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public universities
Destroying Free Speech Rights Does Not Promote Safety on Campus
It is precisely in times of heightened crisis and fear that university leaders must remain steadfast in their commitment to free speech, open debate, and peaceful dissent on campus.
Nov 08, 2023
The devastating conflict in Israel and Palestine has roiled campuses here at home. College students across the country are exercising their constitutional right to free speech by organizing, protesting, posting, and debating, sometimes resulting in speech that is intemperate, hateful, and abhorrent. We’re also seeing a rise in antisemitic and anti-Arab and Muslim discrimination, with documented threats against Jewish, Palestinian, Muslim, and Middle Eastern and South Asian origin students and faculty alike. These colliding dynamics have left colleges and universities contending with how to manage increased threats, genuine fears, and anguished tensions on their campuses while trying to keep students and faculty safe. We take the weight and complexity of these challenges seriously, and understand that balancing public safety and public debate can feel insurmountable.
But it is precisely in times of heightened crisis and fear that university leaders must remain steadfast in their commitment to free speech, open debate, and peaceful dissent on campus. These principles are the bedrock of academic freedom at all universities. Moreover, the First Amendment requires public universities to protect the right of students and student groups to debate and demonstrate on campus.
In recent weeks, we’ve seen a surge in efforts to punish and silence students for their speech. The Anti-Defamation League and The Louis D. Brandeis Center for Human Rights Under Law issued an open letter last week calling on university leaders to investigate pro-Palestinian student groups, alleging their speech constitutes “material support for terrorism,” punishable under federal and state law, despite no evidence to support such claims. That is why the ACLU sent its own open letter to the administrative leaders of each state’s public college system, reaching over 650 colleges and universities, expressing our strong opposition to any efforts to stifle free speech and association on college campuses. The letter unequivocally urges universities to reject calls to investigate, disband, or penalize pro-Palestinian student groups for exercising their free speech rights.
Blanket calls to investigate every chapter of a pro-Palestinian student group for “material support to terrorists”—without even an attempt to cite evidence—are unwarranted and dangerous.
The consequences for students are not hypothetical. In late October, Florida State University System Chancellor Ray Rodrigues and Gov. Ron DeSantis took action to deactivate the Students for Justice in Palestine (SJP) chapters at public universities in Florida, based on nothing more than the speech of the national SJP organization.
Blanket calls to investigate every chapter of a pro-Palestinian student group for “material support to terrorists”—without even an attempt to cite evidence—are unwarranted and dangerous. They harken back to America’s mistakes during the McCarthy era, and in the months and years after 9/11. The ACLU has decades of experience fighting abusive and discriminatory “material support” investigations and prosecutions that infringe on or violate constitutional rights. We know from history just how damaging these types of sweeping unsubstantiated allegations can be.
In the letter, we make clear that “material support” does not include independent political advocacy, regardless of its content. The ADL cites no evidence that SJP published statements at the direction of or in coordination with Hamas. Without that connection, their advocacy is fully protected by the First Amendment, and is not “material support” for terrorism. Essential principles of academic freedom stand firmly against any attempts to punish these students for their protected speech and associations.
And, local chapters of student groups cannot be punished for their association with national organizations. As the letter states, such “investigations chill speech, foster an atmosphere of mutual suspicion, and betray the spirit of free inquiry.”
In Healy v. James, the Supreme Court affirmed that the First Amendment protects the right of student groups to associate and speak out on matters of public concern, free from censorship by public university officials. And in Holder v. Humanitarian Law Project, the court held that the federal statute prohibiting material support to terrorist groups does not criminalize independent advocacy, but only “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”
These are difficult times, and we urge colleges across the country to hold fast to our nation’s best traditions and reject ill-advised proposals to restrict constitutionally protected speech. While one group is at the center of such affronts today, other students, groups, and speech could face similar attacks tomorrow. Restricting speech may seem like an attractive option for college administrators to quell campus tensions. But efforts to censor speech often prove counterproductive, and undermine the very mission of the university. We strongly caution universities against conflating the suppression of speech with the façade of safety.
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As Affirmative Action Dies, How Can Fairness Thrive?
To right the wrongs of the Supreme Court decision, let us rethink access to higher-ed from the bottom up.
Aug 09, 2023
Could the death of affirmative action stir us to face the many barriers to educational equity hiding in plain sight?
Among Organization for Economic Cooperation and Development countries we rank sixth, just behind the U.K., in “most educated population.” Not bad, but we can do better. Standing in our way is the daunting cost of higher education combined with income inequality more extreme than in 110 nations. Such inequality most harms Americans of color: a group whose poverty rate in 2019 was more than double that of non-Hispanic white Americans.
Even our public universities require a family to come up with over $100,000 for a child’s four-year education. From 2010 to 2020 the yearly average tuition and fees at public universities grew from $7,132 to $9,349 and at private universities from $22,677 to $32,769. Of course, families must cover housing and living expenses as well.
We need to ensure more Americans can access the socioeconomic springboard that is higher-level education. We can do this by building more public universities; but without the exclusivity found today at many top-class public institutions.
One reason the cost is so high is that for years our colleges and universities have not kept up with growing demand. Over a decade, 2010 to 2020, our population grew by 23 million while the number of degree-granting institutions fell almost 15%, from 4,599 to 3,931. The number of undergraduates dropped by about 3 million.
Yet, earning an undergraduate degree, compared to only a high school diploma, has huge, life-long impacts: Without that degree you are twice as likely to be unemployed. Plus, lifelong earnings are 75% lower without a bachelor’s degree. Overall, despite the burden of college debt, the return on investment associated with getting a degree is 14%—double that of investing in stocks.
These forces have created a squeeze on upper-level education, as more potential students face fewer and fewer opportunities at universities.
As competition tightens it should be no surprise that in 2017 38 top U.S. institutions of higher education had more students from the top 1% of earners than from the entire bottom 60% of earners.
Children with stronger financial footing no doubt feel more parental pressure to go to college and are more likely to have impressive applications. Colleges are 1.5 times more likely to give wealthier students higher scores for extracurriculars than their lower-class peers. Of course, many differences give them an edge: Better-funded schools—due to their towns’ higher property values—no doubt offer superior learning opportunities. Additionally, instead of having to rush to an after-school job, children in wealthier families can pursue their hobbies and academic interests.
More than half of students with 1500+ SAT scores have parents in the top 25% of earners, and one-fifth of top SAT scorers come from the top 1%. True, 80% of schools don’t require these standardized tests. Nonetheless, a good score still gives one an advantage.
Finally, from a purely fiscal perspective, a university would rather admit a kid paying full tuition than one admitted with reduced tuition and loans.
With the number of total undergraduates falling and the share of better-prepared wealthy applicants growing, potentially outstanding students are left behind as opportunities disappear. They are disproportionately Hispanic and African American.
Driving this injustice in college admissions is the overall shortage of opportunities in higher-ed. Students suffering the most are not those who would’ve, could’ve, should’ve gone to Harvard, but because affirmative action died, will have to “settle” for Boston University. Those suffering the most are those denied the chance to go to college at all.
We need to ensure more Americans can access the socioeconomic springboard that is higher-level education. We can do this by building more public universities; but without the exclusivity found today at many top-class public institutions.
Those applying to the upper echelon of schools don’t need more options. Instead, our goal must be making higher-level education available to those now choosing the workforce when, in their hearts, they want education. We need more UMass Bostons (accepting 79% of applicants) and UC Merceds (accepting 87%)—schools that create the diversity in universities that was long the goal of affirmative action.
To achieve racial and economic justice, let us seize the sad death of affirmative action to motivate enlarging educational opportunities for all. We will then no longer fail the poorest Americans of all races.
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'Victory for Children of Every Color': SCOTUS Upholds Affirmative Action
Surprise ruling 'reaffirms the value of diversity in higher education,' says ACLU
Jun 23, 2016
In a narrow but significant 4-3 ruling, the U.S. Supreme Court upheld the University of Texas at Austin's affirmative action program on Thursday.
The court's decision (pdf) in Fisher v. University of Texas at Austin "is a victory for children of every color in America," the NAACP Legal Defense Fund said on Twitter.
The case was brought by Abigail Fisher of Sugar Land, Texas, a white woman who said the university denied her admission based on race. Fisher, who has since graduated from Louisiana State University, had the backing of anti-affirmative action groups.
As Voxexplains:
The case, Fisher v. Texas, challenged the University of Texas at Austin's admissions procedures. Most of its students are chosen by admitting the students at the top of every high school class in the state.
Because Texas's high schools are generally racially homogenous, that ensures a certain amount of racial diversity: The majority-black high schools send black students, the majority-Latino high schools send Latino students, and the majority-white high schools send white students.
But the university also admits some students who aren't in the top 10 percent of their high school class through another process, one that takes into account musical and athletic talent, as well as race and other factors. That's the process that was challenged by Abigail Fisher, who was denied admission through the so-called "holistic review."
Thursday's decision, penned by Justice Anthony Kennedy, states that the university's race-conscious admissions program is lawful under the Equal Protection Clause. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
Justice Elena Kagan had recused herself for prior work on the case as United States solicitor general and Justice Antonin Scalia's seat has remained vacant since his death in February.
When the nine-justice panel heard oral arguments in the case last year, Scalia drew gasps and controversy when he asserted: "There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school ... a slower-track school where they do well."
On Thursday, Steve Vladeck, CNN contributor and professor of law at American University Washington College of Law, described the ruling as both "something of a surprise" and "an unexpected victory for proponents of race-conscious admissions programs."
"The decision itself is written quite narrowly and tailored to the UT program specifically," he said. "But it's safe to assume that public universities across the country will now look at this ruling as a roadmap for how to constitutionally take race into account in admissions programs going forward."
Indeed, Fusion wrote that the outcome "appears to be a compromise of sorts," noting that "Kennedy, the most centrist justice on the Court, required the university to continue to assess the importance of race-based admissions in creating a diverse student body, and seemed to leave the door open for future challenges to the use of race in college admissions."
Still, despite its narrow parameters, civil rights advocates celebrated the ruling as a major win.
"This decision reaffirms the value of diversity in higher education and preserves the ability of colleges and universities to further that value through well-thought-out admissions plans," said Dennis Parker, director of the ACLU's Racial Justice Program.
"Education is richest when student bodies reflect the unique makeup of our communities," added Judith Browne Dianis, executive director of the national office of the racial justice organization Advancement Project.
"Universities are strongest when scholars contribute knowledge that cannot simply be learned but lived--through their unique cultural experiences, including those influenced by race," Dianis said. "Admissions policies that promote diversity and inclusion are necessary, and we are pleased by the Supreme Court's ruling to reaffirm them."
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