Education Department Rule Implementing Trump’s Campus Free Speech Order Is "Breathtaking in Its Reach"
February 20, 2020

​​​​​​​Presid​​​​​ent Trump signed an ​executive order last March that linked federal research and education grants—with the exception of student grants and loans—to campus free speech, directing 12 federal agencies to ensure that recipients “promote free inquiry.”

The Department of Education (ED) is the first of these agencies to begin the process of implementing the order, with a Jan. 17 rulemaking notice that outlines regulations designed to ensure “First Amendment freedoms owed to students on campus.” ACE and 25 other higher education associations submitted comments on the proposed rule to ED yesterday expressing a number of concerns.

Under the rule, public institutions would be required to comply with the First Amendment as a condition of receiving grant funding, while private institutions receiving funding would have to comply with their “stated institutional policies” on freedom of speech. ED would find an institution has failed to comply with these requirements if there is a “final, non-default judgment” by a state or federal court that a public institution has violated the First Amendment or a private institution has violated its stated free speech policies.

The associations’ primary concerns center on the breadth of the proposed rule’s conditioning of a loss of federal grant funding on a single “final, non-default judgement” by a court against an institution or any of its employees. The concept is “breathtaking in its reach,” they wrote in their comments, and its “real-world application is chilling and could lead to a variety of unintended consequences.”

Among the problems likely to arise is an increase in speech-related litigation, which could possibly drag on as institutions attempt to avoid non-default final judgments. The associations also are concerned that courts will reach different conclusions about whether an institution violated the First Amendment or its stated policies, even when looking at the same or similar set of facts.

The proposed rule also would prohibit public institutions from denying religious student organizations any “right, benefit or privilege (including full access to the facilities of the public institution and official recognition of the organization)” given to other student groups because of the religious organization’s “beliefs, p​ractices, policies, speech, membership standards, or leadership standards.” This provision directly contradicts U.S. Supreme Court precedent, which puts colleges and universities in another no-win situation.

In its 2010 decision in the case Christian Legal Society v. Martinez, the Supreme Court specifically held that the University of California Hastings College of the Law did not run afoul of the First Amendment by deciding that only student organizations with “all-comer” policies will be officially recognized by the college. The proposed rule is completely at odds with that ruling. 

“Under the guise of advancing First Amendment interests, its adoption would place colleges and universities in the unenviable position of putting Departmental funding at risk by choosing to do precisely what the Supreme Court has ruled to be constitutionally permissible,” the groups wrote. “This is an untenable choice for an institution and not one that the Department should promote, let alone require.” 

As ACE President Ted Mitchell said in a statement when the president unveiled the executive order in 2019, the idea of federal involvement in campus speech issues is a solution in search of a problem—one that likely will lead to ill-advised government micromanagement of colleges and universities 

While the associations advise a number of changes to improve the rule and minimize its negative impact, the comments acknowledges that these recommendations should not be viewed as support for the proposal or its underlying premise. They also urge the department to reopen and extend the comment period for an additional 30 days to allow more input from stakeholders.

While ED is continuing to process and post comments, as of Feb. 20, there were more than 15,000 comments filed.