Protecting Free Speech: A Look At Trump’s Campus Funding-Cutoff Rules

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A Look at Trump’s Campus Free-Speech Funding-Cutoff Rules; For Their Inspiration, and Where They Are Currently Already In Effect

WASHINGTON, D.C.  (March 4, 2019) –  Universities and others wondering about the specifics of President Donald Trump’s planned executive order to force colleges and universities to protect free speech by threatening to cut off federal research funding for those in violation should look to the origin of the policy, and how it is already being implemented elsewhere, suggests public interest law professor John Banzhaf.

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It appears that the genesis for Trump's new proposal was an organization with great influence with his current administration - the American Enterprise Institute [AEI] - which produced two separate detailed proposals for using threats to funding as a weapon to require colleges to protect academic freedom.

A feature which distinguishes it from other federal policies to cut off university funding - such as President Obama's Title IX enforcement policies, and the threat to cut off funding from universities which bar military recruiters from campus - is that it applies only to research funds.

The fact that Trump used much the same language, and adopted the same "research" limitation, supports the view that it was the AEI's proposals which inspired Trump to move in this direction, and that his executive order is likely to follow their suggestions with regard to language and implementation, says Banzhaf.

Under the AEI proposals, which are likely to influence Trump's final executive order, "colleges should be required to offer assurances that their policies do not restrict constitutionally protected speech or expression and that they will commit to safeguarding open inquiry to the best of their ability. . . .   Colleges that receive research grants should be required to establish formal processes for investigating and appealing allegations of speech suppression or intellectual intimidation" - i.e., similar to those for rape complaints.

It went on to note that "such machinery already exists to address other forms of research misconduct."  This refers to an Obama 2009 memo which required institutions of higher education which receive research grants to set up investigatory and other mechanisms to help insure scientific integrity.

Under this federal policy, research institutions bear the primary responsibility for the "prevention and detection of research misconduct and for the inquiry, investigation, and adjudication of research misconduct alleged to have occurred in association with their own institution."

Thus there is some precedent for Trump's proposed new application, suggests Banzhaf.

In its proposal, the AEI suggested using the University of Chicago's free speech principles as a model for protecting free speech on university campuses.  Thus these principles, which have been widely adopted at least in part, may provide a roadmap for further enforcement activity protecting free speech.

These principles grew out a letter Chicago's Dean of Students wrote to the class of 2020 about the importance of free speech.

He stated that, among other things, the University's "commitment to academic freedom means that we do not support so-called 'trigger warnings,' we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual 'safe spaces' where individuals can retreat from ideas and perspectives at odds with their own."

Those who might be wondering how all this might work in a real life situation need look no further than Ontario.  This major Canadian province has required publicly-funded universities and colleges to accept the University of Chicago's Chicago Principles on free speech or risk a funding reduction.

So far, only two have reportedly complied fully, but their actions do suggest that protecting free speech and academic freedom on campus according to the Chicago principles is feasible, and also fully compatible with higher education, says Banzhaf.

In addition to its direct effect on universities themselves, the executive order may also provide a strong incentive for faculty members, especially those involved with research, to begin protecting free speech when it is threatened on their own campuses, says Banzhaf.  He has written: "the order might pressure more faculty members to stand up and protest violations of free speech on their campuses - something they now rarely do - because the college's failure to act might jeopardize their research funds."

The AEI spelled out this hope in somewhat greater specificity, writing the following:

"Tying research funding to free speech would give a stake to serious scientists in fields like engineering and biology. These scholars traditionally have left the campus culture wars to their more politicized colleagues in the humanities and social sciences. Under this plan, they would suddenly have an incentive to help push higher education back to its intellectual roots. The same goes for college presidents, many of whom have found it easier to placate the radical fringe than to defend free inquiry. With federal research funds on the line, they would suddenly face a new financial and political calculus."

The AEI also pointed to a study showing that 93% of major research institutions maintained policies which prohibit certain categories of speech which are protected by the First Amendment.

To demonstrate just how effective this new executive order could be, Banzhaf wrote that "even the smallest threat of a cut off in funding, or even the burden, embarrassment, and expense of dealing with an federal investigation prompted by a complaint, was enough to compel colleges to begin to protect rape victims.  It may be equally effective in protecting free speech."

The AEI also supported this argument, noting that "unofficial federal guidance on sexual harassment in the Obama years, issued using informal mechanisms like 'Dear Colleague' letters, proved to have a catalytic effect on higher education. Colleges and universities are risk averse and enormously concerned about getting crosswise with Washington. The degree to which executive action in support of free and open inquiry may alter the calculus of campus leaders when it comes to speech codes and campus policies should not be underestimated."

Banzhaf says that he will encourage student groups, and even individual students, who believe that free speech rights have not been effectively protected on their own campus to file formal complaints under the new policy, seeking investigations and other appropriate actions as may be necessary.

Students have learned that their formal complaints, which can be filed anonymously, have forced universities fearful of burdensome, embarrassing, and expensive federal investigations to make major strides in dealing with campus rapes.  The same techniques could work as well here, suggests Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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