Cases & Developments

Memorandum and Order granting Plaintiff’s Motion for Summary Judgment. Plaintiffs, the American Federation of Teachers and the National Education Association, brought First Amendment and unconstitutional vagueness challenges against State officials after New Hampshire amended its education and discrimination laws to provide “that public primary and secondary school students may not be ‘taught, instructed, inculcated or compelled to express belief in, or support for’” four concepts sometimes categorized as “divisive concepts” in public debates surrounding diversity, equity, and inclusion (DEI) initiatives. At an earlier stage, the court dismissed plaintiffs’ claims asserting a constitutional right to control primary and secondary school curricular speech. On cross-motions for summary judgment, the court granted judgment in favor of the plaintiffs, finding the amendments “fatally vague in three ways: (1) they do not provide fair notice as to the concepts that teachers may not teach, (2) they do not sufficiently explain when classroom discussion of a banned concept qualifies as impermissible teaching, and (3) they do not give teachers enough guidance to know when their extracurricular communications are within the amendments’ reach.” The court further found the vagueness was compounded by allowing teachers to be disciplined absent a finding that they acted with scienter.

Issue Brief from the American Council on Education (ACE) on the Respecting the First Amendment on Campus Act. The brief identifies key concerns with the “Respecting the First Amendment on Campus Act” (H.R. 7683) introduced on March 5, 2024. Those concerns include increased litigation resulting from the Act’s proposed private right of action and waiver of public institutions’ sovereign immunity rights based on receipt of Title IV funding; the potential loss of Title IV aid resulting from noncompliance with even minor reporting or disclosure requirements; administrative and safety concerns related to the designation of all publicly accessible areas at public institutions as “traditional public forums;” safety concerns related to proposed limits to assess security fees for campus events involving controversial speakers; a prohibition on “all-comers” policies for religious student organizations; constraints on recruitment and academic pursuits entailed in the proposed prohibition on “political litmus tests;” and potential equal protection and Title IX concerns related to the proposed prohibition on actions to “limit or deny” students’ ability to form or participate in single-sex social organizations. ACE also released a Bill Summary detailing the Act’s provisions.  

Settlement Agreement between Speech First, Inc. and Oklahoma State University. Speech First, a nationwide free speech watchdog group, sued Oklahoma State University alleging that the University’s harassment policy, computer use policy (with respect to transmission of political campaign messages), and the University’s Bias Incident Response Team chilled protected speech. Through the Agreement, the University agreed to maintain changes it had made to its harassment and computer use policies and to disband its Bias Incident Response Team. The Agreement also provides that Speech First will not challenge the University’s definition of sexual harassment in its Title IX policy so long as it mirrors “the governing definition promulgated by the United States Department of Education via notice-and-comment rulemaking under Title IX or the Violence Against Women Act.”