The Higher Education Act must protect free speech

President Trump has taken an important step to protect intellectual freedom on college campuses. His executive order, “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities,” issued last month, requires federal agencies to “ensure” that colleges and universities protect free inquiry before receiving federal research grants. And early polling suggests a strong majority of Americans — nearly three-quarters — support his leadership to protect free speech on campus.

Now it’s time to look to the Higher Education Act (HEA), the main federal law that governs colleges and universities. The HEA is a key opportunity to refocus higher education on what should be its main priority: protecting the intellectual freedom that permits students and professors to seek the truth, wherever it leads.

{mosads}That’s why today more than 100 professors, scholars and representatives of civic and academic organizations—including my own, the National Association of Scholars — issued a statement calling on Congress to do just that.

We note that in the past two years, colleges and universities have seen nearly 50 attempts to disinvite speakers. More than 120 college and university policies earned a “red light” rating from the Foundation for Individual Rights in Education (FIRE) — meaning that they clearly and substantially restrict freedom of speech.

Increasingly, at public universities, students are forced to sue for their First Amendment freedoms. Alliance Defending Freedom’s Center for Academic Freedom has won 385 cases — including 100 percent of all cases it has brought against so-called “free speech zones,” in which institutions limit public speech to small areas of campuses. FIRE has intervened in 492 cases involving speech and association rights.

No student should have to sue to secure First Amendment rights. Congress should not permit colleges and universities with clearly unconstitutional policies to act with impunity. Public colleges and universities that flout the First Amendment, or apply First Amendment protections unequally, should become ineligible to receive Title IV federal student loans and grants.

And while private universities are not directly bound by the First Amendment, they should be required to publicize speech and association policies on their websites, in student handbooks and orientations. Students should know what they’re signing up for when they enroll at a private university.

These changes would give teeth to the Higher Education Act’s current language, which only declares the “sense of Congress” that “an institution of higher education should facilitate the free and open exchange of ideas” and protect religious liberty and association, and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.”

That language is important, but merely aspirational. Colleges and universities have little incentive to abide by the sense of Congress — particularly when their own inclination is to suppress unpopular or controversial speech. Congress must add an enforcement mechanism.

So far, this Congress has shown no interest in protecting freedom of speech in the Higher Education Act. Sen. Lamar Alexander (R-Tenn.), chair of the Health, Education, Labor and Pensions Committee, left free speech off his HEA agenda. When President Trump issued his executive order on free speech, Alexander criticized it as “creating speech codes” for colleges and universities to follow — which it clearly does not.

Alexander, who has served as president of the University of Tennessee and secretary of the Department of Education under George H.W. Bush, is retiring in 2020. Evidently he sees the reauthorization of the Higher Education Act as a key piece of his legacy and wants to forge a compromise with House Democrats, who believe affordability and access are the key issues in higher education.

But absent the freedom to speak and to seek the truth, college is not a good investment. Federal subsidies might make such an education affordable, but they cannot make it worthwhile.

Free speech is not a bargaining chip to be tossed aside in an effort to create more federal grants or reform the student loan system. Free speech is the very heart of higher education itself.

Congress must protect free speech in the Higher Education Act. By doing so, it will restore the value of American higher education.

Rachelle Peterson is policy director of the National Association of Scholars. Follow on Twitter @NASorg.