An Executive Order on Campus Free Speech

By Adam Kissel

Monday, March 04, 2019

President Donald Trump told a CPAC audience on Saturday that very soon he will unleash an executive order “requiring colleges and universities to support free speech if they want federal research dollars.” If we concede that federal grants should exist and that the agencies themselves should exist (though they should not), what could the order do, and what should it do? It seems valuable to build these ideas from a theory perspective rather than merely react to the language of the order when it comes out.

Should the order apply to all institutions, including private religious colleges? What conditions should the order include? How could it be enforced, and how can alleged violations trigger enforcement? Having served in the U.S. Department of Education in 2017 and 2018, and having worked at the Foundation for Individual Rights in Education (FIRE) for five years, I can provide a basic guide to the legal boundaries and tradeoffs involved.

First, to which institutions should the order apply? Consider that federal research grants are for public benefit. The results of publicly funded research, from this perspective, do not even belong to the researcher or the college. Therefore, the government may put restrictions on the research dollars, even at private colleges and universities. (This logic also implies that the data and published papers that result from federal dollars should be free to the public and not fenced by subscription journals. Frederick Hess and Grant Addison of the American Enterprise Institute made a similar argument in 2017.)

After all, when conducting federally funded research, colleges often say they want the government to pay for all of the costs involved, including 100 percent of the overhead. In effect, these colleges say: We are only doing this research because you want it done. The public should pay for it all, and we do not even want to pay to keep the lights on. It is not really our research but the public’s — we are just hired hands and hired minds.

From another perspective, however, the researcher studies what he wants, the university has hired him to get outside funding for it, and the government just happens to be one of the funders. From this perspective, maintaining individual and institutional academic freedom means that the funder should provide the money and then go away. Even a public university should leave its faculty alone to pursue truth as they think best.

Accordingly, academic freedom belongs first to the researcher, protecting his work not only from outsiders but also from insiders. But beyond that, institutions deserve academic freedom against outsiders, even when the government is paying.

Second, which restrictions on federally funded research would promote the search for truth among institutions as well as individuals, at private as well as public institutions? If any restriction makes sense, it is negative: a condition that binds grantees to academic freedom.

Academic freedom complements the First Amendment guarantees of free speech, press, religion, assembly, and petition. The best policy will expand the search for truth by preventing incursions on academic freedom.

All other restrictions potentially bias the research. Simply privileging certain research questions over others will change who studies what, distorting the research market. Colleges regularly do so by regulating the size of department faculties.

More ominously, a granting agency can bias research by having policy goals that are distinct from the search for truth. For example, the National Science Foundation announced last year that it would leverage its grantmaking to fight sexual harassment on campus. Combined with the extremely well-documented kangaroo-court culture on campus, campus social pressure, and often feckless and spineless university administrators, what could go wrong?

University researchers already suffer under the administrative burdens of their own campuses, federally mandated (and unconstitutional) institutional review boards, and a variety of federal restrictions when they take on federal grants. One government form requires more than a dozen assurances that, at minimum, the research and the institution will follow all applicable laws, regulations, policies, and executive orders. Free speech and academic freedom easily fit among such assurances.

To review: The most morally defensible executive order would apply to recipients of all federal research dollars and would demand protection of core academic freedom for the researcher while respecting institutional mission.

Third, how can government enforce this policy goal?

Most commonly, institutions fail to provide academic freedom by maintaining speech codes, which are documented restrictions on speech. Most universities have them. Speech codes, by definition, do not pass constitutional muster at public colleges. They also usually conflict with a university’s stated commitments to free speech and academic freedom, whether the university is public or private.

Unlike social pressures and the general campus climate, speech codes are the explicit policies that a watchdog can most clearly identify as violating public policy or the Constitution. Most such policies are campus-wide. They apply in the research lab and in conversation among researchers, in person and across all media, internally and externally. They apply to faculty members and to students at all levels who are lab assistants. They apply to students in the dorms when they are discussing their research with other students and online when they are engaging with the real world.

Therefore, pretty much every unacceptable part of a speech code, wherever and to whomever it applies, should be subject to a federal policy protecting academic freedom for students and faculty members.

In contrast, using the executive branch to fight the merely social pressure of “political correctness,” which characterizes Bias Incident Response Teams, could become a cure worse than the disease.

President Trump said in his speech: “We reject oppressive speech codes, censorship, political correctness and every other attempt by the hard left to stop people from challenging ridiculous and dangerous ideas.” Moral rejection of moral failings is a good idea. The best way to challenge ridiculous or dangerous ideas is with more, better speech (ridicule of the ridiculous is well warranted). But the further an executive order runs from black-letter policies and training documents into amorphous campus practices, the more complicated it would be to punish violators.

Fourth, how could violations come to the government’s attention? The clearest examples are those where a federal court has told the university that its speech code is unconstitutional or has violated its self-imposed contractual obligations of free speech or academic freedom. It is not unreasonable to hold universities accountable for such abuses. Depending on the severity of the violation, executive-branch penalties can run from warnings to immediate cancellation and return of grants.

Additionally, if a court finds in a particular case that the institution has violated free speech or academic freedom, whether or not a speech code is involved, the case clearly counts. This means that some violations would not need to be related to a speech code so long as the federal government, through the courts, has already determined the violation.

These cases would provide the safest ground for enforcement. But it is not clear that an executive agency needs to wait for the judicial branch to act. Simply having speech codes on the books could be enough. A researcher might simply alert the relevant agency.

To move ahead, no new enforcement offices need be created, though this is certainly an option. Consider civil-rights laws in comparison, and recall that grantees already assure the government that they will not violate existing law. If someone alleges racial discrimination in the running of the grant project, for instance, the executive branch can investigate the possible breach of civil rights. Why not also for constitutional rights? Why not also for a government policy or executive order requiring that even private institutions, at a minimum, uphold their own internal promises of free speech and academic freedom when executing federal-grant funds?

I understand the concern about program creep — that future administrations will tie other policy goals to federal dollars. That horse left the barn in 2011 if not before, when the Departments of Education and Justice threatened research funding to institutions found in violation of tendentious interpretations of the Title IX law against discrimination on the basis of sex, and the new National Science Foundation policy shows that the horse is still out there.

Besides, the arguments supporting this kind of executive order — a policy that uniquely defends academic freedom by liberating researchers from campus orthodoxies and witch hunts — are hard to apply to policies unrelated to that goal. True enough, the doctrine of repressive tolerance teaches that by silencing strong voices, weaker voices are freed, so it is possible that a repulsive future administration would try to kill academic freedom in the name of saving it. Fortunately, here the federal courts are likely to keep enforcing the Constitution regardless of what progressive critics often want it to say.

Also, it seems likely that a future administration, hostile to free speech, would simply dismiss or ignore allegations, use selective enforcement, refuse to enforce assurances and the executive order, distort the truth to find that violations are not actually violations, fail to enforce any real accountability, or just rescind the executive order outright. (Not even all the current senior agency appointees are on board. Further, see some points I raised while an appointee.)

But the courts are open when executive agencies are closed. And did I mention the agencies shouldn’t exist in the first place?