Dear College and University Presidents:

We write in response to the recent protests that have spread across our nation’s university and college campuses, and the disturbing arrests that have followed. We understand that as leaders of your campus communities, it can be extraordinarily difficult to navigate the pressures you face from politicians, donors, and faculty and students alike. You also have legal obligations to combat discrimination and a responsibility to maintain order. But as you fashion responses to the activism of your students (and faculty and staff), it is essential that you not sacrifice principles of academic freedom and free speech that are core to the educational mission of your respected institution.

The ACLU helped establish the right to protest as a central pillar of the First Amendment. We have defended those principles for more than a century. The First Amendment compels public universities and colleges to respect free speech rights. And while the Constitution does not apply directly to private institutions, academic freedom and free inquiry require that similar principles guide private universities. We approach this moment with appreciation for the challenges you confront. In the spirit of offering constructive solutions for a way forward, we offer five basic guardrails to ensure freedom of speech and academic freedom while protecting against discriminatory harassment and disruptive conduct.

First, university administrators must not single out particular viewpoints — however offensive they may be to some members of the community — for censorship, discipline, or disproportionate punishment. Viewpoint neutrality is essential. Harassment directed at individuals because of their race, ethnicity, or religion is not, of course, permissible. But general calls for a Palestinian state “from the river to the sea,” or defenses of Israel’s assault on Gaza, even if many listeners find these messages deeply offensive, cannot be prohibited or punished by a university that respects free speech principles.

These protections extend to both students and faculty, and to speech that supports either side of the conflict. Outside the classroom, including on social media, students and professors must be free to express even the most controversial political opinions without fear of discipline or censure. Inside the classroom, speech can be and always has been subject to more restrictive rules to ensure civil dialogue and a robust learning environment. But such rules have no place in a public forum like a campus green. Preserving physical safety on campuses is paramount; but “safety” from ideas or views that one finds offensive is anathema to the very enterprise of the university.

Second, both public and private universities are bound by civil rights laws that guarantee all students equal access to education, including Title VI of the Civil Rights Act. This means that schools can, and indeed must, protect students from discriminatory harassment on the basis of race or national origin, which has been interpreted to include discrimination on the basis of “shared ancestry or ethnic characteristics,” or “citizenship or residency in a country with a dominant religion or distinct religious identity.”

So, while offensive and even racist speech is constitutionally protected, shouting an epithet at a particular student or pinning an offensive sign to their dorm room door can constitute impermissible harassment, not free speech. Antisemitic or anti-Palestinian speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Physically intimidating students by blocking their movements or pursuing them aggressively is unprotected conduct, not protected speech. It should go without saying that violence is never an acceptable protest tactic.

Speech that is not targeted at an individual or individuals because of their ethnicity or national origin but merely expresses impassioned views about Israel or Palestine is not discrimination and should be protected. The only exception for such untargeted speech is where it is so severe or pervasive that it denies students equal access to an education — an extremely demanding standard that has almost never been met by pure speech. One can criticize Israel’s actions, even in vituperative terms, without being antisemitic. And by the same token, one can support Israel’s actions in Gaza and condemn Hamas without being anti-Muslim. Administrators must resist the tendency to equate criticism with discrimination. Speech condoning violence can be condemned, to be sure. But it cannot be the basis for punishment, without more.

Third, universities can announce and enforce reasonable time, place, or manner restrictions on protest activity to ensure that essential college functions can continue. Such restrictions must be content neutral, meaning that they do not depend on the substance of what is being communicated, but rather where, when, or how it is being communicated. Protests can be limited to certain areas of campus and certain times of the day, for example. These policies must, however, leave ample room for students to speak to and to be heard by other members of the community. And the rules must not only be content neutral on their face; they must also be applied in a content-neutral manner. If a university has routinely tolerated violations of its rules, and suddenly enforces them harshly in a specific context, singling out particular views for punishment, the fact that the policy is formally neutral on its face does not make viewpoint-based enforcement permissible.

Fourth, when enforcement of content-neutral rules may be warranted, college administrators should involve police only as a last resort, after all other efforts have been exhausted. Inviting armed police into a campus protest environment, even a volatile one, can create unacceptable risks for all students and staff. University officials must also be cognizant of the history of law enforcement using inappropriate and excessive force on communities of color, including Black, Brown, and immigrant students. Moreover, arresting peaceful protestors is also likely to escalate, not calm, the tensions on campus — as events of the past week have made abundantly clear.

Finally, campus leaders must resist the pressures placed on them by politicians seeking to exploit campus tensions to advance their own notoriety or partisan agendas. Recent congressional hearings have featured disgraceful attacks by members of Congress on academic freedom and freedom of speech. Universities must stand up to such intimidation, and defend the principles of academic freedom so essential to their integrity and mission.

The Supreme Court has forcefully rejected the premise that, “because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”

“Quite to the contrary,” the court stated, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” In keeping with these values, we urge you to resist the temptation to silence students or faculty members because powerful voices deem their views offensive. Instead, we urge you to defend the university’s core mission of encouraging debate, fostering dissent, and preparing the future leaders of our pluralistic society to tolerate even profound differences of opinion.

In 2023, Kansas enacted a law attempting to define “transgender” out of existence by restricting the definition of a “woman” to the biological function of producing ova. Not only does this definition negate the experiences of trans women and girls, but it also excludes entire categories of women who are not transgender, such as post-menopausal women, women experiencing reproductive challenges, and intersex women.

Despite being passed under the dubious title “Women’s Bill of Rights,” this law has not been used to create any new protections for women, nor improve support for women’s initiatives or resources. Instead, the law has been used to incite fear among transgender Kansans and limit their ability to live freely in our state.

Kansas v. Harper

Five transgender Kansans are challenging an effort by Kansas Attorney General Kobach to require the state to issue driver’s licenses with a...

Source: American Civil Liberties Union

Kansas Attorney General Kris Kobach has claimed the new law restricts trans Kansans from updating the gender marker on their state IDs. For years, Kansas had allowed transgender residents and those born here to change the gender marker on their driver’s licenses and birth certificates. Despite having these affirming policies without any identified administrative, public safety, or other concerns, the attorney general took to the courts to pressure state agencies into removing these policies.

In response, the Kansas Department of Health and Environment announced a policy change banning trans Kansans from updating the gender marker on their birth certificates. The Kansas Department of Revenue, which issues driver’s licenses, declined to change its policy — prompting Kobach to sue KDOR to force a policy change in Kansas v. Harper.

The ACLU of Kansas, along with ACLU’s LGBTQ & HIV Project and local partners, intervened in that lawsuit on behalf of five transgender Kansans to assert their right to a driver’s license that does not forcibly out them. Unfortunately, three days after the suit was filed and prior to our intervention, the judge issued a temporary order blocking trans Kansans from changing their license’s gender marker. The order, which remains in force, also requires a previously changed gender marker to revert back to the inaccurate marker when the license expires or is amended in the future.

This means trans people are not currently able to access accurate and affirming state identity documents in Kansas. Having an ID that reflects a trans person’s lived identity is crucial to their safety, privacy, and bodily autonomy. The research shows that lack of access to an affirming ID harms trans people, making them vulnerable to forced outing and increasing their chances of experiencing discrimination, harassment, and violence.

The ACLU of Kansas is going to keep fighting in Kansas v. Harper as long as necessary. But we also understand that trans people cannot wait months (or years) for a ruling from the courts affirming their basic constitutional rights. They must use their IDs in daily life for countless reasons, from picking up mail to purchasing items at the store. That’s why we began to partner with local LGBTQ advocates to uplift an alternative option for trans Kansans — gender-affirming federal IDs, like passport cards and passport booklets.

Trans people can self-attest their gender when applying for a federal ID, meaning they do not need a state ID that verifies their selected gender. For trans Kansans, this means they can still obtain a federal ID that reflects the gender they live as. The ACLU of Kansas and our community partners are thrilled that despite legislative and political attacks on trans Kansans, we are still able to support our community and reduce the harm flowing from anti-trans policies in our state.

The ACLU of Kansas has hosted numerous Know Your Rights events and Federal ID Clinics to provide resources and reassurance to trans Kansans. People who come to these events have been relieved and overwhelmed by the community support they experience. In the face of discriminatory laws trying to erase their existence, trans Kansans are coming together to share information and support each other. The power of community persists.

In the wake of nationwide anti-trans legislation and rhetoric over the past few years, events where trans Kansans can come together are even more important. In a rural state like Kansas where people can feel isolated, these events are not only an opportunity for people to access the assistance they need, but they also allow folks to connect and share in their pain and in their joy. One mother I met at a virtual event was ecstatic to know she could get her child a gender-affirming federal ID before they started college. She feared that her child would not be able to enroll for college with the correct name and gender marker because of the new anti-trans law.

Despite efforts by anti-trans extremists to try to deny our humanity, to isolate us, trans Kansans are not going anywhere. Thousands of trans people call Kansas home, and we will remain. We will continue to define our own lives, support each other, and build power. These laws may have produced a wide unknown but the power of our community is deeply rooted.

AI is nearly impossible for us to escape these days. Social media companies, schools, workplaces, and even dating apps are all trying to harness AI to remake their services and platforms, and AI can impact our lives in ways large and small. While many of these efforts are just getting underway — and often raise significant civil rights issues — you might be surprised to learn that America’s most prolific spy agency has for years been one of AI’s biggest adopters.

The National Security Agency (NSA) is the self-described leader among U.S. intelligence agencies racing to develop and deploy AI. It’s also the agency that sweeps up vast quantities of our phone calls, text messages, and internet communications as it conducts mass surveillance around the world. In recent years, AI has transformed many of the NSA’s daily operations: the agency uses AI tools to help gather information on foreign governments, augment human language processing, comb through networks for cybersecurity threats, and even monitor its own analysts as they do their jobs.

Unfortunately, that’s about all we know. As the NSA integrates AI into some of its most profound decisions, it’s left us in the dark about how it uses AI and what safeguards, if any, are in place to protect everyday Americans and others around the globe whose privacy hangs in the balance.

That’s why we’re suing to find out what the NSA is hiding. Today, the ACLU filed a lawsuit under the Freedom of Information Act to compel the release of recently completed studies, roadmaps, and reports that explain how the NSA is using AI and what impact it is having on people’s civil rights and civil liberties. Indeed, although much of the NSA’s surveillance is aimed at people overseas, those activities increasingly the sensitive communications and data of people in the United States as well.

Behind closed doors, the NSA has been studying the effects of AI on its operations for several years. A year-and-a-half ago, the Inspectors General at the Department of Defense and the NSA issued a joint report examining how the NSA has integrated AI into its operations. NSA officials have also publicly lauded the completion of studies, roadmaps, and congressionally-mandated plans on the agency’s use of novel technologies like generative AI in its surveillance activities. But despite transparency pledges, none of those documents have been released to the public, not even in redacted form.

The government’s secrecy flies in the face of its own public commitments to transparency when it comes to AI. The Office of the Director of National Intelligence, which oversees the NSA and more than a dozen other intelligence agencies, has touted transparency as a core principle in its Artificial Intelligence Ethics Framework for the Intelligence Community. And administrations from both parties have reiterated that AI must be used in a manner that builds public confidence while also advancing principles of equity and justice. By failing to disclose the kinds of critical information sought in our lawsuit, the government is failing its own ethical standards: it is rapidly deploying powerful AI systems without public accountability or oversight.

The government’s lack of transparency is especially concerning given the dangers that AI systems pose for people’s civil rights and civil liberties. As we’ve already seen in areas like law enforcement and employment, using algorithmic systems to gather and analyze intelligence can compound privacy intrusions and perpetuate discrimination. AI systems may amplify biases already embedded in training data or rely on flawed algorithms, and they may have higher error rates when applied to people of color and marginalized communities. For example, built-in bias or flawed intelligence algorithms may lead to additional surveillance and investigation of individuals, exposing their lives to wide-ranging government scrutiny. In the most extreme cases, bad tips could be passed along to agencies like Department of Homeland Security or the FBI, leading to immigration consequences or even wrongful arrests.

AI tools have the potential to expand the NSA’s surveillance dragnet more than ever before, expose private facts about our lives through vast data-mining activities, and automate decisions that once relied on human expertise and judgment. These are dangerous, powerful tools, as the NSA’s own ethical principles recognize. The public deserves to know how the government is using them.

The Government is Racing to Deploy AI, But at What Cost to Our Freedom?

Our FOIA request seeks to uncover information about what types of AI tools intelligence agencies are deploying, what rules constrain their use, and...

Source: American Civil Liberties Union