Fix Free Speech or No Higher-Ed Act Reauthorization

Published April 22, 2019

National Review Online

A version of this piece was also published in the New York Post.

Today, the National Association of Scholars released a statement signed by over 100 prominent educators and public figures concerned with higher education. That statement calls on Congress to include protections for campus free speech in the next reauthorization of the Higher Education Act. Only by doing so, says the statement, can Congress “cease subsidizing unlawful behavior by public colleges and universities.” In other words, Congress needs to stop funneling money to colleges and universities that promulgate unconstitutional speech codes and so-called free-speech zones.

The Higher Education Act (HEA) of 1965 must periodically be reauthorized and updated by Congress. This is important because Title IV of the Act sets the ground rules by which institutions become eligible for federal student loans and grants. You can’t get a Pell Grant or a federal student loan unless you attend a Title IV eligible school. Today, many or most Title IV eligible schools fail to protect, and even flagrantly violate, the free-speech rights of their students. HEA must not be reauthorized without fixing this. Public universities that stifle free speech should lose their eligibility for federal financial assistance, while private colleges must at minimum make their free-speech policies clear and open (with the implication that they will thereby become contractually obligated to stick by them).

The NAS statement calling on Congress to include free-speech protections in its coming reauthorization of the Higher Education Act has been signed by prominent educators and writers such as Emory’s Mark Bauerlein, the University of Chicago’s Rachel Fulton Brown, George Mason’s F. H. Buckley, Chapman Law School’s John Eastman, Claremont McKenna’s Charles Kesler, UT Austin’s Robert Koons, the University of Oklahoma’s Wilfred McClay, Hillsdale’s Paul Rahe, and Ohio University’s Richard Vedder. Figures such as president of the Leadership Institute Morton Blackwell, president of the Intercollegiate Studies Institute Charlie Copeland, president of the Independent Women’s Voice Heather Higgens, and president of the Independent Women’s Forum Carrie Lukas have signed as well. Think-tankers with education expertise such as the Hudson Institute’s John Fonte and the Texas Public Policy Foundation’s Tom Lindsay have also signed on. (I was a signatory as well. And note that organizational affiliations are included for identification purposes only.)

But didn’t President Trump already do all this just a month ago? Not quite. The president’s executive order on campus free-speech conditions a different pot of federal money — research grants — on speech protections at public and private universities. Although the research cookie jar is massive, it pales by comparison with the many hundreds of millions of dollars at stake in federal student loans and grants. Federal student loans also reach schools that undertake little or no federally sponsored research. And of course an executive order can be peeled back by a new president, whereas a law has staying power.

If you think Congress must already be headed in this direction, you are seriously mistaken. All indications are that Congressional Republicans have decided against including free-speech protections in the coming reauthorization of the Higher Education Act, in significant part because House Democrats are refusing to go along. That has got to change. Congressional Republicans shouldn’t be running from this fight, they ought to be running on it instead.

Campus free speech enjoys widespread bipartisan support. A recent McLaughlin & Associates poll showed 73 percent approval for a presidential order to protect campus free speech. So Democrats and Republicans can and should join together to include free speech protections in the new HEA. Sadly, national Democrats now seem so beholden to their radical base that even this sensible step has become impossible for them. If so, the correct response on the part of congressional Republicans isn’t capitulation. Instead, the GOP ought to make protections for campus free speech one of its 2020 campaign promises. If that means HEA has to wait for reauthorization until after the next election, so be it. By then the president’s EO will have road tested the mechanics of such an effort.

President Trump understands the importance of this issue, but congressional Republicans still do not. Traditional liberal education is in meltdown. Campus conservatives are under siege; and even many campus liberals are afraid of the mob. Free speech in the academy is fading fast. The condition of our colleges and universities is becoming a serious concern for a great many Americans, certainly including conservatives. Yet GOP politicians have forgotten that Ronald Reagan won and held the governorship of California on this issue, which is every bit as prominent today as it was in the late sixties and early seventies when Reagan ran. The public overwhelmingly favors action to protect free speech on campus, yet congressional Republicans have been AWOL on the issue right through the height of the crisis. Yes, they’ve held hearings, but to no legislative effect.

This reflects a deeper problem in the conservative movement. The Reagan and H.W. Bush administrations energetically fought the campus culture wars, while conservatives remained fully engaged in that battle from about 1987 through 1997. As the radical left’s hold on K-12 and higher education solidified, however, conservative reactions split. Many bowed out of the fight, rolling their eyes at preposterous postmodern jargon and the wildly politicized “studies” programs, yet convinced it was all largely silly and harmless stuff. Let folks graduate, make a living, and start paying taxes and they’ll smarten up, these conservatives thought.

The sort of folks who signed today’s NAS statement were thereby reduced to rearguard voices warning that losing the education system to the Howard Zinn-left was bound to undermine the culture as a whole, the principles of constitutional government, and the political position of conservatives as well. With campus-style socialism and identity politics now in the cultural driver’s seat, conservatives under siege both on campus and off, and the country polarized between sixties-descended radicalism and a bunch of stubborn “deplorables,” it’s easy to see that campus political correctness has seeped into society and split the country in two.

So we’re already two decades late, but the GOP’s congressional leaders are still wearing blinders. Having run away from cultural issues for twenty years, Republican politicians are finding it tough to change their ways, even as the political winds regarding campus speech have shifted heavily in their favor. The mess on campus is so bad that the public has finally woken up. The NAS’s statement today is an attempt to get it through to our representatives in Congress that they had better wake up too.

Some conservatives still oppose federal moves to protect campus free speech. I disagree. I’ve argued at length that when it comes to deregulation, the academy is anything but a typical case. Campuses are insulated from market forces by tenure and massive federal subsidies. Abuse of the tenure system has created an unbreakable intellectual monopoly on campus, and this has cemented the speech police in place. In the absence of outside intervention, nothing is going to change.

Some say that federal free-speech protections would be abused by future Democratic administrations to undercut campus conservatives. Unfortunately, President Obama’s wild campus overreach on Title IX shows that the Democrats are going to do that anyway. And what’s the worst that could happen? Would a president Bernie Sanders or Kamala Harris try to turn our college campuses into leftist ideological training camps? Too late! It’s already happened. Democratic presidential abuses on campus would only make the higher ed disaster more obvious, perhaps waking up semi-somnolent conservatives to the need for alternative institutions. In the near-to-medium term, Democratic attacks on campus freedoms would be the surest route to a political and cultural backlash. So go ahead Kamala, make my day.

But we are fast running out of time. In a generation or less, graduates of the ideological training camps once known as universities will end constitutionalism and conservatism in this country. Can you feel it happening already? How can you not? Then will come the weeping, wailing, and gnashing of teeth. “Why oh why didn’t we do more to save the education system when we had the chance? Why did we surrender the culture? Is it really all over? Is it really too late?” Well it will be, and soon.

That’s why I intend to stand and fight while there’s still a chance to make a serious dent in this problem. These colleges cannot survive without federal dollars, but their massive federal subsidies will not be cut any time soon. That’s political reality. Conservatives have stopped even asking for big cuts in federal aid to colleges and universities, and at this point it wouldn’t matter if they changed their tune.

But conditioning federal funding on campus free speech is doable, and has the potential to make a massive change. Federal action is always a blunt instrument and there’s no guarantee of success. But refusal to act is a sure guarantee of failure — on campus, and in the country at large. To reverse our cultural rot, fixing campus free speech is the very best play we’ve got. It sure won’t solve the whole problem, but it’s the most effective way to begin.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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