In the midst of a lively, rambling speech at the Conservative Political Action Conference earlier this month — a two-hour, improvisational performance full of typically Trumpian insults, bravado, and self-aggrandizement that began with the president giving a bear hug to an American flag — President Trump decided to make a serious policy announcement.
Joined on stage by Hayden Williams, a right-wing activist who was recently assaulted on the University of California, Berkeley, campus, Trump vowed that he’d “soon” issue an executive order “requiring colleges and universities to support free speech if they want federal research dollars.” If colleges and universities “want our dollars, and we give to them by the billions, they have to allow people like Hayden and many other great young people and old people to speak,” the president declared.
Trump is an imperfect messenger for free speech, to put it lightly. And the CPAC stage was a terrible venue to announce such a policy, to put it generously. Moreover, Trump gave no further details about the order in his speech, nor have any yet been released as of this writing.
In the absence of specifics, the ensuing public discussion has been less of a topical policy debate than an ideological Rorschach test, heavily contingent on general assumption and personal opinions of Trump himself. This is a shame, because Trump has hit on one of the few, if not only, practicable methods by which the federal government might protect campus free speech and promote academic freedom without undue interference into higher education. While it remains to be seen what, exactly, Trump’s executive order will stipulate — and I will withhold judgment on his plan, one way or the other, until that time — in principle, tying federal research funding to schools’ free speech commitments is a reasonable, restrained policy mechanism that upholds First Amendment principles in a manner consonant with the fundamental mission of the university and the responsible management of taxpayer dollars.
For conservatives and others of limited-government persuasion, who worry about unintended consequences, top-down mandates, and sweeping reforms, when it comes to policy, there is ever-present tension between identifying significant problems and crafting appropriately moderated approaches to tackle them. In contemporary debates about higher education, this tension exists between legitimate concerns over issues such as the state of free speech, free inquiry, and viewpoint diversity on campus, on the one hand, and a legitimate wariness of meddlesome government intervention, on the other.
Nevertheless, this divide is not unnavigable. Indeed, making eligibility for federal research dollars contingent on colleges and universities upholding free speech, as Trump appears poised to do, offers a possible way forward.
Last spring, in an essay for National Affairs, my former American Enterprise Institute colleague, and then-boss, Frederick M. Hess and I suggested what such a policy could look like, along with the potential benefits and pitfalls of this type of federal action.
Colleges and universities are not only degree-granting institutions of teaching and learning but also vast research enterprises, generously supported by taxpayers. And while most funding discussions in this area focus on federal aid for student loans, federal research grants and contracts represent a separate, quite substantial stream of public money flowing to colleges and universities.
Since World War II, when the Roosevelt administration wisely chose to eschew government-run laboratories in favor of patronizing outside research efforts, the federal government has used colleges and universities as subcontractors, disbursing billions every year for research in defense, energy, medicine, and more. In fiscal year 2017, for example, Washington spent more than $40 billion on research and development at higher education institutions alone, according to the National Science Foundation. The American Association for the Advancement of Science calculates that federal dollars represent roughly 60 percent of all university-based R&D funding.
Again, unlike student aid monies, which support degree-granting and teaching, the federal government spends this money to engage scholars as subcontractors to undertake research projects federal officials deem a worthy investment. This subcontracting relationship is why Washington pays hefty overhead rates to colleges and universities on top of the actual costs of research, which help schools pay for administrators, facilities, and day-to-day institutional operations. These additional, “indirect-cost” funds are another reason federal research grants are among the most sought-after dollars in higher education.
As we explained, “The size and nature of Washington’s investment give it a clear stake in ensuring that colleges and universities that take federal research funds adhere to the tenets of responsible science — including the assurance that research questions, methods, and reporting will be guided by an inviolable commitment to free inquiry.” “Free inquiry” is a term that’s fallen somewhat out of fashion, but it’s perhaps best understood ontologically, as encompassing the First Amendment freedoms of speech, press, etc., as well as the complementary values of academic freedom.
Now, some, particularly in the higher education community, have argued that by making federal research funds explicitly contingent on free speech, Trump’s order will negatively “interfere with the institutional autonomy of colleges and universities,” in the words of American Association of University Professors spokeswoman Rachel Larris.
Conservatives are skeptical of federal intervention on principle, and for good reason. In education, the Obama administration’s parlous machinations with campus Title IX polices come to mind. And we should be wary if the eventual Trump free speech order seems to extend too far.
But taking the stated opposition from universities and their flacks at face value belies certain realities that also must be taken into account when considering such a policy.
For starters, it’s wholly disingenuous to pretend that incorporating a free speech component into federal research grant contracts is some unprecedented, sui generis stipulation. As with any contract, particularly those involving public funds, federal research grants to colleges and universities already come with scores of terms and conditions. “If you want a federal grant, you have to certify to the government already that you’re going to follow the law of the land,” Adam Kissel, former deputy assistant secretary for higher education programs at the Department of Education, put it recently.
As he points out in National Review Online, one form, Standard Form 424B: Assurances for Non-Construction Programs, “requires more than a dozen assurances that, at minimum, the research and the institution will follow all applicable laws, regulations, policies, and executive orders.” Specifically included in 424B, for example, are the Intergovernmental Personnel Act of 1970, relating to prescribed merit system standards; the Davis-Bacon Act of 1931, mandating that public works contractors be paid at least “locally prevailing wages”; the Copeland “Anti-kickback” Act, which supplemented Davis-Bacon; the Flood Disaster Protection Act of 1973; the Wild and Scenic Rivers Act of 1968; and the Lead-based Paint Poisoning Prevention Act, inter alia.
“Free speech and academic freedom easily fit among such assurances,” Kissel explains. And, I would add, they are considerably more related to the grant purpose than many currently applicable statutes. In fact, far from a novel idea, the expectation of free inquiry, and the necessity to protect it, was inherent in the very conception of federal research grants.
In a 1945 report to President Harry S. Truman that became the blueprint for our federal grant-making regime, Vannevar Bush, Raytheon co-founder and then-head of the Office of Scientific Research and Development, stipulated the basic principles of governmental support for scientific research and education: “Scientific progress on a broad front results from the free play of free intellects, working on subjects of their own choice, in the manner dictated by their curiosity for exploration of the unknown. Freedom of inquiry must be preserved under any plan for Government support of science.”
Therefore, an executive order requiring that colleges and universities commit to free speech and academic freedom in exchange for taxpayer-funded research grants is both statutorily justifiable and consistent with the grant-making purpose. Of course, just because you can do something doesn’t mean you should, and it’s reasonable to ask if such free speech requirements are even necessary and, if so, why.
Unsurprisingly, the higher education community has resoundingly answered “no.” According to Terry Hartle, senior vice president for government and public affairs at the American Council on Education, the order would be “a solution in search of a problem,” because “free speech and academic freedom are core values of research universities.” “We do not need the federal government to mandate free speech on college campuses — that tradition is alive and thriving,” said former Obama official and University of California System President Janet Napolitano, calling the order “unnecessary.”
Reality says otherwise. Of course, it’s Hartle’s job to pretend colleges and universities are blameless, faultless founts of knowledge and impartial virtue; he once penned an op-ed explaining that support for higher education is falling among Republicans because they’re pathological rubes who “receive only ‘news’ that confirms their own views” and conflated criticizing colleges with denying climate change. But even as recently as October 2017, Napolitano herself was warning about the “increasing number” on campus who believe in censoring speech.
As we’ve seen, from the beginning, the subcontracting relationship around federal research grants was established under the presumptive expectation that taxpayer-funded research would be pursued with respect to free speech, academic freedom, and the other conditions of free inquiry necessary for conducting responsible science. Today, however, there are legitimate concerns about whether universities are upholding their end of this bargain.
The contemporary academy reflects a decided ideological lean. According to the Higher Education Research Institute’s 2016-17 Faculty Survey released this month, which reached 20,771 full-time faculty members across 143 institutions, a total of 12.1 percent identified as either “far right” or “conservative,” while 11.6 percent alone identified as “far left” and 48.3 percent as “liberal” (28.1 percent identified as “middle-of-the-road”). In some disciplines, such as the arts, humanities, and law, the tilt is even steeper.
On its own, this ideological imbalance has raised legitimate concerns about the ability of campuses to welcome and support robust debate around important, contentious questions regarding issues such as race relations, immigration, social policy, climate change, and others. After all, as Rick Hess and I reminded, “Researchers, like anyone else, can fall prey to confirmation bias, and the more ideologically uniform a research environment, the greater the risk of that bias going unnoticed, being reinforced, and tainting results.”
Now, while ideological homogeneity, groupthink, and academic echo chambers are undoubtedly a societal problem, there’s almost certainly no constructive role for the federal government to play in addressing them. Indeed, any executive order attempting to intervene in this sphere of campus culture and academic life, such as to establish ideological quotas or outlaw “politically correct” teaching, as some have called for, would be an abuse of authority and a certain failure.
Instead, the salient policy issue arises when this ideological imbalance on campus yields formal policies and practices that stifle free speech, academic freedom, and intellectual heterodoxy, and thus compromise the conditions necessary to conduct the responsible, high-quality research that should be required as a condition for taxpayer largess.
Most major colleges and universities, including the majority that receive federal research funds, maintain speech codes and other restrictive policies that are unconstitutionally overbroad, hopelessly vague, enable viewpoint discrimination, or otherwise threaten academic freedom and First Amendment principles. For example, Middlebury College’s general conduct standards state that “behavior that … demonstrates contempt for the generally accepted values of the intellectual community is prohibited.” Such nonsensical language means that any view a campus bureaucrat deems to violate “generally accepted values” may be officially banned. These censorious policies have created a chilling effect on campuses. In one survey conducted by the Foundation for Individual Rights in Education, for example, 54 percent of students reported they “have stopped themselves from sharing an opinion in class at some point since beginning college.”
These policies are also routinely used to investigate or punish professors and faculty participating in the scholarly enterprise: Laura Kipnis at Northwestern, George Ciccariello-Maher at Drexel, Bruce Gilley at Portland State, and now Ronald Sullivan at Harvard, examples abound. (Only one of these, it should be noted, identifies as a conservative.)
Thanks to the efforts of the organizations such as FIRE, Speech First, and Heterodox Academy, there’s been some small improvement of late in the state of free speech and academic freedom on campus. But a slight amelioration doesn’t mean the problem has been solved, and there’s no reason not to think that, absent a different incentive structure, situations on campus couldn’t again worsen. After all, as FIRE often points out, the First Amendment guarantees freedom of speech at public colleges and universities, and plenty of those still restrict speech and expression every day with impunity. Moreover, none of this changes the fact that the conditions for high-quality research and academic learning are those grounded in First Amendment principles and academic freedom and should be expected at a university.
At least in theory, then, an executive order tying federal research funding to free speech could have a healthful effect on higher education. But, of course, the devil is in the details. What will Trump’s requirement look like? Is it going to apply to all institutions, both public and private? And what about enforcement? Crucial questions, all currently unanswered.
It would be folly to predict what Trump’s plan will look like specifically, but it seems to me there are a few core ideas that a successful policy along these lines should follow.
While individual institutions are and should be free to set their own ideological compasses, the size and nature of the federal investment gives taxpayers a clear stake in ensuring that colleges and universities that accept federal research funds take free inquiry seriously by respecting academic freedom and protecting free speech. Therefore, executive action should center on protecting and promoting these principles.
In general terms, this means an executive order stipulating that, to be eligible for federal research funds, colleges and universities must commit to free speech and academic freedom and, as a contractual requirement, must uphold this commitment or else risk losing funds or eligibility status.
What this looks like in practice will depend on several variables. One of these is the extent to which the Trump administration chooses to respect the institutional academic freedom of private and religious institutions.
For his part, Kissel argues, “The most morally defensible executive order would apply to recipients of all federal research dollars and would demand protection of core academic freedom for the researcher while respecting institutional mission.” This would mean private institutions, including religious ones, would not be bound to a constitutional understanding of free speech but instead to the respective commitments they make around speech, however restrictive those may be. Grant-making agencies could also include these policies as an application factor, privileging more expansive free speech commitments when awarding research grants.
Alternatively, last spring, Hess and I suggested the government could also require that private institutions commit to allowing constitutionally protected speech in order to be eligible for federal research funds. In this conception, the government would not compel speech, which is unconstitutional, but rather limit the consideration of awards to schools with viewpoint-neutral policies permitting speech protected by the First Amendment. Private universities may continue to maintain restrictive speech codes and the like as they wish, but those would not receive taxpayer research funds.
Where we all agree is that the federal government should consider the black-letter, formal policies and speech codes schools maintain when enforcing this policy. Kissel put it well: “Therefore, pretty much every unacceptable part of a speech code, wherever and to whomever it applies, should be subject to a federal policy protecting academic freedom for students and faculty members.” In establishing a standard, the Trump administration should defer to the myriad instances where a federal court has ruled speech codes and other restrictive actions unconstitutional or found that an institution has violated the contractual obligation made with students and faculty around promises of free speech and/or academic freedom.
Considering and investigating violations of potential infractions of those schools under research grants is a different, trickier matter, of course. There are numerous ways this could be done, but the general principle should be to limit government intervention as much as possible and only act in a directed response to reported violations rather than proactively, which the Obama administration did with Title IX.
Again, the Trump administration should not intervene to fight “political correctness” or privilege conservative ideas. As a rule, the federal government should not intervene in campus culture. That said, a potential salutary side effect of new federal guidance on research funding is the chance to make free speech concerns more relevant to the broader scientific research community. As Hess and I noted, “The slumbering, silent middle on campus may awaken when accomplished researchers bringing in millions in ‘indirect’ costs suddenly recognize that the ideological crusades of their colleagues may imperil their laboratories and research projects. Campus leaders who have found it easy to virtue signal by indulging students and faculty demanding constraints on speech will now have a fairer fight on their hands, and they will need to be worried about their biochemistry and engineering faculty departing for institutions eligible for federal funds.”
It remains to be seen just what exactly Trump’s executive order will entail, how far it will go, and, crucially, whether and how much it will reflect the considerations and worries of conservative thinking in this area. It may not, but if it does, it’s an idea worth taking seriously.
J. Grant Addison is deputy editor of the Washington Examiner magazine.
