Legal Scholars Don’t Know the Details of Trump’s Order on Campus Speech. But They Think It’s a Mistake.

J. Lawler Duggan, Getty Images

Updated (3/4/2019, 9:22 p.m.) with additional comment and reaction to the president’s plan.

President Trump’s announcement of an executive order that threatens to cut off federal research money from colleges that do not support free speech has drawn criticism from college leaders and legal scholars on two fronts. First, they say, it might not be legal. Second, they argue, it’s a terrible idea.

This past weekend Trump announced his plan for the executive order at the annual Conservative Political Action Conference. He presented the plan after discussing an incident in which a volunteer with the conservative group Turning Point USA, Hayden Williams, was punched in the face last month in the middle of Sproul Plaza, at the University of California at Berkeley.

Pushback from academe arrived almost immediately, with Terry W. Hartle, senior vice president for government and public affairs at the American Council on Education, referring to the planned order as “a solution in search of a problem.”

Some of the sharpest criticism came from a campus leader known as a champion of free speech: Robert J. Zimmer, president of the University of Chicago. In an email to his campus he wrote that the executive order “would be a grave error for the short and the long run.”

Federal regulation of campus speech would “chill” the environment for free speech and intellectual discourse, Zimmer wrote, and open up to bureaucratic judgment — subject to who is in power — what is and is not a threat to campuses. “I believe that any action by the executive branch that interferes with the ability of higher-education institutions to address this problem themselves is misguided and in fact sets a very problematic precedent,” he wrote.

That warning came from a president who has frequently burnished his free-speech bona fides. In 2017, as he noted in his message, Zimmer told the U.S. Senate’s education committee that he was “unequivocally” opposed to proposed federal legislation on campus free speech.

In January 2015, the Chicago Principles, a statement by the university’s Committee on Freedom of Expression, made waves across academe. It has since been adopted by more than 50 institutions, according to Zimmer’s email. In 2016 the University of Chicago’s incoming freshmen received a letter from the dean of students welcoming them and asserting that the campus would not be a “safe space” where “trigger warnings” were offered.

‘How Was the Fight Berkeley’s Fault?’

Trump had mentioned the prospect of taking an interventionist approach to campus speech during his presidential campaign. At an event in October 2016 he promised to “end” political correctness on campuses. “Students are silenced,” he said then, “for the smallest of things.”

But he provided few specifics on how he would end political correctness, and he was similarly vague at the conservative conference last weekend. While details of what the executive order might look like are sparse, one thing is almost certain: A legal challenge on the order’s constitutionality would soon follow, said Geoffrey R. Stone, a former provost of the University of Chicago who led the Committee on Freedom of Expression.

Stone said he would expect an outcry from a group of institutions, and eventual court hearings. The proposition was unconstitutional during Trump’s presidential campaign, and it’s unconstitutional now, Stone said.

There is danger in giving the federal government the power to assess whether individual colleges are sufficiently respectful of free speech, a role previously granted to local courts, said Catherine J. Ross, a professor of law at George Washington University.

When would-be speakers accuse universities of restricting their speech, the courts are able to judge whether a college’s regulation of the time or place of a parade or rally passes constitutional muster, Ross said. But courts are not able to dictate an activist’s message or purpose. If the federal government has a role in deciding what is permissible on campuses, Ross said, it’s much easier to imagine political considerations clouding its judgment.

Whoever makes that decision for the federal government would have to distinguish what a university could be punished for when speakers, rallies, or riots move from outside a campus’s boundaries into its jurisdiction.

The Berkeley case cited by Trump in his speech this past weekend demonstrates how difficult it could be to draw those distinctions. The altercation turned the free-speech spotlight onto the university, Ross said, but neither the conservative volunteer nor his attacker was enrolled at Berkeley.

Williams, the Turning Point activist, told Fox News he was trying to promote free expression by appearing about two weeks ago at Berkeley’s Sproul Plaza with a sign that said, “This is MAGA country.” Williams was standing next to a folding table with Turning Point recruitment materials when two men approached. Like Williams, neither was a student. One of them, Zachary Greenberg, has been arrested on assault charges. Greenberg was identified as the man who threw the punch, and a video of the incident was quickly posted on Twitter, Facebook, and news-media outlets.

“How was the fight Berkeley’s fault?” Ross asked. “How could Berkeley be held accountable for that? What should they have done?”

Common Misunderstanding

Before the white-supremacist rally that took place on the University of Virginia’s campus in 2017, right-wing demonstrators in Charlottesville, Va., obtained a protest permit from the city, and the local police monitored the situation. The protest was organized off-campus at first, but it eventually moved inside the university’s borders. Trump’s executive order, Ross said, would require constant debate over what a university could be punished for and where and when it would be free of blame.

An executive order on campus speech could drastically change policies at all institutions. Even if honestly administered, the order would strip private colleges of their rights to regulate what is said, done, and printed on their campuses, Ross said.

But the scope of the planned order, like so much else about it, is unknown. “It was unclear if this would be limited to research grants, even though that’s the term he used, but I could imagine him extending it to things like Pell Grants or federally subsidized loans,” Ross said.

Politicians routinely misunderstand how, and if, speech can be regulated on college campuses, said Robert Post, a professor of law at Yale Law School. “You saw that when former Attorney General Jeff Sessions gave a speech on the subject, and he said the bad thing — ‘You can’t give content discrimination at universities.’ But that’s what universities do. That’s how we choose to tenure or not to tenure. That’s how we give grades, based on content discrimination.”

Trump’s promised executive order reflects the same misunderstanding, he said. There’s a commonly held idea that campuses are like parks — anyone can speak.

“That’s false,” Post said. “It is never a good thing to tether universities to federal enforcement on something like this that goes to the heart of the academic enterprise.”

Follow Lily Jackson on Twitter at @lilygjack, or email her at lily.jackson@chronicle.com.