April 2019 Newsletter – Community College Districts

What Does President Trump’s Executive Order Regarding Free Speech on Campus Mean for Your College?

“If a college or university doesn’t allow you to speak, we will not give them money. It’s very simple.”

-Donald J. Trump

On March 21, 2019, President Donald J. Trump issued his “Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities” with the stated purpose of enhancing the quality of postsecondary education by making it more affordable, more transparent, and more accountable.

President Trump’s Order pursues a policy of “encouraging institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.” (Executive Order § 2.)

To advance this policy, the Order directs the heads of covered agencies, in coordination with the Director of the Office of Management and Budget, to take appropriate steps to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies, including the First Amendment. (Executive Order § 3(a).)

The Order defines “Federal research or education grants” as:

[A]ll funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.

(Executive Order § 3(c).)

College administrators should be cognizant of the President’s directive to covered agencies, as it could bring significant and sudden negative media attention onto a college or district and directly impact research grant funding received from most Federal agencies.

Federal grant funding may be terminated in whole or in part by the awarding agency when a non-federal entity receiving the award fails to comply with the terms and conditions of a Federal award or for cause. (2 CFR §200.339 (a) 1-2.) The order does not specify what is meant by “appropriate steps to ensure institutions that receive Federal research or education grants promote free inquiry.” However, it can reasonably be assumed that this would include any action within the authority of the head of any of the above agencies, up to and including terminating the grant. (2 CFR §200.339 et. seq.)

To a certain extent, however, avoiding the possibility of the defunding of grants due to violations of the President’s Executive Order is within a college’s ability to control. First, only research and educational grant funding is affected by Executive Order § 3, and specifically not federal funds for other purposes, such as tuition. (Executive Order § 3(c).) Further, administrators should make sure they are familiar with the requirements of the First Amendment, as well as institutional policies.

Specifically, the First Amendment addresses four fundamental freedoms: Speech, Assembly, Religion, and Press. (U.S. Const. amend. I.) In Cox v. New Hampshire, 312 U.S. 569 (1941), the United States Supreme Court held that although the government cannot regulate the contents of speech, it can place reasonable time, place, and manner restrictions on speech for the public safety. In Ward v. Rock Against Racism, 491 U.S. 781 (1989), the Supreme Court further clarified that time, place, and manner regulations on speech are not required to limit speech in the least restrictive way possible. However, any restrictions on free speech by a government agency must do all of the following:

  1. Be content neutral;
  2. Be narrowly tailored to serve a significant governmental interest; and
  3. Leave open ample alternative channels for communicating the speaker’s message.

(Id. at 791.)

It should further be noted that President Trump’s Executive Order does not expand on the restrictions established by the Supreme Court. Rather, it directs departments to take extrajudicial action when an institution in receipt of grant funding acts inconsistent with the First Amendment. Further, the decision to terminate grant funding is at the discretion of the individual agency sponsoring the grant, and significant deference is given to the decisions of agency administrators by courts if such a decision is challenged. (See, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).) Accordingly, there is little recourse for an institution if an agency head determines that an institution acted in violation of the first amendment and terminates a grant.

In practice, the primary way in which colleges will run afoul of President Trump’s Executive Order is when administrators attempt to silence parties based on the content of their messages, or when administrators permit third parties with a dissenting viewpoint to effectively silence the voices of those they disagree on campus through institutional inaction. Institutions are entitled to their perspective on issues. However, preventing an unpopular opinion from being voiced at all is a content based restriction on speech and is contrary to the principles if the First Amendment. Thus, avoiding restricting speech in such a way is critical for public agencies to steer clear of the negative aspects of President Trump’s Executive Order.

The remedy is simple in theory – Equity in time, place, and manner restrictions for competing viewpoints. However, how that looks in any situation will vary and institutions should consult with legal counsel on an ongoing basis to determine what to do (or not to do) in their specific situations. For example, when arranging controversial speakers, the institution should ensure that its process is viewpoint-neutral and uniform for all student organizations.

Colleges should further ensure that restrictions that are in place are narrowly tailored to serve a valid interest of the institution, and opposing viewpoints should be granted the same opportunity to be heard as those that are more popular, with reasonable alternatives available in the event that complete parity is not available. Rules should be enforced in a uniform fashion and steps taken to ensure that third parties who choose to interfere by the use of the “Heckler’s Veto,” i.e., by shouting down speakers, threatening or perpetrating violence to affect a silencing of opposing views, are met with institutional action that stymies their efforts, even when those views are similar to that of the majority of the student body and or the institution itself. A critical consideration when permitting a “friendly” viewpoint is whether the institution is willing or able to permit the other side of the issue to be aired. Institutions should give serious consideration as to whether hosting a friendly speaker is appropriate if they are not willing or able to accommodate any dissenting speakers who perhaps do not embody the beliefs of the institution.

In short, President Trump’s Executive Order does not change what is required of institutions that receive Federal research and educational grant funds. However, the agencies providing such funding can hold institutions accountable for violations of free speech by exercising the spending power of those same agencies. To address the risk to grant funds institutions should take care to ensure that the enforcement of rules and regulations is content neutral, narrowly tailored to accomplish a legitimate institutional goal and that there are sufficient alternative venues made available for opposing views when the identical venue is not a viable alternative.

For more information regarding this article, please contact Leo Santiago at lsantiago@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.

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