Tag: tracking

  • Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    To lift a line from the songwriter extraordinaire of our era, “the times they are a- changin’.” Indeed, they are — and this is certainly true in our own corner of the world, the world of free speech. 

    For better and worse, Donald Trump and his agents are rearranging the structure of free expression in America. Only a few weeks into his presidency, things are proceeding at a breakneck speed, with a flurry of executive orders flying out the windows of the White House. Even early on, there is a sense that what will follow may well mark one of those pinpoints in our history when that “experiment” of which Holmes spoke is tested. Whatever else happens, it is important that there is some record of these times and what happened in them. To that end, we will soon launch a new segment within FAN called “Executive Watch” to track it all: the President’s orders, the executive agencies’ actions, the activities of the President’s affiliates, and Mr. Trump’s personal undertakings.

    Enter Professor Timothy Zick, the William and Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship. 

    Prof. Timothy Zick

    Zick is the author of five books on the subject: “Speech out of Doors: Preserving First Amendment Liberties in Public Places,” “The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties,” “The Dynamic Free Speech Clause: Free Speech and its Relation to Other Constitutional Rights,” “The First Amendment in the Trump Era,” and “Managed Dissent: The Law of Public Protest.” He is also the co-author of a First Amendment casebook, “The First Amendment: Cases and Theory.”

    For all of the above reasons and others, Professor Zick is well suited to undertake the “Executive Watch” bi-monthly feature of First Amendment News. 

    Even at this early stage, this project comes a time when news stories like the following 21 surface with increasing frequency:



    WATCH VIDEO: Trump Calls For Changes To First Amendment, Demands “Mandatory One-Year In Jail” For U.S. Flag Burning.

    By chronicling such information and then analyzing it, the hope is that our readers will have a more informed sense of the state of free speech at a time when so much is in flux. There is the hope that “Executive Watch” will prompt further discussion of that vital freedom that is at the core of constitutional government in America.

    FBI agents file First Amendment class action

    While FBI agents may be at-will employees who can, generally speaking, be fired for “any reason or no reason,” they can’t be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can’t fire all the African-American agents, or all the agents registered as Democrats).

    The Complaint, filed in DC District Court, is posted here. Plaintiffs are “employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity.” They “intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest.”

    Knight Institute on need for fact-checking platform

    [Recently] Meta announced changes . . . to its content moderation policies, including that it’s replacing third-party fact checking with a Community Notes model that allows users to publicly flag content they believe to be incorrect or misleading. 

    The following can be attributed to Katherine Glenn Bass, the Knight Institute’s research director:

    Katy Glenn Bass Research Director Knight Institute

    Katy Glenn Bass

    “Mark Zuckerberg’s announcement today is a stark reminder that many of the biggest platforms we use to communicate about issues of public importance are owned by billionaires who are not accountable to us. Apart from the obvious effort to signal political allegiance, the impact of the announced changes will not be clear for some time. But if we have any hope of measuring or understanding what is happening on these platforms, we need strong protections for the independent researchers and journalists who study them, and better mechanisms for ensuring they can access platform data.”

    In 2019, more than 200 researchers signed an open letter in support of the Knight Institute’s efforts to persuade Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research on the platform. Read more about that effort here.

    Shibley on Harvard’s anti-Semitism settlement

    Robert Shibley

    Robert Shibley

    Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza.

    While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis.

    FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.

    Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothing new. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus. . . . And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.)

    As Stern predicted in that piece:

    If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.

    Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.

    Forthcoming book: New edition of Neier’s ‘Defending My Enemy’

    A new edition of the most important free speech book of the past half-century, with a new essay by the author on the ensuing fifty years of First Amendment controversies.

    Cover of the book "Defending My Enemy: Skokie and the Legacy of Free Speech in America" by Aryeh Neier

    When Nazis wanted to express their right to free speech in 1977 by marching through Skokie, Illinois — a town with a large population of Holocaust survivors — Aryeh Neier, then the national director of the ACLU and himself a Holocaust survivor — came to the Nazis’ defense. Explaining what many saw as a despicable bridge too far for the First Amendment, Neier spelled out his thoughts about free speech in his 1977 book Defending My Enemy.

    Now, nearly fifty years later, Neier revisits the topic of free speech in a volume that includes his original essay along with an extended new piece addressing some of the most controversial free speech issues of the past half-century. Touching on hot-button First Amendment topics currently in play, the second half of the book includes First Amendment analysis of the “Unite the Right” march in Charlotteville, campus protest over the Israel/Gaza war, book banning, trigger warnings, right-wing hate speech, the heckler’s veto, and the recent attempts by public figures including Donald Trump to overturn the long-standing Sullivan v. The New York Times precedent shielding the media from libel claims.

    Including an afterword by longtime free speech champion Nadine Strossen, Defending My Enemy offers razor-sharp analysis from the man Muck Rack describes as having “a glittering civil liberties résumé.”

    Praise for Defending My Enemy

    “Aryeh Neier’s Defending My Enemy is as relevant today as it was when it was first published. The book is a powerful reminder of why free speech matters—not just for the voices we agree with, but for the voices we abhor. Neier’s story of defending Nazis’ rights to speak in Skokie underscores a timeless truth: If we want to preserve freedom for ourselves, we must be willing to defend it for others, no matter how deeply we disagree. At a time when censorship is on the rise globally, Defending My Enemy stands as a bold and principled call to action. Every advocate of free expression needs to read this book—and more importantly, live its lessons.” — Greg Lukianoff

    Forthcoming scholarly article: ‘Output of machine learning algorithms isn’t entitled to First Amendment protection’

    Stanford Law Review logo

    Machine learning algorithms increasingly mediate our public discourse – from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech.

    This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” – the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech.

    Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work – and how they have changed with the advent of machine learning. 

    Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence. 

    Related

    More in the news

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions

    Petitions denied

    Last scheduled FAN

    FAN 455: “Eight free expression cases pending on SCOTUS docket”

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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  • One country wants to close math achievement gaps by ending academic tracking

    One country wants to close math achievement gaps by ending academic tracking

    CHRISTCHURCH, New Zealand — Many students in New Zealand have a story to tell about “streaming” — being grouped into separate math classes based on their perceived ability to master the subject.

    Manaaki Waretini-Beaumont, now 18 and an environmental science major at the University of Canterbury, learned about the downside of streaming when she enrolled in Avonside Girls’, a 1,000-student high school in Christchurch.

    Avonside starts at Year 9, equivalent to eighth grade in the United States, and ends at Year 13, equivalent to 12th grade. Before the start of her Year 9 term, Waretini-Beaumont and her fellow students were divided up into groups to take tests in “maths,” reading comprehension, and patterns and shapes.

    Afterward, the students were separated into lettered groups that spelled out the word B-I-N-O-C-U-L-A-R-S. Waretini-Beaumont was a “9-N” student in mathematics — as she describes it, “the top of the middle block.”

    But she said she didn’t feel comfortable as one of the few Māori students in the class.

    “I felt like I wasn’t good enough to be in that space,” said Waretini-Beaumont, whose iwi, or tribal affiliations, are Te Āti Haunui-A-Pāpārangi, Ngāti Rangi, Ngāti Apa, Ngāti Paoa. “If there was something I wasn’t understanding, I felt like I wasn’t able to say that, because I’m supposed to be in the smart class with all these smart people.”

    So she shifted to another mathematics class with her Māori friends, who were in the “S” classes. 

    “Being in two different spaces, I could really see the change,” Waretini-Beaumont said. “At the top classes, the teachers’ language towards the students was always positive and it was always encouraging. And they really wanted students to learn and were trying to help them.”

    Manaaki Waretini-Beaumont experienced the effects of “streaming,” or academic ability tracking, during her time as a high school student at Avonside Girls’ School in Christchurch, New Zealand. Credit: Image provided by Richie Mills/Ngāi Tahu

    In the classroom where her friends were assigned, in contrast, the mathematics work mostly amounted to simple worksheets — “coloring pages and word find,” Waretini-Beaumont said.

    Related: Sign up for a limited-run newsletter that walks you through some of the most promising solutions for helping students conquer math.

    For years, much like in the United States, New Zealand has worried about sliding student proficiency in mathematics, as captured by both national and international test scores. Later this month — the beginning of the New Zealand school year — the country is launching an overhaul of mathematics instruction that education leaders hope will reverse the trend.

    But other groups in the country have been trying to approach the problem of academic achievement from a different angle. They believe that streaming is driving achievement gaps in the country, including in mathematics. Tokona te Raki/Māori Futures Collective, a think tank focused on youth, has been working since 2019 to persuade schools to voluntarily end the practice by 2030. The initiative is called “Kōkirihia”— Māori for “take action.”

    Streaming is just one of many ways that schools group students by academic ability. Ability grouping can include separating students into vocational or university tracks at different schools as early as age 10, as is common in Germany and other Western European countries. But it could also include teachers creating informal and non-permanent groupings within their own classrooms to provide enrichment or extra support to students who need it.

    In New Zealand, critics say streaming pushes two groups into so-called “cabbage,” or lower-level mathematics, at a disproportionate rate: Māori students, who are indigenous to New Zealand, and students who are Pasifika, the New Zealand term for people from Samoa, Tonga and other nations in the Pacific Islands.

    In the 14th century, the Polynesian ancestors of today’s Māori migrated thousands of miles by canoe to what they called Aotearoa, the land of the long white cloud. Hundreds of years later, English settlers came to engage in trade and now represent the majority ethnic group in New Zealand. In 1840, the two groups signed the Treaty of Waitangi that established New Zealand’s bicultural identity.

    Many youth with Pacific Island backgrounds are descended from people who were encouraged to move to New Zealand after World War II to address a labor shortage.

    Both Māori and Pasifika are a fast-growing, and young, population. By the 2040s, more than a third of children in the country are expected to identify as Māori, according to Stats NZ, the country’s official data agency.

    Related: Eliminating advanced math ‘tracks’ often prompts outrage. Some districts buck the trend

    The New Zealand Ministry of Education’s official stance discourages streaming, but the country’s more than 2,500 schools operate with a great deal of independence: Principals have similar powers and responsibilities as school superintendents in the United States, and each school has an elected board that sets policy and manages budgets.

    New Zealand does not track streaming or ability grouping by race or ethnicity, but surveys show it is common: Eighty percent of students are in schools that group students by ability level in mathematics, according to a 2022 survey conducted by the Program for International Student Assessment.

    Other data shows a wide academic gap among students of different ethnicities in New Zealand.

    Students at May Road School in Auckland, New Zealand, work through a lesson on fractions. Credit: Becki Moss for The Hechinger Report

    In the Auckland region, the country’s most densely populated of 16 regions in all, 76 percent of Asian students left secondary school with the highest of three levels on the country’s National Certificate of Educational Achievement in 2022. Like a high school diploma, the NCEA Level 3 is a minimum qualification to enter college in New Zealand.

    About 66 percent of Pākehā, or white, students left school with that credential. About 46 percent of Pasifika students and 40 percent of Māori students did the same.

    In comparison, the high school graduation rate by race and ethnicity in the United States in the 2021-22 school year was 94 percent for Asian American/Pacific Islander students, 90 percent for white students, 83 percent for Hispanic students, 81 percent for Black students and 74 percent for American Indian/Alaskan Native students.

    Misbah Sadat, the newly appointed principal at Kuranui College, a high school 50 miles northeast of the capital of Wellington, began actively working to “destream” mathematics courses soon after emigrating to New Zealand in 2009 and becoming a teacher there.

    As head of mathematics at a high school called Horowhenua College, she started by identifying promising Māori students on her own, moving them to higher level classes, and mentoring them, as described in a Ministry of Education newsletter.

    Related: OPINION: As a middle-class Black student, I was tracked into lower-level math classes that kept me back

    Eventually she convinced her colleagues at Horowhenua to create mixed-ability classes rather than dividing the students. She continued the same work as deputy principal at Onslow College in suburban Wellington, where she worked before her new appointment.

    The streaming practice comes from a patronizing mindset, said Sadat, who was also a math teacher in Montgomery County, Maryland.

    Schools are telling parents that their children might be lost and overwhelmed in a more rigorous class. In actuality, “We have demoted some students to learn crap,” she said. “And then we are saying that at age 16, ‘You are dumb at maths.’ How dare we decide what a young person is capable of or not capable of?” 

    Students at Kaiapoi North School in suburban Christchurch, New Zealand, work through a multiplication problem in chalk on the playground blacktop. Credit: Becki Moss for The Hechinger Report

    Both of New Zealand’s unions for elementary and secondary teachers signed onto the pledge to end streaming by 2030. In a newsletter to members, the elementary teachers union noted that its members have noticed “a sense of ingrained hopelessness that comes with being in the ‘cabbage’ classes.”

    But in the same newsletter, another teacher said educators struggle with the mix of abilities in one classroom, along with managing behavior challenges.

    David Pomeroy, a senior lecturer in education at the University of Canterbury in Christchurch, is studying schools that have committed to reducing their reliance on streaming.

    It’s a difficult task, he said. So many teachers are accustomed to the practice, since they went through it in school themselves. Parents of students in high-level classes are worried their children will be shortchanged. Teachers also say that it is easier to work with students who are all roughly on the same skill level.

    And then there is an emotional connection to the practice, Pomeroy said. Unlike in the United States, lower-level mathematics classes are often taught by teachers who have a lot of classroom experience and who express real fondness for their students, he said. Pushing students too hard is seen as setting them up for repeated failure, which teachers were reluctant to do.

    Abby Zonneveld’s bulletin board at St. Clair School in Dunedin, New Zealand, asked students to describe their “tūrangawaewae,” or place where they feel a special connection. Credit: Becki Moss for The Hechinger Report

    “Even if they accepted streaming wasn’t the right next step, they wanted to protect them from anything that could damage their confidence,” Pomeroy said.

    For schools that have made a commitment to reducing or ending streaming, he said, one useful tool has been to bring mathematics teachers in different schools together so they can work through challenges, such as lesson planning, and share successes.

    Related: Racial gaps in math have grown. Could detracking help?

    The research into the benefits or harms of academic tracking or streaming show mixed results. In 2016, a group of researchers compiled all the best U.S-based research on ability grouping and acceleration at that point, going back for a century. They found certain kinds of ability grouping, such as placing highly gifted students together, was a benefit to those students. But grouping students in high- or low-performing classes did not show any benefit or detriment for students.

    The New Zealand Initiative, a right-of-center think tank, said that the country should conduct its own research on the effects of streaming in the country, rather than relying primarily on research done elsewhere and on qualitative reports that primarily capture feelings about the practice. “Research suggests that lowerstream students are often taught less engaging content by less experienced teachers. So, it may not be streaming itself that increases gaps in achievement but streaming done poorly,” the initiative said in a report.

    But the efforts to reduce streaming voluntarily seem to be catching on.

    When looking at all academic subjects, not just mathematics, principals on a 2022 PISA survey said 67 percent of students in New Zealand are grouped by ability into different classes for at least some subjects. That’s a drop from 2015, when 90 percent of principals reported that students were grouped into different classes in their schools.

    The change is welcome, said Waretini-Beaumont, who works on social media for Tokona te Raki. Streaming “has more impact than just cutting off some opportunities and stopping someone from doing calculus,” she said. “Our grandparents have been streamed and they don’t know it was even a thing. They just thought they were dumb.”

    Contact Christina A. Samuels at 212-678-3635 or [email protected].

    This story was produced with support from the Education Writers Association Reporting Fellowship program.

    This story about academic tracking was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

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