Tag: scrutiny

  • Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

    Supreme Court case upholding age-verification for online adult content newly references ‘partially protected speech,’ gives it lesser First Amendment scrutiny

    In Free Speech Coalition v. Paxton, the U.S. Supreme Court broke new ground in applying relaxed First Amendment scrutiny to state-imposed burdens on lawful adult access to obscene-for-minors content. The decision appeared outcome-driven to uphold laws that require websites with specified amounts of sexually explicit material to verify users’ ages. However, the Court indicated the holding applies only “to the extent the State seeks only to verify age,” such that, if handled in a principled manner, FSC v. Paxton should have relevance only for speech to which minors’ access may be constitutionally restricted.

    FSC v. Paxton involved Texas HB 1181’s mandate that online services use “reasonable age verification methods” to ensure those granted access are adults if more than a third of the site’s content is “sexual material harmful to minors,” which the Court treated as content First Amendment law defines as “obscene for minors.” If an adult site knowingly fails to age-verify, Texas’ attorney general may recover civil penalties of up to $10,000 per day, and $250,000 if a minor actually accesses pornographic content. HB 1811 is one of over 20 state adult-content age-verification laws recently passed or enacted.

    Obscenity is among the few categories of speech the First Amendment doesn’t protect. In 1973’s Miller v. California, the Court defined obscenity as speech that (1) taken as a whole appeals primarily to a “prurient interest” in sex (i.e., morbid, unhealthy fixation with it); (2) depicts or describes sexual or excretory conduct in ways patently offensive under contemporary community standards; and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court has limited the test’s scope to what it calls “hardcore pornography.” Material that is “obscene for minors” is that which satisfies the Miller test as adjusted to minors. Sexually explicit material can thus be obscene for minors but fully protected for adults.

    Under these tests, the government may ban obscene speech and restrict access by those under 18 to speech that is “obscene for minors,” but it cannot cut off adults’ access to non-obscene sexual material.

    It’s long been accepted that, to access adult, potentially obscene-for-minors material in the physical world, showing identification to prove age may be required. So, a law requiring ID to access such content online might seem analogous on its face.

    But online age-verification imposes risks physical ID checks do not. An adult bookstore clerk doesn’t save a photocopy of your license or track the content you access. Nor will hackers, therefore, try to access the ID. These are just some of the reasons surveys consistently show a majority of Americans do not want to provide ID to access online speech — whether adult material or other content, like social media.

    Texas’ HB 1181 is similar to two federal statutes the Supreme Court invalidated around the turn of the millennium. In 1997, the Court in Reno v. ACLU unanimously struck down portions of the Communications Decency Act that criminalized transmitting “obscene or indecent” content. And in 2002’s Ashcroft v. ACLU, it considered whether the Child Online Protection Act violated the First Amendment in seeking to prevent children’s access to “material harmful to minors” in a way that incorporated age verification.

    For decades, the Court has held statutes that regulate speech based on its content must withstand judicial review under strict scrutiny, which requires the government to demonstrate that the law is necessary to serve a compelling government interest and is narrowly tailored to achieve it using the “least restrictive means.” For laws restricting access to online speech, the Court held the laws in Reno and Ashcroft unconstitutional because they failed strict scrutiny. These cases followed in the footsteps of Sable Communications vs. FCC (1989) and United States v. Playboy (2000), in which the Court applied strict scrutiny to invalidate laws governing adult material transmitted by phone and on cable television stations, respectively.

    But in FSC v. Paxton, the Court subjected Texas’ age-verification law for online adult content to only intermediate scrutiny. Under this standard of review, a speech regulation survives if it addresses an important government interest unrelated to suppression of speech, directly advances that interest in a direct and material way, and does not burden substantially more speech than necessary. The Court justified applying a lower level of scrutiny on the ground that minors have no First Amendment right to access speech that is obscene to them. Accordingly, it reasoned, even if adults have the right to access “obscene for minors” material, it is “not fully protected speech.” From there, the Court concluded that “no person — adult or child — has a First Amendment right to access speech that is obscene to minors without first submitting proof of age.” And it upheld the Texas law under intermediate scrutiny, concluding the regulations only incidentally restrict speech that can be accessed by adults.

    The upshot is, going forward, it will be easier to justify laws restricting minors’ access to off-limits expression even if the law burdens adults’ access to material that is otherwise lawful for them.

    At the same time, the majority opinion sought to limit the type of content that can be restricted only to material that meets the legal definition of “obscene-for-minors” material, and not anything that might be considered generally inappropriate.

    As the Court held in Brown v. Entertainment Merchants Assn. (2011), “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” And in Reno, which involved similar attempts to limit provision of online content to minors, the Court held the government could not ban “patently offensive” and “indecent” (but not obscene) material for everyone in the name of protecting children.

    Free Speech Coalition should not be read as approving age verification laws for online speech generally that do not specifically target “obscene for minors” material. Its narrow focus will not support the recent spate of social media age-verification laws that have met significant judicial disapproval. Such laws have been enjoined in Arkansas, Mississippi, California, Utah, Texas, Ohio, Indiana, Florida, and most recently last week, when a federal court held Georgia’s version “highly likely [to] be unconstitutional” because it interferes with minors’ rights “to engage in protected speech activities.”

    Thus, properly understood, FSC v. Paxton should have limited implications — including that it shouldn’t extend to general age-verification laws in the social media context.

    The risk, of course, is that governments will seek to leverage FSC v. Paxton decision beyond its limited holding, and/or that lower courts will misuse it, to justify prohibiting or regulating protected speech other than that obscene as to minors. In defending laws that implicate the First Amendment, the government often argues it is regulating only conduct, or unprotected speech, or speech “incidental” to criminal conduct.

    Courts for the most part have seen through these attempts at evasion, and where a speech regulation applies based on topic discussed or idea or message expressed, or cannot be justified without reference to its function or content, courts apply strict scrutiny. Under FSC, however, would-be regulators have another label they can use — “partially protected speech” — and the hope that invoking it will lead to intermediate scrutiny.

    Only time will tell if the Court will keep the starch in its First Amendment standards notwithstanding what should be the purple cow of FSC v. Paxton.

    Source link

  • The future for teacher diversity in a world of DEI scrutiny

    The future for teacher diversity in a world of DEI scrutiny

    This audio is auto-generated. Please let us know if you have feedback.

    With diversity, equity and inclusion efforts facing scrutiny under the Trump administration, school districts and states looking to diversify their teacher workforces are in a precarious situation. 

    Nearly a month into President Donald Trump’s second term, for instance, the U.S. Department of Education slashed $600 million in “divisive” teacher training grants — specifically through the Teacher Quality Partnership Program and the Supporting Effective Educator Development Grant Program. The department said in February that those cuts were made to grants that “included teacher and staff recruiting strategies implicitly and explicitly based on race.” Advocates for the federal grants said the decision particularly impacted funding for programs aiming to improve teacher diversity in classrooms. 

    For years, there’s been a push for more policies to support the recruitment and retention of teachers of color as the nation’s K-12 public school student population grows more racially diverse and as teacher shortages persist. Advocates often point to research that shows when schools hire teachers who look like their students — particularly students of color — student achievement improves and disciplinary rates go down.

    While research from the National Council on Teacher Quality found that teacher diversity slowly grew between 2014 and 2022, those findings also suggested that teachers of color are opting out of careers in education as teacher diversity lags behind the rate of the broader workforce.  

    But with the U.S. Supreme Court’s 2023 ruling that repealed race-conscious admissions in higher education and the Trump administration’s ongoing push against DEI, some experts advise districts and states to be cautious when approaching teacher diversity efforts moving forward. On the flip side, advocates say the need for these initiatives remain. 

    A ‘scary’ time for teacher diversity initiatives

    Before Modesto City Schools began its teacher workforce diversity partnership with California State University, Stanislaus, there was a “mismatch” in representation between students of color and teachers of color in its elementary schools, said Shannon Panfilio-Padden, an associate professor at the university’s college of education. 

    During the 2021-22 school year, elementary enrollment for students of color in Modesto City Schools could range from 60% in some buildings to as much as 98% in others. That’s compared to the range of 13% to 66% among elementary teachers of color in the district, said Panfilio-Padden, who helped oversee the partnership between the district and university. “What Modesto had been working on for years was diversifying their teacher workforce, but no matter what they tried, it wasn’t working.”

    By improving collaboration and identifying workforce barriers with Modesto City Schools, CalState Stanislaus — which has a majority Hispanic student population — was able to double the number of candidates who are teachers of color, from 6 to 16, who entered the district’s classrooms between the 2021-22 and 2023-24 school years, said Panfilio-Padden. 

    The partnership was spurred through CalState’s Center for Transformational Educator Preparation Programs, which aims to boost recruitment and retention of teachers of color to serve California’s diverse student population. 

    At a time when such initiatives are being targeted at the federal level, Panfilio-Padden said “it can be scary.” But, she said, she’s dedicated to supporting her students, who are aspiring teachers from diverse backgrounds. 

    “We need teachers so desperately in California, and we need highly qualified teachers,” she said. Panfilio-Padden said the university can’t predict the amount of federal aid or state grant money that will be available to aspiring teachers, but “at the same time, when they continue to come to us with an enthusiasm to teach elementary kids, it just puts everything into perspective.” 

    Meanwhile, on the other side of the country, Massachusetts enacted the Educator Diversity Act in November 2024 as part of the state’s economic development package. The legislation looks to address barriers to recruiting and retaining educators of color by allowing multiple pathways for teacher certification, creating a statewide dashboard for tracking educator workforce diversity at the district level, and increasing uniformity in hiring practices to support candidates from underrepresented backgrounds. 

    Source link

  • Pasco-Hernando President Resigns Amid State DOGE Scrutiny

    Pasco-Hernando President Resigns Amid State DOGE Scrutiny

    Pasco-Hernando State College president Jesse Pisors has resigned after less than 18 months on the job, amid scrutiny from Florida’s version of the Department of Government Efficiency, The Tampa Bay Times reported.

    Pisors stepped down Thursday, the day before a special meeting called by board chair Marilyn Pearson-Adams to discuss concerns about student growth and retention, according to meeting documents. In a letter to other trustees, which included analysis from Florida’s DOGE on student growth and retention, Pearson-Adams noted the college was among the worst on those metrics.

    Specifically, she noted PHSC was second-to-last in retention numbers, which she called “alarming.” She added that trustees “had not been made aware of these numbers” despite “our continued requests over the past 12 months regarding this type of information and data.”

    The agenda shows only one action item for Friday’s special meeting of the Pasco-Hernando Board of Trustees: “Determination of Sustainability of College’s Future.” 

    Florida is one of several states that has sought to implement cost-cutting measures modeled on DOGE, the federal initiative led by billionaire bureaucrat Elon Musk to reduce government waste through layoffs and the elimination of various programs—an effort that has run into multiple legal challenges. DOGE-driven cuts have also fallen far short of their intended vision, with Musk often exaggerating savings for taxpayers in his work for the Trump administration. 

    Florida’s DOGE has also sought records of all faculty research at public institutions published in the last six years, leading to concerns about how the effort may be weaponized against faculty.

    Source link

  • Medical Journals Now Reportedly Under Government Scrutiny

    Medical Journals Now Reportedly Under Government Scrutiny

    The Trump administration now appears to be targeting medical journals, questioning at least three different publications about how they represent “competing viewpoints” and assess the influence of funding organizations like the National Institutes of Health on submitted papers, MedPage Today reported.

    Republican activist Edward Martin Jr., who is currently serving as interim U.S. attorney in Washington, D.C., sent a letter to CHEST Journal and at least two other unnamed publications earlier this month demanding answers to a series of questions about their processes and practices.

    “It has been brought to my attention that more and more journals and publications like CHEST Journal are conceding that they are partisans in various scientific debates—that is, that they have a position for which they are advocating either due to advertisement (under postal code) or sponsorship (under relevant fraud regulations),” Martin wrote. “The public has certain expectations and you have certain responsibilities.”

    The letter then requested answers by May 2 to questions including “Do you accept articles or essays from competing viewpoints?“ and “How do you handle allegations that authors of works in your journals may have misled their readers?”

    “I am also interested to know if publishers, journals, and organizations with which you work are adjusting their method of acceptance of competing viewpoints,” Martin wrote. “Are there new norms being developed and offered?”

    CHEST is a peer-reviewed journal published by the American College of Chest Physicians that produces articles on such subjects as pulmonary hypertension, lung cancer and obstructive sleep apnea.

    Martin’s letter “should send a chill down the spine of scientists and physicians,” Adam Gaffney, a pulmonary and critical care physician who has published in CHEST, told MedPage Today. “It is yet another example of the Trump administration’s effort to control academic inquiry and stifle scientific discourse—an administration, it warrants mentioning, that has embraced medical misinformation and pseudoscience to reckless effect. Journal editors should join together and publicly renounce this as yet more thinly guised anti-science political blackmail.”

    JT Morris, a senior supervising attorney at the Foundation for Individual Rights and Expression, told MedPage Today that the First Amendment clearly protects CHEST’s independence.

    “A publication’s editorial decisions are none of the government’s business, whether it’s a newspaper or a medical journal,” he said. “Like with any bully, the best response is to stand up to them—and that includes officials who try to intimidate Americans into parroting the government’s view. The First Amendment packs a powerful punch, and it has these medical journals’ backs.”

    Source link

  • Admissions Offices Brace for Federal Scrutiny

    Admissions Offices Brace for Federal Scrutiny

    Last month the government cut $400 million in federal funding for Columbia University and sent a list of demands the university would have to meet to get it back. Among them: “deliver a plan for comprehensive admission reform.”

    The administration sent a similar letter earlier this month to Harvard University after freezing $9 billion in funding, demanding that the university “adopt and implement merit-based admissions policies” and “cease all preferences based on race, color, ethnicity or national origin in admissions.”

    And in March the Department of Justice launched investigations into admissions practices at Stanford University and three University of California campuses, accusing them of defying the Supreme Court’s decision banning affirmative action in June 2023’s Students for Fair Admissions v. Harvard.

    Exactly what the Trump administration believes is going on behind closed doors in highly selective college admissions offices remains unclear. The University of California system has been prohibited from considering race in admissions since the state outlawed the practice in 1996, and both Harvard and Columbia have publicly documented changes to their admissions policies post-SFFA, including barring admissions officers from accessing the applicant pool’s demographic data.

    Regardless, given the DOJ investigations and demands of Columbia and Harvard—not to mention potential demands at newly targeted institutions like Princeton, Northwestern and Brown—the federal government appears set to launch a crusade against admissions offices.

    A spokesperson for the Education Department did not respond to multiple questions from Inside Higher Ed, including a request to clarify what “comprehensive admission reform” means and what evidence the administration has that admissions decisions at Columbia and Harvard are not merit-based, or that they continue to consider race even after the SFFA ruling.

    Columbia acquiesced to many of the Trump administration’s demands, but it’s not clear if admissions reform is one of those concessions. When asked, a Columbia spokesperson said that “at this moment” the university had nothing to add beyond the university’s March 21 letter to the administration.

    In that letter, Columbia officials wrote that they would “review our admissions procedures to ensure they reflect best practices,” adding that they’d “established an advisory group to analyze recent trends in enrollment and report to the President” on “concerns over discrimination against a particular group.”

    Interestingly, Columbia officials also wrote that they would investigate “a recent downturn in both Jewish and African American enrollment.”

    A Harvard spokesperson told Inside Higher Ed that the university’s “admissions practices comply with all applicable laws,” but they declined to answer additional questions about potential changes to admission policies or whether they’d received clarification from the Trump administration.

    Angel Pérez, president of the National Association for College Admission Counseling, said the vague demands on college admissions offices are intentional, and that the administration is “setting institutions up for failure.”

    “Institutions are certainly going to defend their process, but it’s going to be chaotic and it’s going to be noisy … it’s almost like we are seeing SFFA play itself out all over again,” he said. “Is there the potential that it could change some things about the [admissions] process? Absolutely. We just don’t know what that would look like.”

    Orwell in the Reading Room

    If the Trump administration’s specific grievances with selective admissions are murky, then its plan to enforce “reform” is downright opaque. However, officials have offered some hints.

    In a December op-ed in The Washington Examiner, which outlined a plan that so far reflects the Trump administration’s higher education agenda with uncanny accuracy, American Enterprise Institute fellow Max Eden suggested “a never-ending compliance review” targeting Harvard and others to enforce the SFFA ruling. In his view, admissions officers should not discuss applicants or make decisions without a federal agent present to ensure they don’t even obliquely discuss race.

    “[They] should assign Office of [sic] Civil Rights employees to the Harvard admissions office and direct the university to hold no admissions meeting without their physical presence,” Eden wrote. “The Office of Civil Rights should be copied on every email correspondence, and Harvard should be forced to provide a written rationale for every admissions decision to ensure nondiscrimination.”

    Eden now works for the Trump administration, though it’s not clear in what capacity. Inside Higher Ed located a White House email address for him, but he did not respond to several interview requests in time for publication.

    Edward Blum, the president of Students for Fair Admissions and the architect of the affirmative action ban, told Inside Higher Ed he thinks rigorous federal oversight of admissions offices is sorely needed.

    “Requiring competitive colleges and universities to disclose in granular detail their admissions practices to various federal agencies is an important and wise decision,” he wrote in an email.

    Pérez said that level of intrusion on a college admissions office’s process would effectively destroy the profession.

    “If that were to happen, I can unequivocally tell you that we are not going to have people who want to do this work,” he said. “We know how critically important it is. But how many more headwinds can they face before they begin to ask themselves, is this really worth it?”

    Crusade in Search of a Problem

    Test-optional admissions policies are likely to become a magnet for federal scrutiny. In a February Dear Colleague letter instructing colleges to eliminate all race-conscious programming, the Education Department wrote that test-optional policies could be “proxies for race” to help colleges “give preference” to certain racial groups.

    Columbia is one of the few Ivy League institutions to retain the test-optional policy it put in place during the COVID-19 pandemic; Harvard reinstated testing requirements this past application cycle.

    Personal essays may also fall under the Trump administration’s microscope. Hard-line affirmative action critics have suggested that colleges may be effectively circumventing the Supreme Court’s ban by imputing an applicant’s race from their essays. Chief Justice John Roberts’s majority opinion said that practice should be tolerated as long as an applicant’s identity is considered in the context of their personal journey. But his vaguely self-contradictory language—he added a caveat that said essays should not be used as a “proxy” for racial consideration—has engendered fierce debate over the role of the essay in applicant reviews.

    Last month the University of Austin, an unaccredited new college in Texas with ideologically conservative roots, announced it would consider only standardized test scores when admitting applicants, disregarding essays, GPA and recommendation letters.

    “Admissions at elite colleges now come down to who you know, your identity group or how well you play the game,” a university official wrote in announcing the policy. “This system rewards manipulation, not merit.”

    Blum suspects many selective colleges of disregarding the affirmative action ban and said he was especially skeptical of those that reported higher or stable enrollments of racial minorities this fall, including Yale, Duke and Princeton. In an interview with Inside Higher Ed in February, he said he expects those institutions to invoke scrutiny from the courts and the Trump administration.

    But both Columbia and Harvard reported declines in underrepresented minority enrollment last fall, especially Black students. At Harvard, Black enrollment fell by 4 percentage points, from 18 percent for the Class of 2027 to 14 percent of the Class of 2028; at Columbia Black enrollment fell by 12 points, from 20 percent to 8 percent. (This paragraph has been updated to correct Harvard’s Black enrollment figures.)

    Pérez said that colleges that reported higher underrepresented minority enrollment have a simple explanation: demographic trends.

    “The truth is that the majority of students applying to institutions right now are incredibly diverse and will only get more diverse,” he said. “You’re putting colleges in an impossible position if you’re penalizing them for having a more diverse applicant pool.”

    Eric Staab, vice president of admissions and financial aid at Lewis & Clark College in Portland, Ore., said his institution isn’t concerned about drawing the Trump administration’s ire, despite going test-blind this year and maintaining a stable level of racial diversity.

    For one, he said, he’s not sure the Office for Civil Rights will be staffed well enough to take on more than a handful of target institutions after the Education Department’s mass layoffs last month. Even if it is, Staab said he’s confident that post-SFFA, investigators wouldn’t find anything illegal or even objectionable at Lewis & Clark.

    “Admissions has always been a merit-based process … with the [SFFA decision], pretty much all of us needed to do some tweaking or major overhaul of our admissions and financial aid policies, and we did that,” he said. “I’m not worried about them sending people into reading sessions, because we have nothing to cover up.”

    But Pérez said there could be a broader chilling effect across admissions offices if the Trump administration pursues a more aggressive approach to its “admissions reform” agenda.

    “Institutions are asking questions of the DOJ and other departments to try to get clarity, but therein lies the challenge: They have not been given clarity, so they don’t know how to prepare,” he said. “That lack of clarity is causing chaos.”

    Source link

  • This week in 5 numbers: Harvard comes under scrutiny of Trump administration

    This week in 5 numbers: Harvard comes under scrutiny of Trump administration

    We’re rounding up recent stories, from one Ivy League university facing a multibillion-dollar federal review to another losing its president in under a year.

    Source link