First Amendment designed to be a shield, but now is being used as a sword
By Charles Mitchell
The First Amendment is the engine that powers America. It is only 45 words, but those words honor individual innovation and the human spirit in an unprecedented way. In basic language, the First Amendment, along with the nine others in the Bill of Rights, promises, “We, the government, will leave you alone.” And, except for the purpose of maintaining order, American governments at all levels have kept their word or, when litigated, told by courts to do so. It has been the people’s shield.
Soon after President Donald Trump was inaugurated, the thinkers in his administration connived to instead use the First Amendment as a weapon – pretending to enforce it while the real purpose has been to reshape education to mirror the administration’s values. Harvard and Columbia, among others, have been named in Trump decrees but all educational institutions at all levels are being coaxed and coerced by this government — which is exactly what the First Amendment was designed to avoid.
Harvard University, founded in 1636 and one of the leading universities in the world, is the target for the Trump administration’s attempts to change higher education. Photo from Shutterstock.
It’s not anybody’s fault, really, that when most hear “First Amendment” they think simply of “free speech” or “freedom of the press” or “freedom of religion” and leave it at that. A much larger meaning ties to philosophy, specifically whether the path to the “more perfect Union” foreseen in the Constitution would better be guided by individuals or imposed by government. That the former was chosen has made all the difference in creating the most energized and innovative nation in the history of humanity.
No one has had to ask government’s permission to be creative, to think about or bring new ideas or devices to fruition. A private sector with First Amendment freedoms has not led to calm or peaceful processes, but it has worked. Consider the nations where government officials still today make all the decisions. They have been left to wonder how it is that America so quickly became the economic and entrepreneurial powerhouse of the world. The secret formula was those 45 words.
Fundamental to the legal standoff between the administration and Harvard, specifically, is understanding the First Amendment doesn’t apply to Harvard or to any other private institution just as it doesn’t apply to individuals. It restrains government, not people. For instance, when Peter blocks Paul on social media, the rights of Paul have not been violated. Strictly speaking, Harvard could decide to bulldoze all its buildings and go into the car-parking business. Boston could use more parking.
The decree Trump signed (he most assuredly didn’t write it) in June related to restricting international students says, “It is not in the interest of the United States to further compound Harvard’s discrimination against non-preferred races, national origins, shared ancestries, or religions by further reducing opportunities for American students through excessive foreign student enrollment.” The decree speaks in generalities and its workaround is money. The decree correctly says that foreign students need visas to enter the United States and, since the federal government grants visas, it’s wrong to provide visas to attend a university that discriminates.
In blocking the decree temporarily, U.S. District Court Judge Allison D. Burroughs used the word “absurd.” She took the administration to school about “core constitutional rights that must be safeguarded,” meaning Harvard’s freedom from government management of its operations. She continued, “The government’s misplaced efforts to control a reputable academic institution and squelch diverse viewpoints seemingly because they are, in some instances, opposed to this administration’s own views, threaten these rights.”
The phrase “using the law to circumvent the law” applies. In the most general terms, schools and universities are not operating the way this administration thinks they should operate, so the meat-ax approach to rectify that has been for the administration to say it can’t tolerate their abuse of the First Amendment. It is certainly up to Congress (not the president) to fund what it decides to fund and decline to fund anything not deemed in the public interest. That’s what members are elected to do. This approach has been applied in dozens of contexts. During the first Arab Oil Embargo, states that didn’t lower their speed limits to 55 miles per hour risked loss of federal highway funds. Similarly, states have adopted federal rules regarding seat belts and the legal age for firearms, gambling and alcohol rather than risk federal funds.
As it relates to education, however, especially at a private institution that has a record of excellence without government’s “help,” this administration says it can manage Harvard better than the administrators of Harvard can manage Harvard. That’s hard to believe. Really hard. And it’s exactly what the First Amendment prohibits.
——————————————————————————————
Charles Mitchell is an associate professor in the School of Journalism and New Media at the University of Mississippi and a member of the Overby Center panel of experts.