5 Ways Federal Agencies Could Botch Trump’s Executive Order On Campus Speech

5 Ways Federal Agencies Could Botch Trump’s Executive Order On Campus Speech

The EO merely requires agencies to ‘take appropriate steps’ to ‘encourage institutions’ to promote free speech and debate. Much, much more is needed.
Casey Mattox
By

The president recently issued an executive order on campus free speech, surrounded by a dozen students who have challenged violations of their First Amendment rights. While the mostly conservative East Room crowd was pleased to see the administration’s engagement on campus speech, the EO itself was short on substance.

This is a good thing; EOs are not the ideal way to make free speech policy. But as a dozen federal agencies now begin to give substance to the order, there are plenty of reasons free speech advocates should be wary.

For all that has been written about it, the actual EO is quite limited. It states simply: “It is the policy of the Federal Government to: (a) 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.”

It then states that to advance this policy: “the heads of [12 different federal agencies with covered grants to universities] shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.”

That’s it. The EO merely requires agencies to “take appropriate steps” to “encourage institutions” to promote free speech and debate. The challenge will come as the agencies seek to put flesh on these bones.

Many campus free speech advocates appreciate the president’s engagement on this issue but express concern about how the EO’s implementation could lead to unintended negative consequences. That’s for good reason. While there are certainly other ways agencies could seek to implement the EO, here are just a few possible ways that, if agencies aren’t careful. an EO intended to protect free speech on campus could unintentionally diminish it.

1. Pens and Phones

Agency action defining acceptable and unacceptable speech policies may be fleeting. Consistent with the EO, an agency might issue guidance on certain campus speech policies, such as outlawing speech zones, defining speech codes, etc.

But those rules would almost certainly change with the next administration, even in ways that add restrictions to student speech. Pens and phones, as the last two years have demonstrated, are not the best tools for making lasting policy.

2. Creating a New Bureaucracy

The larger concern may not be what federal agencies say about free speech but how they propose to enforce it. Agencies could allow complaints about university policies or actions, investigate allegations, render a decision, and revoke federal funding.

Now think about how many stories about campus free speech issues you’ve seen in the last year, just on “Hannity.” Now think about how many attorneys the federal government would have to hire to staff an office to investigate and decide all of those cases.

And if the government hiring spree doesn’t concern you enough, a federal office for resolving these cases would also prevent the courts from clarifying and expanding on the scope of First Amendment protections. A potentially massive bureaucracy that also hinders the advancement of the law—yay.

3. Disincentivizing Courts from Doing Their Jobs

Imagine you’re a federal judge. State U has prohibited student speech outside certain speech zones. You are prepared to decide the speech zone violates the First Amendment. Then you learn that as a consequence of your decision State U will no longer be eligible for federal research grants on Alzheimer’s and will be required to refund millions in past grants.

Does this change your analysis of the law? Does it cause you to delay rendering a decision and push the parties to settle the case? Agencies might avoid creating a new bureaucracy by making the court decision the trigger for termination of federal grants. But even this less bureaucratic approach might actually harm efforts to protect free speech on campus.

4. Inviting Attacks on Private Colleges

The president avoided the mistake of applying the same rules to public and private colleges. The First Amendment applies to public universities. It does not apply to private universities. Some private colleges may choose to extend full free speech protections to their students (and faculty). But they are not obligated to do so. The EO tells agencies only to hold private colleges to their own free speech policies.

But if the agencies implement the EO by requiring private colleges to certify that they comply with their own free speech policies as a condition of federal grants, private colleges may be at risk. Under the False Claims Act, a private citizen aware that a government contractor is defrauding the government can sue to force the contractor to repay the government.

Just last year Liberty University faced criticism for censoring articles critical of the president. As a private university, it is free to do so. But if Liberty claimed to protect free speech and certified to federal agencies that it would comply with its own policies, it would not only be subject to criticism for this failure, but to a potential False Claims Act lawsuit demanding that it reimburse any grant funds to the federal government.

Depending on how the agencies draft their rules, a single instance of a private university failing to comply with its own free speech policies could expose it to millions of dollars in liability.

5. Encouraging Private Colleges to Stop Protecting Speech

There is another option for private colleges seeking to avoid opportunistic False Claims Act lawsuits—just don’t make any promises about free speech. If Liberty and other private colleges simply avoid telling students that they will afford them any free speech protections, they will escape liability, but at the cost of no longer promising their students any freedom of speech. This would hardly be an advance for campus free speech.

So, what’s the alternative? Think local. Just in the last two months four states have adopted campus free speech legislation for their public universities. These bills have protected a range of First Amendment interests and avoided the problems that have plagued similar efforts in the past.

In Arkansas, a bill broadly protecting student First Amendment rights passed almost unanimously with support from universities. More locally still, according to the Foundation for Individual Rights in Education, the number of universities with problematic free speech policies has declined for ten straight years. That’s good progress made by students, faculty, and free speech advocates working diligently to support universities as they revise their policies without the need to appeal to the federal government.

The president’s interest in the issue is no doubt heartening to many campus free speech advocates. Yet with recent progress on free speech on individual campuses and at the state level, and given the potential pitfalls of addressing this issue through federal agencies, there remain good reason for advocates for open inquiry and free expression to be wary.

Casey Mattox is a constitutional lawyer who has represented students across the country and now serves as senior fellow at the Charles Koch Institute.

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