BY HANK REICHMAN
On March 21, 2019, President Donald Trump signed an executive order that he claimed would require colleges and universities to uphold free speech or risk forfeiting federal support. When Trump first announced his intent to issue the order at the Conservative Political Action Conference the AAUP and eleven other groups issued a statement opposing “any executive action that interferes with the institutional autonomy of colleges and universities by undermining the role of faculty, administration, and governing board in institutional decision-making and the role of students in the formulation and application of institutional policies affecting student affairs.”
When the order was released, however, it was unclear whether it would have much of an impact, despite Trump’s boast at the signing ceremony that it would mark a “historic action to defend American students and American values” that have “been under siege” on campuses. In reality, the order simply directed federal agencies to “take appropriate steps” to ensure that colleges and universities receiving federal research funds “promote free inquiry.” But public institutions are already legally bound to do so by the First Amendment. And private colleges were required only to “comply with their stated institutional policies regarding free inquiry.” It thus remained to be seen how individual departments would choose to implement the order.
We learned what the most important department intends to do when on January 16 the Department of Education announced “a proposed rule ensuring the equal treatment and constitutional rights of religious organizations and faith-based institutions, as well as First Amendment freedoms owed to students on campus.” The proposal is quite long, dealing mostly with the rights of “faith-based” organizations, and will surely be the subject of extensive comment, especially by those on either side of the religious freedom debate. But worth noting is this passage from the announcement regarding the proposed rule:
to implement Executive Order 13864, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, the Department also proposes regulations to ensure public institutions of higher education that receive federal research or education grants comply with the First Amendment to the U.S. Constitution, as a material condition of a direct grant or a subgrant from a state-administered formula grant program. The Department also proposes regulations to ensure that private institutions of higher education that receive federal research or education grants comply with their stated institutional policies regarding freedom of speech, including academic freedom. Because state and federal courts remain the best arbiters of alleged violations of First Amendment freedoms, the Department proposes to determine that a public institution has not complied with the First Amendment only if there is a final, non-default judgment by a state or federal court that the public institution or an employee of the public institution, acting in his or her official capacity, violated the First Amendment. Similarly, the Department proposes to determine that a private institution has not complied with its stated institutional policies regarding freedom of speech only if there is a final, non-default judgment by a state or federal court that the private institution violated the institutional policy.
This is good news, although given the increasingly conservative composition of the judiciary and its growing “weaponization of the First Amendment,” to quote Justice Elena Kagan, there may still be considerable cause for concern.
Twice my extensive Comment was mysteriously erased. For now, I’ll just quote Justice Brandeis, not Kagan:
“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.’
How about this one, attributed to Voltaire:
“I may disapprove of what you say, but I will defend to the death your right to say it.”
Finally, this quote is attributed to my mother:
“Sticks and stones may break my bones but WORDS will never harm me.” 🙂
The main beneficiary of this rule will be lawyers, since any college that loses a lawsuit could have millions of dollars in federal funds cut off. This greatly increases the incentive for colleges to settle cases or risk losing that funding as well as the lawsuit. And that in turn greatly increases the incentive to sue colleges. Perhaps the AAUP should try to jump on this gravy train, except that the Trump Administration maintains the discretion to decide which colleges will be punished.
As I noted last year,
https://academeblog.org/2019/03/21/donald-trumps-dangerous-attack-on-campus-free-speech/
Trump’s Executive Order declares that the power to cut off funds lies not with the Department of Education, but with the OMB run by Trump’s Chief of Staff. So any violation of the First Amendment against a liberal student will certainly be ignored (or supported) by the Trump Administration. At the announcement of this Executive Order, Trump demanded that colleges punish anyone who has “berated and cursed at” conservatives (and criticized the University of Nebraska, even though they earned censure from the AAUP for firing an instructor in violation of due process.
No matter what Trump SAYS, doesn’t this Free Speech order apply to ALL speech on campuses — whether the individual is right, left, center, or off the continuum?
Of course, if penalties are issued in a discriminatory fashion by OMB or some other agency, THAT could be grounds for yet another lawsuit — making lawyers the main beneficiaries, as John K. Wilson points out above.
Why not just apply this standard, written by Justice Brandeis:
““If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is MORE speech, NOT enforced silence. Only an emergency can justify repression.”
How could AAUP “jump on this gravy train?” And why do so if it could?
Why? Because Free Speech is neither the purview of the Left, Right, or Center. It is, and should remain, a right for all, no?
BTW, I noticed that no one addressed my three quotations above:
1. “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.’
2. “I may disapprove of what you say, but I will defend to the death your right to say it.”
3. “Sticks and stones may break my bones but WORDS will never harm me.” ?