Restoring Free Inquiry on Campus
In recent years, the foundational values of free speech and open inquiry have increasingly come under assault at the nation's colleges and universities. Every week, it seems, there is a story concerning campus speech codes being imposed, speakers being silenced, or faculty members being assailed for wrong-think. In response, some have proposed reforms intended to compel colleges and universities (public ones, at any rate) to honor academic freedom and free inquiry. Some critics have called for cutting off all public funds — including student aid — to institutions judged to limit protected speech.
While the impulse is understandable, the problem is that such measures threaten to give public officials extraordinary power over colleges and students. One needn't possess much imagination to envision how quickly that kind of authority could go awry. The challenge, then, is to identify how policymakers might promote academic freedom and free inquiry in a manner consonant with the university's fundamental mission and independence.
One promising response is also straightforward. Colleges and universities are not just places of learning; they are also research enterprises. Indeed, in the years after World War II, the federal government began using the nation's universities as subcontractors — farming out big-dollar research in medicine, defense, energy, and more. Universities conducted the work, used the dollars to fund faculty and students, and collected overhead at hefty rates. This win-win relationship was always marked by concerns that federal funding could interfere with free inquiry. Historically, this resulted in measures designed to protect research from federal interference. Today, however, a new risk is posed by the myriad universities no longer invested in securing free inquiry. It is both reasonable and appropriate to insist that federal funds no longer support research at institutions that choose to circumscribe speech and thought. If this stance winds up exerting a healthy influence in favor of open inquiry, so much the better.
FEDERAL SUPPORT FOR RESEARCH
Colleges and universities constitute a crucial thread in America's civic fabric. In his 1818 plan for the University of Virginia, Thomas Jefferson recounted the "benefits & blessings" of higher education, on which "public prosperity, & individual happiness are so much to depend." Higher-education institutions train young minds and produce the research and knowledge that help sustain and enrich a free society.
That distinctive public purpose is why Washington disburses upward of $150 billion each year in federal grants, student loans, work-study funding, and education tax benefits to support higher education. Like all institutions that receive federal funds, colleges and universities are required to adhere to copious policies, regulations, and guidelines. And while discussions about federal funding for higher education tend to focus on student aid and student loans, there is another, quite substantial, source of revenue that tends to fly under the radar.
Since World War II, the United States has consciously made higher education a pillar of the nation's approach to research and development. The National Science Foundation reports that Washington spent almost $130 billion in fiscal year 2015 on R&D, nearly $38 billion of which went to higher-education institutions. These funds include more than $20 billion from the Department of Health and Human Services (including the National Institutes of Health); more than $5 billion from the NSF; more than $5 billion from the Department of Defense; and more than $1 billion each from the Department of Energy, the National Aeronautics and Space Administration, and the Department of Agriculture. The American Association for the Advancement of Science calculates that federal dollars represent roughly 60% of all university-based R&D funding.
In spending these tens of billions, Washington is not seeking to support higher education's degree-granting and teaching; rather, it's engaging scholars at colleges and universities as subcontractors with the skills and capacity to conduct research that federal officials want done. Whether this involves bench science, materials engineering, climate research, or analysis of Russian political behavior, these grants and contracts are funded with the expectation that the data and conclusions will be valid, reliable, trustworthy, and of some use.
This subcontracting relationship is why Washington pays colleges and universities hefty overhead rates on top of the actual costs of research. Such funds are intended to help these subcontractors pay necessary upkeep and related expenses. For instance, the base "indirect-cost" rate for NIH grants averages about 52%, so that a school awarded $100,000 for grant-funded research will receive an additional $52,000 to cover overhead costs. All told, about $10 billion a year in federal funds — more than a quarter of all federal funding for university-based research — goes to these indirect-cost payments (for things like administrative salaries and building depreciation), atop the salaries of researchers and necessary research expenses. Because they help to pay for administrators, facilities, and institutional operations, taxpayer-funded research grants constitute some of the most sought-after dollars in higher education.
The size and nature of Washington's investment give it a clear stake in ensuring that colleges and universities that take federal research funds adhere to the tenets of responsible science — including the assurance that research questions, methods, and reporting will be guided by an inviolable commitment to free inquiry. It's important to highlight the crucial distinction here: between campuses as self-regulated communities of teaching and learning on the one hand, and as places of research on the other. The focus here is solely on the latter. If campuses choose to cater to cosseted enclaves of like-minded ideologues, that's undoubtedly a societal problem, but it's a question distinct from ensuring that research funded by American taxpayers is uninhibited by ideological or political constraints.
A SHARED COMMITMENT TO FREE INQUIRY
Federal funds support university research because universities are deemed to be equipped — in terms of human capital, infrastructure, and environment — to conduct the necessary work. As an Institute for Humane Studies report aptly observes, "[H]igher education receives special financial and policy protections in exchange for providing society with a good that is distinctive to its mission: the pursuit of truth accompanied by the utmost freedom of speech and inquiry." To be sure, the special relationship between the federal government and higher-education institutions has long been cherished by both parties, with a history that can be traced back at least to the Morrill Act of 1862.
Federal investment in and support of university research was catalyzed, however, by World War II. In 1941, President Franklin Roosevelt created the Office of Scientific Research and Development "for the purpose of assuring adequate provision for research on scientific and medical problems relating to the national defense." Led by Raytheon co-founder and MIT engineer Vannevar Bush, OSRD eschewed government-run laboratories in favor of contracting out its research and development efforts to private firms and to colleges and universities. By the end of World War II, OSRD had channeled contracts of at least $1 million to some 50 universities.
Drawing on his wartime experience, Bush prepared a 1945 report for President Harry Truman that framed the postwar research relationship between Washington and higher education. Entitled "Science, The Endless Frontier," Bush's report stipulated the basic principles of governmental support for scientific research and education. He held it paramount that scholars must be unmolested in their research efforts. In the introduction to the report, Bush penned a section titled "Freedom of Inquiry Must Be Preserved," which asserted:
[C]olleges, universities, and research institutes are the centers of basic research. They are the wellsprings of knowledge and understanding. As long as they are vigorous and healthy and their scientists are free to pursue the truth wherever it may lead, there will be a flow of new scientific knowledge to those who can apply it to practical problems in Government, in industry, or elsewhere....Scientific progress on a broad front results from the free play of free intellects, working on subjects of their own choice, in the manner dictated by their curiosity for exploration of the unknown. Freedom of inquiry must be preserved under any plan for Government support of science.
Bush was concerned, sensibly enough, about federal authorities impeding academic inquiry. The underlying understanding was that institutions would respect and defend "the free play of free intellects" and the freedom to "pursue the truth wherever it may lead." Inherent in this was the expectation that Washington would subsidize institutions because (and only as long as) they were repositories of such freedom.
Appreciation for untrammeled inquiry has deep roots. In 1220, Pope Honorius III entreated the then-fledgling University of Bologna to protect its "libertas scolastica" — its "scholastic freedom" — from external threats to its autonomy. Emblazoned upon the seal of the American Academy of Arts and Sciences — one of the oldest learned societies in the United States, founded by John Adams and James Bowdoin and formally established in 1780 by the Massachusetts legislature — is the motto "Sub Libertate Florent" (roughly, the arts and sciences "flourish in freedom").
In 1915, the American Association of University Professors — then headed by John Dewey — issued its famed "General Declaration of Principles," which proclaimed, "[T]he university cannot perform its [primary function] without accepting and enforcing to the fullest extent the principle of academic freedom." The AAUP continued, "[A]ny restriction upon [academic] freedom...is bound to react injuriously upon the efficiency and the morale of the institution, and therefore ultimately upon the interests of the community" (emphasis in the original). A quarter-century later, the AAUP and Association of American Colleges restated those principles in the "1940 Statement of Principles on Academic Freedom and Tenure":
Institutions of higher education are conducted for the common good....[And the] common good depends upon the free search for truth and its free exposition. Academic freedom is essential to these purposes and applies to both teaching and research. Freedom in research is fundamental to the advancement of truth.
The 1940 Statement has been endorsed by more than 250 professional associations and scholarly and education organizations. Following the tumult that roiled the nation's campuses in the 1960s and early 1970s, the 1974 Report of the Committee on Freedom of Expression at Yale — more prominently known as the "Woodward Report" — reaffirmed these principles:
The primary function of a university is to discover and disseminate knowledge by means of research and teaching. To fulfill this function a free interchange of ideas is necessary not only within its walls but with the world beyond as well. It follows that the university must do everything possible to ensure within it the fullest degree of intellectual freedom. The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.
The Woodward Report would become the model for colleges and universities across the nation. In 2005, the American Council on Education — the major coordinating body for the nation's higher-education institutions, representing nearly 1,800 college and university presidents and executives of related associations — joined with nearly 30 other higher-education organizations to issue the "Statement on Academic Rights and Responsibilities." It held, "Intellectual pluralism and academic freedom are central principles of American higher education." Further, "Colleges and universities should welcome intellectual pluralism and the free exchange of ideas....Neither students nor faculty should be disadvantaged or evaluated on the basis of their political opinions."
More recently, in 2013, the Association of American Universities adopted a statement of academic principles in the same spirit (and drawing on a 1967 Supreme Court case), insisting,
Like freedom of speech or of the press, academic freedom is "of transcendent value to all of us and not merely to the teachers concerned."...[U]niversities play a vital role in the functioning of our democracy. Freedom of inquiry, exercised through academic freedom and supported by institutional autonomy, underpins that mission.
These principles were yet again enumerated in the 2015 Report of the Committee on Freedom of Expression at the University of Chicago. The report, often called the "Chicago Statement," argued,
[T]he University's fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.
As of January 2018, the Chicago Statement had been adopted or endorsed by 34 institutions and faculty bodies, including Princeton, Johns Hopkins, Columbia, and Georgetown.
HIGHER EDUCATION'S RETREAT FROM FREE INQUIRY
Vannevar Bush feared in 1945 that the government might unduly restrict necessary freedoms in its oversight and management of contracted research. The possibility that many universities would themselves act as censors perhaps never occurred to him. Yet that is what has come to pass.
The academy today reflects a decided ideological lean. In some disciplines — such as the arts, humanities, or law — the tilt is overwhelming. On its own, this ideological imbalance is arguably problematic for robust debate around important questions regarding race relations, immigration, social policy, climate change, and more. After all, researchers, like anyone else, can fall prey to confirmation bias — and the more ideologically uniform a research environment, the greater the risk of that bias going unnoticed, being reinforced, and tainting results. Yet, individual colleges and universities are and should be free to set their own ideological compasses.
The salient issue here is what happens when that ideological homogeneity starts to yield formal policies and practices that stifle free inquiry. Speech codes, the heckler's veto, and attempts to discipline those expressing "improper" thoughts can stop certain questions from being asked and lines of research from being pursued, and they can make it less likely that suspect findings or methodologies will be thoroughly scrutinized.
As a team of social psychologists led by José Duarte explained in a 2015 study published in Behavioral and Brain Sciences, ideological and political uniformity "can undermine the validity of social psychological science via mechanisms such as the embedding of liberal values into research questions and methods, steering researchers away from important but politically unpalatable research topics, and producing conclusions that mischaracterize liberals and conservatives alike." Such phenomena raise questions about the rigor and reliability of federally funded research produced at institutions that fail to safeguard free inquiry or that proscribe certain words and questions.
Absent a principled commitment to free inquiry and expression, certain lines of thought can quickly become hazardous. Last May, Duke divinity professor Paul Griffiths resigned after facing administrative backlash and formal punishment for criticizing the intellectual rigor and ideological tolerance of university-sponsored anti-bias training. In December 2016, then-Johns Hopkins professor Trent Bertrand was barred from his classroom and suspended for telling an off-color joke in order to emphasize a point in his lecture. When campus policies governing speech and expression yield investigations or sanctions, they create a culture wherein certain lines of inquiry and research are almost inevitably foreclosed and others may escape rigorous examination.
The costs of challenging prevailing orthodoxy were strikingly illustrated by the experience of former UCLA environmental-health-sciences professor James Enstrom. Enstrom, a non-tenured member of the UCLA faculty for more than 35 years, was fired by the public institution in 2010 after he questioned the veracity of several climate studies used to justify the state's proposed diesel regulations. In 2008 and 2009, Enstrom had exposed faulty data in a California Air Resources Board study underlying the regulatory proposals, helped unearth the fraudulent credentials of the study's lead researcher, and documented that several members of the study's scientific review panel were serving without being properly nominated.
At least five of the nine panel members — one a prominent UCLA scientist — were removed after Enstrom's whistleblowing. As a result, UCLA repeatedly retaliated against Enstrom, depleting and redirecting his research funds without his knowledge or consent and then terminating his position due to "lack of funding." Enstrom later sued the university, earning vindication in 2015 when UCLA agreed to pay him $140,000, grant him a title, and restore his access to university resources.
The threat to free inquiry is more systemic than a catalogue of one-off controversies might suggest. Limits on speech and expression have become ingrained in campus culture — largely due to the proliferation of campus policies intended to regulate conduct. In fact, official policies restricting free speech are held today by most colleges and universities: In a 2017 study, the Foundation for Individual Rights in Education (FIRE) reviewed 449 higher-education institutions — 345 public institutions and 104 private institutions — and found that an amazing 93% maintained policies that prohibit certain categories of constitutionally protected speech.
For example, Middlebury College's hopelessly broad "General Conduct Standards" stipulate that "[b]ehavior that violates common standards of decency, fails to comply with local laws or statutes, or demonstrates contempt for the generally accepted values of the intellectual community is prohibited." Such nonsensical language means that any view deemed to violate "generally accepted values" may be officially prohibited. (Of course, when guest speaker Charles Murray was shouted down in spring 2017 and his host, a Middlebury professor, assaulted, the ability to flexibly and asymmetrically apply such a policy was fully in evidence.)
Penn State University defines sexual harassment as encompassing any inappropriate "verbal" conduct (i.e., speech), while specifying under its "Gender-Based Harassment" policy that such conduct includes anything considered to exhibit "gender-stereotyping." (University employees "are required to report" all potential violations.) Policies like those at Middlebury and Penn State can intimidate and put at risk faculty pursuing work that — just for starters — fails to hew to contemporary academic conventions around topics like public morals, gender, or family structure.
Speech codes and so-called "civility" policies frequently run afoul of constitutional protections when challenged in court. They are often undone by concerns about vagueness and overbreadth — as in the 2010 case of McCauley v. University of the Virgin Islands, in which the Third Circuit Court of Appeals held that the university's policy prohibiting the infliction of "emotional distress" created a "blanket chilling" of protected speech. Such policies can lead researchers to self-censor or risk punishment for any expression deemed "disrespectful" or "uncivil." This serves to inevitably privilege certain questions and lines of inquiry, regardless of academic merit, and discourage and deter others.
Applied behavioral science has shown how research integrity can suffer when speech and inquiry are constrained — no matter how well-intentioned. Indeed, behavioral psychologist Lee Jussim and his co-authors have reported that "high moral purposes" can lead researchers to massage findings so that they align with deeply held convictions:
These practices can be used to advance a moral agenda by permitting researchers to interpret the data as supporting that agenda even when it does not. The [questionable interpretive practices] reviewed here include: blind spots (overlooking or ignoring data inconsistent with one's moral agenda), selective preference (accepting research supporting one's agenda at face value, but subjecting opposing research of comparable or greater quality to withering criticism), and phantom facts (making declarations or drawing implications without evidence).
Of course, if only privately supported research were at issue, that would be one thing. When it comes to research funded by federal taxpayers, however, it's imperative that recipients operate in institutions committed to open inquiry — where hypotheses can be generated and research questions pursued freely, regardless of the feathers they ruffle or feelings they hurt. Researchers cannot fear that the wrong topic, point of view, terminology, or conclusion will run afoul of university strictures or prevailing sentiments. Research universities in particular exist, in large part, to be places where scholars are free to pursue hard truths and generate new knowledge. If that's not the case, the research will be unreliable and suspect. This suggests that taxpayers would be better off funding research elsewhere — somewhere their representatives can be confident that researchers can operate unmolested and unintimidated.
The sheer scope of federal research funding for institutions where basic tenets of free and open inquiry have been called into question is noteworthy. For instance, the table below documents that among the institutions that collected more than $500 million in research funds from Uncle Sam in fiscal year 2015 were Johns Hopkins, the University of Michigan, the University of Washington, the University of Wisconsin-Madison, Stanford University, and Harvard University. In each case, federal research dollars accounted for half or more of all research funding at the institution. Yet, every single one of these universities has been flagged by FIRE as maintaining formal policies that restrict speech and inquiry.
Indeed, of the 30 institutions that collected the most federal research support in fiscal year 2015, six — or fully 20% — had a "red-light" rating from FIRE, meaning that they maintain policies that "both clearly and substantially [restrict] freedom of speech." These six institutions received nearly $4.5 billion that year, accounting for more than 11% of all federal research funds. Nearly 85% of the top 30 recipients of federal research aid earned a red-light or yellow-light rating from FIRE when it came to free speech and inquiry.
All told, 25 top colleges and universities with formal policies restricting constitutionally protected speech pocketed more than $14 billion in federal research funding that year, or nearly 40% of all federal research and development funds disbursed to higher-education institutions.
GOVERNING FEDERAL RESEARCH FUNDING
Put simply, taxpayer funds should not be subsidizing research at higher-education institutions where the conditions of free inquiry are compromised. This does not mean that the federal government should reduce its investment in research; it means that federal research funds should be directed to institutions that embrace the tenets of free and open inquiry or to other research entities with the requisite capabilities, commitments, and infrastructure.
The conviction that federal research funds should flow only to institutions that operate as places of unfettered inquiry is foundational to the legal regime that governs the research relationship between higher education and the federal government. For the most part, as previously noted, the primary fear has always related to government meddling; however, the clear expectation was that both Washington and the institutions receiving funds would honor this cornerstone. Here, Vannevar Bush's 1945 report again serves as the blueprint: In the section "Freedom of Inquiry Must Be Preserved," Bush explained, "[P]ublicly and privately supported colleges, universities, and research institutes are the centers of basic research....As long as they are vigorous and healthy and their scientists are free to pursue the truth wherever it may lead, there will be a flow of new scientific knowledge....Freedom of inquiry must be preserved under any plan for Government support of science" (emphasis added).
Likewise, in his address on the centennial anniversary of the American Association for the Advancement of Science in 1948 — a speech credited with giving birth to the National Science Foundation — President Truman spoke of the necessity of preserving open inquiry, unhampered by external influence. He observed, "[Scientists] want to work in an atmosphere free from suspicion, personal insult, or politically motivated attacks." Truman had a very different context from ours in mind, but his words continue to ring true: "[S]cientists very understandably are reluctant to work where they are subject 'to the possibility of smears that may ruin them professionally for life.'" (The scientists he quoted were concerned at the time about government attacks on their credibility.) He emphasized:
[R]esearch by our best scientists is the key to American scientific leadership and true national security. This indispensable work may be made impossible by the creation of an atmosphere in which no man feels safe against the public airing of unfounded rumors, gossip, and vilification....Now and in the years ahead, we need, more than anything else, the honest and uncompromising common sense of science. Science means a method of thought. That method is characterized by open-mindedness, honesty, perseverance, and, above all, by an unflinching passion for knowledge and truth.
From the beginning, federal policymakers and officials were concerned with the nature of the relationship between the federal government and the research entities supported by public funds. As President Dwight Eisenhower wrote in his 1959 signing statement for Executive Order 10807, "It is the responsibility of the Federal Government to encourage in every appropriate way the scientific activities of non-Government institutions." In practice, this has meant adjusting federal guidelines when necessary.
When President Barack Obama took office in January 2009, some professional associations complained that there had been "abuses of science" committed under the George W. Bush administration, mostly relating to governmental interference in the conduct and dissemination of research. Consequently, in a 2009 presidential memorandum on "Scientific Integrity," Obama directed the head of the Office of Science and Technology Policy to require federal department and agency heads to adopt plans and procedures ensuring scientific integrity. To that end, OSTP director John Holdren issued a memorandum in 2010 on the "Foundations of Scientific Integrity in Government," which specified that "[s]cientific progress depends upon honest investigation, open discussion, refined understanding, and a firm commitment to evidence." Campus speech codes and inquisitorial "bias" procedures would seem to run afoul of this sensible scientific-integrity directive.
This commitment to "honest investigation" and "open discussion" is today affirmed in federal grant-making agencies' standards. For instance, HHS issued its "Policies and Principles for Assuring Scientific Integrity" in 2011, stating that "scientific progress depends upon honest investigation, open discussion reflecting a balance of diverse scientific views, refined understanding, and a firm commitment to evidence." The scientific-integrity policy for the Department of Energy reads, "The cornerstone of the scientific integrity policy at DOE is that all scientists, engineers, or others supported by DOE are free and encouraged to share their scientific findings and views."
The Department of the Interior's "Code of Scientific and Scholarly Conduct," which applies to all grantees, stipulates, in part, "I will not intentionally hinder the scientific activities of others or engage in scientific misconduct." Grant recipients classified as "Decision Makers," including university administration and staff, are required to take this pledge: "I will do my best to support the scientific activities of others and will not engage in dishonesty, fraud, misrepresentation, coercive manipulation, censorship, or other misconduct that alters the content, veracity, or meaning, or that may affect the planning, conduct, reporting, or use of scientific activities." Similar commitments can be found at the Department of Agriculture, Consumer Product Safety Commission, Environmental Protection Agency, Fish and Wildlife Service, Food and Drug Administration, NASA, and National Oceanic and Atmospheric Administration, among others.
In other words, there is a firm, established basis for the government to insist that institutions engaging in federally funded research offer the strongest possible safeguards for free inquiry and expression. Yet, today, this presumption is not made manifest in grant applications or oversight. For example, while federal regulations explicitly define "research misconduct" as "fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results," there is no such fixed interpretation when it comes to characterizing responsible research conduct. The NIH defines "responsible conduct of research," for instance, as "the practice of scientific investigation with integrity," involving the "application of established professional norms and ethical principles." The NIH's policy notice goes on to vaguely explain, "[I]t is well appreciated by all that responsible conduct, as opposed to misconduct, encompasses many other aspects of ethical behavior in the practice of scientific research" (emphasis added).
The National Academies of Sciences, Engineering, and Medicine have held that responsible conduct in scientific research includes researchers' ability "to question the decisions, practices, and processes around them." Institutions that receive federal funds pledge to provide high-quality research environments. For example, institutions receiving research funds from HHS are bound by the "General responsibilities for compliance" (listed in title 42, part 93 of the Code of Federal Regulations), which require such institutions to "[f]oster a research environment that promotes the responsible conduct of research." A campus climate featuring speech codes and the suppression of particular modes of thought arguably fails to meet that standard.
Today, Washington does not require institutions receiving federal research funds to offer any assurances regarding their commitment to free inquiry. Why? The standard presumption was that threats to free inquiry emanated from only one direction: government. It was long assumed that higher-education institutions and their denizens would, as a matter of course, be stalwart defenders of free inquiry. The notion that these institutions might themselves compromise free inquiry is relatively recent.
The appropriate response, then, is to make explicit what has long been implicit in the provision of federal research funding: Institutions are qualified to perform federally supported research only so long as they can demonstrate an institutional commitment to free inquiry. In short, given that grant recipients are required to ensure the "responsible conduct of research," and that scholarly organizations have long recognized that free inquiry is essential to academe's "established professional norms and ethical principles," it is time to make explicit and legally actionable an institution's commitment to free inquiry.
WHAT WASHINGTON CAN DO
Higher-education institutions with formal policies that restrict, chill, or punish constitutionally protected speech should therefore be rendered ineligible for federal research funding. Further, all institutions receiving such funds should be contractually bound to commit to safeguarding free inquiry. Such an expectation is wholly appropriate for those tasked with managing federal research funds. As the government-wide "Federal Policy on Research Misconduct" explains, "Agencies and research institutions are partners who share responsibility for the research process. Federal agencies have ultimate oversight authority for Federally funded research." This proposed policy simply formalizes that which has long been assumed.
Put simply, in order to remain eligible to accept federal research funds, institutions of higher education should be held to the following three free-inquiry requirements. First, as a condition of eligibility, colleges and universities must offer assurance that they do not restrict constitutionally protected speech, engage in viewpoint discrimination, or constrain free inquiry. This means that institutions maintaining formal restrictions on constitutionally protected speech and expression would be ineligible for federal research funding. Second, as a contractual requirement, those institutions awarded a federal research grant or award must commit to safeguarding free inquiry to the best of their ability, and to appropriately addressing any policies or practices that serve to hinder free inquiry or scholarly independence. And third, institutions must formally acknowledge that, in accordance with federal policy, those found to be in violation of these commitments may be obliged to refund the balance of funds for ongoing federally funded research and be rendered ineligible for future research funding. Federal officials can implement these protections through legislation, presidential directive, or individual agency action.
The most straightforward tack is for Congress to pass language requiring that federal research funds flow only to higher-education institutions that provide assurance that they maintain no formal prohibitions on constitutionally protected speech. Perhaps the best way to do this is by drafting an analog to the "Solomon Amendment." In the 1990s, Congress enacted what's now known as the Solomon Amendment — named after the bill's sponsor, Gerald Solomon — which denied Department of Defense grants and contracts to any higher-education institution that was determined to have "an anti-ROTC policy." The original law was later expanded to require additional access for military recruiters; in 2004, Congress expanded the categories of federal financial support that could be withheld, including research grants from additional agencies and departments.
After the Solomon Amendment was challenged by a coalition of law schools, the Supreme Court ruled unanimously in 2006 that the amendment was constitutional. Chief Justice John Roberts authored the 8-0 opinion in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., writing, "The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds." Though the current proposal is different in key particulars, the Solomon Amendment provides a legislative template for Congress to condition the disbursement of federal research funds on institutions' commitment to safeguarding free inquiry. The proposed amendment is viewpoint neutral, respects the rule of law, and is readily institutionalized.
Much like the existing Solomon Amendment, the new provision would stipulate that higher-education institutions that maintain codes or policies restricting speech or expression will be ineligible for federal research funds, and that all recipient institutions must commit to protecting and upholding these rights. It should further specify that federal research funds may be withdrawn from any institution that violates its assurances. (Unlike the existing Solomon Amendment, however, for reasons discussed earlier, the penalty should apply only to research funds, not to all federal funding streams.)
A second tack, less permanent but easier to initiate than a legislative approach, is for the executive branch to issue an official memorandum or executive order directing the heads of federal research agencies to include the trio of free-speech stipulations in their grant contracts with higher-education institutions. This would amount to something of a "Solomon-lite," though these requirements would obviously be subject to modification by any future administration.
This second approach would be modeled on President Obama's 2009 memo on scientific integrity. Seeking to ensure that the executive branch was investing in and utilizing only valid and reliable research and to engender public and professional confidence in the federal research enterprise, President Obama mandated an administration-wide clarification of existing language and practice, requiring federal agencies to modify their policies to better reflect the principles of scientific integrity. President Donald Trump should do likewise for free inquiry. Rather than breaking some radical new ground, mandating that taxpayer dollars for research be tied to institutional commitments to freedom of speech and academic freedom would be a both commonsensical and commonplace executive action.
A third approach would involve heads of individual cabinet departments and research agencies including provisions protecting free inquiry and speech in the contractual assurances they require from institutions seeking federal research funding. The directives would include the same three components mentioned above, but would be spelled out agency by agency, rather than government-wide. Again, such determinations could obviously be modified by future agency heads, and implementation would inevitably be more piecemeal across agencies, dampening the cultural shift.
Any of these approaches should require grant-receiving institutions to establish formal investigation and appeals processes for allegations of speech suppression or intellectual intimidation. In most cases, the best method would be for colleges and universities to employ the same internal machinery used to address questions of research misconduct. Under current federal policy, for example, research institutions bear the primary responsibility for the "prevention and detection of research misconduct and for the inquiry, investigation, and adjudication of research misconduct alleged to have occurred in association with their own institution." Federal grant-making agencies play an additional oversight role above them. This apparatus would simply task the existing entity with what should be part of its core mission anyway: safeguarding the spirit of free inquiry that's fundamental to the university's mission.
Whichever option is pursued, the mechanics of determining what constitutes an impermissible restriction — and the precise kind of process that should be used to identify violations — are obviously of grave import. While the particulars of how this is handled would need to be negotiated and are beyond our scope here, two basic principles should provide guidance. The first is that institutions conducting federally funded research cannot restrict constitutionally protected speech, whether by speech codes, "civility" policies, or anything similar. The second is that these institutions may not investigate or discipline individuals for engaging in constitutionally protected speech or expression. This may well require many institutions to modify or abolish extant bias-response teams or bias-incident reporting systems.
DEFENDING FREE INQUIRY
For those concerned about the state of higher education, there are two particular upsides to this proposal that merit notice. The first is that unofficial federal guidance on sexual harassment in the Obama years, issued using informal mechanisms like "Dear Colleague" letters, proved to have a catalytic effect on higher education. Colleges and universities are risk averse and enormously concerned about getting crosswise with Washington. The degree to which executive action in support of free and open inquiry may alter the calculus of campus leaders when it comes to speech codes and campus policies should not be underestimated.
The second is a related point, which is that most of the assaults on free inquiry have been spearheaded by faculty and students in the humanities and social sciences. At the same time, the vast bulk of federal research funds are garnered by faculty who work in the natural and applied sciences, whom surveys have shown to be much less ideologically uniform than their colleagues across campus. Science faculty have historically exhibited a tendency to steer clear of campus politics, however, enabling the most impassioned and ideological elements to have more influence on the shape of campus policy.
New federal guidance in this area has a chance to make free inquiry and free speech relevant to the broader scientific research community in a fashion that it has not been previously. The slumbering, silent middle on campus may awaken when accomplished researchers bringing in millions in "indirect" costs suddenly recognize that the ideological crusades of their colleagues may imperil their laboratories and research projects. Campus leaders who have found it easy to virtue signal by indulging students and faculty demanding constraints on speech will now have a fairer fight on their hands, and they will need to be worried about their biochemistry and engineering faculty departing for institutions eligible for federal funds.
This is not to suggest that other remedies, both political and otherwise, are not also necessary. But the simple act of insisting that colleges and universities abide by their own historic ideals could be a powerful lever for encouraging institutions to reclaim a foundational principle. It just may help nudge the balance of power on campus back toward those seeking the untrammeled pursuit of truth.
