Trump Signs Broad Free Speech Executive Order

Andrew Kreighbaum, Inside Higher Education, March 22, 2019

President Trump on Thursday delivered on his promise of an executive order that would hold colleges that receive federal research funding accountable for protecting free speech.

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“If a college or university does not allow you to speak, we will not give them money. It’s that simple,” he said Thursday.

But the executive order essentially directs federal agencies to ensure colleges are following requirements already in place. And it doesn’t spell out how enforcement of the order would work.

It directs 12 federal grant-making agencies to coordinate with the Office of Management and Budget to certify that colleges receiving federal research funds comply with existing federal law and regulations involving free academic inquiry. While the administration expects public institutions to uphold the First Amendment, the order says, private colleges are expected to comply with their “stated institutional policies” on freedom of speech. The free-speech directive doesn’t apply to federal student aid programs.

The document also directs the Education Department to publish program-level data in the College Scorecard on measures of student outcomes, including earnings, student debt, default rates and loan repayment rates.

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The executive order puts extra force behind several policies the White House has backed previously. For example, earlier this week the administration released a report on priorities for reauthorization of the Higher Education Act that included program-level data and a new accountability system for colleges.

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“Free inquiry is an essential feature of this nation’s democracy, and it promotes learning, scientific discovery and economic prosperity,” the order reads. “We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.”

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But it’s not clear what kind of teeth the order has beyond new certification requirements for institutions. A senior administration official told reporters on Thursday that federal agencies will enforce it the same way they enforce existing federal grant conditions, which colleges already are required to follow. The official didn’t address details about how the order would be implemented.

Agencies covered by the order include the Departments of Education, Defense, Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, and Energy, as well as the Environmental Protection Agency, National Science Foundation and NASA.

It says those agencies should “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 through compliance with all applicable federal laws, regulations and policies.”

Trump has repeatedly threatened federal funding for colleges and universities, beginning in 2017, when violent protests led the University of California, Berkeley, to cancel a planned lecture by Milo Yiannopoulos, a conservative provocateur with a history of inflammatory statements disparaging women and minorities. And last month at the Berkeley campus, an activist with the conservative student group Turning Point USA was punched in the face by another man. Neither attended the university, and campus police later arrested the assailant. But Trump had the activist, Hayden Williams, appear on stage with him at CPAC and urged him to sue the university.

The president’s message has been that colleges should either guarantee free speech or risk losing federal money. Jeff Sessions, the administration’s first attorney general, also made campus free speech a key issue for the Justice Department. Under Sessions, the DOJ filed statements of interest in several ongoing lawsuits involving issues such as campus free speech zones.

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Reactions to the Order

However, higher education leaders and groups have said the long-promised executive order is a solution in search of a problem. Research universities and other public colleges promote free speech and academic freedom as part of their mission, the groups have argued. And Congress, not the president, controls appropriations to colleges and universities.

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But Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, said it was too early to praise or criticize the executive order without more details.

“We haven’t seen what the agencies plan to do. That work has yet to happen,” he said. “We have seen throughout our history at FIRE how censorship has victims on every part of the political spectrum. How the agencies take their next steps will be important in determining whether or not the public can trust the federal government to protect the rights of all speakers, and not just speakers with whom they politically agree.”

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[Editor’s Note: The complete text of the Executive Order is available here.]

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