On March 21, 2019, the White House issued an Executive Order requiring federal agencies to withhold certain types of funds from higher education institutions that fail to comply with the First Amendment or federal laws, regulations, or policies on free inquiry.  The Executive Order does not change existing free speech law on campus.  It requires colleges and universities to comply with existing laws and policies, and depends on specified federal agencies to enforce it.  We expect the Executive Order will have little actual effect on free speech on campus, because it does not change the law.  The Executive Order could have more substantial impact eventually as federal agencies take concrete steps to implement it and develop processes to determine whether colleges and universities follow free speech requirements.

The Executive Order, titled “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities,” contains provisions on two topics, (1) free speech, and (2) requiring the U.S. Department of Education to publish data on student incomes, including earnings, debt, and default rate on loans, and related reporting and policy requirements.  In fact, most of the Executive Order relates to this second topic.  The provisions on free speech are shorter and more general.  They are as follows.

Section 1 sets out the purpose of the Order, and states that the Administration:

seeks to promote free and open debate on college and university campuses.  Free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity.  We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.

Section 2(a) of the Order states that it is the policy of the federal government to

encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions . . . .

The operative language from Section 3(a) requiring institutions to comply with existing law is vague, and leaves much room for debate about how it will apply and which particular laws and rules will be involved.  Section 2(a) is more clear that at a minimum the Executive Order concerns public institutions complying with the First Amendment, and private institutions (to which the First Amendment does not apply) complying with their “stated institutional policies regarding freedom of speech.”  Often these stated policies at private institutions will mirror First Amendment requirements for permitting student and community member expression and regarding academic freedom.

Section 3(c) makes clear that the Executive Order does not affect federal financial aid.

Whether the Executive Order will have an impact in the area of free speech law on campus depends on what choices federal agencies make in implementing it.  The fact that the Executive Order does not change existing law suggests it will not have substantial impact, but some commentators and activists argue that many higher education institutions are out of step with the First Amendment in policies and practices, and that private institutions do not abide by their own policies.  The threat of withdrawal of federal funding could have significant consequences.

Institutions can take the Executive Order as a reminder to look at free speech issues on their own campus.  Common areas for free speech challenge include:

• student codes of conduct and civility that supposedly chill student expression;
• participatory government processes; collective bargaining agreement language that often includes free expression and academic freedom provisions;
• policies that limit students and outside groups wishing to engage in free expression to small speech areas on campus; and
• policies that impose burdensome advance notice or have advance approval requirements for organized speech.

Common areas in which private institutions can face challenges are:

• policies that have vague terminology;
• policies that confer expansive free speech;
• academic freedom rights that clash with existing civility code or conduct code language; and
• requirements that fail to correspond to actual practices.

Institutions should take the time now to review their policies, and most importantly their practices, to avoid issues with federal agencies under the Executive Order.