We're back with another edition of The Federalist Radio Hour. I'm Emily Dashinsky,
culture editor here at the Federalist. As always, you can email the show
at radio at the Federalist dot com, follow us on exit fdr LST.
Make sure to subscribe wherever you download your podcasts, and of course to the
premium version of our website as well. We're joined today by Kimberly Herman.
Kimberly is the executive director for the Southeastern Legal Foundation, where they are doing
so much important work. I should say I'm personally grateful to Kimberly for her
help here at The Federalist a couple of years back. Kimberly, welcome to
the show. Thanks for having me. Can you talk to us a little
bit about how you you know, ended up at Southeastern Legal you've been the
while, and also just maybe if people aren't familiar the background on what Southeastern
Legal is doing, the kind of cases you guys are working on, because
oh my gosh, there's so much and so much of it is so important.
Yeah. Absolutely, so a little bit about Southeastern Legal Foundation. We
were actually founded back in nineteen seventy six as an answer to the ACLU,
so Attorney General Ed Meese before he was Attorney General, and a group of
other kind of conservative public policy figures and conservative lawyers knew that we needed an
answer to the ACLU, which was a growing threat to our freedom and to
our liberties throughout the country. And so they started groups which at the time
were regional Pacific Legal Foundation, then Southeastern Legal Foundation. We're now a national
group. And what we do is we see the government. It's as simple
as that. When the government violates your constitutional rights, whether it's free speed,
each property rights. We do a lot of work trying to save the
America schools these days, federal overreach, transparency, you name it. We
step in to represent the American people for free and to the government and try
to fight for our constitutional rights. And to answer your first question, how
did I end up here? Tell us about yourself, Cook, I'm like,
wait a minute, there was another question there. I So, I
am originally an accountant, but I had just a love and a passion for
American history and for the Constitution, which you typically don't get when you're working
at a big four public accounting firm in the audit practice. And so I
decided to go back to law. School with the original intention of going up
to DC, hopefully working at a group like Heritage Foundation, and I ended
up finding Southeastern Legal Foundation and fell in love with the litigation side of things,
and so instead of going the policy route, I ended up here.
I have been working with Southeastern Legal Foundation since two thousand and eight in various
capacities, and I honestly find it to be an absolute privilege. I'm a
mom, I have two kids, and I wouldn't be doing this and taking
the time to be in this world if I didn't feel like we were making
an impact every day. Well, and you guys are working on some stuff
that is like very very consequential right now, some major cases, and Kimberly,
I wanted to ask you could just talk to us about in particular,
some of the free speech cases speech cases in general that you're working on.
What are some of the big ones that you guys are focused on right now.
So, just a week ago we filed a big lawsuit. I'm in
the college free speech area, so we have a big part of our work
is under an umbrella called the one A Project, so First Amendment Project,
where we train college students on their First Amendment rights. And how to have
really successful public disc about the issues that they find important. But a lot
of times, as we all know, if you have conservative or libertarian values,
you're shut down on college campuses, especially in what we're dealing with today.
And so we had a situation where the Turning Point USA chapter at the
University of New Mexico wanted to bring Riley Gaines in to talk about her experience
in call it in collegiate sports and her views that biological men should not be
competing against women and really just taking over women's sports. So when they wanted
to bring her in as a speaker, the school said, sure, you
can bring her in, but you have this huge fine not not find security
fee that they were going to have to pay. So it was going to
be over ten thousand dollars to bring her on campus, which these students just
quite simply couldn't pay. Leadership Institute stepped in and ultimately paid the security fee
for them. But what's interesting here is that there's events that are way bigger
than the Riley gains event that they were going to hold. Riley brought several
hundred people came out to hear her speak, but just earlier in the year
the school hosted a drag queen bingo with many many students there and required absolutely
no security fee for an event like that, and so it's a clear case
of viewpoint discrimination. We filed a lawsuit there, and that fact pattern isn't
unique. We see that across the country unfortunately, in every state, at
almost every public institution. And so something interesting about that, and it's not
new, obviously, but it is something people don't even necessarily think about.
The speaking fees or i'm sorry, the security fees. There are all kinds
of little ways universities, public universities, universities in general will use to make
it really hard to raise the bar really hard for conservative speech versus liberal speech.
So Kimberly, in your experience, can you talk to us in this
case about those ways that people might not even think about, but that universities
just kind of keep raising the bar a little bit higher, a little bit
higher, and you know, saying, well, this is very important.
We have to have heightened security here. We have to do X, Y
and Z. We have to put it in this room because the other rooms
of fire hazard. Could you talk to us just a little bit about that?
Yeah, And then I think you've probably faced that on college campuses too,
because I know, you know, when you go out and talk to
all of these students, there's lots of different ways. They get very creative.
During COVID, we saw schools using COVID policies to do that, and
so they would say you couldn't go out and be on the quad at a
table and just literally be out there at a table talking to other students,
and if you were, then they were writing you up under COVID violations for
how close you were standing to people, where if you coughed, literally we
had cases where students would call us and they were out there talking about their
student organization, whether it was you know, yaff or yell or turning point.
You can list them all out, and if they were coughing or appeared
to be sick in any way, they were getting reported for potentially having COVID
and their speech was getting silenced like that was the intent behind it. Another
way is yeah, no serious, seriously, I mean we I think we
sent over twenty to twenty five demand letters in the course of a two month
period in the summer of twenty twenty when students were or twenty twenty one when
students were starting to like really deal with this and go back onto college campuses
and facing all of that. Another big way is that they simply can't get
faculty advisors, and so the schools make it a requirement that any student organization
on colleges has a faculty advisor. And then they fear, like they put
the fear in all of these faculty members that if you actually go and advise,
say college Republicans, then you will be canceled on your campus and you
may not get tenure. And so they use little things like that to make
sure that these student organizations can't even come into existence. When we were talking
about University of New Mexico, turning point is the only conservative or student organization
left on that college campus. There were others, and they've either had to
disband because they've been canceled, or they've been attacked, or they can no
longer get a faculty advisor. Yeah, the faculty advisor one is really interesting.
Having worked in this space for a while, Kimberly, I'm curious for
your take on the big question of whether this is getting better or worse,
because on the one hand, it seems like even some folks on the left
have especially post twenty twenty in some cases even post twenty sixteen, but especially
post twenty twenty, had their eyes really opened, And you know, kind
of said may Kulpa, I didn't realize how bad this was. This happened
after October seventh to and you know, there was just a renewed kind of
interest in making sure universities were places that where speech is respected and you know,
challenging speech is tolerated, if not encouraged, as it probably should be.
So do you think, though that's real? That's significant because at this
point it seems like there's so many layers of bureaucracy at all of these schools.
You basically have to strip that down in order to really restore speech on
campus. Yeah, I mean, I think it ebbs and flows, and
so I would say probably about eight to ten years ago, we saw a
big wave across the country, especially our Red states, putting in additional free
speech protections in state law, so of taking all of the rights that we
have in our First Amendment and putting them into law. So there's another layer
of protection for students who want to speak on campus. But then the colleges
learn how to get around that and right now, quite honestly, what scares
me the most, I think is that we have a federal government, and
especially a federal Department of Education, that is doing everything that it can to
silence students on college campuses that disagree with its agenda. In the next couple
of months, we're going to see changes to Title nine, which Title nine
is a federal law that's supposed to protect protect women's sports. It is a
basically outlaws sex discrimination on college campuses. As the federal government changes what the
term sex means, it's also going to be infringing on free speech. And
so it is going to basically make it illegal for anyone to use an incorrect
pronoun. And so if you're on a college campus and you do not want
to use somebody's incorrect pronoun, you will then be able to be written up
by a Title nine coordinator. You can be reported by your fellow students,
by your professors, and then you will have to go before one person,
a Title nine coordinator, who will investigate that complaint and who can impose punishment.
It is going to have a serious chilling effect across this country. And
so, as I mentioned that we ebb and flow. I am quite frankly
nervous that we're about to go into a period where we're going to have a
lot more restrictions and severely chilled speech on college campuses. We're all aware the
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I am so excited you brought up Title nine because it drove me crazy
during the Trump administration, although I think you, Betsy Devass, handled these
questions very well, but specifically that there was just so little interest from the
media in how important Title nine is and what a role Title nine played in
shifting some of these major cultural conversations about, for example, gender identity.
I mean, it was just a dear call glutter from Barack Obama's Education secretary
back in I think twenty fifteen. It was like May of twenty fifteen or
twenty sixteen. Dear colleague letter dramatically changed schools around the entire country by reading
gender identity into sex on the basis of sex and Title nine. So,
Kimberly, the Biden administration has vowed and under pressure with the support of their
allies in Congress, to restore the Obama era standards. Essentially, they've tried
to do some clever little things. But what can you tell us about how
they're handling this and how we should expect them to handle this when the dust
settles and all of a sudden done. Yeah, I mean, we're really
close to the Biden administration finalizing its changes to Title nine, which, as
you mentioned, will kind of revert us back to the Obama regime and then
some right, so I kind of call it Obama Title nine plus, and
we're expecting the new rule to be finalized in April. The federal government right
now is finishing up what it calls a series of testimonies, and so we
just testified last week before the Department of Education actually and several other federal agencies
to explain why we think that these changes are so problematic, you know,
focusing on the First Amendment concerns. I mentioned. Another thing is due process,
Right, You're going to have one person at all of these schools,
and you know, I'll pause here for a second and say, it's not
just colleges, right. The American people need to understand that these changes are
going to affect your four year olds that are in pre k your five year
olds in kindergarten. You know, they want to go to school and learn
their ABC's, and instead they're going to be punished if they use an incorrect
pronoun or if they say something that somebody else may find offensive or that a
teacher thinks is quote unquote offensive. This has such wide reaching application, and
we're expecting the rule, as I mentioned, to be finalized in April and
become effective sometime this summer, and you're going to see a massive run to
the court. I know we are planning on filing numerous lawsuits to represent parents
throughout the country and represent college students. Yet it strikes me with these small
changes that add up to just like vast cultural changes, policy changes. Again,
there's so little respect for how consequential those things could be in the media
unless the media is talking about how they're going to dramatically change the country for
the better and anyone who opposes them is going to dramatically change the country for
the worst. But the idea that this would have major ramifications around for schools
everywhere, I mean, Kimberly, I'm curious. Just you know, again
you've been following this very closely for your take on the media's failure to tell
the real story of Title nine, because you know, it took towards the
end of the Obama administration. There was some great stuff by like Emily Yaffi
and The Atlantic, and even the Washington Posts editorial board I think was pleased
with what Betsy Devace did, But it took a while after Obama had changed
the policies on specifically campus kangaroo courts, took a few years for people to
catch on and be like this is terrible. It took a while for people
to catch on with the gender identity thing, and the media was even further
behind the curve and supports things like Title nine. Plus it has to be
very frustrating. From your side of this, it is, it's extremely frustrating
because we need parents, and we need college students and just all Americans to
understand the impact that these you know, that these arguably complicated legal concepts have,
but they're not complicated, right. I mean, it can sound scary,
like you hear the term Patle nine, and you know you have to
go and look at a law and see what that means. But at the
end of the day, these are things that affect every single American and they
really can be broken down, you know, to that. And one of
the things that I spent a lot of time doing is training parents and college
students, and so we do webinars, we put out guidebooks, anything we
can to take you know, complicated legal topics and put them into plain English.
And I'm actually working on one for Title nine right now to kind of
help us get over that hurdle. Because if if the media at large,
right you excluded, the federalists, excluded, you know, doesn't really dive
into these issues and help explain them to the American public, then we've already
lost half the battle, right, We're already behind the curve on that,
And so the more that we can get people talking about it, the more
that we can get people to understand it, putting together panels on it,
webinars, podcasts, let's cover it, let's shout it from the rooftops.
It also seemed to me like the bureaucracy learned a little bit. The federal
bureaucracy definitely in some states too, maybe picked up some tips from college campuses,
or people just brought these things with them from college campuses. And obviously
this has been going on for a long time, but what we saw with
COVID, what we've seen, you know, with tech companies that are working
with the Biden administration, all of these different efforts to control the public square,
control speech in the public square cumulated. It seems like what was happening
on the campuses has now been adopted into some actually policies. I mean,
we know the sort of attitudes and temperaments about speech have been brought into the
working world. But it seems also like federal policy is getting increasingly creative at
how people's speech can be curtailed, not even on campuses anymore, but in
the public square too. It is I mean, we've seen a lot in
the news lately that's kind of come out from some of these congressional you know,
committee reviews and stuff about you know, Twitter, Facebook, you name
it, from social media trying to kind of really run with the narrative and
change the public perception of things, and you know, silence people and chill
speech. But in the workplace, and especially in the federal workplace, you
know, we hear, for example, from teachers. We hear from teachers
all the time that say, I just I'm going to have to leave the
profession. Like I love teaching, I love the kids, but I'm scared
to even voice my my views. I'm scared to say anything in the classroom.
And that's just kind of you know, one sector. But we've seen
it through reporting. You know, Chris Rufo has done a lot of reporting
out there on federal and state agencies and the DEI training that comes into play.
And you know how if you even dare speak up against it, then
you are immediately ostracized. We present teachers who have been shouted down in DEI
trainings that they've been required when they actually speak their views, they've been brought
to tears. This is real, right, and if you it's basically get
in line or we're going to embarrass you, ostracize you, and force you
into quitting eventually. And that is again another thing that the American public just
needs to be aware of. You don't see it because people are scared to
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Are there other big cases that you guys have been handling that you think
are interesting and people should know about now or in just recent years, Because
I feel like some of these cases that you see, and you know you're
talking to people who are dealing with this personally, they're so interesting, and
you know, unless you're someone who's really paying attention to conservative media, to
media that's telling the true story, you might be missing. What's you know,
some of these efforts to really control speech. What can you tell us
about maybe other things that people haven't heard about? Kimberly, Yeah, I
mean so some of our cases that people probably haven't heard about. You know,
we do a lot of work regarding you know, the Biden email pseudonyms.
They hear about that. I would hope that gets a lot of coverage.
But there's a lot of cases that we have been dealing with in agencies,
the federal agencies that people don't think about. So we do a lot
of work representing farmers in America who either can't become part of programs. So
let's say you have the USDA, right, you have a federal agency that's
supposed to help be there to help agriculture, to support our country's farmers,
and they put out programs. Maybe it's a loan forgiveness policy where they say
we will help forgive loans, or maybe it's a natural disaster policy. We
will give you this additional funding if your crops have been destroyed by national by
a natural disaster, but only if you're not white. And it actually will
say that, it will say it's explicitly provided on the basis of race.
And so we have been representing farmers throughout the country who can't get the support
that they need because of the skin color that they were born with and it's
not just in farming. And that's why I mentioned those cases. We've been
winning those cases. Right when you go to court and you say the government
is very explicitly in writing discriminating on the basis of skin color, the current
see that violation. That violates the Constitution and the Civil Rights Act. But
that's happening throughout all of our different industries in America, whether it's our farmers
or our fishermen or you know, you know teachers that those are cases are
a little bit harder because teachers are scared to speak up. But when you're
actually going to lose your family farm over this, you have to do something.
So those are just some cases that we've been working on. We have
a number of them that we're looking to file in the next couple of weeks
actually, and so hopefully we can get more of the mainstream media to pay
attention to them a little bit better. And you know, it strikes me
also that even just working with with people who are dealing with some of those
christ I mean, we're talking about farmers. You're a conservative student on a
college campus. You kind of understand at this point what's going to happen.
Although some students actually are still surprised. Even I'm still surprised sometimes when I'm
talking to YAFF students and hearing what they go through, which I mean it's
just even now, sometimes it's still jaw dropping. But we're talking about people
who are are not even in an arena that's known for you know, forcing
us to answer some of these or make some of these difficult decisions about speech
and freedom. Can you just tell us a little bit about what it's like
to just, on the human side, work with people who are going through
this and who should not have to go through this. What are some of
the things you hear, some of the things you've learned from them. Oh?
Well, when we're talking about the farmers, right, like that type
of case, I mean, they can lose everything that that their entire family
has built. And these are not you know, these are not wealthy individuals.
They are people who get up at the crack of dawn and they work
with their hands all day, and they do it to put food on the
table for their family. They're terrified of losing everything that their family has built.
They're terrified of not being able to feed their kids. When we talk
to the teachers that we represent. They went into teaching because they love the
kids. One of our clients is a what's called a five oh four process
coordinator. It sounds fancy, but she helps work with special needs students and
helps make sure that they're getting all of the resources that they need, meeting
with the parents, putting everything she has into these students for over twenty years.
And you know, she goes to work every day terrified that she's going
to say the wrong thing, Terrified that if she speaks her truth and speaks
her views or anything that she does, she could be accused of, you
know, being a racist, or being accused of not being an anti racist,
which is what her school district requires of their teachers. There's real emotions
here. These are real people, right. We're not talking about big corporate
America who they have interests that need to be represented. But that's not really
what we're in the business of. We're trying to just help real people,
college students who care about their the issues. You know, they want to
go out and spread their thoughts on Title nine. They want to tell people
that they think that a woman is a woman and a man as a man,
and they risk being expelled from school. And having their entire future destroyed.
These are people with feelings and futures, and these cases matter. They
set precedent throughout the country. They are brave individuals who are willing to go
to court for everyone else in America. And I'm just like I said,
and as we started, I'm really proud to represent our clients. I mean
again, it's just stunning to think of the different ways people are dealing with
this and just imagining that your family business is on the line because somewhere in
their bureaucracy there deciding to enforce DEI in creative ways. It is just it's
so outrageous. Kimberly, when did you first start seeing DEI? Again,
Like, you've been working on this for a very long time, so that's
why I'm asking, when did you first start seeing what we now think of
as DEI or wokeness or any of those sorts of things, not just sort
of mere political correctness, but kind of Yeah, like the DEI stuff that
RUFO has written about and the explicit DEI stuff that is actually done in the
name of diversity, equity, and inclusion. When did you first start seeing
that be weaponized? Yeah? Absolutely, I think we started seeing it be
weaponized in the way that you're referring to it in the way that we think
about it now. It really was around the twenty nineteen twenty twenty time period.
You know, Southeastern Legal Foundation has handled you know, minority contracting cases.
You go on and on back to the nineties, but that really was,
as you mentioned, thinking about it in a different way and in terms
of of being weaponized, we started seeing it on college campuses. So when
we go and we train college students, we will do these in roundtable settings
where let's say we meet with a YAFF chapter on a college campus and we
hear about the issues that they're facing, and we walk through their speech policies
with them. And we started seeing these biased response teams and biased response policies
that said you can't say anything offensive or hateful, neither of which have a
legal definition. Okay, so all of this is subjective. Our friends at
Speech First have done a phenomenal job attacking policies like that in court. But
that's when we started seeing it. And then, you know, you mentioned
Chris Rufo in twenty twenty. I met him, we were doing some work
and he was I believe at the time he held multiple positions, but I
believe he was a visiting fellow also at Heritage Foundation, and we met and
started talking about these issues and realized that what we were being on the legal
side was exactly what he was trying to get America to wake up to,
and that it needed a legal response. So we kind of stepped in to
be that legal response. But even then, every single day we're peeling back
the layers. And then as soon as we had the Biden administration come in
and what what was it? On day one, day two, they started
putting out executive orders on equity and that we need equity, need every single
federal agency. And from there it's just, I mean, it's just taken
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you get your podcasts. Are you ultimately gosh? I sometimes I hate asking
this question, and sometimes I love asking this question. So no pressure on
your antier. Are you ultimately optimistic? Because I mean I have a hard
time sort of marshaling a sense of optimism when I think about the road ahead.
But then at the same time, there's groups like Southeastern Legal. There
are people like you who are dedicating their lives to reversing these horrifying trends,
protecting preserving the American tradition of speech itself. So, Kiberlea, are you
optimistic that we can get back to a better place here? I am optimistic,
I mean ultimately right. We live in primarily in the world of the
courts, where we know that the Constitution is on our side. Right,
we know that the laws as they stand and they were established by our founders
are on our side. It's just that we have to have brave Americans like
the ones that we represent, to actually take those cases to court. And
the other thing that gives me hope and optimism has really been the movement that
we've seen throughout the country with our parents, right because and I'm not just
talking about K through twelve parents, I'm also talking about parents of college students.
I'm talking about grandparents. There are so many grandparents that come to us
wanting information about how to save our schools, how to save our college campuses.
But I'm optimistic. All of that is based on the fact though,
that we have to be teaching our kids what's right and wrong. Right if
they if we allow the left, and if we allow the progressives and the
liberals in this country to continue to take over our schools, then I think
that optimism just kind of goes out the window. Right. They are trying
to use our kids, They are trying to use our teams and take them
away from us, And we have to preserve our families. We have to
preserve our children's education, and without that, then they are gone, and
then you know, the future of our country is gone. And so seeing
parents stand up and want to be in this fight and save everything for their
kids, that's where the true optimism comes for me. You know, Carly,
you made me so glad I asked my question hopefully that's it's just you
know, as a mom of two young kids, I've got a first in
the fourth grader, and you know, we have them at a small private
Christian school, and I see everything that they're learning and we talk about it.
And the more and more parents that wake up to this, they're engaging
with their kids, right. They want to know what their kids are being
taught. They want to know what their college students are being taught. I
have parents send me still aby from from college courses on a regular basis saying,
hey, this is in my kids, you know, syllabus, they're
going to be learning this. What do you think about this? How can
I talk to my college student about this? Right? Because they're being inundated
about this every single day, and so it doesn't end when they graduated high
school. As parents, we have to stay diligent throughout there, you know,
the entire relationship and throughout their entire life to keep instilling you know,
conservative and true values into them. Kimberly Herman is the executive director over at
the Southeastern Legal Foundation, where they are doing such important work. Kimberly,
thank you so much for coming on the show, talking through all of this
and for all of the work that you do. Thanks for having me today.
Of course you have been listening to another edition of The Federalist Radio Hour.
Emily Dashinsky, culture editor here at The Federalist. We will be back
soon with more. Until then, be lovers of freedom and anxious for the pray po