The new administration’s uncertain higher education policy took two strides into the light this week. First came the announcement of Liberty University president Jerry Falwell Jr.’s appointment to lead Trump’s White House task force on higher education reform. And then, responding to fiery, riotous protests at UC Berkeley that night, President Trump tweeted about defunding campuses where free speech comes under fire.
The speech was a scheduled appearance by Breitbart tech editor and flamboyant alt-rightist Milo Yiannopoulos, whose current schtick is to make a flashy show of upsetting oversensitive young people—and the fire that shut it down was a bitter rampage led by Berkeley students but joined by the Bay Area’s best malcontents.
Coverage of the protests, peppered with literal fire, provoked the president to tweet Thursday morning at 6 a.m., “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?”
Those who work to defend free speech on campuses—while heartened by the prospect of an administration that will soften or undo federal regulations—should not, and in fact do not, welcome top-down overcorrection in response to existing over-corrective regulations.
The Foundation for Individual Rights in Education, which has currently focused much of its efforts on a lawsuit against the federal government over due-process-denying Title IX guidance, can’t wait to close the book on the Department of Education’s 2011 Dear Colleague Letter, a mandate from the department’s civil rights office which reinterpreted the gender-parity rule known as Title IX to make colleges and universities adjudicate sexual assaults to a sub-constitutional standard. The dawning Trump years may promise progress on the deregulatory front, but they might also bring reciprocal overregulation: further federal guidance tied to a statutory basis no stabler than Title IX.
It’s not a new concern for FIRE, executive director Robert Shibley told me: “Ever since I’ve been working at FIRE, we have warned folks who are happy with the status quo on college and university campuses that sometimes the pendulum swings back.” It’s tempting to argue, for instance, that UC Berkeley administrators are just as, if not far more blatantly, complicit in a pervasive protest culture as any college administration has ever been complicit in rape culture.
Brett Sokolow, who’s built a successful consulting business for the purpose of advising college administrators’ compliance with the Obama administration’s federal mandates on Title IX, told TWS shortly after the election that he believes the status quo on campuses is fairly secure. Colleges won’t easily let go of their compliance mechanisms, saying, “Changing a college is like trying to turn a cruise ship.”
Now, Sokolow doubts that the Trump administration will try to make them change. “[H]igher education will experience at least four years of significant de-regulation,” he predicted, via email. Plus, “I doubt that they will implement much in the way of new guidance.” And when it comes to politicizing free speech, “I doubt Washington is going to wade into that morass.”
But, if Washington were dragged? Say, by a tweet?
“Part of the problem with the culture of censorship on campus having got so out of control is that it is inevitably going to come to the notice of powerful people,” said Shibley. “And they’re going to want to do things about it.” You’d think this level of high-profile notice would be a boon to an organization like FIRE, roughly akin to the ACLU but for college campuses. Still, advocates for free expression and intellectual diversity in academia tend to eschew partisan entanglements.
Jonathan Haidt, a social psychologist and professor at NYU, champions intellectual diversity as a leader of the group Heterodox Academy. Haidt warned against partisan gamesmanship in Heterodox Academy’s yearly letter last month, writing: “As a general principle, I am concerned whenever universities become political footballs, to be moved down the field by whichever team has the power to do so.”
Still, a pendulum swing toward the political right could be good news for fans of the rule of law: Jerry Falwell, Jr., who did not respond to a request for comment, has said he will focus on “over-regulation and micromanagement of higher education.”
As president of Liberty University, the private Evangelical university in Lynchburg, Virginia founded by Falwell’s famous father, he upholds a rigid code of conduct that no public university could require. Every Liberty student, knowingly, signs away their freedom to be immodest.
If every college maintained contractually-defined standards for speech—most of them quite a bit looser than Liberty’s, one would assume—we’d see fewer thought crimes pop up on FIRE’s wall of shame. Students would know what lines they’d agreed not to cross, and schools, public ones anyway, would try harder not to draw unconstitutional lines. And Congress could, conceivably, condition colleges’ and universities’ federal funding on the existence of constitutional speech codes.
But the Department of Education might also follow a well-worn path to circumvent Congress. The department could issue a Dear Colleague Letter threatening to withhold federal aid and grant monies from public and private colleges that perpetuate protest culture. And why shouldn’t they? (“It’s a dangerous door to open, and the door has been opened,” as Shibley said.) Such an action would perfectly fit the mold of recent precedent. Somewhere a statutory basis for this guidance lies waiting, ripe for creative, agenda-directed reinterpretation by a politically hungry federal agency.
Or, if Congress’s education committees remain crippled by partisan infighting, and the Department of Education maintains its commitment to uphold the law only as written, this new White House task force may feel empowered to propose guidance or draft executive orders at the president’s whim. (Falwell, remember, is a special friend: He was not just an early supporter of the Trump campaign but his endorsement helped bring Evangelical voters to Trump, presumed a hard sell.)
The more campus protests flare up on the evening news, the more the president may latch onto the idea of a federal policy lever, modeled after the Obama administration’s but recalibrated to punish a prevailing campus culture that deplores POTUS above all evils. Thanks to a tempting precedent, Trump won’t have to wait for a bill to become law or for an agency regulation to pass through notice and comment: For a tweet to become a mandatory federal guidance need only take a few minutes, really.
The point is not that this will happen, but that it can. It has happened already and therefore may happen again—only now toward a distinctly Trumpian end: “Once you remove the mooring of the rule of law,” Shibley said, “there is a lot of potential for mischief from both sides.” Equal and opposite mischief, Milo Yiannopoulis will be the first to tell you, is the way of the future after all.
