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HLGR’s Randy Geller on President Trump’s Executive Order on Free Speech

On March 21, 2019, President Trump signed an Executive Order entitled “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.” The Executive Order is of more political than legal importance, but colleges and universities should be aware of its key provisions and what they may portend for the future.

How does the part of the Executive Order on free inquiry affect my institution?

This part of the Executive Order may give the Federal government a new way to seek to enforce free speech rights and institutional speech policies in administrative proceedings and in lawsuits against colleges and universities. If your institution receives Federal research or education grants from certain Federal agencies, it will likely be required to certify that it promotes free inquiry (really speech), including through compliance with all applicable Federal laws, regulations, and policies.

The list of granting agencies includes those of most significance to higher education: the Departments of Defense, the Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, Energy, and Education; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration. However, funding associated with Federal student aid programs that cover tuition, fees, or stipends is excluded. In other words, if the only funds your institution receives from the Federal government are those associated with Federal student aid programs, the free speech certification requirement will probably not apply to your institution.

How does the part of the Executive Order on “Transparency and Accountability” affect my institution?

It will affect your institution only to the extent that the U.S. Department of Education will require additional information from your institution in order to expand and update annually the College Scorecard. Ultimately, however, the intent is to give applicants more data about earnings of those who attended the institution and their student debt.

What about the rest of the Executive Order?

It reflects the potential for future changes in Federal financial aid policy. First, it obligates the U.S. Department of Education to submit a report on policy options for “risk sharing” associated with Federal student loan debt. The notion is that the obligation for repayment of Federal student loans should be shared among the Federal Government, institutions, students, and other entities. It is theorized that this “risk sharing” will diminish the amount of student debt in the long run. Second, the Department must submit policy recommendations for reforming the collections process for Federal student loans that are in default. Current Federal regulations contain elaborate and arcane requirements for institutions.

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