Unpacking Trump's Promise on Free Speech

On Saturday, at the annual Conservative Political Action Conference, President Trump delivered two hours of thoroughly Trumpian remarks. Along the way, he declared that he’d “soon” issue an executive order “requiring colleges and universities to support free speech if they want federal research dollars.” It’s not entirely clear what the executive order will entail, as Trump offered few specifics amid the trademark bluster. And while we can’t say for sure what the promised action will look like -- and will withhold judgment until we see it -- the idea itself has strong historical and statutory justifications.

Those concerned with the state of free inquiry in the academy today (particularly limited-government conservatives such as us) have been bedeviled by the question of what, if anything, policy makers might do that wouldn’t invite the specter of government interference in colleges and universities. After all, whatever our concerns, it’s hard to see that as a promising development. Consequently, last spring, in National Affairs, we suggested one possible way forward, rooted in the recognition that many leading institutions are not only places of teaching and learning but also taxpayer-supported research enterprises.

Since World War II, the federal government has used colleges and universities as subcontractors, disbursing billions annually for research in medicine, defense, energy and more. Universities conducted the work, used the dollars to fund faculty and students, and collected overhead at hefty rates. For example, the National Science Foundation reports that Washington spent almost $38 billion in fiscal year 2015 on research and development at higher education institutions. The American Association for the Advancement of Science calculates that federal funds represent roughly 60 percent of all university-based R&D funding.

In spending these tens of billions, Washington is not seeking to support higher education’s degree granting and teaching; rather, it’s engaging scholars at colleges and universities as subcontractors with the skills and capacity to conduct necessary research. From the beginning, research grants and contracts have been funded under the nominal expectation that institutions receiving taxpayer dollars 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.

Today, however, there are legitimate concerns about whether universities are upholding their end of this bargain. It’s no secret that the contemporary academy reflects a decided ideological lean. On its own, this phenomenon has raised questions about the ability of campuses to truly welcome and support free inquiry on important questions such as race relations, immigration and social policy. 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. But, while campuses catering to enclaves of the like-minded is undoubtedly a societal problem, it’s not clear that there’s a constructive role for the federal government in addressing them -- at least not when the issues involve tasks like teaching and campus culture.

The salient policy issue does arise, however, when ideological homogeneity starts to yield formal policies and practices that stifle free inquiry, speech and discourse. 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.

Speech restrictions maintained by most colleges and universities, for instance, are unconstitutionally overbroad, hopelessly vague and enable viewpoint discrimination. 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 deemed to violate “generally accepted values” may be officially banned. Such censorious policies have created a chilling effect on campuses, where, in one survey, 54 percent of students reported they “have stopped themselves from sharing an opinion in class at some point since beginning college.”

These developments contrast sharply with the historic mission of the university, which was rooted in a commitment to intellectual freedom and untrammeled discourse. Indeed, in its famed 1915 General Declaration of Principles, the American Association of University Professors -- under the leadership of John Dewey -- held that the university must be “an inviolable refuge” from the tyranny of public opinion, insisting, “It is precisely this function of the university which is most injured by any restriction upon academic freedom.”

A reasonable policy response, then, is to insist that those colleges and universities that wish to receive taxpayer-funded research dollars should be expected to stand fast by that mission.

One can argue that this stance is wholly consistent with the spirit of Obama administration efforts. In a 2009 presidential memorandum, President Obama directed the Office of Science and Technology Policy to require federal department and agency heads to adopt procedures ensuring scientific integrity. To that end, OSTP director John Holdren issued a 2010 memorandum on the “foundations of scientific integrity in government,” asserting that “Scientific progress depends upon honest investigation, open discussion, refined understanding and a firm commitment to evidence.” This commitment is today affirmed in federal grant-making agencies’ standards, including those of Health and Human Services, the Department of Energy, the Department of Interior, NASA and many others.

While there is a firm, established basis for the government to insist that institutions engaging in federally funded research safeguard free inquiry, this presumption is not today made manifest in grant applications or oversight. A presidential executive order has the opportunity to make explicit what has long been implicit in the provision of federal research funding -- namely, that institutions are qualified to perform federally supported research only so long as they can demonstrate an institutional commitment to free inquiry. Higher education institutions with formal policies that restrict, chill or punish constitutionally protected speech certainly have the right to maintain those policies, but doing so should render them ineligible for federal research funding.

Such a standard is wholly appropriate for those tasked with managing federal research funds. As the governmentwide federal policy on research misconduct explains, “Agencies and research institutions are partners who share responsibility for the research process.” And while “federal agencies have ultimate oversight authority for federally funded research,” federal policy also requires universities to conduct research oversight of their own. This existing apparatus could be adapted to accommodate free-inquiry concerns and investigations, relegating federal agencies to an appropriate oversight role.

If it follows these contours, the proposed executive order will mostly serve to formalize that which has long been assumed. Of course, the Trump administration may have their own design, but as we suggested it, the eligibility criteria could be relatively straightforward:

First, as a condition of eligibility, colleges and universities must offer assurance that they do not restrict constitutionally protected speech, engage in viewpoint discrimination or constrain free inquiry. This means that institutions maintaining formal restrictions on constitutionally protected speech and expression would be ineligible for federal research funding. Second, as a contractual requirement, those institutions awarded a federal research grant or award must commit to safeguarding free inquiry to the best of their ability, and to appropriately addressing any policies or practices that serve to hinder free inquiry or scholarly independence. And third, institutions must formally acknowledge that, in accordance with federal policy, those found to be in violation of these commitments may be obliged to refund the balance of funds for ongoing federally funded research and be rendered ineligible for future research funding.

While it remains to be seen just what a Trump executive order may entail, the idea itself is far less sui generis than some might imagine. After all, asking campuses that wish to collect federal research funds to make a minimal commitment to ensuring that they are places of free, unimpeded inquiry seems less a radical notion than a sensible and overdue one.