How Trump Can Legally Crack Down on Colleges‘ “Radical Left Indoctrination”; Not Through Tax Status, But Through His Free-Speech-on-Campus Executive Order
Too Many Universities Are About Radical Left Indoctrination, Not Education
WASHINGTON, D.C. (July 14, 2020) - President Donald Trump has tweeted that he is ordering the Treasury Department to re-examine the tax-exempt status of some universities, saying too many "are about Radical Left Indoctrination, not Education." But federal law prohibits the Internal Revenue Service, which is part of the Treasury Department, from questioning the tax-exempt status of organizations "based on their ideological beliefs."
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However, while Trump cannot direct the revocation of their tax exempt status,he might be able to seriously threaten their federal funding, or at least cause federal investigations which, by themselves, can have a major impact, says public interest law professor John Banzhaf.
Interestingly, organizations, students, or professors who are conservative, or who for whatever reason support his policies, or are simply concerned - like Professor Banzhaf - about protecting free speech on their campus, seem to have the power to trigger just such actions.
There have been numerous reports providing examples of where state universities have allegedly violated the First Amendment rights of students, professors, and/or invited guest speakers - often those whose views oppose or even attack so-called "radical left" positions - and in some cases it appears that even judges have agreed that the university's action was illegal.
In such a situation, any student or faculty member - or perhaps even an outside organization - might file a formal complaint, anonymous or otherwise, under Executive Order 13864, which was issued on March 21, 2019, and is apparently still in force but untested.
The Policy Described In Subsection 2(a)
The order mandates that "to advance the policy described in subsection 2(a) of this Order, the heads of covered agencies SHALL in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies." [emphasis added]
The policy set out in Section 2(a) requires "compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions."
The mandatory nature of the order was made very clear by the President's remarks accompanying its release:
"Taxpayer dollars should not subsidize anti-First Amendment institutions. . . . Universities that want taxpayer dollars should promote free speech, not silence free speech. . . . protect the First Amendment and First Amendment rights of their students, or risk losing billions and billions of dollars of federal taxpayer dollars. . . . If a college or university doesn't allow you to speak, we WILL NOT give them money. " [emphasis added]
So a single simple formal complaint alleging that a state university violated the First Amendment by unfairly and perhaps even illegally impeding - or even threatening to impede - First-Amendment-protected speech which was critical of so-called "radical left" views, but was more tolerant and permissive of speech which aligned with such views, could trigger a formal federal investigation possibly leading to a cutoff of certain federal funds.
According to the executive order, the "covered agencies" from which funding could be terminated are the "Departments of Defense, the Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, Energy, and Education; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration."
The Impact Of Funding Being Terminated
Federal investigations, even if there is little likelihood that funding will actually be terminated, can be very expensive, embarrassing, disruptive, and otherwise harmful to any university unfortunate enough to become subject to one.
Indeed, it has been suggested that one reason for the issuance of the executive order, and for the choice of agencies which are covered, was to provide a strong incentive for faculty members, especially those involved with research, to begin speaking up and defending free speech when violations occur or are threatened on their own campuses.
This is particularly true for professors working in STEM fields or medicine, since they and their universities rely more heavily upon federal research grants than professors in the humanities. Indeed, some have argued that this order, once enforced, could help provide an important counterbalance, since humanities professors (who much less frequently have major federal grants) reportedly have been more supportive of campus free speech violations, with those in other disciplines largely doing nothing.
Now those STEM and health professors dependent upon research grants will have a very powerful incentive to speak up when their university tries to violate the First Amendment rights of students, faculty, or invited speakers; whether their speech reflects the view of the "radical left" or the "radical right," suggests Banzhaf.
Title IX Complaints
Those who doubt that federal complaints, and the investigations which they often trigger, can have a major impact on university policies need only look at the huge effect complaints filed by students under Title IX have had on university policies regarding date rape and other forms of sexual abuse on campus.
Naturally, students and faculty with what some might characterize as "left-leaning" (if not "radical left") views can likewise file complaints under the same Executive Order if the First Amendment rights of speakers sharing their positions are violated, but it remains to be seen if such instances are as numerous as those more frequently reported interferences with conservative views, or if executive branch agencies under Trump will treat them as equally serious and as warranting federal investigation.
However, interference with the speech of those on the left would seem to be far less frequent, suggests Banzhaf, since a recent study have shown that the college administrators who interact with and directly affect students - e.g, planning programs, handling discipline, etc. - are even more overwhelmingly liberal (reportedly by a 12-1 ratio) than faculty (estimated at 6-1).