President Trump on March 2 announced he would issue an executive order addressing free speech on college and university campuses. The order itself hasn’t been issued, and so far there has been little indication of what it might say. That hasn’t stopped a torrent of criticism aimed at what Trump might do. The higher education establishment is worried. The president’s words suggest that significant funding could be at stake.
This is what President Trump actually said about the executive order during his two-hour speech at the Conservative Political Action Committee’s annual convention. First, he made some general comments:
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. These ideas are dangerous. Instead we believe in free speech, including online and including on campus.
Then, after introducing Hayden Williams, the young man who had been punched while distributing conservative pamphlets at UC Berkeley, Trump continued:
Today I am proud to announce that I will very soon be signing an executive order requiring colleges and universities to support free speech if they want federal research dollars.
If they want our dollars, and we give it to them by the billions, they’ve got to allow people like Hayden and many other great young people and old people to speak. Free speech. And if they don’t, it will be costly. That will be signed soon.
Certainly these statements convey a tone and an attitude, put they do not present a policy beyond the general sense that the pending executive order would forge some link between research funding and institutional support for free speech.
Trump’s words about the executive order won lots of applause but the more vivid moment was his praise of Williams, whom he advised to sue his assailant and the university. Trump forecast that the punch would make Williams a wealthy man. In theory, it could also impoverish a lot of colleges and universities that, at this point, are tied up in ideological knots and have no idea how they could reconcile their profound dependence on federal spending with their eagerness to appease the illiberal Left.
The most sensible response to Trump’s remarks has been Adam Kissel’s essay in National Review, “An Executive Order on Campus Free Speech.” Kissel surveys the numerous twists and turns, water traps, fire pits, and rock walls that such an executive order would have to navigate. Which institutions? Private as well as public? Funding for research or for institutional overhead? How would the policy promote or inhibit the search for truth? Would the policy get to the less obvious ways that colleges and universities suppress dissenting views, such as faculty hiring? Might the new policy actually encourage such repressive measures as “bias response teams” that routinely stigmatize unpopular views? How would the government know when a college is violating its new rules? What would happen to these rules in the hands of a different president?
Numerous other figures have commented more harshly on the pending executive order, including the president of the University of Chicago, Robert Zimmer (“a grave error”) and Terry Hartle, who is senior vice president of the establishmentarian redoubt, the American Council on Education. Hartle called Trump’s proposed executive order, “A solution in search of a problem.”
How to Fix It
As head of an organization (the National Association of Scholars) that tries to stay sober when others are off popping champagne corks or drowning their sorrows, I feel obligated not to reach for either condemnation or endorsement until we see what the executive order actually says. But it is fair game to say what I’d like to see in the way of federal action on intellectual freedom in higher education. Part of this is philosophical. I’m no First Amendment absolutist. But part of it is practical. I know how colleges and universities work. First I’d like to see a policy that reflects:
- Recognition that the First Amendment doctrine of free speech has only limited applications to higher education. Free speech pertains to prohibitions on the government controlling what people can say. Much of higher education is made up of private colleges and universities. Moreover, all colleges and universities necessarily restrict expression. An academic course or a college classroom is not a free-for-all.
- Recognition that intellectual freedom, as distinct from free speech, is indispensable to higher education. Students and faculty members need to be free to think their own thoughts and express them in appropriate ways.
- Recognition that the reason we value intellectual freedom and freedom of expression is that they together contribute to the pursuit of truth. Intellectual freedom doesn’t guarantee that we will find the truth on a particular question. Such freedom often leads to mistakes or to powerfully held but false convictions. But without intellectual freedom and freedom of expression those mistakes and false convictions go unchallenged, unexamined, and unrefuted. To put this another way, intellectual freedom is a path, not a destination. The destination is discovering the truth.
- Recognition that institutions of higher education have a civic responsibility to foster the pursuit of truth, and to that end they need to uphold the kinds of intellectual freedom and freedom of expression that are aimed at truth-seeking.
- Recognition that there are ways of organizing intellectual freedom and freedom of expression that are hostile to truth-seeking. To declare that one’s mind is made up about something and one is no longer willing to hear criticism of one’s view is, in a sense, an act of intellectual freedom: freedom from having to consider contrary arguments or weigh evidence that contradicts the opinions one is seeking to protect. But that is not the kind of intellectual freedom that higher education should encourage. That is a misuse of intellectual freedom aimed at silencing debate.
- Recognition that attempts to silence the expression of views one dislikes are wrong. Likewise attempting to prevent the appointment of faculty members, the admission of students, or the inviting of speakers on the grounds that their ideas are offensive or traumatizing is not a legitimate exercise in freedom of thought or expression. Drawing the line between wrongful attempts to exclude unfavored views or the people who hold then, and legitimate attempts to uphold intellectual standards can be difficult. Colleges and universities should strive to be fair but also generous. The close calls go in favor of including the views that might otherwise go unheard.
- Recognition that the parts of higher education that most undermine intellectual freedom and freedom of expression are out of sight. The shout-downs and disinvitations are highly visible, and the social media mobbing of non-conforming faculty members and students is often seen by the public as well. But it is the decisions behind closed doors not to admit, invite, or hire; the decisions to create and fund one program and not another that are at the heart of the Left’s illiberal campus regime.
Beyond these seven points, I’d like to see a practical policy that is calibrated to the offenses and the contexts. There is no reason why the physics department at UC Berkeley should suffer a cut in funds merely because a non-student was punched by another non-student on university property. Universities can be and often are bad actors, but figuring out how to sanction them for repeated transgressions will require careful attention to who is actually responsible for the transgressions themselves and, separately, the cover-ups and excuses.
In the last few years we have learned a lot about which faculty members incite student mobs and we have learned even more about deans, provosts, and college presidents who temporize over illegal and dangerous student-led disruptions. The administrations that concede everything to the disruptive students, who meet flagrant violations with wrist slaps, or who even bestow honors and commendations of bad actors are the most culpable figures. An executive order that calls down severe sanctions on institutions led by people like these would be welcome. It would spur their boards of trustees to clean house.
And that, more than anything, would solve the problem that President Trump hopes to address.
As to the objection that his executive order would lack statutory authority: Nonsense. Title I of the Higher Education Act, passed in 1965 and still standing, Part B, Section 112, “Protection of Student Speech and Association Rights” stipulates:
(C) an institution of higher education should facilitate the free and open exchange of ideas;
(D) students should not be intimidated, harassed, discouraged from speaking out, or discriminated against; and
(E) students should be treated equally and fairly.
On that basis, I would say President Trump has plenty of room to run.
Photo Credit: Al Seib/Los Angeles Times via Getty Images)