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 affordable” fashion.
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.
Originally published on The Resurgent