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Government and Governance in Higher Education, Part 1

The Brief

This is one in a series of articles from BPC Fellow Steven F. Hayward. The views expressed in this blog reflect those of the author and are not necessarily those of the Bipartisan Policy Center.

We’re seeing something new with governments and higher education governance in the last five years: government wading into the quality and character of academic discourse on the nation’s campuses.

This is truly a new development. Before World War II, governments at all levels tended to leave higher education institutions alone to govern themselves. This hands-off attitude persisted even after the federal government assumed a role in higher education by becoming a significant funder of higher education through the Servicemen’s Readjustment Act of 1944—better known as the G.I. Bill—and the post-Sputnik National Defense Education Act of 1958.

One exception to this hands-off approach was the adoption of loyalty oaths at public universities and private universities receiving NDEA funds, a few of which still exist to this day. These loyalty oaths were controversial at the time—with the defenders and opponents of such oaths replaying debates that fueled the McCarthy bitterness of the early 1950s—but attempts to strip them from the NDEA failed in Congress.

The government continued to hold itself at a remove from higher education governance even as federal funding of higher education reached $75 billion in 2017, allowing higher education institutions themselves, alongside accrediting agencies, to assess academic matters and educational quality. Again, there were some exceptions, notably Title IX sex-discrimination provisions and Title IV student-loan programs.

This hands-off approach has started to change, as heightened controversy about the status of free expression on campus has caught the attention of lawmakers in Washington, D.C. and in several states. Lawmakers have responded with various approaches. It is not clear, however, how government can affect the campus environment for open inquiry and free expression significantly through legislation, executive action, or regulation.

This blog series comes in several parts: first, a survey of legislative and regulatory steps that have occurred or are proposed on the federal level. Next, a similar survey of state-level statutes and interventions on campus. Finally, an analysis of the nature and limits of legislative and regulatory strategies affecting colleges and universities’ free expression climates.

President Barack Obama made headlines when he made open inquiry and free expression a point in his 2016 commencement address at Howard University, at the end of the 2015–16 academic year that saw an uptick in free expression controversies, including at the University of Missouri, Dartmouth College, and Yale University. Obama said:

Our democracy gives us a process designed for us to settle our disputes with argument and ideas and votes instead of violence and simple majority rule. So don’t try to shut folks out, don’t try to shut them down, no matter how much you might disagree with them. There’s been a trend around the country of trying to get colleges to disinvite speakers with a different point of view, or disrupt a politician’s rally. Don’t do that—no matter how ridiculous or offensive you might find the things that come out of their mouths.

But using the bully pulpit, the Obama administration did not seek to intervene in this aspect of college governance, though the then-Assistant Attorney General for Civil Rights, Thomas E. Perez, issued a statement on one specific aspect of campus controversy: anti-Semitism. Perez wrote that “discrimination against Jews, Muslims, Sikhs, and members of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.”

The Trump administration picked up Perez’s statement and ran with it in the form of the Executive Order Combatting Anti-Semitism, issued in December 2019, aimed at combatting anti-Semitism on campus, though it also covered all executive agencies. This was regarded as a “rule of construction” clarifying that the working definition of anti-Semitism will be the International Holocaust Remembrance Alliance (IHRA) definition and that Jewish people are protected from discrimination by Title VI of the Civil Rights Act of 1964, which defined Jews as a class of people by “national origin,” since the CRA doesn’t cover discrimination based on religion.

Relatedly, the Department of Education Office of Civil Rights reopened a controversial investigation into alleged anti-Semitism at Rutgers University, based on the Department of Education’s use of the International Holocaust Remembrance Alliance definition of anti-Semitism, which had long been used by the Department of State; the Rutgers investigation remained unresolved at the end of the Trump administration. A concern raised both about the anti-Semitism executive order (EO) and the use of the IHRA definition is that constitutionally protected criticism of Israel might be disallowed.

The Trump administration was active on several other aspects of campus free expression controversies, issuing other executive orders and Department of Education rule-makings and investigations. In March 2019 the White House issued an Executive Order Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, aiming at a broad list of current criticisms of higher education such as the rising cost and the lack of awareness of or transparency about the long-term financial implications of student loan debt but also limits to free speech. Section 3, for example, reads in part:

The heads of covered agencies shall… take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

The Department of Education’s final rule to enforce this EO appeared in September 2020, and requires all public colleges and universities to uphold full First Amendment protections for free speech. For private universities, especially those with a religious affiliation, the Department of Education recognized more latitude for restricting expression but requires all private universities that receive federal funds—which is very nearly all of them—to comply with their own stated speech policies or risk losing federal funds. The department will rely on a final, no-default court judgement in determining whether a public institution violated these standards. The department took one concrete step to implement the EO: it has set up an e-mail hotline where people can report campus free speech violations.

Finally, in September 2020, the Trump administration issued an Executive Order Combatting Race and Sex Stereotyping. The EO, rescinded by President Joe Biden on January 20, 2021 contained a spirited argument along with threats of cuts in federal funding for non-conforming federal agencies or contracting institutions:

Today, however, many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

The principal target of the EO was certain forms of “critical race theory” reportedly used in professional training sessions, and several universities suspended or curtailed numerous “diversity” events while the EO proceeded to the formal rule-making stage. Even before President Biden rescinded this EO, a federal court had partially enjoined its enforcement in December 2020. President Biden’s rescinding of the EO makes it moot, though as has become a familiar pattern in recent administrations, a change of party might see the proposal revived at some future point.

Separately, the Trump administration sharpened its gaze on campus culture with some initiatives and investigations emanating from the Department of Education. One such initiative was a 2019 sharply worded letter to the Duke-University of North Carolina Consortium for Middle East Studies, placing the consortium’s receipt of federal funds under review on account of alleged ideological bias in the program. UNC responded with a defense of the program, and arguing that the aspects of the program the DoE objected to were not supported with Title VI federal funds. Secretary of Education Betsy DeVos wrote to Princeton University to propose investigating whether the “systemic racism” at Princeton proclaimed by Princeton President Christopher Eisgruber might represent a violation of the Civil Rights Act. The Biden administration has dropped the inquiry. And in October 2020 the Department of Education opened an investigation into the firing of University of Pittsburgh cardiology professor Norman Wang after Dr. Wang published an article in a peer-reviewed medical journal critical of race-based admissions to medical schools. (Prof. Wang also filed a private civil suit.) As of this writing the disposition of the Department of Education investigation following the change of administration is unknown.

Congress has waded into the fray with hearings and proposed legislation. So far Congress has mostly held hearings for Senators and Representatives to take in testimony of students and legal experts on specific episodes and possible legal problems and remedies: the Senate Judiciary Committee in June 2017; the House Government Oversight Committee in July 2017; and before the Senate Health, Education, Labor & Pensions Committee in October 2017. These hearings all occurred in response to several campus controversies of that year, including the Milo Yiannopoulos riot at the University of California-Berkeley, and the mob violence directed at Charles Murray at Middlebury College. Two past Senate Judiciary Committee chairs, Sen. Charles Grassley (R-Iowa) and former Sen. Orrin Hatch both expressed concerns over “cancel culture” on campus in separate articles in the Wall Street Journal (here and here).

So far, Congress has not considered any national legislation in response to these controversies, but rising concern about the status and role of basic civics education at all levels of learning has prompted the bipartisan proposals in the 116th Congress for the USA Civics Act and the Educating for Democracy Act. Sponsored by Sens. John Cornyn (R-TX) and Chris Coons (D-DE), the bills would provide new federal funding to educational institutions and adjunct projects with non-profit organizations in the humanities and social sciences to bolster civic literacy.

Deeper knowledge of our governing institutions and history, including America’s strengths, failings, and past struggles for change, may temper campus discourse by helping students to understand current events and controversies in a fuller context.

None of this suggests that the steps taken by recent administrations, whether through use of the bully pulpit, legislation, executive action, or regulation, have greatly altered the campus climate for open inquiry and free expression. As public universities are under the direct jurisdiction, and often significant financial control, of the 50 states, there is much more action on the state level at the moment, which will be surveyed next in this series.

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