Federal Funding, the First Amendment, and Free Speech on Campus

On Thursday, March 21, President Trump signed Executive Order 13865, intended to address the free speech crisis in higher education. This had been expected following the president’s speech at CPAC earlier this month. What was not expected was that the EO would also address the skyrocketing cost of tuition and the student loan debt crisis. All three of these issues were gathered together under the umbrella of enhancing the quality of postsecondary education “by making it more affordable, more transparent, and more accountable.”

I was one of dozens of free speech advocates in attendance at the signing in the historic East Room. The text of the Executive Order reads, in part:

In particular, my Administration seeks to promote free and open debate on college and university campuses. Free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity. 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.

During his accompanying remarks, President Trump said, “Under the guise of speech codes, safe spaces, and trigger warnings, these universities have tried to restrict free thought, impose total conformity, and shut down the voices of great young Americans like those here today.”

Not everyone was convinced. Ted Mitchell, president of the American Council on Education, called the order “a solution in search of a problem.” But some of us who have followed the free speech debate have become concerned about a litany of problems, legal and cultural, in pressing need of solutions. The Foundation for Individual Rights in Education has reported that almost a third of universities in 2018 maintained “speech codes that clearly and substantially restrict freedom of speech.” The report concluded that another 58 percent of universities have policies vague enough to allow constitutionally protected speech to be suppressed.

Some of those willing to acknowledge these issues have nevertheless voiced concerns about Federal Government overreach and the constitutionality of the Executive branch revoking funding from institutions of higher education. The President’s Executive Order directs 12 government agencies responsible for bestowing grants to ensure that public institutions fulfil their obligation to uphold students’ First Amendment rights.

Anxiety about Executive overreach is misplaced, however. Public colleges and universities function just like every other public institution—as an extension of the government itself. They are therefore required to uphold the values enshrined in the Constitution and the Bill of Rights, including the First Amendment rights of those who participate or affiliate with the school. In his speech at the signing ceremony, President Trump observed that many universities have become increasingly hostile to free speech and the First Amendment, despite receiving billions in subsidies from the American taxpayer. This is not acceptable and the EO announces that:

[T]he 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.

As  government entities, institutions of higher education have a legal obligation not to interfere with speech, religion, assembly, petition, and so on. If they violate First Amendment rights, they’re in violation of their own governing documents. Trump’s Executive Order does not dictate how Federal agencies should enforce free speech requirements. However, the roughly $40 billion universities receive in Federal research dollars every year offers the Executive considerable leverage. Since World War II, the Federal Government has partnered with academic institutions as subcontractors, doling out billions for research projects in fields of interest to the US government, including medicine, technology, energy, and defense.

A quick glance at the budget of the National Science Foundation shows just how reliant the US government has become on academic research projects and vice versa. Federal research funding does not come without contractual obligations, and a clause should be added to contracts requiring that free speech be upheld on campus. This is, after all, something that ought to be understood by research institutions in the name of open academic inquiry anyway. It is more often the undergraduate social science and humanities departments in the university system which violate the First Amendment with the help of partisan administrators than the research institutions themselves.

According to the White House, more than $35 billion in grants will come under scrutiny with this Executive Order (this does not include funding associated with Federal student aid programs that cover tuition, fees, or stipends), and individual agencies enjoy considerable leeway to decide how to enforce free speech protections. In future, universities that fail to uphold free speech could be punished by the Federal Government withholding or delaying payments, prematurely ending a contract, suspending eligibility for future contracts, or by filing a lawsuit for a contractual breach. This dependence on research dollars and the responsibility of a public entity to maintain the rights of American citizens, will give research institutions “skin in the free speech game” and encourage them to demand that other parts of the university start to behave.

Could this lead to a decline in vital research if campus administrators decide that upholding social justice ideology is more important than research grants? This might be a concern if there were a struggle to fill vital research projects, but that is not the case. Federal research grants are either highly competitive or so narrowly tailored to idiosyncratic projects that the market demand would not fluctuate. In fact, there’s so much Federal research funding available that the National Science Foundation spent $375,000 on a two-year study to determine what effects the availability of federal funding for research has on scientists’ career choices and scientific outcomes. While some colleges may decide to focus on social justice at the expense of research, critical scientific discovery will continue. Wasteful studies will diminish, and students and faculty looking to conduct important research will elect to attend universities committed to that purpose.

There are additional worries that the broad nature of the Executive Order could inadvertently chill protest on campus, since the impact of protest on free expression is part of the problem the EO is designed to address. “No platforming” activists have become adept at using the “heckler’s veto”—the threat of violence or protest—to force the cancellation of speakers and events by organizers unable to afford security costs. Security is no idle concern, since campus protests have occasionally been allowed to get completely out of hand. In 2014, Berkeley student protesters broke down a door and ran Silicon Valley tycoon Peter Thiel off the stage during a question and answer session. Then in 2017, Antifa protests vandalized the campus of UC Berkeley when Milo Yiannopoulos was invited to speak. Masked vandals set the campus on fire, breaking windows and barriers and assaulting bystanders. Although the university has taken great strides to change the campus climate since then, UC Berkeley’s lackadaisical handling of these incidents sent a message that violence could be used to decide a debate.

Contrary to what many campus activists believe, speech is not violence and violence is not protected speech. Universities have a duty to maintain the peace, and to employ a police presence when necessary. Inviting provocative speakers will inevitably elicit controversy and universities must provide space for all viewpoints to be expressed so long as they remain peaceful, and so long as one side is not permitted to drown out the other. The right to protest a speaker or register disapproval does not include the right to prevent them from delivering their remarks. We should remember that, in a free society, the protection of the First Amendment is more important to the dissenter than to the consensus of a mob.

Finally, religious institutions need not worry that President Trump’s Executive Order will interfere with their freedom to uphold the core tenets and values of their faiths. It is understandable that a Catholic school, for instance, given the nature of its specific mission, should not wish to provide a platform on their campus for abortion advocacy. Every student who attends a religious school has agreed to adopt that institution’s mission statement. During the admissions process and student orientation, it is made clear which teachings, ideology, and viewpoints will be taught on (and banned from) the campus.

It is for this reason that Trump’s EO draws a distinction between the obligations on public schools and private schools. While public schools are expected to comply with their First Amendment responsibilities, private schools must comply only with their own “stated institutional policies regarding freedom of speech.” Public colleges and universities are advertised as places of open academic inquiry where a rigorous exploration of ideas takes place. Most students enter public institutions with the expectation that their rights remain protected, unaware that they are restricted until they are prevented from exercising them.

It will be interesting to see if the Trump administration takes a reactive or a proactive approach to restricting funding, warning offending colleges of their intent to strip funding unless something changes. Either way, the Executive Order is a step in the right direction. The requirement that colleges adhere to a transparent speech code which protects academic debate in return for federal dollars is both reasonable and measured. It empowers the Federal Government to be better stewards of public funds, while upholding the rights of its student citizens.