New rules highlight the tension between institutional autonomy and free speech
The Department of Education on Wednesday proposed a new rule that would require accreditors to assess academic freedom at universities, a move that would effectively make free speech protections a condition for federal student aid.
The rule, which includes carveouts for religious schools, marks the first time that the federal government has attempted to mandate academic freedom through the accreditation process. It would require accreditors to evaluate whether a school has an academic freedom policy that is “applied consistently,” meaning universities could lose their accreditation status—and thus their eligibility for Pell Grants and federal student loans—if they punish protected speech.
While the First Amendment guarantees academic freedom rights at public universities, this rule would extend similar protections to private universities as well.
“The accrediting agency would be required to maintain academic freedom protections that are clearly articulated and applied consistently to faculty regardless of appointment classification, race or other immutable characteristics, viewpoint, or ideology,” the proposal reads. “[I]n the case of public institutions, the agency would be required to consistently apply policies that protect the First Amendment.”
The rule also requires schools to “prioritize intellectual diversity among faculty,” in part by “measur[ing] student and faculty perceptions on the range of viewpoints” on campus. It is not clear how such measurements would work in practice, but the proposal states that schools should “not infringe the core protections of academic freedom” in the pursuit of intellectual diversity, a disclaimer presumably meant to assuage concerns about ideological quotas and viewpoint discrimination.
“The intent is not to prescribe specific institutional policies or override institutional autonomy, but rather to ensure that sufficient consideration is given to ensuring intellectual diversity is present on campus,” the rule reads. “The Department’s goal in instituting these regulations is to support academic freedom and intellectual diversity on college campuses as a critical component of educational quality.”
Ever since the Trump administration froze billions in grants to top universities and launched a scorched-earth campaign against Harvard, critics have argued that the administration’s hard-nosed tactics encroach on institutional autonomy and threaten academic freedom. The proposed rule flips that criticism on its head, placing new constraints on accreditors and universities in an effort to expand the free speech rights of individual professors. It comes as many campuses are eliminating speech codes amid the White House’s crackdown on higher education, a sign that external pressure can increase academic freedom—or at least certain forms of it—by limiting institutional autonomy.
“U.S. colleges are increasingly eliminating or narrowing restrictive speech codes, continuing an encouraging trend that reflects a greater commitment to free expression on American campuses,” the Foundation for Individual Rights and Expression (FIRE) said last month. “The Foundation for Individual Rights and Expression’s 20th Spotlight on Speech Codes report found a record number of schools earning FIRE’s highest rating, alongside a continued decline in policies that clearly and substantially restrict student expression.”
FIRE itself is a vehement critic of the Trump administration, which it has accused of “employing every means at its disposal — no matter how unlawful or unconstitutional — to retaliate against Harvard and other colleges and universities for speech it doesn’t like.” Asked to comment on accreditation rules, however, the group was more measured, suggesting there was room for improvement without dismissing the proposal wholesale.
“FIRE has long urged accreditors to take seriously the free speech and academic freedom protections they already require of their accredited institutions,” said Tyler Coward, the group’s lead counsel for government affairs. “Too often, when institutions violate those commitments, accreditors have declined to act. We are reviewing the Department’s proposed rule closely to determine whether it would meaningfully encourage enforcement of those protections without creating new constitutional problems of its own.”
Coward added: “Colleges and universities are stronger when students and faculty encounter a wide range of ideas and perspectives.” At the same time, he said, “intellectual diversity cannot become a justification for government officials to pressure institutions to produce a preferred ideological balance, impose de facto viewpoint quotas, or replace one campus orthodoxy with another. That would undermine the very freedom of thought the policy is supposed to promote and could raise serious constitutional concerns.”
The rule, which will remain open for comment until Sept. 21, also bars accreditors from imposing diversity requirements on academic programs, a practice critics said had encouraged race discrimination.
“[T]he agency must not have policies that require institutions or programs to violate any Federal or State law,” the proposed rule reads. That means “agencies must not have policies that require institutions or programs to provide unlawful preferences to students, faculty, staff, contractors, or any employees based upon their race, color, national origin, or sex, including in admissions, hiring, and the selection of contracts.”
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