The Politics and Policy of Trump’s Campus Free-Speech Order

Published March 22, 2019

National Review Online

President Trump’s decision to issue an executive order protecting freedom of speech on America’s college campuses marks an inflection point in a decades-long struggle over the direction of the American academy. Trump’s order — which I strongly support — is not the weak and largely symbolic move some claim. On the contrary, it’s a game changer.

It will take some time to become evident, but Trump’s order will shift the balance of forces on campus. Universities will now have to take loss of federal funding into account when creating speech codes, so-called free speech zones, or bias-reporting systems, or handling visiting speakers. It’s true that the new order might be enforced either lightly or assertively, and we don’t yet know how that will play out. Yet the very existence of the order sets up a dynamic that will make it harder for colleges to stifle free speech, and tougher for regulators to ignore it when they do.

The early line is that Trump’s order merely reaffirms existing law, and is thus little more than a meaningless sop to his base. After all, the order simply insists that public universities uphold the First Amendment, something they are already legally required to do. As for private universities, all they need to do is follow their own stated policies. So what has really changed?

This critique entirely misses the point. Public universities are indeed obligated to uphold the First Amendment. The problem is that they regularly ignore that charge and promulgate unconstitutional speech codes, speech zones, and bias-reporting systems anyway. There’s a cottage industry in lawsuits against public universities that violate the First Amendment, as well as against private colleges that flout their own stated free-speech principles. Plaintiffs usually win once they muster the time, money, and courage to sue, but universities quickly find roundabout ways to reinstitute the offending policies, beginning the cycle again. If colleges face a loss of federal funds, however, they just might give up on evading the First Amendment.

University offices of legal counsel are going to think a whole lot harder about campus speech codes, speech-zones, and bias-reporting systems once they’re facing a potential withdrawal of federal funding, instead of just a “red light” rating from FIRE. Campus legal offices are cautious to a fault and can’t afford to rely on the hope of lax federal enforcement. What’s more, it’s likely that a bad speech code rating from FIRE or a complaint from Alliance Defending Freedom will filter back to the regulators. In fact, there may even be a formal mechanism developed that will allow free-speech groups to make the case that a university policy is either unconstitutional or in violation of its own stated promises. If this enforcement mechanism isn’t available at first, it could be added eventually under public pressure.

What’s going to happen when a college that has embraced the University of Chicago’s free-speech principles manifestly violates them? Almost every campus already has a never-enforced rule against shout-downs. What’s going to happen when a school refuses to discipline a manifest violation of that rule? Shout-downs aren’t exactly secret. You’re likely to catch the next one on a viral video. Even if regulators would prefer to do nothing, inaction in the face of video evidence will be difficult.

In this way, Trump’s executive order creates an entirely new enforcement dynamic on a new playing field. The administration will either actively enforce the new rule, or be publicly attacked by its base for refusing to do so in the face of obvious violations. In many — perhaps most — cases, university offices of legal counsel will remove unconstitutional policies well before regulators even act.

If America’s college campuses continue to maintain and promulgate unconstitutional speech policies, the public will demand better enforcement, or a more effective rule. Republican administrations will find it tough either to balk at enforcement, or to stay with a meaningless rule. Democratic administrations will find it tough to peel back a rule that merely calls for adherence to the First Amendment where that is already legally required, or adherence to a private college’s own stated policies. Certainly, Democratic presidents will come under pressure to enforce the rule against obvious violators. And if a Democratic president were to withdraw Trump’s order altogether, that would create a perfectly legitimate electoral issue in an area where the public is on the side of free speech.

Another likely consequence of the order is a pullback by private schools on promises of free speech. Will schools still want to adopt the Chicago principles if failing to uphold them could strip them of federal funding? Maybe not, but it’s likely that those schools never seriously meant their acceptance of the Chicago statement to begin with. Private colleges that refuse to endorse free speech will expose themselves to public criticism, and rightly so. The result will be greater transparency at private colleges, entirely justified embarrassment, and pressure for real change, as opposed to window-dressing.

So the rule seems weak, but in fact is strong. The secret of its effectiveness is that it only asks colleges to do what they are already legally obligated to do. Who can quarrel with that? But colleges do not in fact do what they are legally obligated to do. And that failure will be easy to document when official campus policy contradicts the First Amendment — as it so often does — or when colleges ignore their own rules against shout-downs and other forms of speech suppression — which they regularly do. Today, colleges manipulate and evade the law, even when they are called on their bad policies by the courts. But Trump’s order raises the stakes in a way that colleges may no longer be able to ignore. And it creates a dynamic in which the public will demand follow-through on the sort of openly outrageous cases that crop up regularly nowadays.

So much for policy. What about the politics of the order?

President Trump has done himself a world of political good by issuing this order. Conditioning federal funding on the maintenance of campus free speech will instantly take its place in the litany of policies for which Trump is praised and thanked by his base. It’s tough to overestimate how concerned conservatives have become in the past few years over political bias, shout-downs, intimidation, bogus accusations of bigotry, and pervasive self-censorship in the academy. More important, these concerns are shared by swing voters and moderate Democrats, too.

Fifteen years ago, even conservatives were more likely to roll their eyes and shrug at crazy campus hijinks than to express alarm. Preposterous postmodern jargon seemed irrelevant at best. How could something impossible to understand destroy the republic?

Nowadays, in contrast, it’s easy to see the connection between campus shout-downs and politicians being chased out of restaurants. Campus intersectionality and green socialism are taking over the Democratic party before our eyes. Most conservatives know young people afraid to speak their minds in dormitories and classrooms, much less write what they believe in their assignments. Conservative parents, torn between their own beliefs their child’s best interests, despair of finding a college that won’t actively work to turn their son or daughter against their own deepest convictions. And now, twitter mobs straight out of the campus leftist hothouse seem to be coming for everyone.

That President Trump has taken up arms against this sea of troubles solidifies his reputation as the man willing to fight cultural battles that GOP politicians too often shirk. We haven’t seen a Republican administration work this boldly against campus illiberalism since the Reagan administration, when education secretary William Bennett challenged Stanford’s attack on Western civilization and when Lynne Cheney fought the good fight as head of the National Endowment for the Humanities (continuing through the first Bush administration).

The George W. Bush administration deliberately avoided the bully pulpit on campus issues under the misapprehension that this would squander its political capital. Nothing could have been further from the truth. Standing up to illiberal campus extremists is a sure political winner. And today, two years into the free-speech crisis kicked off by the rash of campus shout-downs in early 2017, Congress has done exactly nothing to solve the problem.

I understand why some Republicans are reluctant to invoke the federal government — even to protect a right as fundamental as free speech — although I disagree with this view. Even so, Congress hasn’t even been able to pass a mere “sense of the Congress” resolution condemning free-speech zones — a resolution with bipartisan backing. It doesn’t get any easier than that. The contrast between congressional inaction and Trump’s bold move is striking.

Trump is a fighter, rough around the edges and certainly not steeped in conservative thought like Reagan was. But somehow Donald Trump has brought back the feistiness of the Reagan years on the campus culture wars, in a way that Republican politicians ought to have done for the past 25 years — but never had the guts to do.  The country has paid a heavy cultural price for that inaction. You want to know why Trump is loved by his base? This is why.

What about the Democrats? Has freedom of speech actually become a partisan issue? That really would be deadly for the republic. Finding out how the parties handle this question is going to tell us a lot about the state of the culture, but it’s going to take some time for things to shake out.

It’s certain that the Dems won’t attack free speech in response to Trump’s order. Instead they’ll sound like conservative converts, with lots of talk about the dangers of bureaucratic meddling and federal overreach. Of course the real conservative position would be to stop the massive federal subsidies to higher education altogether, but Democrats would never put that on the table. They want more free money for college, not less. Dems will also hope for the courts to stop to the order, although there’s plenty of precedent for requiring recipients of federal largesse to protect fundamental civil rights.

There’s plenty of room for good-faith disagreement about federal guarantees of campus free speech. That said, Democratic critics won’t want to talk about one of their major concerns. If they were to admit that there’s a campus free-speech crisis and that it has to be addressed far more aggressively, they’d quickly find themselves cross-wise with the newly-energized Democratic left. A shocking number of young people now approve of shout-downs and even violence as tactics to stifle “hate speech,” a flexible category commonly stretched to cover nearly any policy the left doesn’t like. This means that Democrats would prefer this issue to go away.

Yet unless the courts put a quick end to it, President Trump’s executive order will soon generate concrete examples of unconstitutional policies that don’t make the federal cut. That will anger campus radicals, and potentially split Democrats on the issue.

Trump’s order is also likely to supercharge the already robust campus-reform debate at the state level. Campus-free-speech bills have been passed or introduced in a great many states in recent years. Some are stronger than others. Over time, Trump’s order may kick off another round of legislative strengthening.

The possibility of a second wave of state legislative reform on closely related campus issues is also real. I’ve proposed a model state-level bill to bring greater intellectual diversity to public university campuses, while still respecting academic freedom. And there are plenty of other ways in which the public might play a role in campus reform. Public university systems are governed by trustees appointed by governors and legislators, and funded by the public’s representatives as well. Trustees in particular may be energized by the public’s newfound concern with campus reform. Successful change modeled at state universities could then spread to private institutions. President Trump’s order might kick of a virtuous circle in which public and private universities begin to reform themselves, if only to stave off further legislative initiatives and funding cutoffs.

It’s way too early to see its full effects, but Trump’s executive order has altered the campus-free-speech playing field, set off a new dynamic in which the public will play a major part, and given an impetus to reform efforts both inside and the outside of the academy. I call that a big win.

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

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