.

    “I want to be crystal clear on this—I think it’s a very dangerous thing to start allowing this into Title IX, which, as you know, it is a landmark statute, it is vitally important, and it has been under attack for four long years,” he said, asking her to confirm that OCR will “go after” colleges and universities that allow trans women to play women’s sports.

    He also warned Richey that she should “rethink” her position that OCR can investigate discrimination based on gender identity.

    Sen. Angela Alsobrooks, a Democrat from Maryland, pressed Richey on whether she would continue OCR’s new system of prioritizing cases regarding antisemitism and trans athletes, asking if all forms of discrimination should be treated with equal importance.

    Richey told Alsobrooks she does believe “it’s important to vigorously enforce all of the federal laws that OCR is responsible for enforcing.” Later in the hearing, she noted that Education Secretary Linda McMahon is “prioritizing” removing trans women from women’s athletics, and she plans to do the same if confirmed.

    Schwinn, who was formerly Tennessee’s commissioner of education, received most of the panel’s questions about the Trump administration’s efforts to dismantle the education department. In response a question from Sen. Jim Banks, an Indiana Republican, about what steps would be required to dismantle the department, she stated that she “would certainly work, if confirmed, with the secretary and with Congress on any actions related to the role of the department” and that she believes in equipping states with legislation and funding that will help them improve their own educational systems.

    “A department or an agency in the federal government is not going to change the outcomes of students—the teacher in the classroom is going to teach the standards that are approved by that state. The parent is the parent of that child. What we need to do is ensure we’ve created a system that is going to drive outcomes,” she said. “That is not going to happen from the federal government, whether there is a Department of Education or not.”

    Source link

  • What the Employment Rights Bill means for higher education

    What the Employment Rights Bill means for higher education

    The Employment Rights Bill received its third and final reading in the House of Commons in April and is due to complete its committee stage in the House of Lords next month.

     Following extensive amendments in the Commons, the current version of the Bill (at over 300 pages) is nearly twice as long as the original version published a year ago.

    Although the Bill is likely to be added to the statute book in the next few months, most of the measures will not be commenced until 2026 at the earliest.

    Unfair dismissal

    The Bill abolishes the two-year qualifying period for unfair dismissal but introduces a new framework for a lighter touch unfair dismissal regime during an “initial period of employment”. In previous government statements, this has been described as an exception for probationary periods, though it may turn out to be wider than that.

    It means that employees must have started work to benefit from the day one right. Existing provisions on automatically unfair dismissals will be retained and will continue to apply from the point the employment relationship starts.

    To come within this more relaxed regime during the initial period of employment, an employer will need to demonstrate a potentially fair reason for dismissal which relates to the individual employee. This means that dismissals on redundancy grounds during the initial period of employment will not fall within these new rules.

    Yet to be made regulations will define the length of the initial period of employment and how it is calculated. This is understood to be a minimum of six months and could be as long as a year: currently, the government supports a compromise of nine months. Regulations may also specify that a dismissal will be regarded as fair if certain procedural steps have been followed. These might include, for example, holding a meeting with the employee before reaching a decision to dismiss and confirming the reasons for the decision in writing.

    On the face of it, protecting all employees from unfair dismissal from day one will have a broadly equal impact on all employers. However, complex organisations like universities will need to invest more time reviewing their existing procedures than most other businesses. If they want to take advantage of the new “light touch” unfair dismissal regime, they will need to align their procedures on probationary periods with the new statutory framework. Again, this may not be straightforward, particularly for academic staff.

    Zero hours contracts

    Universities have taken a lot of criticism for using zero hours contracts in certain circumstances. As of 2023–24 there are around 4,000 academics on a zero hour contract. Although we don’t have the data, it is likely that the numbers are higher for other staff.

    As it stands there are three groups of measures to protect zero-hours workers:

    1. The right to guaranteed hours after the end of every reference period, which reflects the hours worked during that period;
    2. The right to reasonable notice of shifts (including change and cancellation); and
    3. The right to payment for cancelled, moved and curtailed shifts where sufficient notice has not been given

    Similar rights will be extended to agency workers via a new schedule, which was inserted in the Bill at report stage in the House of Commons. The government introduced provisions at this stage which would make it possible for employers and workers to modify the application of these provisions via a collective agreement.

    Regulations will define the reference period for guaranteed hours and other conditions of entitlement, as well as the procedural requirements around the offer of a new contract. They will also specify the minimum notice period for the cancellation of shifts, the compensation due and when it must be paid.

    According to the Bill’s impact assessment, the education sector as a whole has a higher-than-average user of variable hours contracts, an assessment that reflects our experience advising higher education clients. What may raise eyebrows in the sector is the potential for significant direct and indirect costs in complying with these measures, which are among the most complex in the Bill. They will need to wait for the regulations before making detailed plans, but at this stage, providers should establish which workers and agency staff are likely to be covered by these provisions.

    It would also be worth exploring the possibility of entering into a collective agreement to create tailor-made arrangements to protect variable hours workers in place of the statutory regime. However, with a caution that we are still awaiting details of any restrictions on “contracting out” in this way.

    The use of fixed-term contracts with fixed hours is not targeted by these measures, although there may be some anti-avoidance measures to prevent abuse. This is encouraging news for higher education institutions, which had been concerned about measures in the Workers (Predictable Terms and Conditions) Act 2023. This Act will no longer be brought into effect.

    Collective redundancies

    You don’t have to have read much about higher education recently to be aware that the majority of universities now have some kind of redundancy scheme in place. There are three interlocking groups of measures in the Bill concerning collective redundancies.

    The rules on the numerical threshold that triggers the collective consultation requirements will be changed by introducing a new rule for multiple site redundancies. Though the threshold for single-site redundancies will stay at twenty, an alternative method of calculation will be applied when the workers involved are spread across different sites – once again, the details will be set out in regulations still to be published.

    It will become automatically unfair to dismiss an employee for not agreeing to a variation to their contract, or if the employer dismisses the employee to replace or to re-engage them on varied contractual terms (so called “fire and rehire”, something which some universities have been called out for).

    However, there is an exception to these rules if the employer can show the reason for the variation was to “eliminate, prevent, significantly reduce or significantly mitigate the effects of financial difficulties which, at the time of the dismissal, were affecting the employer’s ability to carry on the business as a going concern” and could not reasonably have avoided the need to make the variation.

    While this new rule also applies to one-off dismissals, it is most likely to be engaged where an employer is seeking to restructure, where the obligation to consult collectively will usually apply too.

    These new rules create a new category of “automatically unfair” dismissal – ie an unfair dismissal claim to which the employer will have no defence – will make it very difficult for employers to restructure without paying the employees involved significant compensation.

    This is because the defence that dismissal was to mitigate “financial difficulties” is so narrowly drawn. We had been expecting amendments to this provision to be put forward in the House of Lords, but there is no sign of these so far.

    The maximum period covered by a protective award for breach of collective consultation requirements will be increased from 90 to 180 days. However, proposals to introduce a new right to claim interim relief where they have been breached have been dropped.

    Fire and rehire

    As highly unionised organisations, universities will be acutely aware of the increased penalties for failing to comply with collective redundancy consultation. Consequently, breaches of these requirements are rare in the sector. To maintain this record employers will need to quickly get across the new rules.

    Likewise, fire-and-rehire is rare (though reports are growing), but universities should be aware that the Bill’s provisions to target this practice could also be engaged when negotiating with their unions about changes to terms and conditions, if dismissal and re-engagement are being considered as a last resort.

    There are other measures in the Bill relating to trade unions and industrial action, which are outside the scope of this article. These include the repeal of almost all of the last government’s trade union legislation, which is likely to take effect later this year. There is an overview of these measures in our briefing here.

    The combination of good HR practices and very vocal union opposition to any breaches means that higher education providers, while far from perfect, are pretty good employers overall.

    The Bill is targeted elsewhere, but with the rules changing (and likely to continue changing with subsequent legislations), employment rights compliance cannot be taken as a given and universities will need to make active efforts to stay up to date.

    Source link

  • The Supreme Court made your rights harder to defend — Congress must now step up

    The Supreme Court made your rights harder to defend — Congress must now step up

    This essay was originally published in The Hill on May 8, 2025.

    From free speech rights and desegregation to gun rights and religious freedoms, civil rights litigation has long been a cornerstone of personal liberty in America. But in February, the Supreme Court issued an opinion that will make it harder for us as Americans to vindicate our constitutional rights when the government violates them.

    In Lackey v. Stinnie, a group of Virginia drivers challenged a state law that punished people for failing to pay court fees by automatically suspending their driver’s licenses. The plaintiffs secured a preliminary injunction — a court order issued early in a case to prevent potential harm while it is litigated in full — allowing them to keep their licenses. Virginia did not appeal that ruling, and before the case went to trial, the legislature changed the law and reinstated any licenses that had been suspended under it.

    In cases alleging violations of constitutional rights, a federal statute preempts the general rule that litigants pay their own fees and costs by allowing “prevailing” parties to recover attorney’s fees from the government actor who violated their rights. But in this case, the federal district court held the drivers had not in fact “prevailed” given that the case did not progress to a final conclusion, making them ineligible to recover attorney’s fees. This flew in the face of what courts and litigators had understood the law to be for decades.

    The case eventually made its way to the Supreme Court to determine what “prevailing” meant in federal law and whether the drivers were entitled to reimbursement. The court, to the disappointment of advocates for civil rights and liberties, held that plaintiffs who do not obtain a final judgment on the merits do not qualify as “prevailing” even if, as with the Virginia drivers, they prevail in getting the government to change the law. 

    Unlike corporate litigation, civil rights cases rarely involve large financial recoveries. In any event, plaintiffs often seek changes to laws or policies rather than monetary gain. Yet these are vital cases, not just for the individuals involved but for the communities they represent, even if they rarely provide enough financial incentive to make private representation feasible — unless attorneys receive compensation after winning the case.

    Congress intended to encourage civil rights litigation by tying fee awards to success, whether through final judgments or preliminary relief. The House Judiciary Committee report on the legislation enacting the attorney’s fees provision noted, “a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude … that no formal relief, such as an injunction, is needed.” Despite this clear evidence of congressional intent, the court held otherwise.

    Importantly, as the court pointed out, Congress has the power to clarify in the statute that attorney’s fees can be awarded before a final judgement on the merits. Congress must do so. 

    The breadth of amicus briefs submitted in this case — from the ACLU to the Alliance Defending Freedom to the Firearms Policy Coalition — demonstrates that across the ideological spectrum, organizations recognize the critical role awarding attorney’s fees plays in civil rights litigation. 

    As FIRE noted in its amicus brief to the Supreme Court, “Withholding attorney’s fees from victims of these First Amendment violations would be devastating — not just for them individually, but for access to justice more broadly.”

    Congress must enact a simple, clarifying change that will have broad support and ensure all Americans can vindicate their constitutional rights. Justice isn’t free, but we can ensure it remains accessible to all.

    Source link

  • After brazen attack on expressive rights, faculty at Sterling College aren’t in Kansas anymore

    After brazen attack on expressive rights, faculty at Sterling College aren’t in Kansas anymore

    Professor Pete Kosek was a leading voice for the faculty at Sterling College — a small, private Christian college in central Kansas — when negotiating changes to the college’s employee handbook. Ken Troyer, another Sterling professor, spoke out as well, including statements to the media about concerns he had with Sterling administrators’ communication with faculty and about a vote of no confidence in the college’s president.

    For these exercises of basic faculty expressive rights, Sterling has now punished them both for exhibiting “behavior that is fundamentally inconsistent” with Sterling’s mission. But it’s these punishments that are “fundamentally inconsistent” with Sterling’s promises that its faculty enjoy “free expression, on and off campus.”

    FIRE wrote to Sterling on April 3, 2025, articulating our concerns. Its administration ignored us, so today we’re writing to the college again as well as its board of trustees, urging them to reverse the punishments of Kosek and Troyer.

    College clashes with faculty over revisions to the employee handbook

    In 2023, Sterling faculty received a new version of Sterling’s employee handbook. Faculty voiced concerns about whether faculty were obligated to sign the handbook’s acknowledgement, which appeared to require that faculty affirm Sterling’s institutional stance on marriage, life, gender identity, and human sexuality. For example, a provision in the handbook stated: “[m]arriage is designed to be the lifelong uniting of one man and one woman in a single, biblical, covenant union as delineated by Scripture.” 

    Concerned that this may adversely impact faculty who were divorced, Kosek led a group of faculty members in negotiating changes to the handbook. Over the course of a year, he went back and forth with Sterling administrators about making sure the handbook could be modified so that it didn’t single out divorced faculty for adverse action. 

    On Aug. 21, 2024, Kosek emailed a large group of faculty members informing them he believed he and anyone else would be fired if they did not sign the handbook acknowledgement. Kosek also told the administration that while he would abide by the terms of the handbook, he disagreed with how the administration went about communicating with faculty and instituting the new handbook. Two days later, the administration clarified that while faculty were expected to abide by the terms of the handbook, they would not be terminated for not signing it. Kosek subsequently clarified this to the rest of the faculty. The situation seemed resolved, right? Wrong.

    Months later, on Feb. 25 of this year, administrators summoned Kosek to a meeting and gave him a disciplinary warning. They told him that it was because he allegedly misrepresented the college when he told other faculty that he believed he and others would be fired over not signing the handbook’s acknowledgement. Sterling provided Kosek no real opportunity to defend himself from the charge.

    Troyer, meanwhile, received a nearly identical disciplinary warning on the same day as Kosek, purportedly because of his comments to the media criticizing Sterling’s poor communication with faculty. (This poor communication was a major reason why a group of faculty supported a no-confidence vote in Sterling’s leadership.) Troyer had also discussed the inclusion of non-Christian students at the college, and how that inclusion related to Sterling’s Christian mission. 

    Similar to Kosek, Troyer had no real opportunity to defend himself. He was just expected to take the disciplinary warning and keep his mouth shut. 

    If Sterling’s mission required absolute and unquestioning obedience to the administration, this might be understandable. But these punishments cannot be squared with the policies actually laid out in Sterling’s faculty handbook. That handbook does not demand unthinking fealty, but imposes on “students, faculty members, administrators and trustees” the obligation “to foster and defend intellectual honesty, freedom of inquiry and instruction, and free expression on and off campus.” As if anticipating the exact scenario facing both Kosek and Troyer, Sterling adds in the handbook, “administrators should respect the right of faculty members to criticize and seek revision of institutional regulations.” 

    FIRE’s first letter explained why the college could not square its punishment of Kosek with Sterling’s written commitments. Under First Amendment jurisprudence and at most private colleges (like Sterling) faculty members retain the right to comment on matters of public concern — and one of those concerns is how the college is being run. Indeed, faculty members are often among the most important voices regarding how colleges and universities operate since they witness firsthand the impacts of institutional policies. 

    Sterling blew FIRE off. So now we’re taking this up the chain and writing to the Board of Trustees as well as the college. When a private institution like Sterling makes promises in its handbooks to faculty, it must keep those promises. To violate them with impunity is to undermine trust and credibility. 

    Source link

  • Is cancel culture dead? | The Foundation for Individual Rights and Expression

    Is cancel culture dead? | The Foundation for Individual Rights and Expression

    The co-authors of “The Canceling of the American Mind”
    discuss its new paperback release and where cancel culture stands a
    year and a half after the book’s original publication.

    –
    Greg Lukianoff     —

    – Rikki Schlott
    —

    Timestamps:

    00:00 Intro

    04:35 Origin of book

    07:56 Definition of cancel culture

    17:55 Mike Adams, canceled professor

    23:51 Alexi McCammond, former Teen Vogue
    editor-in-chief

    31:57 Echo chambers on social media

    35:09 Trump administration ‘canceling’ law firms and
    higher ed institutions

    44:02 Rikki’s libertarian political identity

    51:02 Is cancel culture dead?

    54:26 Outro


    Read the transcript.

    Enjoy listening to the podcast? Donate to FIRE today and
    get exclusive content like member webinars, special episodes, and
    more. If you became a FIRE Member
    through a donation to FIRE at thefire.org and would like access to
    Substack’s paid subscriber podcast feed, please email [email protected].

    Show notes:

    Source link

  • Renters’ Rights Bill – The Devil’s in the Detail

    Renters’ Rights Bill – The Devil’s in the Detail

    • By Martin Blakey, the former Chief Executive of the student housing charity Unipol and a member of the British Property Federation’s Student Accommodation Committee.

    HEPI has maintained, as one would expect, a serious interest in student housing and the impact this Bill will have on students. The last update was given on 3 February 2025, and since then, there have been significant developments. On that basis, this update covers three areas:

    1. Work has finally commenced on how purpose-built student accommodation (PBSA) will transition from the current assured student tenancy regime into common law tenancies, as those tenancies are largely outside the provisions of the Act;
    2. The Renters’ Rights Bill (RRB) is now at the Lords Committee Stage, and on 22 April 2025, around half the day was taken up discussing student-related housing, giving a clear indication of the Government’s thinking on the outcome of the Bill and student housing; and
    3. The Government-approved Unipol/ANUK National Code has undergone significant revision and is now out for public consultation before its final text is agreed.

    Purpose-Built Student Accommodation (PBSA)

    Long overdue work is now taking place by the Ministry of Housing, Communities and Local Government (MHCLG) to establish the mechanism whereby PBSA providers will become ‘specified’ under the Housing Act (1988). This will put them outside the remit of much of the Renters’ Rights legislation.

    As part of the earlier discussions on this with the British Property Federation (and their Student Accommodation Committee), MHCLG had previously advised that existing tenancies would automatically become common law tenancies. However, on 1 April, Unipol was informed that there were problems with this and that Assured Shorthold Tenancies (ASTs) existing before the implementation of the Act will now transition to be assured tenancies that will fall under the remit of the Act.

    This may seem a rather nerdy legal change with little impact, but it would be a mistake to conclude that.

    The timescale of the Bill has self-evidently slipped from the initial aim of obtaining Royal Assent by Easter 2025, and the Government is racing to ensure that it passes through all its parliamentary stages by the summer recess on July 22, 2025. Some aspects of the Act will be subject to further detailed consultation, but the main tenure reforms will be implemented quickly. This rush to get the Bill through its parliamentary stages may explain the evident ‘make do and mend’ approach to the transition of PBSA tenancies. This rush certainly explains the Government’s unwillingness to accept any non-Government amendments in both the Commons and the Lords.

    Because PBSA tenancies will now transition into assured tenancies, the timing of implementation is important because it will determine the extent to which the PBSA market will be disrupted by this change of position. It is reasonable to conclude that tenure changes are likely to occur around December 2025 or January 2026. Since most students living in PBSA will have already signed contracts for the 2025–26 academic year, around 402,000 students are expected to be affected, based on the Unipol/NUS Accommodation Cost Survey 2021. Only bed spaces provided directly by universities will fall outside of these transitional arrangements.

    So, what are those arrangements?

    Previous AST tenants, as they become assured tenants, will:

    • Be able to pay rent monthly, and longer payment periods will be unenforceable. It is not yet clear whether rent already paid in advance will have to be refunded.
    • Be able to give two months’ notice and then leave their contracts.
    • Be able to remain in their property because the fixed-term nature of their previous contract has been abolished.

    So how will PBSA providers be able to guarantee room availability for the start of 2026-27?

    For those students living in houses in multiple occupation (HMOs), MHCLG say that providers will be able to give notice under the new repossession ground 4a for students. This will allow repossession to take place between June and September, thus ensuring those rooms are available for new student tenants. But here, the new system is not clear because, as Baroness Taylor Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government said in the Lords on 22 April 2025:

    The core aim of the Bill is to enhance the security of tenants in the private rented sector, including students. The prior notice requirement in ground 4A is key to this. If tenants are liable to be evicted through no fault of their own simply because of their student status, they must be informed of this reduced security before entering into a tenancy.

    And in the case of PBSA tenants, this notice will not have been given. MHCLG say that legislative changes will be made to allow for such a notice to be given within 28 days of the implementation of the Act but, so far, there is no sign of how that will be achieved, nor was it referenced in the Lords Committee debate.

    But ground 4a only applies to HMOs (roughly defined as a dwelling housing three or more students). PBSA has very few two-bed flats, but it does have 78,000 studio flats that will fall outside of ground 4a. In these cases, students can stay as long as they wish, provided they give two months’ notice of when they want to leave.

    Many of those involved at the coal-face in student accommodation will know that each year there are many requests (particularly from international postgraduates who make up the majority of the market for studios) to extend their contracts from September to just before Christmas (the reasons are various, ranging from over-running dissertation time to wanting to attend the pre-Christmas degree ceremonies). These students have to be moved on in order to make way for incoming new students – now they will be able to stay.  So, in the case of studios, PBSA suppliers will not be able to guarantee room availability to incoming students until the outgoing students have served notice (and they may ‘forget’ to do this anyway).

    If PBSA studio tenants decide to stay on for a further year (as some do as they move from masters to research degrees), then their transitional assured tenancy status will stay with them until they choose to leave.

    This added flexibility may sound great for current students, but it is very bad news for the cost and availability of accommodation for future students, particularly those looking for housing in 2026-27.

    For PBSA providers, this transitional phase is an administrative and legal nightmare; they

    • will have to re-tool their rent collection systems;
    • change their legal documentation;
    • serve specified notice to gain repossession;
    • deal with student tenants who can come and go as they wish; and
    • absorb the possibility of additional voids if students choose to leave their accommodation mid-year

    And there are other implications:

    • Students remaining in their accommodation when they are no longer students will cause many providers to be in breach of their planning permissions, which stipulate student-only occupation;
    • The Act does not allow landlords to discriminate against tenants who may have children, but it is generally accepted that PBSA studios are not a suitable environment to house children (and housing children may place the landlord in breach of any licensing conditions imposed by the local authority).

    Politicians may say ‘So what?’; this is only a transitional phase. But it is important to remember that in private sector housing, the tenant pays for everything, and so these added (and unnecessary) costs are likely to be reflected in future supply uncertainty and higher rent levels.

    Furthermore, this ‘transitional phase’ goes directly against what the Government said was going to happen when Matthew Pennycook, the Minister for Housing and Planning, said to parliament (on 19 December 2024):

    The Bill will exempt Purpose Built Student Accommodation (PBSA) from the assured tenancy system if the landlord is signed up to a government approved code of management practice.

    No mention of a disastrous ‘transitional phase’. The shifting goalposts approach of MHCLG has significantly eroded trust among housing providers in the Government’s ability to manage the transition of PBSA to common law tenancies without further problems emerging.

    Does it have to be like this?

    Well no. Firstly, the Government could seek to mitigate the effect of the transitional phase by having a time-limited new repossession ground (say 4b) which would allow repossession for students living in PBSA studios in line with existing Ground 4a. That would, at least, maintain the academic cycle on the availability of accommodation – but perhaps they are in too much of a rush to get the Bill approved to consider this.

    Secondly, the Government could seek to mitigate how many students were affected by these transitional arrangements by using powers the Secretary of State already has (under Section 8 of the Rent Act 1977 and paragraph 8 of Schedule 1 to the Housing Act 1988) to give specified status now to PBSA providers, ahead of the RRA implementation. Using those existing powers the wording in an SI could be:

    The following bodies of persons (whether unincorporated or bodies corporate) are hereby specified as bodies for the purposes of paragraph 8 of Schedule 1 to the Housing Act 1988, that is to say –

    any person managing or having control of purpose-built student accommodation if the accommodation let or to be let is registered with a code of practice which has been approved by the appropriate national authority under powers conferred by section 233 of the Housing Act 2004.

    This would mean that as soon as that Statutory Instrument was approved (and that could be done by the end of May 2025), tenancies issued after that would then be common law tenancies and this would drastically reduce the number of tenancies in any transitional stage.

    In the Lords, Baroness Taylor said the reason that Ministers were seeking additional powers to create specified status (in clause 34 of the Bill) instead of using powers they already had was:

    Although there is an existing power in the Housing Act 1988 to exempt PBSA landlords, it would have required government to frequently update secondary legislation with a list of landlords, causing a duplication of work between code administrators and officials and a lag in the link between code membership and exemption status.

    Even if this were true (there is no reason why the list of ‘landlords’ needs to be individually specified), this supposed ‘duplication of work’ over the transitional period would require a great deal less work to be done than that being caused by the Government’s currently disruptive and onerous proposals.

    Why has this ‘transition problem’ appeared now? 

    It may be unkind to conclude that after three year’s discussion with Unipol (who run the relevant Government-approved Code and the BPF) that real work by MHCLG has only just started on their own proposal and there are issues to be resolved. Even following the Minister’s statement that new powers will be granted under Clause 34 of the Housing Act, where are those new powers? There is, as yet, no evidence of any drafting of the new Statutory Instrument/s now that those are apparently needed.

    This ‘dog’s dinner’ rushed approach to the PBSA transition period has still to play out fully, and more detailed work is still required to achieve implementation.

    The Lords Committee Stage

    There was considerable discussion about students on 22 April 2025 in the Lords and it is worth highlighting some of the points made because they provide a clear indication of how the Government is thinking about student housing. As Baroness Taylor said in this debate:

    The Government made a clear manifesto commitment to transform the experience of private renting by levelling the playing field decisively between landlords and tenants…One of the reasons the Government do not want to reintroduce fixed terms or anything like them is that they add complexity into the system. Having a simple, single system of periodic tenancies will make it easier for both parties to better understand their rights and responsibilities.

    All the discussion on this Bill has been polarised into a landlord v tenant framework. This approach does not work well in addressing issues within student housing, where a third educational aspect is also relevant: the availability of good-quality housing at the right time of year, allowing students to undertake their studies in the most productive way.

    Security of tenure (the central pillar of the Bill) has only limited value to a very small minority of students and this has been recognised by what might be called ‘intermediary sector bodies’ such as UUK, CUBO, ASRA and Unipol – none of which easily fall into the Bill’s landlord v tenant framework.

    Lord Willetts, in proposing what would have been a useful amendment, eloquently summed up what has happened to student housing during discussions on the Bill:

     I understand the arguments that the Minister makes about the need for tenants to have security and be able to put down roots in the long term, but so many of her arguments for this legislation do not apply to students who are seeking reliable accommodation for an academic year. The model that she proposes is clearly not in their interests.

    The Government have clearly accepted that there is a need for some special arrangements for student lets…The Government have made some concessions to recognise the student market. There is already one exemption from the legislation, which is for purpose-built student accommodation.

    There is now a second category that has been added, and that is ground 4A, which is essentially for HMOs with three bedrooms or more in the private rented sector.

    But that leaves a third group for whom the Government are not currently providing any exemption. These are students in smaller accommodation, maybe one or two-bedroom properties, for whom none of the special exemptions are going to apply. It is therefore very odd that, in the Government’s model to tackle this problem, you could have three university students who are friends and are in three totally different rental regimes because of the structure of the exemptions which the Government are trying to offer.

    Lord Willetts’ analysis reflects how, initially, the previous Government Bill failed to take much account of the housing needs of students and how pressure from the sector had caused some of those special needs to be recognised and accounted for in a rather grudging and piecemeal fashion.

    In rejecting the amendment (which was supported by Lords from all the major parties), Baroness Taylor, on behalf of the Government said:

    We have thought very carefully about the design of ground 4A. Limiting it to HMOs captures the bulk of typical students—that is, groups living in a house share. Meanwhile, students who need more security of tenure, such as single parents living with their children, postgraduate couples living together who have put down roots in an area, or families containing students, will be protected.

    The core principle of the Bill is that tenants should have more security in their homes, and we think it is right that these groups should not be exposed to potential eviction using ground 4A. Self-contained one-bedroom and two-bedroom homes are also easier to let to non-students than student HMOs are, so, if a landlord cannot gain possession in line with the academic year and the tenants leave in the middle of the next one, the landlord is highly likely to be able to let the property out to non-student tenants…

    What this says indirectly is that the Government accepts that between 25% and 32% (estimates vary) of off-street student housing could be lost by being occupied by non-students, as landlords let properties when they become vacant rather than fitting into the academic cycle. This loss of 138,000 beds (taking the lower estimate) will hit different University towns and cities differently, depending on their housing stock and is likely to take place over the next few years. As an earlier HEPI blog said back in June 2024,

    The concern in student housing was not only about overall supply but the specific reduction of student housing supply because, if students were no different to any other tenant group and could come and go as they pleased, then why would landlords rent to students and incur void periods, when they could rent to other rental groups without having empty rooms in the context of rising overall demand for renting?

    There has been no suggestion of how this lost stock could be replaced – certainly not by newly developed higher cost PBSA bed spaces which has seen net growth of only around 48,000 beds over the last three years and few of these would have been affordable and appropriate for students looking to share with a friend or partner in a lower rental bracket.

    In reality, the Government has not really accepted the sector view that students are a special group and should be catered for separately. The calls for a specialist student tenancy regime have been firmly rejected. As Baroness Taylor made clear:

    It would not be either right or fair for students to have less flexibility than other tenants just because of their educational status.

    As my HEPI blog said back in October 2024:

    It could be that the big gainers from this tenure reform are longer-term family renters and professional renters and that the poorest and most vulnerable in society together with student renters could become ‘collateral damage’. These reforms are well-intentioned by those who campaigned for them, but that does not mean all tenants will be winners from these changes.

    The discussion in the Lords has now confirmed that this collateral damage for students is part of the design within the Bill. Landlords renting non-HMO properties can be reassured about their rent by simply switching their lettings to non-students – tough luck on the students, as their housing supply contracts.

    The revised Unipol/ANUK National Code

    My previous blog on 3 February 2025 outlined possible changes to the private providers’ Code and those have now been worked up into a revised Code. Briefly, these changes are:

    • The continued protection of deposits using a Government-approved deposit protection scheme;
    • Improving the flexibility for students either leaving their institution of study or not gaining a place to study, giving them the right to leave their agreement with a notice period of 4 weeks;
    • That in the event of the death of a tenant, any guarantor agreement would not be proceeded with or enforced;
    • The Code now references the Building Safety Act, the Fire Safety Act and tighter guidance on how to respond to damp and mould; and
    • In handling complaints, timescales have been tightened, and Code Members have been given a clearer pathway to ensure they respond promptly to students complaining.

    Only one significant addition has been made to the revised Code and that follows the Education Minister, Janet Daly MP clarifying the positon of students withdrawing for medical reasons from their studies and the proposed four week notice period has been extended to cover ‘if the occupant has been absent from their course for more than 60 days due to illness and has agreed with their higher education (HE) provider to suspend their studies.‘

    These proposals are subject to both a sector and public consultation period which is taking place across 9th April – 22nd May 2025. Details can be found online here and those interested are encouraged to respond.

    The changes to the Code are designed to protect and improve students’ rights in renting PBSA but, because of the uncertainty caused by the ‘transitional arrangements’ for PBSA providers, they are going into a sector that is now increasingly hostile to the Government’s approach to them and the additional administrative and legal burdens connected with assured tenancy status that have suddenly appeared. It could well be that some responses to these Code changes will be affected by a ‘feel-bad’ factor and may be opposed by some Members.

    Just two observations on the consultation. Firstly, the Code has been drafted so that the additional flexibility given to tenants to give notice on their agreement is restricted to common law tenancies, so these will not apply to transitional assured tenancies (so no ‘double-whammy’) and secondly, it is important for the PBSA sector to look beyond the immediate transitional mess and concentrate on the longer term purpose of the Code which has been a force for good, not just for student housing rights and standards, but for the sector itself, giving the student market a set of recognised value-based rules that is rarely seen in private sector renting. This demonstrates real recognition from the Code’s Members (since the Code’s inception in 2004) that students and the role of housing in education are special and need a bespoke regulatory framework.

    Conclusion

    As reflected throughout HEPI’s work, this blog approaches the issue of student housing as an educational issue and seeks to provide evidence-based observations on the student housing sector. It also seeks to offer some practical suggestions so that the possible cost and chaos in the transitional phase of the Act can be mitigated, particularly for PBSA providers.

    There are still discussions to be held with MHCLG and practical issues to be resolved on how future Statutory Instruments and specified status is to be achieved. So far, although the Government say they are in ‘listening mode’ they seem not to have heard terribly well and the way in which students have been ‘accommodated’ within the Bill has been both secretive and unpredictable. It would be good if a more open relationship on future proposals could be established.

    Finally, this is the first mention of the Department for Education in this blog because they appear to have had no discernible influence or input into a Bill that will both disrupt the student housing market and see some significant reduction in supply. Going back to 24 October, Education Minister Janet Daby MP stressed that the Department for Education was:

    ‘Working with the Ministry of Housing, Communities and Local Government to promote the importance of a strategic approach to meeting student housing needs to providers and local authorities.

    Going forward, it would be good to see some, or any, evidence of that.

    Source link

  • Disabled students’ rights are still being ignored

    Disabled students’ rights are still being ignored

    In the context of wider financial pressures on providers, universities can be a challenging environment to work in at present.

    So, a crackdown on ensuring all disabled student support plans are both in place and implemented may have fallen to the bottom of the to-do list. Couple that with delays in the Disabled Students’ Allowance system and it’s a pretty bleak picture for disabled students.

    The findings of this year’s Office of the Independent Adjudicator (OIA) annual report echo these concerns.

    Like last year’s report, self-identified disabled students were over-represented in complaints, with the proportion rising for 2024 from a third to just over 40 per cent. Of those who did disclose details of their disability, mental health issues were the largest category selected by students (46 per cent), and specific learning differences accounted for a third.

    A bulk of complaints from students who self-identified as disabled related to support and reasonable adjustments to teaching and assessment not being implemented promptly or at all. This correlates to national trends as shown in Disabled Student UK’s annual survey of 1,200 disabled students across eight UK institutions, where only 39 per cent said they had their support needs implemented.

    Delayed

    OIA make it clear that delays to student support do happen and are not always a serious cause for concern. As they suggest, sometimes it may take a long time to identify what support works best for the student for their course of study, or the process is at a halt because a student’s application for DSA is significantly delayed.

    However, as the annual report highlights:

    there is no culture of accountability in place to ensure that disabled students receive the support that is necessary to place them on an equal footing for success with their peers.

    Additionally, the OIA recommends that providers train and support academic staff in meeting the requirements of the Equality Act, as too often academic staff have not fully understood what is required and, instead, “default to standard [teaching] practices that do not meet disabled students’ needs. As a result disabled students are often left to muddle through at a significant disadvantage to their non-disabled peers.

    Let’s recap

    Last week, the Disabled Students Commission published guidance clarifying the legal responsibilities of providers when it comes to competence standards and reasonable adjustments. Under the Equality Act 2010, providers are accountable for their acts and omissions in relation to disabled students. This includes a duty to make reasonable adjustments to ensure disabled applicants and students do not experience substantial disadvantages in comparison to non-disabled people.

    As the guidance explains, two considerations that should be used in decision-making as to what constitutes reasonable are whether the adjustment is possible and if there is a reasonable assumption that the adjustment might be effective in reducing substantial disadvantage for a disabled student.

    One of these considerations is whether a reasonable adjustment is financially viable. But while institutions must consider the total resource cost, this factor alone, according to the guidance, rarely automatically precludes an adjustment from being reasonable.

    It’s a squeeze

    A real risk here, given current financial circumstances, is that resources for disabled students continue to be squeezed, potentially making it harder to access adequate support.

    While financial strain alone is not a good enough reason not to implement a lawful duty, there is already significant evidence that disabled students’ needs are not currently being met. With a move towards self-service across student-facing roles, it paints an unpromising picture for future support for disabled students, unless something changes sharpish.

    Both the DSC and the OIA urge further signposting around competence standards for students and staff. The annual report suggests that they still instances where there is no clarity for students or staff within course documents about what competence standards will be assessed.

    If a competence standard is not defined, given that they are exempt from the duty to make reasonable adjustments, it is difficult for a provider to decide if a reasonable adjustment requested by a disabled student is, in fact, reasonable.

    Get it right

    Providers need to ensure that accurate information about competence standards and the possibility of reasonable adjustments is made available to both students and staff, including prospective students.

    Providers and individual staff are operating under strain at the moment, but it’s crucial to remember that supporting disabled students is not optional – it is a legal requirement. These aren’t practices and processes that can be prioritised based on finances, it’s a baseline, legal requirement disabled students are entitled to.

    Understandably in the current climate, some may feel resistant to adding additional responsibilities to an already heavy workload, especially as the number of students declaring a disability in recent years has increased. But addressing students’ needs proactively avoids the much greater financial and reputational costs associated with complaints and compensation. If institutions feel they don’t have the time or capacity to prioritise inclusive practices now, they risk spending a greater amount of time, money and resources later managing avoidable grievances.

    And if that isn’t enough, surely disabled students deserve better than having their legal rights to equity perpetually sidelined or ignored.

    Source link