Trump’s Executive Order for Colleges – How Idaho is affected


Trump’s executive order will directly affect Boise State University in a punitive manner. Former Boise State President Bob Kustra’s stated goal was to transform Boise State into a “metropolitan research university of distinction” shortly after his 2003 arrival. Transforming Boise State came at the cost of having undergraduate students as their primary customer; this meant “free speech” and “due process” for college students had a lesser priority because of alternative funding sources (a.k.a. research money).

For the purposes of conciseness, I am using the word “college” to mean both colleges and universities. Many college research grants are designed to create new companies. Around 2002-5, my friends considered pursuing this type of funding and I did some footwork. Phase I research showed proof of concept. Phase II research demonstrated the technology or product is realistically viable or robust. Phase III funding was designed to spin off a commercially viable company. Many Federal Government grants have particular investigators in mind before the description of the grant is even written. In fact, some of those investigators may have contributed to the wording in their proposed grants. Boise’s Small Business Development Center also had talks and presentations of funding mechanisms and how ineffective Idaho universities were. There had been major failures; a part of College of Western Idaho sits on the property of a failed research park that was supposed to help bolster Boise State research.

Peter McPherson, President of the Association of Public and Land-Grant Universities, considers Trump’s executive order as “plainly unnecessary” and is quoted, “Public universities are already bound by the First Amendment and work each day to protect and honor it.” I believe his comments are self-serving. During the Obama Administration, Obama and his Secretaries issued orders that explicitly violated U.S. Supreme Court cases. The Trump Administration went back to those “executive” orders to roll back these policies after the examination of Federal and Supreme Court cases. The “Dear Colleague” letter that came out of Obama’s Department of Education threatened federal funding while violating Constitutional “Free Speech,” “Due Process,” and “religious freedom.” The changes implemented by the “Dear Colleague” letter did not go through the Administrative Procedures act and did not get Congressional approval. America’s colleges were financially targeted with this social engineering on purpose. If you couple this with a national 10:1 Democrat to Republican professor ratio, the issue of “Due Process” is a legitimate concern. If you throw in liberal and conservative as terms for comparison, the problem is even worse. Harvard Law School faculty did publicly complain about constitutional rights involving “Dear Colleague” enforcement to only have Harvard research funds ($330,000,000) threatened before giving into the Obama Administration.

The Foundation for Individual Rights in Education (FIRE) is examining President Trump’s order; Trump’s order is vague on how it will be implemented. FIRE is a non-partisan organization that defends “free speech” for college students and sometimes college professors. Forbes actually has the best analysis on probable courses of actions. Denial of both new contracts and renewal of old contracts is the most probable route. It is also consistent on how the Trump Administration changes policy. The following idea is not in Forbes. Not all grant project investigators are college employees; these investigators usually have a contractual provision to work with a non-profit organization, like a college. Mentioning to investigators which colleges have appropriate resources and are in compliance with “Free Speech” restrictions is also another strategy. Money would follow the investigator. Rewarding contracts is a discretionary power of any Presidential administration; it also minimizes the potential for lawsuits. This means research could be shipped out of Idaho.

Private colleges that profess constitutional rights and public colleges are rated by FIRE. Hence BYU – Idaho is exempt from their rating system; they publicly proclaim their teachings come from the LDS church perspective. FIRE’s list is one potential route on which colleges to pursue. It is not the only route. Controlling content of student presentations, using security fees and heckler’s vetoes to deny public speakers, and persecuting conservative professors and students could create a second list to pursue colleges; this type of action prompted President Trump to make his CPAC announcement. I have also seen this type of behavior at Boise State and other public Idaho campuses as well. Even though Idaho State University (ISU) has a better record than Boise State University, many of these abuses occurred when the current ISU President was the Boise State General Counsel.

The following is key. If “free speech” rights are violated, then usually “due process” rights are violated. “Due process” is the legal and contractual obligation that allows a student or employee to challenge a decision in a fair setting; it is also a constitutional right under the 5th and 14th Amendments in the U.S. Constitution. College policy guides are contractual documents. The 5th Amendment involves the ability to take property, privileges, or immunities away via government entities; the 14th Amendment involves the ability to defend one’s property, privileges, and immunities.

Tenure does not allow a college professor or administrator to maliciously damage a student. Suppose a college professor fails a student’s final project, refuses to return materials related to that project, and purposefully misses the deadline to turn in that student’s grade. Now the student can no longer register on time and would be delayed by a year at least in graduating. Furthermore, the professor frustrated the ability for the student to challenge his or her grade. The student would have concern of being in a hostile environment as well. If the department chairman or the dean doesn’t help that student fix that mess, the college is rightly subject to a lawsuit. The courts would normally consider the professor to be an expert in their field and probably would not challenge the grade, but every action the professor took violated “due process” to maliciously damage the student. This is how the student would win his or her lawsuit against the college. Damages could be potential employment and the cost of the extra year (or more) for the delay. The student would have grounds to sue that professor in a personal capacity as well. The ability to get a degree or certificate is a property right subject to contract law.

In fact, any public college student does have the right to say their college or any part of it is good, bad, or just weird; they are the customer. Free speech also means problems can also be brought to the student newspaper and student government and different factions of the college can have emotionally charged and diametrically opposed viewpoints as well. “Civility” put into university speech codes is actually a violation of “free speech”; “civility” is a best practice for effective speaking though. In fact, college officials cannot legally expel a student for what they may deem offensive speech; they can act on “threatening” speech or actions, which is not covered by the 1st Amendment. If threatening speech or actions occur, the college should be contacting their legal counsel, contacting law enforcement to also express what laws have been broken or why an immediate threat has been assessed; this is regardless if it is a student or an employee. Due process is required to expel a student or to fire employees.

In regards to a free press, a student newspaper has all the legal protections a full-fledged newspaper has and a few that they don’t. A student newspaper cannot be reorganized or defunded for providing negative press about its own college; this is one of few exceptions where a public employee can put their own institution in a bad light. Retaliating against the newspaper employees and its editor is not a wise idea either; those pesky U.S. Supreme Court precedents could cause trouble. When a student newspaper columnist or reporter says, “I can’t report that story; I want to graduate,” you no longer have a free press. I have seen this happen on the Boise State campus under President Kustra. It might be more appropriate to ask if some student newspapers are part of a college administration’s “communications and marketing department” now. There should be a balance of good, bad, and just weird stuff to show student viewpoints and concerns in a student newspaper.

Currently, there is a “conflict of interest” involving Dr. Kustra. Dr. Kustra is simultaneously part of the editorial staff of the Idaho Statesman as well as a paid consultant for Boise State. Does this arrangement prevent the reporting of Boise State problems that should be aired in the Idaho Statesman? Conflicts of interest are the most assured way to prevent “due process.” Over the last 20 years, the State Board of Education had a few of these, University Place, the Board’s Deputy Attorney General being married to a highly placed Boise State administrator for 10 years, and placing Linda Clark onto the Board while she was a sitting Superintendent. If Linda Clark had resigned her Superintendent position before or immediately after being placed on the Board, this would be a different matter. If a problem occurred between Boise’s Small Business Development Center and Boise State, I do not believe there is an honest way at the moment to investigate. Could businesses be brought into or kept out of the area with particular political biases or to compete with pre-existing businesses via the Small Business Development Center (SBDC)? Under Governor Otter’s Administration, some Republicans who were not friendly with him claimed similar actions without mentioning the SBDC. There is also a potential for smaller entities like someone involved in Boise City politics to do the same thing.

Section 1 of Article I of the Idaho Constitution (inalienable rights of man) reads as follows:

All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life; acquiring, possessing and protecting property; pursuing happiness and securing safety.

Our Idaho State Board of Education and university Presidents do not believe that college students that live on their campuses should have the ability to defend their own lives while not on campus. Why should we truly believe Idaho’s university presidents and State Board of Education will protect a college student’s ability to acquire, possess, and protect property like a degree while they are on campus?

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