Scott D. Schneider
Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider. I’m an attorney and adjunct professor at the University of Texas School of Law. And I’m joined by my friend, Eric Kelderman, senior writer at the Chronicle of Higher Education. Each episode, we’ll unpack the key legal developments that matter to higher ed leaders from student rights and faculty contracts to DEI lawsuits and government oversight. Let’s get into it.
Eric Kelderman
Today we are joined by Marjorie Haas, the president of the Council of Independent Colleges. It's an association that represents more than 700 private nonprofit liberal arts colleges across the country, including my own alma mater, Luther College in Decorah, Iowa. Go Norse.
Marjorie is the ideal representative of the kind of career a degree in the liberal arts can get you. She has a bachelor's, master's, and PhD in philosophy from the University of Illinois at Urbana-Champaign. And after a career as a scholar and faculty member at Muhlenberg College in Pennsylvania, she became the provost at that institution, then president at Austin College, which is actually closer to Dallas, Texas than Austin. And then she became president at Rhodes College in Memphis before taking over the leadership at CIC. So welcome to Campus Docket, Marjorie.
Marjorie Hass
Thank you, it's a pleasure to be with you both.
Eric Kelderman
We're happy to have you. So before we dig into the real substance of today's episode, Scott and I like to break the ice with something a little on the lighter side. And Scott is frankly a sort of music loving hippie. I was a music major in college. I don't think he'd deny that, right?
Scott D. Schneider
Hippie is not a pejorative here in Austin.
Eric Kelderman
No, no, not at all. No, it's a positive. But what we want, what we want to talk about with Marjorie, what we'd like to start today with is, we'd like to know if you can think of an album at any point in your life that sort of blew your mind, right? That changed your perspective, that you think of today as being sort of seminal in your enjoyment of music or anything else.
Marjorie Hass
Well, I have the best answer and it is not because of its musical prowess, but because it was a cultural moment. And I think women of my generation were very influenced by it as girls. And that is the album, Free to Be You and Me, by Marlo Thomas and Friends. And it was a compilation of stories and songs and poetry. And it was really designed to help girls think about the kinds of futures they could have. It was certainly a feminist production and operation and it was very, very influential on me and I think on millions of other girls my age.
Eric Kelderman
Yeah. Scott, what's your answer to this?
Scott D. Schneider
How do I follow that one up?
Eric Kelderman
That's a tough act to follow.
Scott D. Schneider
Yeah, so mine is 1991. I hate to say it. It Smells Like Teen Spirit. The Nevermind album comes out and the world that Baby Boomers created felt pretty bad, and then Kurt comes out with that album and just very authentic, this amazing sort of Poppy, Beatles style rock with really weird lyrics and charismatic front man. I can remember the day I first heard that song, the Smells Like Teen Spirit song, but that from start to finish is, that's the album that resonates. I mean, there's 20,000 other ones, but that's the one. What about you, sir?
Eric Kelderman
Yeah, for me, summer of 1987, I was house sitting for a faculty member at Luther and he and his wife had a record player and as I did, a real record player back in the day and he had a vinyl copy of Paul Simon's Graceland which I really hadn't, it was only a year old at that point.
And I put it on one day and I listened to that full album probably every day for the rest of that summer. And it really, I thought it was seminal certainly in my appreciation of popular music, which I had kind of given up on for a long time before that because I was basically a classical musician at that point. And so I love that album to this day. I also listened to a lot of it. This will make you laugh. Frank Zappa had an album and I don't know the date of this but the album is called Weasels Ripped My Flesh. Which is a little more provocative than the music on the title than the album but there was a my favorite song on that was Billy the Mountain. It was a lot of fun. I really enjoyed that.
Scott D. Schneider
When you came out with 1987, I thought you were gonna do like the Winger self-entitled album. And I'm just, I'm grateful that wasn't it. I would have lost a lot of respect for you, Eric.
Eric Kelderman
No, no, no, Paul Simon, maybe my favorite popular composer. So, well, let's get into it.
There's a lot of important stuff to talk about. Marjorie, let's talk, with the financial challenges which are facing so many, especially small tuition-dependent colleges across the country. Some of your members, I would say, are among the most financially vulnerable in higher education because they rely so heavily on having students at a time when the number of students has been in sort of steady decline. And many of them don't have a national, international brand that attracts a lot of full-paced students. But these institutions have the same administrative needs to manage their compliance and regulatory challenges and the legal challenges that they're facing. Is there a concern that many of these institutions don't have the infrastructure or support on legal issues that they need and are folks talking about that and are there any solutions to that?
Marjorie Hass
It's a really good insight, right, that the regulatory burdens fall just as heavily on small colleges and universities as they do on large ones and large systems. And it is one of the reasons why running a small college is a very careful balancing act. The cost of complying with federal regulation has skyrocketed in my time in higher ed and even in my time as president. Many institutions grappled with this, particularly as Title IX compliance became more of a priority and as the regulations changed over time. So as you know, the original Obama Dear Colleague set out a series of guidelines. Institutions definitely needed legal help to ensure that they were in compliance with that. And they changed again during the Trump administration. And they changed back, and now they're changing again. So, the sort of whipsaw shifts have really added a financial burden to institutions. And as we talk about why does tuition go up, compliance is certainly an important reason why.
It's obviously important. I think our institutions take compliance extremely seriously, but it is a significant sort of unfunded mandate for colleges and universities. Most CIC institutions, I would say, do not have in-house counsel, although many, many do. And increasingly, we're seeing more institutions realize that that's an important cabinet-level function. But even institutions with in-house counsel still have to rely on external support and legal support for specialized advice and for litigation. So to the extent that institutions are responding to lawsuits or are trying to get very specialized advice on compliance, they usually don't have the in-house help that they need to do that, even our very well-heeled or even our largest CIC members.
So how do you make that possible and affordable? Many institutions have arrangements through consortia to have sort of fractional legal advice, particularly on the, you know, making sure your policies comply, et cetera. Some institutions access legal advice through state associations that they're part of or other kinds of groupings so that they can help share the cost around a bit. But most of them really have to find the internal resources to provide the kind of legal expertise that is needed. In the case of lawsuits, etc., usually institutions are insured. And so when they are defending themselves against suits, typically, legal costs are typically after a certain deductible covered by insurance. But the cost of compliance, of policy evaluation, and the constant need to rewrite policy to be matching the sort of whims of policy changes is very difficult. It's one of the most difficult, I think, impacts of some of the Trump executive orders. As executive orders, their legal status is really vague. Many of these legal orders, as you've seen, contain sentences that sound as though they are proclaiming or crafting new law or retracting current law.
Of course, that is not true. You cannot, anything, laws are passed by Congress, can only go through Congress and, of course, Congress is not acting very effectively right now. So, you need to get legal advice to sort of sort through and parse these, what feel to me like very hastily written and poorly worded executive orders often to figure out what is the actual legal force of them. And then, as we've seen, many of them get rescinded later, including the most recent Dear Colleague Letter and much of the rhetoric that initially came out around DEI etc. So, each time these things happen colleges are incurring costs.
Scott D. Schneider
Hey, can I pivot to DEI, Eric, is that all right? And this administration as well. And Marjorie, you brought it up and I was on a webinar recently with Peter Lake and Frankie, two of the, to me, like people that I look up to as heroes.
Marjorie Hass
Yes. Peter's been in this business a long time.
Scott D. Schneider
So, you know, one of the things I said to Peter was the difference between this administration, the Trump administration, and the first one. I go, in Department of Education terms, you go back to, what was it, like 2017. And what, you go to 2016, there was criticism about the Department of Education overreached because of the 2011 Dear Colleague Letter. Betsy DeVos comes in, says the era of rule by letter is over, referring to the 2011 Dear Colleague Letter. I found this quote that she had in that same speech where she says, “Instead of working with schools on behalf of students, the prior administration weaponized the Office for Civil Rights to work against schools and against students.” And I said, this administration, there's a clear difference from the way in which the previous administration, previous Trump administration operated. The other thing I said was, in my mind, the 2011 Dear Colleague letter was really the first time that the Department of Education signal that we're not going to be very deferential to schools, colleges and universities anymore. And, in really complicated spaces, we're inclined to second guess. And you saw a sort of a rollback of that with the previous Trump administration with the very clear caveat that they then issued these one-size-fits-all regulations around Title IX that applies to CIC schools, public universities of all types, religious schools, all of that sort of stuff. We then have this, which I said if you thought the 2011 Dear Colleague Letter was federal overreach, this, coupled with the cutting of the funding spigot without much in the way of due process, is the 2011 Dear Colleague Letter on steroids. I kind of just wanted to get your reaction to that. And then on the DEI piece, what has been CIC's approach with respect to advising schools on compliance with respect to a Dear Colleague Letter that's vague in a lot of ways, and we may disagree with one substance.
Marjorie Hass
So, a lot to unpack in here. And I don't know that I would agree exactly with your reading, at least from a college president's perspective. I was president in 2011 and, you know, have sort of lived through these various administrations. You know, I think the question about the sort of push and pull between institutional autonomy and government oversight, federal government oversight, that push and pull is always there, right? As you mentioned, the Dear Colleague Letter was perhaps an interesting shift, but that there were other pieces as well, right? The Obama administration, as you may recall, wanted to provide its own ratings for colleges. It wanted to kind of take on the rating, the ranking agencies, and give colleges, it was variously described to us by members of that administration and that department, as it would be like the way that Consumer Reports rates toasters, or it would be like some institutions would be getting a consumer gold star. And what I think was different in that era and also different in the first Trump administration, so both of those I would put together, is that there was an opportunity for dialogue. So these issues would be proposed. There was appropriate question and answer period. There was an attempt to listen, comment period, an attempt to listen. Ideas that were not workable or practicable were often discarded. And so the final rulemaking and the final decisions, they may not have been to everybody's liking, but there was a sense that institutions had an opportunity to be heard.
I think the difference in this administration as you noted is, and then certainly you and I are not the first to notice this during the campaign period, right? It was very clear everybody following this closely said, this will be a very different administration. And it's a different administration in large part because, instead of tapping people who have expertise in various areas or are clear, have the background to understand the complexities of the roles that they are taking on, as a kind of primary force and then, obviously, you want someone in alignment, every president wants cabinet officers in alignment with their politics. Here, I think it's very clear that loyalty has come first and participation in sort of the inner circle has come first and then people are scrambling to learn the complexities of the job. So, we're seeing, you know, a shift in that way.
The other big thing, of course, is that there's hardly anybody working at the Department of Education anymore. So it's not even clear who you call and talk to. There are concerns about the OCR staff has been almost completely decimated. So colleges are being told you're going to be investigated, but you don't even know by who and you don't even know who to talk to and you don't know if you'll have a chance to sort of make your case or pitch, because the staff that used to be in charge of such investigations is no longer there.
That is certainly on people's minds. The biggest issue, I think, on people's minds in terms of the real decimation of the staffing is also the research staff. And that's something that many, many higher ed leaders are very concerned about, that the data collection will not be as accurate in the past or as extensive as it has been in the past.
Eric Kelderman
What's the range of sort of compliance that you see from colleges with the executive orders that, as we know, don't carry the force of law? And how are you advising your members on that?
Marjorie Hass
Our advice has sort of been the same for the last few months, which is to read these with clear eyes, understand what an executive order has the power to accomplish and what it doesn't. In other words, discern the sort of rhetorical wheat or chaff or what have you from the actual policy, whatever the other one of those is. And then, you know, take them at their word. If they're saying that we're going to enforce compliance against any illegal DEI activity, try to think about what that might mean. They cited the Civil Rights Act. And so we advise people to look through all of their programs and policies and make sure that there is no offering that is truly dependent on race. Now, interestingly, again, notice that they lifted out race. They did not lift out gender or religion, for example, because many campuses have gender-based housing or gender-based social organizations like fraternities or sororities. Many others have special opportunities or arrangements if you are of a particular religion, your religion may have a staff chaplain available to you when other religions don't. But the Department of Education, in institutioning that, was not concerned about those things or whether those might be discriminatory, they were focused solely on race. I can't think of an institution that I know well that would have had to make anything really or much in the way of changes based on that standard.
If the goal is to make sure you are not contravening civil rights law as it is written and stated, most institutions are already in compliance. The committee, called the Diversity Committee, does not put you out of compliance, nor does a course in African American history that is after all open to all students, nor does a celebration of a Hindu holiday, to which all students could attend or a campus Christmas tree lighting or what have you. Very few institutions were in fact discriminating by race. The only place where some folks really had to look maybe a little bit closer is in the awarding of scholarships, endowed scholarships, where they may have originally been written by the donor to give preference based on race. And most institutions have been in the past few years really looking at those closely and working with living donors or heirs of donors to reframe those so that they are not, in any way, discriminatory by race.
Scott D. Schneider
Yeah, one of the interesting, I was on a webinar earlier this week with a consortium of smaller schools and I kind of… One of the things I said, and it's really building off of what you talked about in terms of the decimation of the OCR staff is what this administration has pivoted to is a strategy of going after what appear to be high value targets. The Harvard's, Northwestern, Cornell's… To date, have you seen any sort of regulatory focus on some of these smaller schools? And let me just want to ask one of the things. So one of the things, I work with a lot of small schools, and I struggle between seeing things going on in this administration that you go, we need to say something about this because this feels like an overstep while at the same time being worried about don't be the one that pops up and all of sudden draws the attention of this administration.
Marjorie Hass
Yeah, I do think many institutions are hoping to sort of ride this out and lay low. It has been helpful that some of the wealthier institutions have taken the lead on legal challenges. But many other organizations and associations that our members are also members of are involved in litigation as well. So there's a sort of many, many different areas. I would say that I have not heard from any of our member presidents that they feel that their institution is being specifically targeted or looked at. But, I do know that the regulations and the policies treat institutions as institutions. And so, the effect of ending or closure of federal research grants, again, much of that has been reversed by courts but, you know, that targeted small colleges as well as large colleges. And while small colleges cannot be research institutions where federal research dollars are sort of existentially important, they do find really important things. Many of our members have grants from NSF or NIH that are designed to support the production and support of the next generation of scientists. So they fund student research projects, they fund the kind of projects and work that will help students be prepared for graduate training in the sciences and in STEM fields. And those programs also were cut and pulled back. And then, many faculty at CIC institutions do do the kind of research that is deserving of and has been able to secure federal research dollars. Again, not at the levels of sort of existential urge or where their salaries are dependent on their bringing in those grants, but they do, you know, make a difference, and it is an important loss and an important anxiety for our institutions. The other thing about federal grants, as you know, is that you get the grant and what the grant says is great, you do these activities and then we'll reimburse you. And so, when institutions were told that the reimbursements were going to stop, this was money they had already paid out. Again, for many small colleges, there isn't a sort of huge margin to say, well, we'll cover that out of our petty cash until we can fight back to get paid back or what have you. So that was very concerning for institutions that they may have in good faith with, you know, on the full faith and credit of the United States of America accepted government grants only to be told we're not going to reimburse you for the expenses we incurred and that we told you you would. Much of that money has now begun flowing again because of court orders.
Scott D. Schneider
On that, I want to make just two points and I know, Eric, you want to talk about academic freedom, free expression, the anti-Semitism. A couple of quick points. I would be remiss to not point out that last week, three federal judges enjoined enforcement of the Department of Education, Dear Colleague Letter on DEI programs on a variety of grounds, primarily around void for vagueness. For no other reason, there was no definition of what a DEI program was. So that's where we are. We'll see that there should be an appellate review. We'll see if the Supreme Court ultimately intervenes, all of that sort of stuff. But I wanted to point out…
Marjorie Hass
And again, just a reminder that the Dear Colleague Letter was focused on race, not on any of the other categories where we might think of discriminatory behavior.
Scott D. Schneider
How did we get to this point where there is clearly a political movement that seeks, kind of, destroying or at least viewing colleges and universities as participants on one side of the culture war. And now, you know, we need to fight and destroy. And I say that I decided to go back over the weekend to look at some old books and looked at like Buckley's book about Yale in the 70s or Bork's book about, what was it, Slouching Towards Gomorrah, which is, the first three chapters are about higher ed. How did we get to this point? And is there a path, a pragmatic path, where colleges and universities as sort of an industry as a whole aren't viewed as active participants on one side of a culture war?
Marjorie Hass
Yeah, I mean, those are difficult issues and a lot of them depend on how you see the lines in the culture war being drawn and how you see them as moving forward, right? If the culture line is drawn between sort of the liberalism and conservativism of, let's say, the major leading presidential candidates of the 70s, 80s, 90s, early 2000s, I don't think we, yes, I think we could imagine a world where colleges are not on a side.
But if the culture war is between those who value and take seriously due process and the basic tenants of the Constitution and those who don't, I don't see how colleges are gonna strike that balance. So the barometer of where that line is in a war is shifting rapidly. But I think your bigger question is, is college too woke, right, as we say, and if it is, how did it get that way and how did it lose the confidence of so many people? I think for that broader question, there's a couple of answers. One really has to do with how college is funded. As families were asked to take on more and more of the individual burden of funding. The states pulled back their funding so public college became more expensive. The federal government did not, the Pell Grant did not keep up. And so college of all, you know, it was not being adjusted for changes in income. College was becoming more of a burden on individuals at the same time that the middle class was being hollowed out by a series of economic policies. So, you know, you had this notion of you're dangling something in front of folks and saying, this is a really important good. Good parents provide this for their children and we're not going to help you pay for it and we're not going to pay you in ways that you could be able to provide this for your family. That's a really terrible feeling as a parent. So the more we made education feel like a private good and not a public good, I think it became much more about privilege and how wealthy your family was, than about your own talents. They also began to see it as a very sort of exact calculation of investment and repayment in financial terms. It's easy to measure a starting salary. It's hard to measure the value of an expanded way of thinking or being a deeper critical thinker or having a more global perspective. And so, we've substituted these sort of financial words, not that they're not important, right? Students need an education, they need an education, students need great jobs, we need a trained and talented workforce, but wages were not keeping up with that. So you used to, if you were born into a certain class, you were gonna have a pretty good job whether you went to college or not. And that's no longer true. Wages, what counts as a good job at this moment in the United States? Well, not a career in public service. A lot of those people just lost their job. Not a career in computer programming. AI is taking that over.
Scott D. Schneider
Journalism.
Marjorie Hass
Journalism, right, exactly. So the whole economy has shifted in ways that made a college education feel both more out of reach and less of a guarantee of a certain kind of lifestyle. And that again, economy change, but that's piece of it. The other thing though, and I will say, I think this is true, colleges have a lot to answer for, and liberals probably have a lot to answer for as well. If we truly believe that college is the source of access to a different kind of life than you could have without a college education. We have not done as good a job as we can to prioritize that. Now we may not think that or maybe not every institution or kind of institution thinks that, but as you noted, the institutions that are struggling the most right now are the institutions that walk that walk. The institutions that are struggling the most are the ones that educate students who do not come from wealthy families. And so we as a society don't value that. We don't support it. We don't help pay for it. We don't contribute to it. And so, those families are left scrambling on their own and those colleges are left scrambling on their own.
Finally, I'll say, you know, is the professoriate woke, left? Absolutely. Have we also developed a kind of language around what it means to aim at inclusion and equity that doesn't feel as meaningful to say the average working class person, white or black? Yes, we have. And I think, you know, there is no real workers' party in this country to have that be a nucleus of the left. The Democratic Party, sort of, left that train at the station when it bought into neoliberal values. And so, what is it that connects the sort of things that elites do, like go to college or talk about pronouns or have concerns about wine vintages. What is it that connects any of those concerns to the concerns of a person who is looking at a stagnant minimum wage and now increasing unemployment and total economic volatility? If we don't have that connection, we cannot expect people to understand us. So that was a very long answer, but I think it's a very complicated question.
Eric Kelderman
Yeah, there's a ton there. We could spend a whole episode talking about how do we get out of that situation. I want to go to a related issue, though, because we talked about what many people think of as the excesses of academic progressivism in the context of the free speech academic debate. So it's been what, a year or so since the campus protests against the war in Gaza. The tensions over this issue have been building now, as you point out, for several years. And for campus leaders, really there are kind of two issues that they're trying to balance. How do you balance the need to maintain continuity of campus operations while allowing and even encouraging students to be engaged in political activism and protests, which is, I think, a number of your member colleges would say, we want students to come here and really take these issues on and debate them. And then on the other hand, when they occupy the quad or an academic building, and I understand most of your institutions are not facing that, but that's what I see as the difficult balance. And how are your member colleges sort of approaching that?
Marjorie Hass
Well, I'm glad that you noted that this is not particularly a problem at CIC institutions. Maybe here and there, some issues. For the vast majority of our 700 members, the conversations even around Gaza were very appropriate. There may have been some protests, but they were appropriate kinds of protests. They didn't disrupt campus operations. There were many, many other things that were happening, teach-ins and debates and conversations and attempts to bridge big differences among student groups, led often by faculty members, by administrators, by students themselves. It doesn't make news, right? So when the average person reads the newspaper, they don't read about 400 colleges that didn't have a crisis or had a peaceful protest or an appropriate event, they read about the one or two that are exploding. And of course the students on that campus know that the more explosive their actions, the more press will come their way and so it becomes a vicious cycle. So this really, I don't think that most of our campuses and certainly not the campuses that I was president of, see that as the sort of big divide. You know, how do we maintain order or just a bare minimum of campus action and at the same time allow students to have free expression. We at CIC, we have brought a program that I think both of you are probably aware of, the Campus Free Expression Project. We brought that in-house last year and it's been terrific. Anybody can go to the CIC website, CIC.edu and look for the Campus Free Expression Project and you'll find really, really well written and well done road maps for how to create a climate of free expression on campus with the assumption and understanding that these are campuses in which you are also trying to create a climate for learning and a climate for engagement and a climate for dialogue. And so, I think that's a great resource. The new additions, there's one that's sort of particularly for board of trustee members that want to have that conversation, for faculty, for student life staff who often bear the real weight of implementing these policies and working with students on them. So that's a great resource. Another terrific resource was put up by another organization, Campus Compact, and their website is just campuscompact.org. They have a new guide to a whole host of different organizations and support structures and programs that you can bring to campus that are really aimed at fostering meaningful dialogue. CIC institutions have been working on this for a long time. They were not caught as flat-footed as it seems other kinds of institutions were by the Gaza war.
Now I will say that, you know, that's part of the magic of smaller colleges is they take place in the context of relationships. So it's harder to hit a fellow student with your placard when you know them and when you have, they are in your study group. And, you know, it's harder to demonize others when you have a variety of touch points. So, I think there's the context of small residential colleges is a great laboratory for the kind of world we would like to build. And I think our institutions take that really seriously as part of their mission.
Eric Kelderman
Let me follow up with one thing here, which I want to go back to this point about most of your members didn't have these kinds of problems. And back to Scott's issue about sort of how do we get to this point of higher ed sort of being on the front line of the culture war. Is there a big issue for your institutions that maybe the general public conflates the Ivy League or the big R1 flagship with public regional, right? Or the small private liberal arts college where, you know, things are very different. How do we let people know that there's a much wider range of institutions out there?
Marjorie Hass
Eric, if only you had a platform in which you could highlight some of these institutions.
Eric Kelderman
I think I've done that maybe on occasion.
Marjorie Hass
You actually have. But I would say the non-higher ed press does less of that. It's just not considered newsworthy. I think even the New York Times, the USA Today, when Americans think of college or university as they're, you know, they're usually thinking of a university. They're usually thinking of a very elite Ivy League or near Ivy institution. They're maybe thinking about some football powerhouses, some land grant university football powerhouses. And maybe they're occasionally thinking about a community college. But that's about it, right? And that's a, even all of those institutions together are such a small slice of where students are actually educated. And so, we do need to do a much better job of looking at what's really happening on, as you say, not just the CIC kinds of institutions, but regional publics, the ASCU group, and the much wider range. The genius of American higher education is its diversity. Its breadth and diversity. There is a perfect match for every student who wants to go to college. But we don't always think about it that way. And it's interesting because, you know, this happens as Congress sits down to legislate. We talked about the financial impact of legislation, for example. So, you know, one of the things that's being considered right now as we speak that they're wrestling with in the reconciliation budget process is whether or not they're going to tax endowments or whether or not they're going to require colleges to reimburse the federal government if students don't pay back their loans. And again, you know, for people who are just thinking about Harvard and Yale and University of Michigan or my alma mater, University of Illinois, that may seem like a no brainer. But as soon as you say, okay, well, what about the Catholic college down the street that is taking in and educating students who wouldn't otherwise have an opportunity to go to college? Or the Christian college, that is making sure that students are being able to learn in the context of their own religious faith and in an environment that supports that. And what about the regional university where the average age of a freshman is 29. And these are working, many working adults. And yes, they sometimes have trouble making a loan payment or two. You wanna punish the colleges for taking a risk or a chance on them?
So as soon as you remind Congress to look at the breadth of institutions, the legislation usually becomes more humane and understanding, and understand the ball. That happened in fact with the original bill to tax endowments. They started out, we should tax all endowments. Well, maybe not all, maybe just really big ones. And then even there, right, there was a carve out because some of our most well endowed institutions charge no tuition because again, their mission is to serve under-resourced families. So, you know, as you start to look at colleges, it becomes much more complicated. Just like Congress itself, if you ask people, how do you think, what do you know, do you like higher ed? They say no. And you say, do you like your local college? And they say, it does wonderful things. Students are amazing. They do all this community service. The faculty members, you know, serve on our boards and our committees. They're out there in the community. They send their children to our same school as my children. I know them. I love to go over and watch a play. They have incredible lectures, you know. The local college is usually understood as a good neighbor and when you get people to remember that it's a lot easier.
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Scott D. Schneider
When you start getting into nuance, and we're not in a political climate where nuance happens, and really thoughtful conversations take place. And look, I want to kind of just go back and talk about speaking of a really complicated issue. The anti-Semitism charges, the protest. And one of the interesting, and I'll just frame it for the listeners this way, you know, one of the interesting unresolved issues, and, you know, we see the Trump administration honestly taking a position that at least a little bit is similar to what the Biden administration took, which is around, we have twin obligations. We have an obligation to make sure we don't have an environment that's hostile for our students on the basis of race, religion, sex, you name it. But we also have an obligation, especially in public institutions, but for private institutions as well, to be a place where people can have thoughtful, challenging, provocative conversations. And I remember I was at a NACUA event last year and Catherine Layman said something along the lines of, there's no tension between First Amendment protections or freedom of speech protections and institutional obligations to make sure we don't have hostile environments. And here we have sort of these findings of anti-Semitism. And look, I'm not gonna sit here and defend everything I saw. I get it, it's on a feed and whether it's reality or not is a different story. But without any wrestling with, what about the freedom of expression or the First Amendment concerns in this space? I guess as a kind of maybe a closing topic, I'm wondering if you have any thoughts about those issues.
Marjorie Hass
I have, obviously, a lot of thoughts, both as a citizen, as a democracy, and also as a college president and now in my role at CIC. When people ask me why there's tension around these issues on campus, I always ask them to think, okay, in your life, not on a college campus, where are the rooms that you're in where people talk about or confront issues like the Gaza war or issues like racism, and they're able to have open conversations. Everybody says just what they want, and they all, there's disagreement and they do it peacefully, calmly and respectfully. Which rooms are you in where that's happening? Right? Where does that happen? It doesn't happen around their own Thanksgiving tables either, right? I mean, we know that, families are panicked about we're either going to not talk about politics or there's going to be a blow up. It's not happening in people's workplaces. It's not happening in people's churches or mosques or synagogues for the most part. So where is it happening? It's happening on college campuses, right? That occasionally, on certain issues, it blows up into a fight that's certainly newsworthy and concerning. But every single day, every single day in thousands and thousands of college classrooms across our country, students and faculty are having respectful, engaged conversations about really hard issues where learning is taking place. We need to lift that up and applaud it, because there's nowhere else it's happening. It's not happening at K-12 anymore. High school teachers, public teachers, are petrified of bringing up a controversial issue. College is the last place, and maybe the only place in our culture now where we're having that. While again, as you say, we can point to places where it erupts in chaos, we could point to many, many more instances where it does not. And I do think we have to remember that.
Now, in the chaos parts, right, how do you balance this? Certainly as a college president, I dealt with these in very practical terms, right? How do you create a climate that is welcoming to others and at the same time ensure that there can be the robust kind of freedom of expression that leads to real disagreement, and sometimes disagreement over fundamental issues. I had to manage that as a faculty member. I had to manage that then when I became a college president. It's not easy. And I do think clear policies matter. Again, time, place and manner, you know, can be regulated, et cetera. Certain basic principles like you cannot impede the college's basic functioning. But other things as well, namely the notion that the institution will hear you and pay attention to you and care for you if you have been injured by somebody else's speech. I may not stop that speaker from coming, but that doesn't mean I'm not going to meet with students who felt assaulted, verbally assaulted or ignored or made invisible by that speaker and say, I see you, I care for you. Here are some things and resources the institution has to support you in your journey. There's a lot more between, there's a lot more to this, than just, do we censor the speech or not. When there is offensive speech or when there is speech that is legally protected or protected under our understanding of acceptable boundaries of free speech, how do we respond? And that's the place that think colleges often need the most work and effective support. When I've seen students who are sort of so angry about a particular speech act, say, it often isn't their anger at the fact that that speech act occurred. Their anger is that they felt the institution, that they felt was their home and community, did not support them in their outrage. And that's a place that, we offer care, at least at CIC institutions, as part of the package, right? And that care, I think, goes a long way, a long way.
I take these issues very, very seriously. I'm Jewish and I have, you know, do not like seeing my religion or my people or my civilization weaponized as a cudgel against free speech. I grew up in a family that lived right near Skokie, Illinois. My grandparents lived in Skokie, Illinois. And my first remembrance of the First Amendment and free speech issues was when the Nazi party, that was a long time ago, when the Nazi party was sort of a fringe element of American society as opposed to now, where they march proudly in the street. But they, this small group of supposed neo-Nazis wanted to march in a, not only a Jewish neighborhood, but a neighborhood largely composed of Holocaust survivors and refugees from Europe. And my family really said, we're freer as Jews if they are allowed to have that permit. We don't have to listen to them. We don't have to like it. We need to have a lot of speech in return. But censoring free speech does not, my family believed, make Jews safer. And that's been influential to me. It's not the only influence on my thinking about these issues, but it certainly has been an important piece.
Scott D. Schneider
For listeners, that's a very important case. I think from 1977, which was the National Socialist Party of America versus, I think it was the village of Skokie.
Marjorie Hass
The village of Skokie, Illinois. It's a suburb of Chicago. My, we lived in a different suburb. We lived on the North Shore, in Glencoe, which at that time was one of the few suburbs where Jewish families could buy houses. So, it wasn't as though there weren't other forms of discrimination going on. But but Skokie had a large percentage of older and in particular, you know, European refugees and Holocaust survivors. So, it was particularly provocative. And the ACLU defended Nazi party or whatever their title was at that point and they did march, but the people of Skokie also came together and resisted that message in a lot of ways but not by censoring the speech.
Scott D. Schneider
Yeah, and the principle there was that even offensive, hurtful speech is protected under the First Amendment with the caveat, unless it incites some sort of imminent violence or constitutes a true threat. A very, very important case in the First Amendment law.
Marjorie Hass
You know, with these things, right? You know, if they're saying it out loud, at least you know what they're saying. They're still saying it if they're whispering it among themselves. So, you know, again, do I like it? Do I accept it? Do I think it's a good thing? No. But I do think offensive speech has to be tolerated. But, that doesn't mean we're done. When the president said when President Trump said there are very fine people on both sides, when he was talking about these groups marching under a sign that said Jews will not replace us. That was more hurtful to me than that they were marching with that sign. I can accept that there are hateful people, people who are anti-Semitic, people who hate Jews. I know that, right? I expect that will probably always be true. But, when people that I believe are there to represent me, don't either condemn that speech or don't let me know that they are on the side of fairness and justice, that's when that speech becomes dangerous and very hurtful and even more hurtful. And so, I think it's similarly with colleges and universities, you need to have the ability to both say we're going to allow this speaker to speak and we're going to talk about what we didn't like about that speech and why we don't agree with it and we're going to want to hear people talk about that.
One last thing, institutions also create policies sometimes designed to make sure that there is an opportunity for response. So your speaker can speak. We're not going to monitor the ideology, but they have to be willing to do Q&A. They have to be willing to allow a counter speaker, sometimes, that will have a debate rather than just one viewpoint. They have to be willing to stand there and take questions from students. They can't just sort of drop in and throw a rhetorical fire bomb and pop out. And that's been helpful too, because students know that there'll be an opportunity to express an alternative voice.
Scott D. Schneider
Yeah, of every CIC school I've worked with over the last year and a half, I mean, the approach has been no professor speaks on behalf of the institution, right? I mean, if somebody said something and it's been things on social media that are incendiary, we're not going to police that. We don't think that's appropriate.
Marjorie Hass
Right.
Scott D. Schneider
Doesn't speak on behalf of the institution. And if there is an event that we allow for counter programming, whether it's with the institution's blessing or as just part of a separate group.
Marjorie Hass
Other groups, right.
Scott D. Schneider
And look, I don't know that that's satisfactory to people on either side of the kind of extremes. The thing I try to tell people a lot is, what a lot of provocateurs want is the overreaction and the canceling the event or whatever. That's what we're trying to avoid here is bringing undue attention to these folks.
Marjorie Hass
That's a really good point. The other piece of it, I think, is that these speech moments, right, they're often, they don't come out of the blue. They're often part of a broader campus conversation. There may be something that needs to have been talked about institutionally that has not come to the fore. And the institution may have been trying to sort of push it off because it's touchy and we don't want to talk about it and then it explodes. It's better to provide regular ongoing fora for conversation about difficult issues, than it is to sort of bottle everything up and then boom, we have a sort of explosion around a particularly controversial speaker or event, et cetera. You know, as a college president, you do become very aware that you are understood as speaking for the institution and that you have to monitor your own speech. You know, as a leader, you have a responsibility to really think about how you do that representing. And I think presidents take that very seriously.
Eric Kelderman
As a sidebar, I will note that the Skokie Nazis are effectively lampooned. If you're a certain age, like Scott and I, and probably Marjorie, you remember The Blues Brothers movie where the Nazis are so effectively lampooned at the end of the movie.
Marjorie Hass
You know, that's a really good point, right? Humor is a very effective response to hate. It often is the most effective. And we need to find ways where we can bring those kinds of responses as well into the face of it. We will never have a world where hate doesn't exist, but we absolutely can have a world where we don't celebrate it, where we don't give it respect, even if we allow it to exist. What is concerning is when you feel that people in power, people in the lead are fanning those flames of hate. That's when you start to be frightened and when you start to worry about the future of our democracy.
Eric Kelderman
We do have one more question for you, Marjorie.
Marjorie Hass
I hope it's not another album, because I don't know that I could top my first game.
Eric Kelderman
No, that was a brilliant answer, but you'll come up with something good here. Similar to the beginning of the episode, Scott and I like to close the episode by talking about something we feel good about or we're looking forward to. So, Marjorie, why don't you kick it off and tell us something you're, something good happening to you, something you look forward to in the next week or so.
Marjorie Hass
Well, I am going to be traveling to a Centenary College in Louisiana to deliver the commencement address. So I'm very excited to be back on a campus and I'm excited to see young graduates and to do my part to wish them both congratulations, and to share our hopes and dreams for them and their generation. So that certainly is something to look forward to.
I also am looking forward in a broader way to the ways that higher ed and other important pillars of democracy, the press, certainly, we represent three of the four, three of the four or five right here, right? Higher education, a free press, a robust legal system, the ways that these pillars of democratic freedom come not just to sort of defend our values at a very difficult time, but to imagine something better. I don't want to see us just moving into a defensive crouch. As we've talked about today, there are a lot of things that have happened that are not worth defending, or a lot of compromises that our institutions have made, or sort of pasted over solutions to real problems. We need to take those seriously and we need to think about crafting a future for ourselves that is better than what we're leaving behind, not just that reinforces the status quo. So, that's my sort of prayer for us all, at this moment, that we ask, how could we rebuild it better if it's being dismantled? How do we rebuild it better? Not just how do we defend it? Some defense is necessary, obviously.
Eric Kelderman
Scott, what are you looking forward to?
Scott D. Schneider
Yeah, no, I love that. And that's something I give a lot of thought to, this moment will end and will we be on a healthier trajectory, better trajectory? And I said this previously, I mean, some of these developments, what ends up happening is sometimes very counterintuitive. This may turn out to be one of the better times, in retrospect, for college education. We rethink our values, all that sort of stuff. Okay, with all that said, Eric, I, this weekend, one of my favorite clubs in all of Austin, music clubs in East Austin is unfortunately closing down, which is the Skylark Lounge. And I'm going to go to, there's a blowout with Soul Man Sam, a whole bunch of people to, I guess, bid a fond farewell. I also, for the first time ever, I think Friday, we're going to San Antonio for Fiesta, which is this weekend. I have no idea what to expect, but totally looking forward to that. What about you, sir?
Eric Kelderman
Well, I can't say I'm looking forward to it, but as I mentioned earlier, talking, we have an old dog, who's very ill and we're going to have to let him go this weekend.
Marjorie Hass
Oh, Eric, that's…
Eric Kelderman
It's sad, but it's a sacred time, a sacred space, and it's necessary. And so, we're going to deal with that and then we're going to heal and move on and remember all the good times we had with the Dexter.
Marjorie Hass
Yeah, they do. live in your memory. They live in your souls. But it is, it's very difficult. You know, we often treat these end of life issues with our pets much more humanely than we do with the humans in our lives. And so, I agree with you. It can be a very spiritual and humane moment, even as it's deeply sad to say goodbye.
Scott D. Schneider
Love you, buddy.
Eric Kelderman
Love you too.
Marjorie Hass
Thanks so much for having me. This was a pleasure.
Scott D. Schneider
Great, thank you.
There you go. Well, look, thanks for tuning into Campus Docket. You’ll find links to everything we discussed today, including related cases, articles, and a full transcript, and the show notes, and on voltedu.com. Be sure to follow Campus Docket wherever you get your podcast. And while you’re there, check out Trusted Voices and Higher Voltage, two more podcasts in the Volt lineup that look at higher ed through different lenses. On behalf of the Volt team and my friend, Eric Kelderman, thanks again for listening. We’ll see you next time.
