Trump’s Free-Speech Order Could Have Been Harsher. But Higher-Ed Leaders Still Don’t Approve.

AP Photo, Jacquelyn Martin

The executive order that President Trump signed on Thursday, designed to protect free speech on college campuses, was less harsh than many critics had feared. Still, controversy clung to the measure, with constitutional-law scholars and higher-education leaders calling it unnecessary and potentially dangerous.

The order, which also focuses on colleges’ transparency and accountability, directs the leaders of 12 federal agencies, in coordination with the director of the Office of Management and Budget, to “take appropriate steps” consistent with the First Amendment and applicable laws to ensure that institutions receiving federal research or education grants “promote free inquiry” in compliance with applicable federal laws, regulations, and policies.

There is no mention of specific penalties for institutions that are perceived to fall short, and it excludes funding associated with federal student-aid programs from this oversight. It also does not elaborate on how the agencies, which include the Departments of Defense and of Education, and the National Science Foundation, are expected to determine compliance.

Rather, the order says it is the policy of the federal government “to encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.”

Trump was joined at the Oval Office by dozens of students, representing various conservative causes, who “stood up to the forces of political indoctrination,” he said. The guests included Justine Murray, a Syracuse University student who was denied official recognition when she tried to start a conservative group on campus, and Polly Olsen, who sued Northeast Wisconsin Technical College, alleging that the college had prevented her from handing out Valentine’s cards with Christian messages.

“Now you have a president that is fighting for you,” Trump said, according to USA Today. “I am with you all the way. Universities that want taxpayer dollars should promote free speech, not silence free speech,” he said.

His critiques of campus politics go back years, and he has previously threatened to tie federal funding to policies on speech. In 2017, when the University of California at Berkeley canceled a speech by the right-wing provocateur Milo Yiannopoulos after violent protests, Trump tweeted:

If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view - NO FEDERAL FUNDS?

— Donald J. Trump (@realDonaldTrump) February 2, 2017

This month, at the annual Conservative Political Action Conference, where he revealed the planned order, the president was joined by an activist who had been punched in the face while promoting Turning Point USA at Berkeley in February. While neither the activist nor his attacker are students, Trump and other conservatives have argued that the moment illustrated the dangers college campuses can present.

Vague Language, Threatening Scenarios

Higher-education leaders continued on Thursday to call the order a solution in search of a problem, arguing that the core of a university’s mission is to promote the free exchange of ideas. Some raised fears that harm could come to university research.

In a written statement, Peter McPherson, president of the Association of Public and Land-Grant Universities, called the order “a very concerning federal overreach. Under this executive order, politically appointed department and agency heads have been directed to take action that could, as President Trump suggested, strip or block federal research funding from universities they subjectively believe aren’t adequately permitting the diverse debate of ideas.”

“No matter how this order is implemented, it is neither needed nor desirable, and could lead to unwanted federal micromanagement of the cutting-edge research that is critical to our nation’s continued vitality and global leadership,” said Ted Mitchell, president of the American Council on Education, in a written statement.

Julie E. Wollman, president of Widener University, raised a more fundamental question: “Beyond what we do every day,” she asked, “how would you show you’re promoting free inquiry? What would the compliance look like, and what kind of added reporting and administrators would we need to meet this requirement?”

A senior Trump-administration official suggested to reporters that the procedures would very likely be routine: “Schools are already supposed to be following these rules. And essentially, each agency already conditions grants, and schools are certifying that they’re following these conditions. And they will just add free speech as one of those conditions.”

Constitutional-law scholars said it’s not that simple. The vagueness of the order’s language, combined with the specter of federal bureaucrats weighing in on potentially fraught issues normally left to the courts, creates troubling scenarios, they said.

“It all depends on how the federal government interprets promoting free speech,” said Catherine J. Ross a law professor at George Washington University. “If what they mean is, you never invited a white nationalist to speak at the university, you never invited a climate-change denier to speak at your university, we think you’re not engaging in free expression, we’re not giving you a grant,” that is deeply disturbing, she said. It also misunderstands how colleges function. “Not everyone has a right to speak at a college. Colleges get to choose.”

Geoffrey R. Stone, a law professor and former provost of the University of Chicago, echoed Ross’s concerns about widening the array of bureaucrats who might adjudicate questions of what constitutes free inquiry. “People not trained the way judges are trained, who don’t have lawyers presenting arguments to them, means that they will be able to put enormous pressure on public universities to do things under the guise of applying the Constitution,” he said.

He also found the notion of a federal agency enforcing an institution’s own policies “completely nutso.” In its apparent attempt to regulate private institutions, he added, the executive order is very likely unconstitutional. “For the government to tell a private institution that you can or cannot teach a certain course or deal with particular conflict in a certain way directly impairs the First Amendment rights of those institutions,” he said.

He and other legal experts raised a counterintuitive possibility: To avoid having an outside agency interpret their speech policies, private colleges could simply get rid of the policies entirely, undermining the whole point of the order. Stone and others said they expected opponents to challenge whether the order itself is constitutional.

Campus watchdog groups and student organizations critical of the speech policies and practices on many college campuses weighed in on the order with a mix of support and caution. Representatives of Young America’s Foundation and Students for Life of America applauded the move.

Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, or FIRE, was more cautious. The organization is a vocal supporter of free speech on campuses, but Cohn said FIRE would be watching how the order unfolds before rendering a verdict. “It really is reinforcing existing principles and law,” he said of the order. “Of course, the devil is going to be in details.”

If federal agencies approach the responsibility in a way similar to how they ask grantees to comply with antidiscrimination laws, Cohn said, that shouldn’t present any problems. But if a new bureaucracy is created to examine campus free-speech policies, that, he said, “could be unhelpful.”

He could imagine a scenario in which a federal agency might challenge a campus that has created a free-speech zone, a practice FIRE has argued is unconstitutional. At the same time, he said, it’s unclear how an agency might approach a single incident, in which, say, a group of students shouts down an invited speaker. “I think it will be important to look at things under the institution’s own control,” said Cohn. “That’s going to be interesting, to see if it is interpreted within any agency by a single incident triggering consequences.”

Jonathan Butcher, a senior policy analyst with the Heritage Foundation, a conservative think tank, said he is pleased with the “restraint” of the order, in that its focus is working within existing laws. As for federal agencies weighing in on free-speech issues, he said, he sees a benefit in “a little bit of pre-empting the potential for a bigger problem: ‘Look, before Washington makes a commitment to giving you a significant amount of money, are you following the Constitution?’”

Sen. Lamar Alexander, a Tennessee Republican who is chairman of the Senate education committee, objected to the involvement of federal agencies in regulating free speech in higher education. “I don’t want to see Congress or the president or the department of anything creating speech codes to define what you can say on campus,” he said in a written statement. “Conservatives don’t like it when judges try to write laws, and conservatives should not like it when legislators and agencies try to rewrite the Constitution.”

Beth McMurtrie writes about technology’s influence on teaching and the future of learning. Follow her on Twitter @bethmcmurtrie, or email her at beth.mcmurtrie@chronicle.com.

Clarification (3/22/2019, 4:16 p.m.): This article has beeen updated to clarify why Justine Murray, a Syracuse student, was invited to the White House for the signing of Trump’s executive order. An earlier version of the article referred to her articles for the conservative website Campus Reform.