On March 2, President Trump announced that he “will very soon be signing an executive order requiring colleges and universities to support free speech if they want federal research dollars.” The National Association of Scholars believes intellectual freedom—not strictly synonymous with First Amendment free speech—is integral to the pursuit of truth and a key purpose of higher education.
An executive order, tailored properly, can promote intellectual freedom on campus. We offer the following guidelines as a first draft of what we believe President Trump’s executive order should and should not include.
If you have other ideas regarding President Trump’s forthcoming executive order, write to NAS Policy Director Rachelle Peterson at [email protected].
Bar litmus tests for hiring at public institutions: Prohibit all federal research dollars to public colleges and universities that ask applicants for full- or part-time staff or faculty positions to describe their ideological viewpoints. Universities must not ask applicants to describe their commitments to diversity, social justice, sustainability, equality and inclusion, or other political or ideological issues.
Bar litmus tests for tenure at public institutions: Prohibit all federal research dollars to public colleges and universities that ask faculty to describe their ideological viewpoints when seeking promotion or tenure. Universities must not ask faculty to describe their commitments to diversity, social justice, sustainability, equality and inclusion, or other political or ideological issues.
Bar restrictive speech codes at public institutions: Prohibit all federal research dollars to public colleges and universities that restrict students’ and faculty’s First Amendment rights, restrict free speech to designated free speech zones, or have speech codes that, apart from viewpoint-neutral time, place, and manner restrictions, do not recognize all outdoor areas and public events as designated public forums.
Bar religious discrimination at public institutions: Prohibit all federal research dollars to public colleges and universities that deny to a religious student organization any right, benefit, or privilege that is generally afforded to other student organizations at the institution (including full access to the facilities of the institution, official recognition of the organization by the institution, and access to student activity fees), or otherwise discriminate against a religious student organization (including by charging security fees for events) because of the religious beliefs, practices, speech, membership standards, or standards of conduct of the religious student organization.
Bar unconstitutional restrictions on freedom of association: Prohibit all federal research dollars to public colleges and universities that deny to a student organization any right, benefit, or privilege that is generally afforded to other student organizations at the institution (including full access to the facilities of the institution, official recognition of the organization by the institution, and access to student activity fees), or otherwise discriminate against a student organization (including by charging security fees for events deemed “controversial”) on the basis of unconstitutional restrictions on freedom of association, such as political or philosophical beliefs, speech, political or philosophical membership standards, or standards of conduct of the student organization. Public colleges and universities may not enact policies that subordinate students' freedom of association rights.
Require institutional neutrality from all institutions: Prohibit all federal research dollars to all colleges and universities—both public and private—that have adopted a public statement, whether from the President’s Office, the Board of Trustees, or some other official body, giving the university’s official position on the matter that is to be studied with the federal research grants. By issuing such a statement, the university chills speech, jeopardizing the accuracy of any research on that topic.
- Example: Any university that has signed the Presidents’ Climate Leadership Commitments should be ineligible for federal research grants on climate change.
- Example: Any university with a “Bias Response Team” should be ineligible for federal research grants on implicit bias and microaggressions.
- Example: Any university that includes an anti-Israel boycott/divest/sanction provision in its endowment investment policies or other campus policies should be ineligible for federal research grants related to Israel or Palestine.
Require public colleges to pledge their commitment to intellectual freedom. As a condition for receiving federal research grants, public colleges and universities should file a pledge with the Department of Education to abide by the Higher Education Act, §1011a. “Protection of student speech and association rights.”
- With appropriate protections for all constitutionally protected religious liberty, freedom, expression, and association, all institutions should pledge that they agree that “(C) an institution of higher education should facilitate the free and open exchange of ideas; (D) students should not be intimidated, harassed, discouraged from speaking out, or discriminated against; (E) students should be treated equally and fairly.”
- The Executive Order should authorize students, faculty, staff, and members of the public to file complaints with the Department of Education, alleging negligence on the part of colleges and universities to fulfill this pledge. The Department of Education must investigate negligence, as indicated by discriminatory treatment of students and student groups on the basis of religion and political viewpoint; disinvitations of invited speakers; failure to prevent shout-downs of invited speakers; ideological preferences in hiring or promoting staff and faculty; and speech codes.
- The Executive Order should direct the Department of Education to provide staffing and resources as necessary to complete its investigations in a timely manner.
- The result of the investigation must be published online free of charge on the Department of Education’s website. Any college or university found guilty of noncompliance in three instances in a 12-month period will be placed on probation; in five instances in a 12-month period will be denied eligibility for federal research grants.
Do not apply the First Amendment doctrine of free speech to private colleges and universities. The First Amendment prohibits the government from controlling what people say. It is inappropriate to place this restriction on private institutions.
