Protection of Free Speech on Campus Target of President’s Executive Order

President Trump signed a much anticipated Executive Order (EO) on March 21 to ensure institutions of higher education that receive federal research or education grants promote freedom of speech. 

According to Trump, “We reject oppressive speech codes, censorship, political correctness, and every other attempt by the hard left to stop people from challenging ridiculous and dangerous ideas. These ideas are dangerous. Instead, we believe in free speech, including online and on campus.”

Although the Executive Order focuses on free speech on college campuses, the order also incorporates several measures intended to address transparency and accountability in higher education.

Notably, the EO does not appear to impose new legal obligations on educational institutions with respect to freedom of speech. Rather, the EO emphasizes that institutions receiving certain federal research and education grants must comply with existing federal law. Accordingly, the EO requires:

• Private institutions to abide by their stated free speech policies.
   
• Public institutions to adhere – as they already must do – to the First Amendment’s mandates regarding freedom of speech.

Based on these requirements, it appears that private institutions of higher education will remain entitled to establish their own free speech policies, but with heightened federal pressure to ensure these policies are being followed. The EO further provides that:  

• The federal student aid programs are not considered to be research or education grants.
   
• Specified federal agencies must ensure that institutions promote free inquiry, including the Departments of Education, Defense, Energy, Interior, Agriculture, Commerce, Labor, Transportation, and Health and Human Services; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration.  

The Executive Order also includes several directives on other higher education priorities of the Trump Administration. The E.O. requires:

• The Education Department to publish program-level (i.e. “major-by-major” level) data on the College Scorecard for every certificate, associate’s degree, bachelor’s degree, graduate degree, and professional degree program for all federal student aid participants. Because this information is based on data already available to the Department, this provision will not impose any new reporting requirements on institutions. Every program will have published its estimated median earnings, median Stafford Loan debt, median Graduate PLUS Loan debt, median Parent PLUS Loan debt, and student loan default and loan repayment rates on the Scorecard by January 1, 2020.
   
• The Education Department to publish institution-level data on the College Scorecard on default and loan repayment rates, Graduate PLUS default and repayment rates, and Parent PLUS default and loan repayment rates for all federal student aid participants.
   
• The Education Department to make available a secure website that informs federal student loan borrowers of how much they owe, how much their monthly payment will be when they enter repayment, available repayment options, the length of each repayment option, and how to enroll in the various repayment options by January 1, 2020.
   
• The Education Department to submit reports concerning (1) policy recommendations for risk-sharing associated with federal student loan debt among the federal government and institutions of higher education; (2) policy recommendations for reforming student debt collections for defaulted loans; and (3) progress on implementing the program-level and institution-level data publications, as well as the debt information tool.
   
• The Education Department to publish a fourth report identifying successful attempts by states and institutions to facilitate transfer of credits, dual enrollment, and other strategies for increasing student success.

NAICU will monitor the implementation of this EO by the federal agencies involved and will provide members with updates as necessary.