The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
About that Campus Free Speech Executive Order
A crude tool unlikely to do much good and that might do some harm.
During President Donald Trump's appearance at the 2019 Conservative Political Action Conference, he made a surprise announcement that he would soon be signing an executive order to improve the free speech climate on college campuses. His initial statement was brief and vague, but threatened that if colleges do not allow free speech "it will be very costly" because it would put their federal grants at risk. Last week, the administration finally released the promised executive order, and it was promptly buried by the news that the special counsel had completed his investigation and submitted his report.
The executive order turned out to be a nothingburger, though one with some potential for mischief. As has been so often the case with the Trump administration's policy announcements, the executive order is vague on the specifics and a great deal will turn on the details of implementation to be announced at some unknown future date. Nonetheless, there are a couple of things of note about the order.
Although billed as being about free speech, much of the executive order in fact focuses on a different issue relating to higher education. Both its rhetoric and its operational directives focus on enhancing the "College Scorecard" launched by the Obama administration that provides comparative data on student debts, completion rates, and post-college earnings at various colleges. The Trump executive order calls for some additions to the existing database and encourages some additional study of policies to enhance completion rates. Notably, by adding program-level earning data to the Scorecard, the administration puts a bit more pressure on fields of study that feed into less remunerative careers.
As for free speech, the executive order directs various agencies, with the coordination of the Office of Management and Budget, to
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 relevant federal grants do not include student financial aid. Institutions are to be encouraged "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."
This is pretty thin gruel for anyone interested in campus free speech, and that might be the good news. The executive order leverages a big stick, but not as big of one as the president initially implied. Research grants are a significant source of revenue for schools such as the University of California at Berkeley, but they likely have less relevance for places like Liberty University or Middlebury College. The executive order notes the potentially important difference between public universities and private universities, giving the latter more flexibility to adjust its own commitments to free speech given their own institutional mission and values. It also hews closely to better enforcing existing federal law rather than announcing a bold new directive of its own. It is not clear how much this changes the status quo.
There are some troublesome features of the executive order, despite its modesty. The executive order directs the relevant agencies to coordinate their efforts with the OMB, which is more directly responsive to the White House. In doing so, the order opens the door to a greater politicization of any federal intervention in campus free speech issues than might otherwise be the case. Even if you are happy with what that might look like in a Trump administration, you might be less happy with how it might play out under a President Bernie Sanders.
Some have pointed to the Obama-era directives for scientific integrity in the administration of research grants as a model for a free speech directive. If the Trump administration goes through the same lengthy process for drafting a regulation as the Obama administration did, then the result might be more likely to withstand judicial scrutiny than much of the Trump administration's work product but the resulting regulations are also more likely be modest in scope. Taking steps to prevent research misconduct is closely related to the purposes behind giving research grants in the first place, and regulations securing protections for free inquiry in scholarly research might be a relatively easy lift. It does not seem particularly helpful to have agencies mentioned in the executive order like the Department of Energy or the National Science Foundation (the kind of agencies who actually award and oversee research grants) attempting to develop regulations to address the broad scope of campus free speech issues ranging from controversial social media posts by faculty members to treatment of student groups and external speakers to visitors to campus getting into fist fights in the free speech zone.
It would be nice if colleges were to take this opportunity to revisit their policies on the books relating to academic freedom and free speech, but many free speech controversies that arise have less to do with campus policies than with campus culture and the implementation of policies. It is not at all obvious that colleges worried about their research funding can or will do much to prevent such controversies from arising. Some will no doubt try to adopt some strongly worded policies that might not help the educational environment very much but that will hopefully insulate them from the threat of lost funding. The biggest worry is that the executive order will set the conditions for a White House to score some easy political points by taking aggressive action against a university because an incident on that campus has gone viral. The possibility of such politically motivated thunderbolts from above will not foster a better university environment for intellectual debate on difficult and controversial issues.
The campus free speech executive order might have given the administration a brief moment of publicity relating to a hot button issue, but it is unlikely to be particularly useful in improving the free speech culture on college campuses.
