New Compliance Tactics: Dissecting Higher Ed’s Changing Legal Terrain

Scott Schneider

Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider, attorney and adjunct professor at the University of Texas School of Law. And I’m joined by Eric Kelderman, senior writer at the Chronicle of Higher Education. Each episode will unpack the key legal developments that matter to higher ed leaders — student rights, faculty contracts, DEI lawsuits, and government oversight. Campus Docket is produced by Volt, the go-to news source for higher ed leaders and decision makers. Remember to visit Volt at voltedu.com, and subscribe to Campus Docket on Apple Podcasts, Spotify, or wherever you get your podcasts to make sure you never miss an episode. Let’s get into this week’s show.

Eric Kelderman

Hey, welcome back everybody to Campus Docket. We have Scott Schneider, and today we’re joined again by a repeat offender, a repeat victim, Neal Hutchens at the University of Kentucky.

Scott Schneider

Three strikes and he’s out.

Eric Kelderman

He’s going to be getting a call from his HR department right after this releases. Neal, what’s your title there exactly? I’m always confused about your title.

Neal Hutchens 

So I’m a faculty member in the Department of Educational Policy Studies and Evaluation, teaching in the higher ed area. I’m a professor, but I also have a designation as a university research professor, which we’re allowed to put in our emails and such. I’m not sure what that really means, but I’ll take it.

Eric Kelderman

I just wanted you to say that so I didn’t have to use all my breath. Normally Scott and I might do quick takes on recent legal developments, but today’s show is really going to be all about a wide range of very interesting and important legal developments happening in the world of higher ed. But before we do that, we have to do our icebreaker. This week’s icebreaker — we may have actually done this before — the most overrated rock band. Neal, you get the honor of starting.

Neal Hutchens

Well, I know this is a band that a lot of people like. I’ve seen them in concert. I think they’ve got some really good stuff. But I’m going to have to go to U2. I never quite understand some of the deep fascination with U2. I like a lot of their music, but I’ve never gotten to the level of adoration that I see some people have had through the years.

Scott Schneider

Yeah, it’s like a band with no rhythm section, no guitar player. It’s just horrible. Any band that forces itself onto my iPhone one night is verboten for me as well. Here’s mine — and Eric before the show said he could predict mine, but this one is super easy for me. I despise the band KISS. I think KISS is horrible. I do not for a second understand the allure of KISS. And they literally may have written and performed the worst song I’ve ever heard in my life, which is “God Gave Rock and Roll to You.” It is just so bad. That entire band is horrible. Not one redeeming quality. I think the Ace Frehley guy’s good at guitar. Maybe that’s it. But that’s my answer.

Eric Kelderman

I think the way you have to look at KISS is that it’s a very good backyard party band that somehow got a recording contract. That’s it.

Scott Schneider

What was your guess, by the way? I can’t see that. The Eagles are terrible too, man — there’s no question about that. But KISS is on another level.

Eric Kelderman

Okay. I’m going to say something I think is going to be really controversial for both of you, and maybe Scott in particular. The one band that I never understood the fascination with — they’re full of great musicians, but I never liked The Doors at all.

Scott Schneider

Okay, I support that. Can I tell you a quick story? I can’t get into the details because I’ll get in big trouble. But a long time ago, John Densmore, who if I recall correctly was the drummer, was doing a campus speaking tour and came to New Orleans. I have had drinks with John Densmore. He was actually a pretty cool guy. But no, The Doors — I’m with you. As a frontman, what’s the guy’s name? Oh my God, I’m blanking.

Neal Hutchens

Morrison.

Scott Schneider

Jim Morrison. Yeah, pretty compelling. But the songs are just horrible.

Eric Kelderman

It just never jibed for me. The keyboardist and some of the other musicians in the band were world class, really great, but I just never got into it the way I guess a lot of people did. So whatever. That’s our show for today, folks. See you later.

No — we’re going to talk about a range of things. There’s been a lot happening in the higher ed legal world. We’re going to start with something from a little more than a week ago. The Education Department released this letter from Secretary McMahon to higher education broadly. It’s not really a Dear Colleague letter — it’s a list of issues that it wants colleges and universities to address, not by creating new policies, but by putting up answers to questions about how the institution is going to make itself more affordable and less ideological.

It’s sort of a light version of the compact that the administration tried last year, when they asked nine universities to sign on to this thing in order to receive some preferential treatment for grant money. What’s fascinating about this one is, as my colleague Francie Diep has reported, it was created in collaboration with some of the leadership of the AAU and some prominent university presidents, including those at Arizona State, Washington University, and the University of Kansas. They have all issued varying levels of either confirmation or denial about their involvement in that process. And in this case it’s not supposed to be tied to any money. It’s just a gesture of goodwill — which boggles my mind. If it’s voluntary, if the Ed Department isn’t going to use it to enforce any of its regulations or funding priorities, why do it? Anyway, Neal, what are your thoughts about this?

Neal Hutchens

Well, one is what you just mentioned — there’s the “so what” question. What are institutions, the public, everyone else supposed to make of, I guess, wording in prominent signage somewhere on your institutional web pages to say you support the sentiments that are expressed? That’s a real question.

When you read the letter, there are also a lot of parts of it that — yes, transparency, good. I don’t actually think people would really have much to dispute over that. The idea of affordability, for instance. So there are a lot of parts of the letter that are pretty ho-hum. They’re at a very generic, broad level. There’s not a lot that you can see as actionable for an institution to take.

I think probably two of the more controversial ones — there’s certainly the statement about certain academic units that have engaged in activism, and institutions needing to really target that issue in relation to pluralism. And probably the one that I think is most significant — it doesn’t mention it in the letter, I don’t think, but it’s tied to the recent rules that are going into effect for international students — is this notion of really prioritizing American students, domestic students, in programs. Certainly under the rules — I don’t know, Scott, if you’ve encountered this with clients — but the idea that when you’re showing up, you’ve got four-year limitations on transferring, even if you’re in a doctoral program. So if you want to pursue graduate study, doctoral study under these new rules, you’re probably going to have to get exceptions to do that if you’re an international student, because you’ve got your four-year limitations on changing majors. That was the one that really stood out to me as a conversation starter.

This idea of the role and place of international students in a program at an institution, or various programs — I’ll just pick one out there. As we think about certain medical fields, all of us anecdotally know that when we or family members or others see specialists, the United States relies heavily on training students who are domestic students, but we also have a very rich tradition in health fields and other fields where we have individuals who are incredibly talented that come from another nation and do their study here. So that’s the one that stood out to me as an important conversation point, especially if we do think about the recent rules that have gone into effect.

Scott Schneider

Can I go to a weird place? I’ve decided to get back on Twitter and make it almost like a blogging tool for me. I’m getting back to blogging. Did you all follow the $20 burrito conversation at all?

Neal Hutchens

I read about it. I’m not on Twitter, but I did read about the back and forth on the burrito conversation.

Scott Schneider

Yeah, I’m going to go to a weird place with all of this. There’s clearly this — what we have thought of as conservative politics in this country, and Trump at some level epitomizes this — we’re in the midst of a rethinking. That whole twenty-dollar burrito conversation was the free market conservatives versus the common good conservatives, where JD Vance is kind of in that school.

It’s a long way of saying I went down a rabbit hole to try to understand the common good conservative approach. It’s clearly championed by someone like JD Vance, at least intellectually, and then you see it operationalized by the Trump administration through this approach with higher education. And I stumbled upon this professor at Notre Dame — I think his name is Patrick Deneen. Have you all heard of him? Super obscure. I say super obscure — he apparently was Hegseth’s teacher at, I think, Princeton, and is sort of an intellectual advisor for JD Vance.

He has this approach, and you kind of see it with the Chris Rufo crowd, which is that historically the conservative approach to education and the relationship to colleges and universities has been — and this can be oversimplified — basically saying the government shouldn’t be all that involved. I always bring this up, but the Dear Colleague letters that are really consequential come from Democratic administrations. Republican administrations prior to that were not willing to go that far.

This new strand of conservatism — you really see this with Rufo on steroids, but Deneen is, I think, the intellectual heavyweight who’s put this architecture together — is, in essence, that these colleges and institutions are super important in the development of citizens, and we’re going to switch from a policy of neutrality towards colleges and universities to one in which we use colleges and universities to advance certain very specific ideas.

You start to see this play itself out, I think in some measure, in the letter, the compact 2.0, but also in a rethinking of core curriculum. Here in Austin, I know Jim Davis just came out with some recommendations for the first time in 20 years about changing the core curriculum, which I think is a good process. But there’s more of a Western Civ focus, and certainly less of a focus on gender studies and the things that were really big targets for Chris Rufo and all those sorts of folks.

So it’s just kind of interesting. Historically, the politics for higher education had been that when you get a conservative administration in, the regulatory climate dials back a little bit. That clearly isn’t the case now. And you have pinballing changes in compliance obligations depending on which administration is in power — significant changes. It’s really interesting. It’s just a very different Republican Party and conservative movement than you had twenty, thirty years ago.

Eric Kelderman

That’s a great framing for this, but now what do colleges do? Nobody signed on to the compact 1.0. Some folks offered to do it — some smaller, less prestigious schools who weren’t offered the compact in the first place. But nobody signed on to it. Should you, as a gesture of goodwill, or as a means to perhaps lessen the legal risk that the administration is going to come after you for something in the future — should you comply here? If you’re a campus GC, or you’re consulting with someone, what do you tell them?

Scott Schneider

Well, it’s interesting, and I’d love to get Neal’s take on this. I had this thought the other day: typically if you’re rolling out a new policy or a consequential approach on campus, historically the model was that it just took forever, because you had to visit with and build consensus with a whole host of different stakeholders depending on how significant the policy was. You’d have to go through faculty senate — I’ve sat in on my fair share of those meetings as well. Institutionally, colleges and universities were not as reflexive or as quick to adapt because of the structure that existed to sort of slow things down a little bit.

So it’s a long way of saying, one of the things I find interesting — certainly in a place like Texas, and I think it’s consistent with the broad theme I was painting — is that we’re taking a lot of those constituencies out of the mix, faculty senate being the most obvious example. And we’re going to give politicians, or boards who are closely connected with politicians and are ideological, much more authority over the way in which institutions of higher education operate — obviously especially public institutions, especially right now in red states.

People, especially in whatever we’re calling the red states now, number one, have more of an interest in what is being done in institutions of higher education, and some of that is influenced by some of these intellectuals. And now they’re putting in the means to get more — from their perspective, it would be less woke, less DEI, but also policies at institutions that more align with the politics of the state.

Eric Kelderman

Right. And we’ve seen state laws in Texas and in Kentucky in particular where those shared governance structures on campus have been diminished, right? They’re specifically just advisory roles now, and that’s been a big concern for faculty. That’s right, Neal, yes?

Neal Hutchens

I think that’s accurate. One of the thumbnails I use for this — and I think it is a potentially interesting development for higher education nationally — is that for a number of years, both public and private institutions across the country were moving towards a state where they had a lot more similarities than differences. I think what we’re seeing now is a bifurcation, potentially.

In more conservative states, one of the thumbnail phrases I’ll use to describe this is the K-12-ification of higher education. By that I mean, in the way that state legislatures had previously been willing to be involved in curricular issues for K-12 schools — you’d have curriculum boards, et cetera — in a way that they hadn’t really often been involved in higher education. That’s changing.

So we have changes to the general curriculum. You have in places — I guess it’s Utah and Utah State — this college that has been set up to offer the general education classes, and as Scott was saying, this emphasis on Western Civ. If you look at some of the legislative language in these states, it’ll talk about, “We want Plato, we want this, the ideas that have contributed to the development of Western civilization.” That’s a role where traditionally there had been a lot more deference to faculty expertise.

Maybe one of the — I guess we can call it, now that we’ve got the title — responses to woke 1.0 has been a pretty harsh pushback in some states. And I don’t know, once that curriculum genie is out of the box, if states are moving towards more and more regulation and interest in curricular matters. Again, in Texas, Scott, you’ve got your ombud who can now supposedly investigate claims that people may bring. Indiana institutions have adopted similar language. So that involvement is certainly different.

I think that also — and this is a way that’s perhaps different if we think about local control that’s often emphasized with K-12 — it’s just a trend that’s been present in higher education. It’s often done because you need to be efficient, you need to not stifle innovation. It’s really a top-down governance structure that is developing more and more at a lot of institutions.

Eric Kelderman

Let me just plug one other thing before we move on. I think this speaks to Scott’s discussion about the evolution in higher education: there’s a book out by Barrett Taylor at the University of North Texas and Brendan Cantwell at Michigan State called The Postliberal University. Very briefly, their contention is that we’ve had debates about whether higher ed was a public good or a private good, and that has implications for funding. Barrett and Brendan’s assertion in the book is that higher ed is now a partisan good. So who gets higher education and how it’s delivered is now going to depend on who controls the state government. For folks listening in, that might be an interesting read.

Neal Hutchens

I’ll second that. Both of them are excellent scholars, and whether you agree with their conclusions or not, I think it’s provocative and certainly a really worthwhile book about this notion of partisanship. I think that raises real questions for public higher education — and that’s whether you come at this from the left or the right. Do we really want our public institutions to be constantly — and this would be more true for maybe purple states, and we’ve seen some of this play out in Virginia — this constant push and pull back and forth?

In some ways, this whole notion — and Scott, I think this relates to some of what you were saying about this conservative push about putting in place certain thoughts or ideologies in higher education, which maybe is in opposition to other efforts — what do we mean by a public university? Is it just, again, are we going to administer it like it’s the thirteenth and fourteenth grade and above, the way we do with other schools in the state, or is it something different? I think those are questions that are out there in a way that they haven’t probably been in previous years and even the last decades.

Scott Schneider

Yeah, but you can also see the beginning of a more pragmatic pushback. The place in the search, I think in particular, is at the University of Florida. Chris Rufo — and I’m talking about him a lot — but there was clearly this concerted effort to sabotage the presidential candidacy of, what was his name, Santa Ono.

Eric Kelderman

Well, first Santa Ono and then Stuart Bell.

Scott Schneider

Yeah. It was very successful with Ono — what was it, a couple of years ago now. And then with Bell, who, by the way — the idea that Dr. Stuart Bell was an avatar for wokeness is itself utterly absurd, right? Let’s just be honest. I’m pretty reasonable, but part of it was the allegation really wasn’t supported by much in the way of evidence.

What you saw was both at the board level and even DeSantis and the AG stepping in and going, “Whoa, stop. All of this litmus test stuff makes us look dysfunctional, right?” And it’s negatively impacting the University of Florida currently and its trajectory. Much to the chagrin, I think, of certain folks who did have a lot more sway a couple of years ago, they basically stiff-armed them. So you can start to see maybe a little bit of the pushback on that in the Stuart Bell presidency selection.

And I’m just going to come out and say, I know Stuart Bell. I like Stuart Bell a lot. I think he’s fantastic. I think he’ll be a great president at the University of Florida. Kudos to Governor DeSantis and the board for putting him in that position.

Neal Hutchens

Well, Scott, I’ll say as an alum of Alabama Law School, the characterization of Stuart Bell as a woke warrior had me laughing very hard.

Scott Schneider

I love Roll Tide University. The idea that Alabama was this super-woke university — that was the caricature. If you went on X, which again, I get it, has its pros and its cons — that was the caricature that was being presented. I’m going, come on, this is absurd. And I think DeSantis basically said the same thing as well.

So yeah, you can sort of see. Look, where I’d love to get — and I’m Gen X — is a point where there aren’t ideological litmus tests, and what you’re really focused on is how do we support our students? What are our graduation rates? When they graduate, are there measurable differences in their educational attainment? Can they secure employment? All of those sorts of things. I’d love to get to a point where we evaluate what is tuition, what is the student debt burden, all of that sort of stuff. I would love to get to the point where we measure the success of an institution based on those meat-and-potatoes issues. But I don’t know that we’re there at this point.

Eric Kelderman

Let’s stick with Florida a little bit. We had a federal court ruling — I believe the second federal court ruling that’s come out this week — on Florida’s Stop WOKE Act, which at least at the higher education level had been halted previously. This was the law that attempted to limit the kinds of content and discussions you could have in classrooms. This was an attempt to limit the influence of what some politicians saw as progressive ideology on the interpretation of history and issues of race and gender in particular. So Neal, you want to walk us through this ruling a little bit?

Neal Hutchens

Yeah. Just really quickly, as you said, what’s often referred to as the Stop WOKE Act was passed in Florida several years ago. It put certain limitations on ideas or other things that could be covered in courses. There was a trial court preliminary injunction issued. It had been sitting at the circuit court for a pretty long period of time, but recently we had a decision from a panel which was not unanimous — it was two to one. So you had a dissenting opinion that is worth considering as well, because that means you did have one of the judges who didn’t necessarily think that the act was potentially violative of First Amendment rights.

But what we have with this — it’s important for Florida because of what it does in relation to essentially some of the anti-DEI legislation that would affect the classroom. But it also means that we have another circuit court that has decided under this longstanding question of, are there some kind of rights that faculty could have, at least in the classroom, probably with research, that are protected — even if they’re carrying out their teaching responsibilities in the classroom?

Under a 2006 decision, Garcetti v. Ceballos, which was not a higher ed case but dealt with whether if you’re a public employee and you’re engaging in speech in carrying out your official duties, can you have First Amendment protections — in that case, the Supreme Court said, well, if you’re talking in the course of carrying out your professional duties, you’re not going to have these First Amendment rights. But Justice Souter in a dissenting opinion said, “Whoa, whoa, whoa, we’ve used this standard to protect academic freedom in higher education.” And the majority opinion says, “Well, David, you raise a good question, but we’re not going to decide that today,” like they often do. Since then, it’s been circulating in law review journals and in court cases. But what we have had is not all, but several federal circuit courts that have rendered decisions or at least indicated in opinions that Garcetti doesn’t necessarily apply to faculty speech that relates to teaching and research.

So that’s one of the interesting twists about that decision. And if you think about some of the litigation that is trying to challenge laws in Texas, there’s this real question of, is this ever going to come before the Supreme Court? I was recently talking to a group of attorneys, and this was a question being litigated in multiple states, and one of the questions was, why is the Supreme Court not ever taking up this issue?

That decision is important for Florida, but it also now means we have multiple circuits that say that despite this 2006 decision, Garcetti, when a faculty member is talking in the classroom, or about their research — at least when they’re really talking in their area of expertise or doing teaching — they potentially have First Amendment rights that can be available. That’s an important limitation potentially on regulating faculty in the classroom or in some other spaces.

Eric Kelderman

Garcetti has hung like this big shadow over higher education for what, twenty years now, right? And I guess it’s sort of like “be careful what you wish for” when you say, “Well, people are asking why doesn’t the Supreme Court rule on this?” Is there a sense that maybe nobody wants the current court to rule on this?

Neal Hutchens

One of the things that I think is interesting about these decisions is that you get a weird alignment that I love. For instance, one of the cases that came out of the Sixth Circuit was about a professor — the Meriwether case — a professor who didn’t want to use the identified pronouns of a student. So even people who might support academic freedom, faculty speech under the First Amendment, didn’t love the outcome or what was going on in that case. And apparently we have a member of the canine crowd who can weigh in.

Some of these cases are interesting because they’ve involved conservative-leaning professors. So I think it’s this weird alignment of the legal stars, in that people, depending on where they’re coming from politically or ideologically, don’t quite know what they’re wanting. I would say that these cases — the protection of these First Amendment rights — I think if you’re wanting to promote intellectual diversity in higher education, that’s been a pretty good source of protecting that.

There’s a case, for instance, that came out of the University of Louisville, and involved a professor of medicine, I think in psychiatry, who gave a lecture at an event involving a conservative think tank, essentially against a lot of the conventional wisdom about treating children, individuals with gender dysphoria, and suffered some retaliation. The court said, no, this person’s well within their expertise. The group paid for the travel and other things. So we’ve got some cases like that that are protections of conservative viewpoints, or at least certainly ones that wouldn’t come under woke 1.0.

So I don’t know. I think that’s a great question, why that hasn’t moved forward. But maybe one of the cases out of Florida or Texas or somewhere at some point may get taken up. I don’t know. Eric or Scott, what do you think of why the court hasn’t — do people just not want it? Nobody wants to put in their chips?

Scott Schneider

Well, I’ve certainly read the decision, the two-one decision. Do you know, Neal, if there was a request for en banc consideration?

Neal Hutchens

I can’t remember.

Scott Schneider

Yeah. And look, this may be a vehicle. I was reading yesterday there are some cases, I think filed by AAUP here in the Fifth — I don’t know if it’s in the Fifth Circuit yet or if they’re still at the district court level — that are coming up. I think once the Eleventh and the Fifth Circuits start weighing in on this — the fact that you got a two-one decision in the Eleventh, who knows, depending on the composition of the panel in the Fifth Circuit, ultimately you might get a decision. That to me starts laying the groundwork for ultimately the Supreme Court deciding, “Hey, this is a consequential constitutional issue,” obviously. To the extent there’s a circuit split on these issues, that raises the ante.

In terms of why the court hasn’t weighed in — one of the things I was surprised about is how long the Eleventh Circuit kind of sat with this case. This particular legislative vehicle is still relatively new, and it’s taking its time to wind its way up through the district court and the appellate court. So I wouldn’t be surprised if at some point pretty soon we get the Supreme Court to weigh in.

What’s interesting to me is when you start trying to predict how the court would resolve something like this. When I think of the Supreme Court certainly a decade ago, it was Justice Kennedy ultimately who was certainly deferential to institutions of higher education in general, was sensitive to — and by the way, that’s kind of, in a simplistic way, the foundational part of his affirmative action jurisprudence, that we’re not getting into the weeds here. Some of that was couched in terms of academic freedom as well. This court — there is a way to caricature this court, but I think on an issue like this it’s going to be remarkably unpredictable. I’m not sure how they would come out on a case like this.

Eric Kelderman

Let’s go to a number of things that are at least tangentially related here that have popped up this week. First, Harvard won another lawsuit against the government. You may remember about a year ago the federal district court in Boston gave summary judgment to Harvard University, saying that the federal government’s effort to freeze or cancel all its grant funding because of Title VI violations was unconstitutional, and that antisemitism had been used as sort of a sham, a cover for a much broader action than the government was authorized to take.

So in this case the government was actually suing Harvard — it was reversed from that case — and the district court again ruled against the administration, basically saying, “You didn’t follow the Title VI regs to begin with. And also all these incidents took place like two years ago, so why are you bothering to sue now?” So there’s that.

And then at the same time, the federal government has opened two new investigations over complaints of anti-Jewish bias at San Jose State University and San Francisco State. This is all still remaining fallout from the campus protests against the war in Gaza. So I guess the government keeps hammering on this issue and it seems to have made very little progress, at least in the courts, on these Title VI violations. Scott, you look like you want to jump in here and correct me.

Scott Schneider

Yeah. So the Harvard decision came out yesterday. It’s really short — I think it’s a three-pager. God bless America. We need judges doing more of that.

And then immediately last night, I see — and again it kind of fits into some of the themes we’ve been talking about — this conservative critique of the decision, which is just hard to square with the conservative critique of a lot of the overreach, or the alleged overreach, during the Obama administration.

In essence, Title VI and Title IX are designed, first off, to prohibit discrimination based on sex, race. But in terms of the pressure point to secure compliance with that, the idea is that what we want before the federal government can claw back federal funds is to make sure we have something from a school saying, “We refuse to comply.” But if you get voluntary compliance, which Harvard — and this was a debate in the briefing, which the court gave short shrift to — “Hey, we may have violated the law in the past. Let’s just assume that for the sake of argument. We agree to comply now.”

The structure of both of those pieces of legislation is that they’re designed to secure compliance, not to create a vehicle for clawing back federal funds. There are other ways — and this is where the critique kind of lost the plot last night — there are other ways to punish Harvard for violations in the past. And by the way, that’s happening. It’s called the implied right of action, it’s called False Claims Act theories, it might be breach of contract, those sorts of things.

But in terms of clawing back federal funds, Title VI, and then Title IX following Title VI, were designed to try to secure voluntary compliance before we go through the process of clawing back federal funds. So last night when this decision came out, there was this concern about, “Oh my God, this judge has effectively neutered Title VI and Title IX.” It came from folks who had historically been very skeptical of novel interpretations of civil rights laws under previous administrations. I just thought it was really odd.

But yeah, it’s a really interesting decision. Like I said, it’s a three-pager. Anybody can read it. There’s an interesting footnote three that is probably worth a read. But again, there’s just this misunderstanding about what is the role of government in this process when it comes to Title VI and Title IX. The role is clearly, before we start pulling millions or hundreds of millions of dollars of funds, we need something from the school saying we’re not going to comply. That’s not what the government was able to produce here, and as a result they lost.

But that doesn’t mean — and I just want to be clear — that doesn’t mean Harvard gets a pass on alleged violations of Title VI or whatever the case may be. There are private suits from professors and otherwise that are going to continue to move forward.

Eric Kelderman

Thoughts, Neal?

Neal Hutchens

Yeah, just a couple of things. I thought that was a really nice overview and explanation. In a way, one of the things that the Trump administration has done is kind of make a hobby of losing in court when it comes to a lot of litigation involving colleges and universities. But I also think that means that some of this has purposes other than trying to necessarily even prevail in litigation — or at least I wonder about that.

For instance, I think there are probably constituencies that you’re sending messages to by following these actions. And also, there’s a really serious ongoing debate about levels of antisemitism on college and university campuses. Even if something’s not rising to a Title VI violation, there are questions about having students who are Jewish feeling welcome, and any students. So there are those questions.

This is speculation, which is always dangerous, but I sometimes wonder with some of these actions — to what extent is it almost, I don’t want to say performative, but maybe I do, that it’s a signaling to different groups about the actions. In this case — and I’m not a litigator, someone in court every day — but I just found it pretty paltry. It was a short opinion, but it was pretty convincing to me. It’s like, you’re not showing that there is ongoing discrimination that the institution is not addressing. And the government didn’t really seem to say, “Yeah, we can do that.” It’s like, “No, we’re going to keep pointing you back to things that have happened in the past.”

So it leads me to wonder — well, if you’re not going to have this really strong attack on this and try to produce something on the basis of documentation of evidence. On the flip side — and this is something that we’ve talked about on the civil rights front, and this may also come up in thinking about the recent investigation of Duke — the Education Department has said that we’re not, in regulatory action, going to use disparate impact. But it seems to me like the government’s also saying there’s just a general antisemitism on Harvard’s campus. That’s almost the undertone — so we’re going to be able to take action. So I think for me it was just a little bit of a head-scratcher, but also a question of, are there some other motives in undertaking some of these actions to signal to various groups that the administration’s serious?

Scott Schneider

Can I just add one quick thing, Eric? What Neal said, and I’m going to pivot a little bit, about some of this feeling like it’s performative — that was my read of the DOJ findings letter on Duke Law School. I mean, Duke Law School produces some really terrible lawyers, like Skye. I’m kidding. That was a jab. I hope Gabe Feldman listens to this. That was just a jab at Gabe Feldman.

But there was a big, really over-the-top press release on this. So I was like, all right, I’m going to take a look at it and see what it says. I was expecting to see a remarkably well-developed, lengthy record to support the proposition that Duke was violating Title VI in admissions for like a three-year period. And what you find is — there’s some statistical evidence, to Neal’s point, and I’ll go back there in a second. But they fault Duke for basically employing a tactic that, as far as I understood, came directly from the SFFA opinion and Chief Justice Roberts’ discussion about the ways in which you can look for, what was it, the essays and things like that — how race affected their lives. It literally almost quotes it verbatim.

Eric Kelderman

Personal experiences, students could write about that. Right.

Scott Schneider

And then they go and they bold this part of it, if I recall correctly. Duke said they were looking for candidates that could support a diversity of perspectives and experience. And they bold that, and I go — I feel like I’m losing my mind. But it was this big press release, and it may have included some exclamation points. And then you kind of dig through it and it’s pretty thin.

Some of the more interesting evidence they cite to, to Neal’s point, is this statistical evidence about LSAT scores — the median LSAT score of a denied Asian applicant or a white applicant and all of that sort of stuff. But at the same time, Duke Law was employing a holistic admissions process. You could have an LSAT score; it didn’t mean you automatically got admitted to Duke Law School. So trying to unpack why a decision would — and perhaps race played a role, I’m not saying it didn’t — but it’s a leap to just say, “Look at the LSAT scores, look at the difference, and therefore there is discrimination.” That’s not how any of this works.

So there is this part of me — it’ll be interesting to see. There’ll probably be some battle over it, to Neal’s point. Will the government ultimately be successful? If this is all they have, I’m deeply skeptical.

Eric Kelderman

This follows in the wake of numerous medical schools that have also now been put under the microscope for their admissions processes. This is becoming, I guess, the latest tactic by the Trump administration to eliminate, I think, anything but the use of raw admissions scores, test scores, to determine who gets in.

Scott Schneider

I do want to say something, because I try to be really balanced on this. Lest there be any mistake, there were clearly schools — I’m not going to say why I know this — who in advancing, post-2020, diversity initiatives, were doing things that were likely unlawful, right? To the extent — I mean, there have been some cases that have come out and gotten fully adjudicated. There were clearly in some instances inappropriate preferences given, at least as my reading of the case law to date. There aren’t a lot of cases supporting that.

So it’s a long way of saying, the Department of Justice at Duke had been basically scrutinizing their records for over a year. I was expecting some real bombshell allegation. And I think they quoted one law professor who says, “Hey, I think this is great. This is going to help divert—” It was like, this is really thin stuff. So anyway.

Neal Hutchens

And I think that’s also true if you read the letter to Yale about discrimination in some of its programs. For the headline of, “It’s almost like we’ve got the smoking gun” — it’s underwhelming for supposedly how intensive the investigation had been.

Eric, I do think you’re on to something with this limiting — in some ways I look at this as the effort to take SFFA beyond. It kept this notion of things that are a proxy for race. And again, this gets back to some of this blending of liberal, conservative, whatever you want to think about it. I think that first-generation student status has often been embraced in a bipartisan way. It’s interesting to me, for instance, in reading about Duke, saying, “Well, first generation is a proxy for race.” That was interesting to me to see, because I think first-generation status is still something that generally has a bipartisan joy and excitement when you have a first-generation college student, or someone who goes to a graduate and professional degree, the first one in their family.

So this notion that we’re going to identify first-gen status or economic status as proxies for race — that to me was interesting, and I’m curious to see how much further that’s going to get pushed in terms of what is a proxy for race. It made me think of percentage plans or other different ways, or using geographic recruitment. And again, that also made me think, if we’re not going to use disparate impact and a lot of other claims, but we’re going to start using these other things as proxies — well, it’s going to be interesting to see how you establish the intentional discrimination that might be going on.

Scott Schneider

Yeah, it’s the Arlington Heights case. There’s been a lot of interesting litigation, I think in the Second Circuit, around some of those selective high schools and admissions and proxy for race. I was in a conversation at a conference and I told folks I was from Austin, and they go, “Yeah, the 10% rule. We think that violates Title VI as well.” Because the whole purpose of the ten percent — the top ten percent, which I think is now top two percent, because none of these elite institutions ever expand their undergraduate enrollment to keep their admissions rates really low — that would be a challenge.

By the way, there were people in the Fisher v. University of Texas case who said race shouldn’t be used explicitly, but you should be able to achieve diversity because there’s a variety of non-race-based ways to achieve it. And now you’re not only saying you can’t use race — which, okay — but the Arlington Heights critique is, in essence, that you can’t use non-race-based reasons if the goal is ultimately to promote racial or other sorts of diversity. There have been experts who testified in that case who have come out and said, “Man, if I knew this is where this was going, I would have never testified to that.”

So it’s really interesting. There are lots of really interesting cases that have come out, I think out of the Second Circuit, about that particular theory. And it’s one, by the way, that I think it was Craig Trainor — as soon as Trump came in, that initial Dear Colleague letter about DEI and SFFA specifically cited the Arlington Heights line of thinking.

Eric Kelderman

Interesting. And that letter has now been halted, I think, by court action, hasn’t it?

Scott Schneider 

I have a hard time keeping track.

Eric Kelderman

Right. So many legal actions. Scott, you wanted to discuss a hazing case. This is sort of a specialty of yours.

Scott Schneider 

Yeah. There was a case that came out — I think this was the Washington Supreme Court, I think it was a week or two ago. I know it’s gotten a lot of attention. It was a hazing death at a fraternity that I think was at Washington State. And if I’m wrong, I apologize to Washington State University.

But the long and short of it was, the fraternity had been on campus, recognized by the university through its student organization policy. There was a death associated with a lot of alcohol consumption. And the precise issue was: is there a special relationship between the university and, in this case, the fraternity members, such that it gives rise to and can support a possible negligence claim?

The rough version is the court said, by virtue of the fact that the university recognizes Greek life organizations — that was part of the argument — that in part creates a special relationship such that it could support, in theory, a negligence claim against the university. It’s really preliminary, early on, but an interesting case.

My kind of pushback was that might create some really perverse incentives.

Eric Kelderman 

And it was Washington—

Scott Schneider

There’s a part of me, by the way, who goes, I don’t know why we’re in this business anymore — the Greek life business. Not to be glib about it, but because it’s reality: it’s this one student organization where kids routinely get hurt, or you hear about deaths. I mean, the tragedy — I think I’ve talked about this before with Dr. Kimbrough — I knew the kid at Southern University who was killed in hazing. I think that was band related. No, it was Greek life related.

But long story short, should universities be in this business at all? And at least one of the perverse incentives, perhaps, or unintended consequences from that decision, is some schools saying, “Hey, we’re not going to recognize Greek life.” And that raises some other associational interests if you’re a public university, and perhaps some alumni relations issues as well. But just an interesting case.

Eric Kelderman

And just to clarify, it was Washington State University. It was a five-four decision by the state supreme court.

Neal Hutchens

Scott, when you mentioned that case, it makes me — I’m going to leave out some of the details, but I’ve been curious about another state supreme court decision. It’s not fraternity or Greek related, but several years ago the California Supreme Court, in the case of the student who was injured in a lab by a student who had mental health issues — the California Supreme Court, much I think to the chagrin of universities, said, well, potentially this could be liability for the institution. In that opinion — and I think it may have been Goodwin Liu who wrote the opinion, I can’t remember — but essentially talking about, for the modern college student, the role of the university in taking care of them, and recognizing that a lot of these young people are vulnerable, it’s their first time from home.

So I’m curious if this may be — again, it’s in a different context — but I’ve been very curious to see about any state supreme courts that would follow this California example and be like, “Well, we’re going to put more of a cocoon responsibility on institutions than maybe we would have in the past.” So I think that’s an intriguing decision.

Scott Schneider

Yeah. Amy Gajda, who is a scholar in this space, and Peter Lake talk about these kinds of things as well. What exactly is the relationship between a university and a student? You talk about in loco parentis and all of that sort of stuff. And yeah, depending on the state, the relationship can be thought of, conceived of, very differently.

Eric Kelderman

Great job, guys. I think we covered the waterfront today. What are y’all looking forward to in the next week or so that’s coming up as we step out here? Neal, what do you got going on?

Neal Hutchens

Well, at my institution, we will start the semester soon, and the best privilege that I have is I get to work with really great students. I have great colleagues, but working with students — I’ve been in contact with a lot of them over the summer, but I get to teach and interact with them, and I really get a lot of energy and enjoy that. So I’m looking forward — my students may not be looking forward to the classes, but I am.

Scott Schneider

Yeah, I’m actually not teaching this semester — it’s just a very busy time. But I feel the same way as Neal. Man, I love being in a classroom. It’s a real joy, at least for me. To Neal’s point, I’m not sure it’s a joy for the people that have to listen to me prattle on. So I’m not doing that, but work-wise, just so many interesting, complicated projects going on.

In terms of fun stuff — tonight is Friday night. We’re going to go see the bats, which I haven’t done in like four years. We have bats that live under a bridge in Austin. They come out around eight thirty at night this time of year, so we’re going to go watch that. It’s like millions and millions of bats. And then I’m going to go see a little silly band here in Austin at a bar called Barfield the Tyrant. I was going to go see Lionel Richie, but elected against that.

Eric Kelderman

Excellent. I’m going to head down this weekend and meet my kids and their spouses in Fredericksburg, Virginia for brunch. My son and his wife just moved to Richmond. My daughter-in-law has a teaching gig this year at the University of Richmond in the history department there. So go Spiders.

Scott Schneider

Go Spiders, yes.

Neal Hutchens 

The Spiders.

Eric Kelderman

It’s her first job after getting her PhD, so she’s really excited and I’m really happy for her to have that. And Richmond’s kind of a funky, cool place, so I’m hoping to get down there and visit them as well.

Scott Schneider

Hey Neal, good seeing you, buddy.

Eric Kelderman 

Yeah, thanks everybody.

Neal Hutchens

Yeah, great seeing both of you. Thanks so much for the invitation.

Scott Schneider

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, in the show notes and on voltedu.com. Be sure to follow Campus Docket wherever you get your podcasts. 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.