President Trump recently promised an Executive Order targeting
the suppression of free speech on college campuses and yesterday he delivered. The
president followed up on his pledge to conservatives at CPAC, but whether the
new Executive Order will actually change the situation is doubtful.
Compared with the president’s strong promise that “If a college or university does not allow
you to speak, we will not give them money. It’s that simple,” the text of the
Executive Order is much less strident. In fact, Inside
Higher Education calls the actual content of the Order “modest.”
In preparing for this article, I read through the seven-page
order, which was reportedly in the works before Mr. Trump’s CPAC speech, and
found very little about restricting funds from colleges that abridge the speech
of their students. It does say that “it is the policy of the federal government
to… promote open, intellectually engaging, and diverse debate,” but the Order
then veers into counseling students about choosing a beneficial degree and
avoiding default on federal student loans.
With respect to free speech, the president orders 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 Order then establishes new reporting requirements, but these deal more with
student loan debt and whether students complete their degrees in a “timely and
In other words, the president is telling the OMB to enforce
current law. In other words, the Executive Order is a nothingburger.
With President Trump, that’s a good thing. The likely
alternative would be that the president would declare a national free speech emergency and use it to seize funds from colleges that
are accused of restricting free speech. As an added bonus, the president might
even try to divert those funds to the construction of the wall.
The reality is that when Congress
appropriated grants to colleges, it placed certain restrictions on the use of
those funds. The Executive Order does nothing to place new restrictions on the
money that has already been designated by Congress. To do so would most
likely be unconstitutional.
Free speech – or the lack of
it – is definitely an issue on many college campuses, but the solution is not unilateral
action by the president. Presidential action that violates existing law would
be a particularly bad idea, but the general idea of getting the federal
government involved as the arbiter of free speech is not a small government solution.
Having the federal government play the referee is only a good idea as long as
the head of the federal government is a free speech proponent. Few
conservatives would be comfortable with the idea of Bernie Sanders or Kamala
Harris as the defender of their First Amendment rights and with good reason.
However, that might be what they get if they seek a larger federal role in
policing campus speech.
There is already a remedy for
college students whose free speech rights are abridged. Students have successfully
sued to force public colleges to uphold their First Amendment rights on a
number of occasions. Last December, a student of the Los
Angeles Community College District won the right to pass out copies of the US
Constitution on campus. As part of the settlement, the school dismantled its designated
“free speech zones.” The same month, UC
Berkeley settled another lawsuit filed by Berkeley
College Republicans and the Young America’s Foundation. The conservative groups
alleged that Ann Coulter and David Horowitz were forced to cancel events because
Berkeley restricted when and where they could speak. The plaintiffs also said
that Berkeley placed different restrictions on conservative speakers and groups
than it did for liberals. The settlement included $70,000 to pay attorney fees
for the plaintiffs and prohibits the school from charging security fees based
on concerns that the “viewpoints, opinions, or anticipated expression” of the speakers
or their sponsors “might provoke disturbances.”
Viewpoint censorship on college
campuses is a serious issue and President Trump’s heart seems to be in the
right place, but proclaiming the new Executive Order is a solution to the
problem is dishonest. There is very little new ground broken in the Order, but
that isn’t a bad thing since the president lacks the authority to do much more.
At best, the Executive Order shines a light on the problem.