OPINION: Don’t Be Hasty To Condemn Trump’s Executive Order On Campus Free Speech

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Nicole Neily Contributor
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“I will be very soon signing an executive order requiring colleges and universities to support free speech if they want federal research dollars,” President Trump announced on Saturday. “If they want our dollars — and we give it to them by the billions — they’ve got to allow people … to speak.”

These aren’t small sums we’re talking about; the National Science Foundation alone doled out over $26 billion for research at colleges and universities in 2017, and the Department of Defense and the National Institutes of Health partner with schools for research on a similar scale.

It should surprise (and concern) everyone that it’s taken the threat of an executive order to make the country’s universities take the First Amendment concerns of students seriously. Yet this week’s caterwauling from the ivory tower once again shows that perhaps adherence to Constitutional principles might not actually be the default setting on campus after all.

Some have said that an executive order targeted at public universities is unnecessary because those schools are already considered state actors, subject to the full reach of the First Amendment. Unfortunately, we’ve seen time and time again that those state actors do NOT, in fact, respect their students’ First Amendments rights on a regular basis; organizations like the Foundation for Individual Rights in Education (FIRE) and the Alliance Defending Freedom have filed dozens of lawsuits against schools across the country over the past 10 years.

Without a doubt, the window of acceptable discourse on college campuses has grown increasingly narrow, and to hold a viewpoint of any kind—political, religious, or other — outside of that window poses a significant threat.

Most Americans are aware of the high-profile issues, where speakers have been shouted down, students’ personal information has been posted online, and physical assaults have taken place. It’s true that many of these problems are culturally-driven. That being said, students and faculty take their cues from administrators, who set the policies that shape the campus environment — and with that in mind, the fact that the president has drawn attention to this issue should frighten many of them.

This is because the under-reported — and frankly, more insidious — problem is that students across the country are simply choosing to avoid engaging on controversial topics at all out of fear. Students with unorthodox opinions face death by a thousand cuts if they choose to speak out; administrations have devised dozens of little methods to subtly discourage students from expressing unwelcome opinions, and they deploy those with precision. Consider that hundreds of schools across the country employ free speech zones, where open dialogue is “permitted.” In addition, student organizations are charged security fees — that is, if the school will recognize the groups at all — or face asymmetrical allocation of student fees.

Speech codes that ban “offensive” speech are confusing for students because they are overbroad and very much in the eye of the beholder. Unfortunately, it’s usually not constitutional scholars who decide what’s “offensive” and what isn’t — it’s often the school’s diversity and inclusion bureaucracy — and woe be the student who’s found to have transgressed.

And let’s not forget “Bias Response Teams,” which encourage students to anonymously report their fellow classmates’ speech through online university portals. Students who are reported through these programs are called in to explain themselves to university administrators, which is a terrifying prospect in and of itself. Even if a student is exonerated, this ends up being punishment by process. And, of course, these systems can very easily be weaponized.

The greater the hassle imposed, the less likely students are to decide that the juice is worth the squeeze. Sadly, many simply choose to keep their heads down and their mouths shut rather than face possible disciplinary consequences.

College campuses are the place where ideas should be vigorously debated—not selectively silenced. A critical function of universities is to expose students to a diversity of viewpoints, including those with which some may vehemently disagree.

Without a doubt, the devil’s in the details — and it remains to be seen how exactly how President Trump’s executive order will be crafted. But it’s past time that we ensure our college and university administrators do more than pay lip service to the idea of free speech for all — they must uphold it, too.

Nicole Neily is president of Speech First, a membership association committed to preserving college students’ First Amendment right to free speech.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.