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To Protect Free Speech On Campuses, President Trump Needs More Than An Executive Order


Last week President Trump released an executive order, “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.” The White House says it fulfills the president’s pledge at the Conservative Political Action Conference to require colleges and universities “to support free speech if they want federal research dollars.”

But the executive order focuses primarily on giving students more information about the costs and benefits of individual degree programs, with a handful of odes to free speech sprinkled throughout.

The executive order is an important step, and President Trump deserves credit for recognizing the crisis of illiberalism on college campuses today. But if, as his executive order says, his “Administration seeks to promote free and open debate on college and university campuses,” he must consider a better and more powerful tool to restore free speech to college campuses: the Higher Education Act (HEA), now up for reauthorization.

The executive order includes a fair number of paeans to the freedom to inquire openly. Free inquiry is a “bedrock principle,” an “essential feature of our Nation’s democracy,” a tool that “promotes learning, scientific discovery, and economy prosperity.” The text of the order hints at the crisis of illiberalism on campuses, noting that “we must encourage institutions” to “avoid creating environments that stifle competing perspectives.”

But the order offers little policy. Rumors drifted that Trump was considering a draft to require, as a condition of receiving federal research grants, that public colleges must pledge compliance with the First Amendment, and private colleges must publish their speech policies openly. My colleagues and I at the National Association of Scholars put together more aggressive suggestions, such as barring public colleges from using ideological litmus tests in hiring or tenure decisions.

Instead, the meat of the executive order is transparency about the high costs of college. It orders the Department of Education to make public program-level information on median debt and starting salaries for individual majors at individual colleges. As far as free speech policy goes, President Trump has ordered 12 federal agencies to “ensure” that colleges and universities to whom they dispense research grants “promote free inquiry,” including by complying with the First Amendment (for public institutions). He places no new criteria for evaluating whether institutions actually promote free inquiry, and specifies no clear penalties for those that don’t.

That approach kicks the can over to the Department of Defense, NASA, the Environmental Protection Agency, and the other grant-making agencies affected by the order. They might choose to “ensure” free inquiry by asking their grantees to check a box on their grant applications, self-certifying their commitment to uphold intellectual freedom.

Or they might actually put teeth to Trump’s executive order by putting forth their own criteria, such as asking public colleges to demonstrate they have only content-neutral time, place, and manner restrictions on speech. The order’s efficacy rests on the eagerness of the agencies themselves.

President Trump may well be offering this limited version of the executive order out of constitutional circumspection. We had plenty of lawmaking by executive fiat in the last administration, and Trump is wise to shy away from unilaterally dictating federal policy.

Some, such as Stanley Kurtz at National Review Online, see in the executive order the possibility for significant reforms, as risk-averse colleges and universities start dismantling speech codes. Kurtz envisions federal agencies developing an apparatus to receive and vet complaints from student groups and organizations alleging campus intolerance.

Still, President Trump has at his fingertips a more promising opportunity make good on his promise to the student victims of campus illiberalism he featured at the White House. The Higher Education Act is the best vehicle to protect freedom of speech. As a statute, it is more permanent than an executive order. As the gateway to federal student aid, the lifeblood of all but a handful of colleges and universities, it holds great sway over higher education.

The Higher Education Act already has, in §1011a, a strong statement in support of free speech and religious freedom on campus. It declares that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.”

Currently the law includes no enforcement mechanism. It merely declares that colleges “should not” permit such harassment, discrimination, or other threats to free speech and intellectual freedom. It has no means to hold colleges accountable when they permit—or even sponsor—such discrimination.

The law is up for reauthorization, and House Republicans have recently shown interest in shoring up the HEA’s free speech language. Last year, the PROSPER Act would have mandated that colleges publish all speech codes, and allowed authorized aggrieved students to file complaints with the Department of Education, which would investigate and require guilty colleges to make amends. The secretary of education would also, under the PROSPER Act, refer violations of the First Amendment to the Department of Justice.

Still, getting free speech protections in the HEA will require some gumption. Sen. Lamar Alexander, the chairman of the Senate Health, Education, Labor, and Pensions Committee, recently put out his HEA agenda, in which free speech was conspicuously absent. Alexander, who was the secretary of education under George H.W. Bush and is preparing to retire in 2020, believes reauthorizing the HEA is a key piece of his legacy. He has already announced his eagerness to forge a compromise with House Democrats—a compromise that undoubtedly would involve no new language on free speech.

If President Trump truly wants to protect freedom of speech, he will need to make its protection a priority for the Higher Education Act. His blueprint for the bill, released by the White House last Monday, offers a modest agenda that largely matches Alexander’s. It treats higher education primarily as a workforce development program, and says not a word about free speech or religious freedom.

But President Trump still has time to double down on the importance of protecting intellectual freedom using the HEA. He should signal to Congress his eagerness to include free speech and religious freedom protections in the Higher Education Act, and his intention to veto any HEA reauthorization that fails to do so.

Intellectual freedom is the purpose of higher education. Without intellectual freedom, college becomes a finishing school for the elites and a job program for the middle class. Without free speech, college becomes politicized and trivialized. Without religious freedom, college becomes discriminatory, its gates kept by ideological litmus tests.

Last week, President Trump drew the nation’s attention to the problem of campus illiberalism. Now it’s time to update the Higher Education Act and make good on his promise to protect free speech.