U of C President opposes Trump’s proposed executive order requiring universities to support free speech

Among Trump’s ways to obviate Congress is his spate of “executive orders” that may well be unconstitutional. The most ridiculous is his “national emergency” order to fund the Big Wall. Now, as many venues report (e.g., here and here), Trump is proposing to sign an executive order directed at colleges and universities. This one, he says, will withhold Federal monies from colleges and universities that do not “protect free speech” by allowing expression of free speech from all ideologies. The policy apparently arose in Trump’s mind after a conservative student was punched last month at UC Berkeley, though the puncher wasn’t a student. Trump probably saw this on Fox News and immediately conceived of his order.

At present, only public colleges and universities must adhere to the free-speech provisions of the First Amendment, as they’re considered part of the government. But all schools, if they want Federal money, must adhere to the provisions of Title IX, which prohibits sex discrimination that affects equal access to education. I agree with that, though not with the Obama’s “dear colleague” letter that stripped some legal protections of those accused of sexual misconduct in college.

What about Trump’s executive order on speech?  Shouldn’t I support that, too, since I’m pretty much of a free-speech absolutist? Well, I don’t like the idea of a President unilaterally being able to make policy that rightfully belongs to both the Congress (who makes the law) and the President (who signs or vetoes laws). Expanding the bailiwick of “Executive orders” is a recipe for totalitarianism. At least executive orders in the U.S. must be in line with the Constitution, and are subject to judicial review.

This morning all of us at the University of Chicago got this email from President Robert Zimmer, who is a huge supporter of free speech not just at our own non-public university, but at all universities.  His take: he opposes legislation and executive orders mandating free speech on university campuses. The following email explains why (my emphases):

To:  Members of the University Community

From:  Robert J. Zimmer

Subject:  Federal Action Regarding Free Expression on Campuses

Date:  March 4, 2019

I am writing in light of news about a potential Executive Order concerning free expression on campuses.

As president of the University of Chicago, I have spoken forcefully and frequently about the importance of free expression, open discourse, and ongoing intellectual challenge as a necessary foundation for a truly empowering education and a research environment that fosters creativity and originality. Students, particularly, need and deserve an opportunity to develop the intellectual skills and habits of mind derived from such an education—to confront the complex challenges they will face in their futures, to give them the capacity their ambition should demand, and to reflect the courage of which they are capable. Failing to provide an education of deep intellectual challenge supported by an environment of free expression is selling students short and would fail to live up to our highest aspirations as educators.

The University of Chicago has embraced this perspective throughout its history, and the statement by the Faculty Committee on Free Expression articulated this long-held position in what is now widely known as the Chicago Principles. These principles have been adopted by over 50 higher education institutions since they were articulated in January 2015. However, the difficulty many institutions of higher education have in cultivating an environment of free expression on their respective campuses remains a serious challenge.

The question of whether this problem should be addressed through additional Federal legislation or executive action has been raised in multiple situations in recent years. In 2017, I testified before the U.S. Senate Committee on Health, Education, Labor, and Pensions, chaired by Senator Lamar Alexander. Senator Alexander asked me at that time whether I thought Congress should address free expression on campus through federal legislation. I replied unequivocally that I was opposed to any such federal legislation. The question of federal intervention in this arena arises again today, not with Congress, but with the Executive Branch. As was my position with respect to Congress, I believe that any action by the Executive Branch that interferes with the ability of higher education institutions to address this problem themselves is misguided and in fact sets a very problematic precedent.

There are two related features of potential Federal engagement on this issue that would threaten the mission of institutions of higher education. They would do so by creating the specter of less rather than more free expression, and by deeply chilling the environment for discourse and intellectual challenge. The first feature is the precedent of the Federal government establishing its own standing to interfere in the issue of speech on campuses. This opens the door to any number of troubling policies over time that the Federal government, whatever the political party involved, might adopt on such matters. It makes the government, with all its power and authority, a party to defining the very nature of discussion on campus. The second feature is the inevitable establishment of a bureaucracy to enforce any governmental position. A committee in Washington passing judgment on the speech policies and activities of educational institutions, judgments that may change according to who is in power and what policies they wish to promulgate, would be a profound threat to open discourse on campus. In fact, it would reproduce in Washington exactly the type of on-campus “speech committee” that would be a natural and dangerous consequence of the position taken by many advocating for the limitation of discourse on campuses.

Therefore, rather than improving the situation, further legislative or executive Federal action has the potential to reinforce and expand the difficulties regarding education and free expression that we are confronting now. It would be a grave error for the short and the long run.

I’m not sure whether I fully agree with Dr. Zimmer’s arguments. First of all, the courts already have the power to “interfere with the ability of higher education institutions to address this problem.” Courts can and have overturned campus “speech codes” and can defend First-Amendment rights of students at public universities. The judiciary is one branch of the federal government; the executive branch (including the President) and the legislative branch (Congress) are the other two. Is it okay for the judiciary to determine policy but not the executive branch? For surely judicial rulings on speech also make the “government a party to defining the very nature of discussion on campus.” And remember that the judiciary always has the power to modify or overturn any executive orders deemed unconstitutional.

Further, I’m not sure whether universities, especially public ones, should be able to alter constitutional rights by tinkering with speech rights and “addressing the policy themselves.” Surely public universities cannot have policies violating the First Amendment, and that has nothing to do with Federal monies. To what ends should universities be able to water down the First Amendment on campus? I can’t envision any.

Zimmer raises the possibility of a slippery slope here: allow the President and government the right to make speech policy and, soon enough, we’d have restrictions on speech. While this may be possible, it would also be overturned by the courts, and mandating freedom of speech is different from somehow restricting speech.

As for the bureaucracy needed to enforce governmental policy on speech, I’m not sure if that’s deeply problematic. It is presumably the courts that would enforce a simple executive order, not necessarily a bureaucracy. Remember, Trump wants to enforce freedom of speech, not restrict speech. This is not the same as the “on-campus speech committees” that exist now.

I am not going to have a kneejerk opposition to this proposed policy simply because it comes from Trump. And the thoughts above are simply my initial reactions to Zimmer’s letter. I need to ponder the issue more. Readers are, however, welcome to weigh in below.

72 Comments

  1. GBJames
    Posted March 4, 2019 at 10:37 am | Permalink

    sub

  2. Ken Kukec
    Posted March 4, 2019 at 10:52 am | Permalink

    I should think that making the Free Speech Clause of the First Amendment applicable to private universities with one fell swoop of the presidential pen would make religiously affiliated universities nervous that another president might come along and make the Establishment Clause similarly applicable.

    • DrBrydon
      Posted March 4, 2019 at 12:24 pm | Permalink

      That was my first thought. I am not sure the Administration has considered the potential impact on religious schools.

  3. rickflick
    Posted March 4, 2019 at 11:23 am | Permalink

    Is it okay for the judiciary to determine policy but not the executive branch? Yes. I find the judiciary much less likely to become intrusive than the legislature or executive branches. It is supposed to function as an objective review WRT laws and the constitution. Thus, they are less likely to decide on a political basis what is and is not free speech.

    • Ken Kukec
      Posted March 4, 2019 at 12:15 pm | Permalink

      Yeah, the jurisdiction of the courts is limited to deciding “cases and controversies” brought before them by litigants and, when called upon by the case before them, to interpreting the statues and/or constitutional provisions that apply. The courts have no authority to issue advisory opinions or otherwise to enact laws or policy. That’s why Alexander Hamilton referred to the judiciary as “the least dangerous branch.”

      It was a bedrock principle of (pre-Trumpian) conservatism that the constitution should be construed narrowly so as to interfere as little as possible in the decisions made by private citizens and institutions (such as private universities).

      Conservatives that have jumped on the Trump bandwagon will come to rue the day that they abandoned this principle in their quest for more favorable public policy.

  4. Posted March 4, 2019 at 11:26 am | Permalink

    I agree with the UC president, but for a different reason. As long as students are free to vote with their feet and their tuition dollars, let the various colleges and universities go their various ways. If a student feels the need to be protected from very leftist or rightist viewpoints, let them go to a university that provides that; they won’t have any trouble finding one. It’s their funeral.

    • BJ
      Posted March 4, 2019 at 12:14 pm | Permalink

      ” As long as students are free to vote with their feet and their tuition dollars, let the various colleges and universities go their various ways.”

      So, public universities, which are controlled by the government and thus considered bound by the Constitution, should be allowed to expressly violate the Constitution as long as they don’t keep their students from voting? Or are you only referring here to private universities? Because if you’re referring to public ones as well, then there’s no reason that precedent can’t and wouldn’t be applied to any and all public spaces.

    • Posted March 4, 2019 at 1:56 pm | Permalink

      I think, however, that this puts too much burden on prospective students and their families to collect “intelligence” about various universities. I remember that even faculty members can be surprised by the anti-free speech policies their university adopts, as happened at Evergreen.

  5. Posted March 4, 2019 at 11:31 am | Permalink

    I too am something of an absolutist when it comes to free speech, believing that it is always better to allow all viewpoints and let the truth emerge, or not, from the arguments presented. On the other hand, I generally resist unnecessary government interference, especially in the area of higher education.

    That said, there’s no question that the proposed executive order addresses a very real problem. It just so happens that, at the present juncture, most of the threats to free speech at universities originate with the left, whether it be banning a pro-life speaker because it might cause emotional trauma to students who have had abortions (as happened at Reed College when I taught there) or banning climate change “deniers” a forum because the science is “settled.” But certainly it’s conceivable, albeit hard to imagine, that the shoe might shift to the other foot in some unforeseeable future. In short, I think we need to be careful not to support or oppose such legislation based on where we land ideologically.

    Given that very real harm to the concept of free speech currently exists—and indeed is widespread—on college campuses, I’m reluctantly inclined to favor the proposed executive action as long as it cuts both ways. But I’m open to being persuaded otherwise.

  6. Posted March 4, 2019 at 11:33 am | Permalink

    I’m no legal expert, but I’m going to guess this EO would be found unconstitutional.

  7. ploubere
    Posted March 4, 2019 at 11:37 am | Permalink

    The question would be how deep into academics this government oversight would go. Would it apply to curricula, forcing teachers to allow any opinion to be presented, including creationism in science classes, or climate change denial?

    Usually Trump’s ideas are planted in his brain by somebody with such an agenda. After all, he is easily manipulated.

    • Posted March 5, 2019 at 11:00 am | Permalink

      “Would it apply to curricula, forcing teachers to allow any opinion to be presented, including creationism in science classes, or climate change denial?”

      Teachers at the university level should be free to allow any opinion, including the ones you mention, to be presented as opinions without being forced to. That’s the nature of academic freedom, and of opinions.

  8. Posted March 4, 2019 at 11:38 am | Permalink

    “Your speech shall be free, or you will suffer the consequences!”

    Even if the courts have some ability to enforce free speech already, surely making it part of Title IX will increase that power. I fear that it would give an administration like Trump’s one more tool to be wielded in selective acts of retribution. He has demonstrated a willingness to use whatever he can to lash out at his perceived enemies.

  9. jhs
    Posted March 4, 2019 at 11:38 am | Permalink

    I simply don’t like that Trump puts coercive strings on funding.

    • Posted March 4, 2019 at 11:42 am | Permalink

      Is there someone who you would like to put coercive strings on funding?

    • Diana MacPherson
      Posted March 4, 2019 at 1:32 pm | Permalink

      Yes, perhaps that’s what bothers me as well. It’s the same here with Ontario’s Conservative government. Suggesting research dollars would be held back – that’s for research and should go there no matter what. Find another way to enforce such a thing.

  10. Ken Kukec
    Posted March 4, 2019 at 11:42 am | Permalink

    I’m not sure whether I fully agree with Dr. Zimmer’s arguments. First of all, the courts already have the power to “interfere with the ability of higher education institutions to address this problem.”

    The courts can enforce the prohibitions in the Bill of Rights against public universities because public universities constitute “state actors” for constitutional purposes. Private universities do not constitute “state actors,” so the courts have no authority to enforce constitutional proscriptions against them.

    Such private universities are, however, subject to federal statutes, to the same extent as are all private citizens. Among those statutes is Title IX; like other civil rights statutes (such as the Civil Rights Act of 1964), Title IX was enacted pursuant to the broad authority given congress by the Commerce Clause of Article 1, section 8, clause 3 of the US constitution.

    The authority to regulate commerce is uniquely congress’s under our constitutional separation-of-powers scheme. The president has no authority under Article 2 of the constitution to regulate in this area, absent an act of congress.

    • BJ
      Posted March 4, 2019 at 12:11 pm | Permalink

      “The authority to regulate commerce is uniquely congress’s under our constitutional separation-of-powers scheme. The president has no authority under Article 2 of the constitution to regulate in this area, absent an act of congress.”

      Does Federal funding always fall under the commerce clause? It seems you’re saying it does in your second paragraph. If this is true, and if the executive order is predicated on the protection of Constitutional rights, then doesn’t the President have the authority to sign this order?

      • Ken Kukec
        Posted March 4, 2019 at 12:36 pm | Permalink

        Congress has the sole authority to regulate commerce under our constitution. It does so not by controlling commerce directly, but by enacting statutes. Where congress has enacted such a statute, it is the duty and province of the executive branch to enforce that statute. Title IX was enacted pursuant to congress’s commerce clause power, which is why the president has the authority to issue regulations enforcing it.

        Congress has not enacted a statute requiring private universities to enforce the Free Speech clause of the First Amendment on campus (and I have grave doubts whether it would constitute a proper exercise of its Commerce Clause powers if it did). And the president — whose powers are expressly limited to those set out in sections 2 and 3 of Article 2 — has no authority to do so directly absent such a statute.

        • BJ
          Posted March 4, 2019 at 4:41 pm | Permalink

          But, regarding public campuses, would the President have the right to issue and carry out such an order?

  11. JAH43
    Posted March 4, 2019 at 11:44 am | Permalink

    I too am strongly committed to protecting free speech but am concerned about the use of executive orders to rule by decree.

    To move toward a good result by use of bad means is a Faustian bargain. But sometimes Faustian bargains are the only game in town, such as when the governing processes cease to be deliberative and instead become combative.

    When watching the news, I am disheartened to see debates about policy largely replaced by attacks on political rivals and their positions of power, with matters of policy being invoked usually only in the service of attacks on persons.

  12. randallschenck
    Posted March 4, 2019 at 11:45 am | Permalink

    Is it not somewhat ridiculous from the republicans that they want additional government interference in college administration policy? For that matter, in any part of society. The hypocrisy is beyond belief. Let us ask Trump to provide an executive order keeping guns off of campus since this one is also covered by legal opinion. How about a special executive order from Trump on sexual harassment on college campus since they seem to be having a hard time with that one. And finally an order to put a photo of Trump in every building on campus that we might speak to as we pass.

    • BJ
      Posted March 4, 2019 at 12:08 pm | Permalink

      I don’t see this as additional government interference. Withholding funds isn’t interference; if anything, it’s a lack thereof. I don’t see why public colleges that are violating the Constitution should still get to receive federal funding. If Obama signed this order, would you disagree with it?

      Furthermore, your other examples do not match up well with this one.

      “Let us ask Trump to provide an executive order keeping guns off of campus since this one is also covered by legal opinion” To which legal opinion are you referring? As far as I know, the legal opinion has been that public colleges either don’t have the right to completely ban guns from campus if carrying them comports with state law, and/or that state law supercedes public college policy (except in specific instances regarding certain areas of campus).

      ” How about a special executive order from Trump on sexual harassment on college campus since they seem to be having a hard time with that one.” This is also not a Constitutional issue, and would be far more of an intrusion by the government into campus policy.

      • Posted March 4, 2019 at 12:28 pm | Permalink

        Surely you jest. Withholding of funds is not government interference? Trump would immediately use this to selectively punish colleges and universities that did something he didn’t like, and not for their lack of free speech. And, yes, I would be against this even if Obama were still POTUS and for the same reasons.

        • BJ
          Posted March 4, 2019 at 4:37 pm | Permalink

          I don’t see withholding funds as any more interference than funding. Let’s say a Congress passes an infrastructure bill. If the government discovers that, say, a power plant being built under that bill is not being built according to Federal law, is withholding further funds government interference? I’d say no, and that is completely analagous to this situation: public institutions are not following federal law, and therefore should not receive funds from the government.

          We can’t know how it will be implemented until it actually happens, but literally any government agency or bureaucracy can be abused.

          • Posted March 4, 2019 at 4:49 pm | Permalink

            I agree, funding or withholding of funds both can be abused by a government that exerts controls for reasons that have nothing to do with requirements directly associated with the funding. Trump withholding funds for California’s bullet train in order to punish it for being mostly anti-Trump is a good example. Trump providing immediate assistance for Alabama’s current weather emergency while letting Puerto Rico go without is another.

      • randallschenck
        Posted March 4, 2019 at 12:34 pm | Permalink

        I threw the one in there on guns because, if the conservatives have screwed up anything more than the second amendment, I don’t know what it would be. They want people to carry guns just about everywhere including to church on Sunday and who does more hunting than college kids in science. It is simply stupid so Trump should like it.

        If you don’t think it is government interference for the president to threaten withholding funds for a freedom of speech law that already exist, then I cannot help you. It would be like withholding federal highway funds if you don’t think the state is writing enough speeding tickets.

        Let’s remember what the republicans are suppose to stand for. KEEP GOVT. OUT OF MY BUSINESS. So how does that work with this redundant executive order on speech?

        • BJ
          Posted March 4, 2019 at 4:35 pm | Permalink

          Well, you really didn’t answer any of my questions. Could you at least answer the one about how the courts have ruled with regard to guns on campus? You made a very clear statement that seems to be very clearly contradicted by actual court decisions.

  13. Jonathan Gallant
    Posted March 4, 2019 at 11:57 am | Permalink

    Enforcement of the Executive Order would have to depend on a bureaucratic determination of whether University X was adequately upholding free speech or not. Dr. Zimmer therefore hits the nail on the head when he points out that “In fact, it would reproduce in Washington exactly the type of on-campus “speech committee” that would be a natural and dangerous consequence of the position taken by many advocating for the limitation of discourse on campuses.” A further step, easy to envision, would be a growth of campus bureaucracies to monitor whether or not the campus was complying adequately with the dictates of the bureaucracy in Washington. It would be rather like extending the “human subjects” review committees in Med Schools to anything that involved “speech” on campus. Imagine that, and picture representatives from various Grievance Studies departments on those committees. Hmmm.

    • Posted March 4, 2019 at 12:54 pm | Permalink

      At present I don’t see how it would require additional bureaucracy. Every campus now has committees, forms, and rules to coordinate all manner of public speaking and demonstration events. Forms are filled out. Dates and locations are scheduled. Funding, if needed, is applied for. To me, the directive pretty much just means that you generally don’t get to say ‘no’ to requests that followed the rules.

    • Ken Kukec
      Posted March 4, 2019 at 12:54 pm | Permalink

      I’m against any regulation enforcing free speech on private university campuses on constitutional grounds. But if there were such a requirement, I don’t see why it would be any more difficult to enforce at private universities than it is now at public universities, where the First Amendment Free Speech Clause already applies with full force.

  14. BJ
    Posted March 4, 2019 at 12:02 pm | Permalink

    “I’m not sure whether I fully agree with Dr. Zimmer’s arguments. First of all, the courts already have the power to “interfere with the ability of higher education institutions to address this problem.” Courts can and have overturned campus “speech codes” and can defend First-Amendment rights of students at public universities.”

    This was going to be exactly my reaction.

    If colleges are expressly denying students their Constitutional rights — especially if they are public schools, and are therefore required by the Constitution to follow the First Amendment — then they should not receive federal funding. If Congress will not act on this, and if the courts can’t unilaterally force the colleges to do so (they can’t, as they can only do it on a case by case basis), then I have no problem with the President himself using an executive order to do it. Obama signed plenty of executive orders (and Presidential memorandums) that reached at least this far. I’m not a big fan of executive orders being used to create policy, but that’s where the Presidency is at now (and has been since the W. years, and was ramped up significantly by the Obama administration).

    • Mark R.
      Posted March 4, 2019 at 12:19 pm | Permalink

      I’m not a big fan of executive orders being used to create policy, but that’s where the Presidency is at now (and has been since the W. years, and was ramped up significantly by the Obama administration).

      Where did you get this? Nothing has been “ramped up” during the W. years or Obama. First of all, Obama signed less EOs than W. Bush, Clinton, Reagan, Carter, Nixon, Johnson and Eisenhower. During WWII, (not surprisingly) thousands were singed by FDR and Truman signed 907. Presidents who signed less than Obama since the 1950’s are Kennedy (signed 214 in the little time he held office), Ford and H. Bush. Trump is on track to sign double of what Obama signed. Just wanted to set the record straight. I don’t know why there is this wild idea that Obama was abusive when it came to EOs- quite the contrary.

      • Posted March 4, 2019 at 12:23 pm | Permalink

        Good comment, though I suspect you actually do know why “there is this wild idea that Obama was abusive when it came to EOs”.

        • Mark R.
          Posted March 4, 2019 at 12:30 pm | Permalink

          Yes, I do know why. But I forgot to add that Ford didn’t serve a full term and H. Bush only served 1 term. So in actuality, when it comes to 2-term Presidents, Obama signed the least amount of EOs since Grant (1869-1877). So the least in over 100 years! (Don’t tell Fox news.)

          • BJ
            Posted March 4, 2019 at 4:49 pm | Permalink

            From a US News article: “‘We’re not going to be waiting for legislation,” [Obama] famously said, in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.’

            He meant it. Directives soon told the Immigration and Naturalization Service not to enforce the law against as many as 5 million undocumented persons in the country, raised the minimum wage for several hundred thousand cooks, janitors and other federal contract workers, required contractors to let their workers take paid sick days, unilaterally required overtime pay for salaried workers, and, to make Obamacare workable, made critical changes in the act that were not in the law as enacted. These actions were unsupported by law and many were ultimately suspended by the courts. This is a sorry record for the rule of law and for the Democrats that cheered him on.”

            Additionally, I mentioned Presidential memorandums for a reason, and I forgot to include regulatory agency directives. Many of these were and remain highly controversial, some were overturned, and the issue is very complex. But, through these means, and particularly since W. and the Iraq War (and how it was carried out and maintained), the power of the Executive Branch has grown tremendously.

            Most executive orders are mere statements about what a President hopes for, or statements of beliefs, or other trifles. It’s not about the number of orders, but about what they’re meant to do.

            • Posted March 4, 2019 at 4:55 pm | Permalink

              Wasn’t Obama referring to Congress’s infamous inability to resolve our immigration problems? Something which continues under the new administration. It wasn’t like Obama was trying to override or circumvent Congress’s action on immigration. If recent executive orders are not like past ones, it is because Congress has never been as dysfunctional as it has been. Trump, on the other hand, is using an executive order to override Congress’s wishes on emergency funding for his border wall.

            • Mark R.
              Posted March 4, 2019 at 6:45 pm | Permalink

              The fact that Obama made that statement in 2014, 6-years into his administration, after Republicans maintained an historic obstruction campaign for 4-years, is the context you’re missing. I agree the power of the Executive Branch has grown too much, but having acknowledged that, Obama’s restraint is something I admire.

              Regardless, this subject is far too complex to hash out here.

      • BJ
        Posted March 4, 2019 at 4:39 pm | Permalink

        It wasn’t about how many they signed, but about what those orders did. Many more Presidents signed vastly more executive orders, but executive orders were not usually used in the manner W. and then Obama (and now Trump) used them.

    • Ken Kukec
      Posted March 4, 2019 at 1:21 pm | Permalink

      The president has authority to issue executive orders solely to give force and effect to the powers vested in him by sections 3 and 4 of Article 2 or the powers expressly delegated to him by Congress. Period.

      Federal spending (the so-called “power of the purse”) is a power vested solely to congress by the Taxing and Spending Clause of Section 8, clause 1, and the Appropriations Clause of Section 9, clause 7, of Article 1.

      The president can enforce federal spending on education in a limited regard solely because congress has enacted Title IX. But Title IX says nothing about free speech. And the president has no authority to require free speech on private university campuses, or to withhold federal spending from private universities that fail to do so, on his own.

      Further Affiant Sayeth Naught. 🙂

      • BJ
        Posted March 4, 2019 at 4:52 pm | Permalink

        “If colleges are expressly denying students their Constitutional rights — especially if they are public schools, and are therefore required by the Constitution to follow the First Amendment — then they should not receive federal funding.”

        There is a reason I included the italicized text here. And there’s a reason you only talked about private universities in your response. The President does have the authority to issue an order regarding funding of public schools that are not following the Constitution, correct?

    • Ken Kukec
      Posted March 4, 2019 at 1:36 pm | Permalink

      If Congress will not act on this, and if the courts can’t unilaterally force the colleges to do so (they can’t, as they can only do it on a case by case basis), then I have no problem with the President himself using an executive order to do it.

      Bringing a court case to enforce First Amendment rights is the (universally acknowledged) appropriate remedy for the deprivation of those rights. After all, if you’re denied a demonstration permit at a city park, you go to court and get an injunction requiring the city to issue the permit. You don’t go running to the president asking him to cut off federal matching funds for the city.

      I see no reason why the ability to seek court enforcement is inadequate to vindicate free speech rights on public university campuses (even if the president had the authority to issue an otiose executive order requiring universities to do so, which the president does not).

      • BJ
        Posted March 4, 2019 at 4:54 pm | Permalink

        So, are you saying that we’ll have to do this college by college, or that there will need to be one big class-action lawsuit against all public colleges that are seen as violating the First Amendment? How will this work?

        If you’re proposing a case by case basis, I think you know as well as I do that the problem will never be fixed except in a small handful of incidences.

        • Ken Kukec
          Posted March 4, 2019 at 9:33 pm | Permalink

          The president of the United States has no authority to issue an executive order enforcing the First Amendment against universities of any kind under the powers expressly vested in him by sections 2 and 3 of Article 2 or under any statute that’s been enacted by congress. To allow the president nonetheless to arrogate such authority would upset the fundamental system of checks and balances created by our constitution.

          Moreover, I’ve seen no evidence that the courts are incapable of adequately enforcing the First Amendment against public universities (the same way the courts enforce it against every other public entity and subdivision). The federal courts are open to all litigants, including students and organizations aggrieved of their free-speech rights on campus.

          If there is some need for greater enforcement, congress can enact a statute — analogous to what 28 USC section 1983 does for the CRA 1964 — authorizing private litigation against public universities for deprivations of First Amendment rights. Congress can, if it sees fit, provide for liquidated damages against universities and can provide for the recovery of costs and legal fees by the prevailing party. It can also grant standing to the US Justice Department to bring suit on the aggrieved students’ behalf. It shouldn’t take more than a couple costly suits before universities everywhere would be dissuaded from infringing students’ free-speech rights.

          This seems to me a much more efficient method of enforcement than the creation of a whole new federal bureaucracy to monitor First Amendment compliance, to adjudicate claims, and levy financial sanctions against offending universities (not to mention the concomitant creation of additional layers of compliance administrators at every college and university across the land, especially since schools are already overburdened by excessive administrators as it is).

  15. Mark R.
    Posted March 4, 2019 at 12:10 pm | Permalink

    Trump’s executive orders are almost always brought on by emotion, not rationale. He announced this abruptly at his 2-hour rambling CPAC speech (should be re-titled TPAC as Conservatism wasn’t on display, only Trumpism). So to me, it’s just another way to rally the crowd, distract the detractors and piss off the Libs. There is nothing substantive behind the declaration. He’s not thinking how this could be administered, the “big government” aspect of it, or how it can be used by Democrats once he’s out of office. Just like his ludicrous National Emergency to build his pet project. Lacking foresight while signing broad changes to law via a stroke and a whim is dangerous…and again, leaves the door open for when the evil Libs have control again.

    • Posted March 4, 2019 at 3:39 pm | Permalink

      This is why I have mixed feelings, though I admit I know too little of American governing bodies and procedures to have an informed opinion.

  16. Posted March 4, 2019 at 12:18 pm | Permalink

    Perhaps the strongest argument against this executive order, we would have to listen to Trump pontificate on free speech. I’m sure he’d find a way to make it disgusting.

    • Diana MacPherson
      Posted March 4, 2019 at 1:34 pm | Permalink

      A speech on free speech by Trump. That almost makes me against free speech. 😉

      • infiniteimprobabilit
        Posted March 4, 2019 at 4:45 pm | Permalink

        Maybe we can get him to speak on Family Values, Motherhood, and the American Way of Life.

        [cynicism quotient: 110%]

        cr

    • Ken Kukec
      Posted March 4, 2019 at 2:17 pm | Permalink

      A free-speech speech from the guy who wants to make libel laws more lax so that public figures (such as he) can sue media outlets for criticizing them, and who tweets that the government should “do something” to keep Saturday Night Live from making fun of him

      Incoherency, thy name is Donald Trump. Take, for example, how he touts himself as the great champion of sentencing reform out of one side of his mouth, while, out of the other, urges that the solution to this nation’s drug problem is to impose the death penalty on drug dealers (as is done by his autocratic buddies Xi in China and Duterte in the Philippines).

      • Posted March 4, 2019 at 3:27 pm | Permalink

        He’s a reliable source of bad ideas. Even those that I might otherwise like (prison reform, free speech), he manages to drag them through the dirt. When Trump leaves office, I’m going to run around like the proverbial cat that’s just taken a good poop! 😜

        • rickflick
          Posted March 4, 2019 at 7:41 pm | Permalink

          Don’t forget to bury it with sand. 😎

      • Mark R.
        Posted March 4, 2019 at 3:36 pm | Permalink

        Not much surprises me anymore when it comes to the media coverage of Trump’s bullshit, and the various levels of outrage displayed by all sides. But suggesting a good way to solve the drug problem is by state-sanctioned murder (and saying this on record) was as horrifying as anything I’ve ever heard from a modern Western political leader- let alone a POTUS. Imagine what he says in private. His siding with Kim over the death of Warmbier is reprehensible too, but nowhere near as crazy as murdering Americans for using drugs. Yet even some Republicans came out against Trump’s defense of the Little Rocket Man. Why was the media and most politicians so quiet after these words? Words that only an authoritarian or totalitarian would use? Good way to get rid of the opioid crisis, right? What a fucking disgrace.

        • Posted March 4, 2019 at 3:43 pm | Permalink

          I’d be interested to know the opinions of those closes to the opioid crisis. Do they go along with the death-to-drug-dealers approach? Or are they more thoughtful since many have personal exposure to the problem?

          I suspect that many are of the “drastic times require drastic measures” ilk and don’t really think it through. This is the crowd that viewed Trump’s election as upsetting the apple cart.

        • rickflick
          Posted March 4, 2019 at 8:37 pm | Permalink

          Not too much to finesse here. The man is said to be unfit for office. It’s really beyond that.

    • infiniteimprobabilit
      Posted March 4, 2019 at 4:54 pm | Permalink

      Agreed. Does tRump even know what ‘free speech’ means in practice? Or is it just a phrase that he thinks sounds good?

      The Loose Cannon theory applies. Just occasionally it will be pointing in approximately the right direction when it goes off. But cannon balls are really not conducive to precision targeting.

      cr

      • Posted March 4, 2019 at 4:58 pm | Permalink

        Actually, free speech may be one area where Trump’s attitudes match that of most of voters. They’re in favor of their own free speech, but not that of others.

  17. Christopher
    Posted March 4, 2019 at 12:23 pm | Permalink

    Just saw this subject discussed on the daytime chat show GMA Strahan and Sara (don’t judge, I’m home from work (again!) due to weather and going a bit stir crazy). I was surprised to hear full support for free speech on such a mainstream, middle of the road, politically vanilla type of show. They also supported the Satanists having the right to give an invocation in Boston.

  18. DrBrydon
    Posted March 4, 2019 at 12:26 pm | Permalink

    On the fence here. I’ve actually thought for a few years that the Federal government should tie aid to not suppressing speech. Zimmer is concerned about a new bureaucracy, but that’s what the Department of Education already does for Title IX. As Ken points out above, though, I am not sure the Trump administration has thought this through (shocking).

  19. Posted March 4, 2019 at 12:49 pm | Permalink

    I would be in favour of extending the First Amendment to all university settings, but I do not like the idea that it could be done by executive fiat: it seems to me that it should require a constitutional amendment or at least legislation from Congress.

  20. Posted March 4, 2019 at 1:16 pm | Permalink

    Republicans have long claimed, and SCOTUS has agreed in Citizens United and Hobby Lobby, that corporations are people. Private universities are typically corporations. So forcing private universities to platform speech with which they disagree is equivalent to forcing a person to express statements with which he or she disagrees. Unconstitutional. Can we at least get some consistency here?

  21. randallschenck
    Posted March 4, 2019 at 1:27 pm | Permalink

    From what I read about the incident that caused this executive order neither Hayden Williams or the guy that hit him were students. So Trump really is off the reservation with this one. What else is new.

  22. Diana MacPherson
    Posted March 4, 2019 at 1:29 pm | Permalink

    This is similar to the Ontario government’s push to do the same to Ontario universities that Jerry wrote about earlier. While I agree with free speech, I don’t like the government imposing values on an academic institution like this. It’s complicated in Ontario in how our university structures are laid out (I think I explained it in that article somewhat) so it isn’t as straightforward as “too bad, you take government money, you do what the government says”. That’s not really how we expect our democratic governments to work anyway (US and Canada and the rest of the West).

    • Davide Spinello
      Posted March 4, 2019 at 2:25 pm | Permalink

      The current Canadian federal government has also threatened the loss of federal funds to Universities that do not reach pre-assigned intersectionalist quotas in the assignment of Canada Research Chairs.

      • Diana MacPherson
        Posted March 4, 2019 at 2:56 pm | Permalink

        Do you have a link to that? I’d like to read up on it.

        • Davide Spinello
          Posted March 4, 2019 at 3:05 pm | Permalink

          This one is from the Globe and Mail:

          Ottawa to universities: Improve diversity or lose research chair funds

        • Davide Spinello
          Posted March 4, 2019 at 3:16 pm | Permalink

          Additionally, the Natural Sciences and Engineering Research Council (NSERC, the analogous of the NSF in the USA) has recently added new criteria to evaluate grant proposals, among which principal investigators have to state how they are going to account for equity, diversity and inclusion in recruiting students whose activities are related to the proposed research.

          External reviewers have to account for this in their evaluations. Given the definitions of equity, diversity, and inclusion, intersectionality is currently a substantial factor in granting scientific research money.

  23. Curtis
    Posted March 4, 2019 at 2:08 pm | Permalink

    Things like this should be enacted (or not) by congress.

  24. Posted March 4, 2019 at 2:28 pm | Permalink

    Basically, I am in favor of withholding federal funds from colleges and universities whose programs violate the federal law. The same standards and rules that apply to public schools should also apply to schools that receive federal funds.
    I am not sure how the mechanism for enforcement should work.
    An executive order is nothing but a memo from the president to his employees instruction them how to carry out their duties. It does not change or create new laws. If it tries to the courts will rule it invalid.
    I would have to read the order to see how the policy is be be carried out. This is something the courts will do also to see if it is constitutional.
    At this point any opinion wouls be premature.

    • Ken Kukec
      Posted March 4, 2019 at 3:37 pm | Permalink

      “… universities whose programs violate the federal law.”

      With nary an exception, the United States constitution concerns itself solely with government actions. This is especially true of the First Amendment, which begins with the words “Congress shall make no law …” (The Supreme Court has expanded the amendment’s reach beyond congress to include all governmental entities, but has never applied it — or any other similarly worded constitutional provision — to non-state actors).

      If we’re going to construe anyone receiving any type of federal funds or subsidy as perforce being “state actors” for constitutional purposes — well, that’s going to result in the kinds of requirements and restrictions on private citizens with which many people will end up extremely displeased.

      • randallschenck
        Posted March 4, 2019 at 4:23 pm | Permalink

        You got that right. I am amazed every time I hear someone crying about their freedom of speech being stepped on. Best I recall is the Bill of Rights is simply protection from the government and should be considered a restriction on government, not incitement to the people.

        The government is not here to police the world for you.


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