President Trump will sign an executive order on Thursday requiring colleges and universities that receive federal research grants to make more of an effort to protect freedom of expression on campus.
The official announcement is coming later this afternoon, but the text of the order is already available. The key section is below:
"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," the order states. "To advance [this policy], the heads of covered agencies 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."
The order differentiates between research grants and other types of federal funds, and notes that financial aid will not be imperiled by noncompliance with the above. It also instructs the federal government to publish information regarding "strategies for increasing student success, especially among students at high risk of not completing a postsecondary program of study."
It's very difficult to see how much of an effect—if any—this order will have on colleges and universities. As the Foundation for Individual Rights in Education notes, "the order does not specify how or by what standard federal agencies will ensure compliance, the order's most consequential component."
As I've written previously, while there is indeed a free speech problem on college campuses, I'm concerned that an executive order is the wrong way to solve it. For one thing, students themselves are often the ones doing the censoring, and it's not clear to me that universities' research funding should be at risk just because the institutions are not doing enough to discourage illiberal activism. It's also easy to imagine a world in which universities over-interpret a mandate to support free inquiry, and end up stifling the free speech rights of certain students and professors who are at odds with the Trump administration's position on this.
Under the Obama administration, federal guidance to colleges instructing them to do more to address sexual misconduct resulted in an avalanche of unintended consequences that gravely threatened students' due process rights. Secretary of Education Betsy DeVos wisely rescinded this guidance.
Indeed, DeVos has maintained that "government muscle" is not the right way to address the campus free speech problem. During a speech in September, she said:
A solution won't come from defunding an institution of learning or merely getting the words of a campus policy exactly right. Solutions won't come from new laws from Washington, D.C., or from a speech police at the U.S. Department of Education.
DeVos is right; unfortunately, Trump's executive order is in tension with his secretary's preferred, superior approach.
That said, the executive order is light on specifics relating to enforcement. As a mere declaration that free inquiry on public university campuses ought to matter, and a reminder that the First Amendment exists, it's not particularly objectionable.