President Trump’s Executive Order on Free Speech Creates Uncertainty for Colleges and Universities

President Trump’s Executive Order on Free Speech Creates Uncertainty for Colleges and Universities
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2019
Joseph D. Lipchitz, Zachary W. Berk
Saul Ewing Arnstein & Lehr's Higher Education Highlights Summer 2019

Promote free speech.  This concept sounds simple.  Yet, this simple concept has reached the U.S. Supreme Court time and time again, and now it is the subject of an Executive Order.  To put in context the new Executive Order, a quick reference to two historical decisions is warranted. 

More than 90 years ago, Justice Brandeis called for “more speech, not enforced silence.”  Whitney v. California, 274 U.S. 357 (1927).  Nearly 70 years later, though not departing from Justice Brandeis’ call for more speech, the U.S. Supreme Court cautioned against government involvement that “requires the utterance of a particular message.”  Turner Broadcasting System v. Federal Communications Commission, 512 U.S. 622 (1994)(emphasis added).  On March 21, 2019, the Trump Administration elected to wade into the intersection of these two fundamental concepts by issuing the Executive Order, entitled “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.” 

The Executive Order in broad strokes directs 12 federal agencies, including the Department of Education, National Science Foundation, and Department of Defense, along with the Office of Management and Budget, to “take appropriate steps” to ensure that educational institutions receiving federal funding “promote free and open debate on college and university campuses” and “avoid creating environments that stifle competing perspectives.”

However, the Executive Order provides no framework as to how the executive agencies are to determine whether a college or university is complying with the Order’s policy goals and directives.  Similarly, there are no specific penalties for non-compliance, nor any discussion as to how penalties are to be assessed.  Yet, the Order comes against a well-documented backdrop of the Executive Branch threatening to withdraw federal funding from academic institutions deemed to be hostile to free speech in the eyes of the Trump Administration.

The Backdrop To The Executive Order

For years, President Trump has been critical of campuses which he felt were unfriendly toward conservative speakers and writers.  For example, in 2017, the University of California at Berkeley cancelled a speech by the right-wing provocateur Milo Yiannopoulos, the former editor of Breitbart News.  In response, President Trump tweeted: “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different view – NO FEDERAL FUNDS?”

The President’s Public Remarks Upon Signing The Executive Order

On the afternoon of March 21, 2019, in the East Room of the White House, President Trump, flanked by students representing various conservative causes, reiterated his view that academic institutions deemed “hostile” to free speech should not receive federal funding:

      In America, the very heart of the university’s mission is preparing students for life as citizens in a free society.  But even as universities have received billions and billions of dollars from taxpayers, many have become increasingly hostile to free speech and the First Amendment….Under the guise of ‘speech codes’ and ‘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…All of that changes today…Taxpayer dollars should not subsidize anti-First Amendment institutions.
While the political rationale of the Executive Order was clear, the Order itself provides no clarity on how a school’s “commitment” to free speech will be evaluated and judged.

What Does It All Mean?

Given the Executive Order’s lack of clarity, specificity, and discussion of due process, many in higher education speculate that this was simply a way for the President to pander to his base.  Others fear that the President actually intends for federal bureaucrats to determine what constitutes “promoting free speech.”  Given the President’s history, does that mean institutions must invite alt-right individuals or climate change skeptics to speak or risk the loss of federal funding?  Or does it mean that institutions must permit and help facilitate speeches by controversial individuals on campus when they are invited, regardless of the amount of opposition and the speaker’s message?  Application of the Executive Order in line with the former would likely be deemed unconstitutional and violative of the First Amendment.  It is therefore critical to monitor any guidance promulgated by the Department of Education, and other agencies, in response to the Executive Order. 

It is equally important to ensure that the fear and uncertainty created by the Executive Order does not lead to the very self-censorship that the First Amendment abhors. That is best accomplished by academic institutions individually and collectively monitoring federal funding levels and ensuring government transparency in the decisions surrounding federal funding.