Red-state speech laws pose an existential threat to academic freedom  

In 2022, Florida’s Stop WOKE Act sharply restricted classroom discussion of race and gender. In defending the law, state officials argued that there is no “purported right to academic freedom,” that university curricula and instruction are “government speech,” and that by regulating it, the state “has simply chosen to regulate its own speech.”  

The District Court described this position as “positively dystopian” and issued a preliminary injunction barring enforcement. The case is now before the Eleventh Circuit Court of Appeals, which heard oral arguments last June. 

Two years ago, Indiana adopted a statute requiring public universities to deny tenure or promotion to faculty deemed “unlikely to foster a culture of … intellectual diversity.” 

Indiana’s attorney general argued that, as state employees, the four professors who challenged the law must follow the state’s direction on the “subject matter” and “perspectives” taught. “To the extent any purported right of academic freedom exists,” he added, “the right belongs to universities as institutions, not to individual state employees.” 

Florida and Indiana attorneys cited the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In that case, the court held by a 5-4 vote that “when public employees make statements pursuant to their official duties,” the First Amendment does not protect them from employer restrictions. 

When Justice David Souter warned in dissent that applying that rule to professors would “imperil First Amendment protection of academic freedom,” however, the majority left open whether its holding should apply to “speech related to scholarship and teaching.” 

Recent federal appellate decisions have recognized an academic-speech exception to Garcetti. The Seventh Circuit Court of Appeals, which will hear Indiana’s case, recently ruled in favor of a professor who faced discipline for using an “expurgated racial slur” in a final exam question. The court emphasized the Supreme Court’s view that “academic freedom occupies a special niche in our constitutional tradition,” that “it is of transcendent value to all of us,” and that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 

“Every other circuit to decide the issue,” including the Second, Fourth, Sixth, and Ninth Circuits, the Seventh Circuit added, “has recognized that Garcetti does not apply to university teaching or scholarship.” 

Garcetti, it’s worth noting, rests on the premise that the government, like private employers, “needs to exercise control over its employees to provide public services effectively.” In higher education, the opposite is true: universities rely on unfettered inquiry and expression to fulfill their teaching and research mission. Government control of faculty speech would produce the “pall of orthodoxy” that the Supreme Court warned against. 

Moreover, as Berkeley law dean Erwin Chemerinsky and UC Irvine Chancellor Howard Gillman have observed, “no one believes professors are speaking for state government when they are teaching or publishing scholarly research.” 

Even if the Supreme Court adopts an academic-speech exception to Garcetti, difficult questions will remain. As Judge Frank Easterbrook has explained, many federal judges believe that while universities are “entitled to freedom from outside control,” they must have “the ability to evaluate and respond to faculty members’ speech.” In making tenure decisions, for example, universities must evaluate teaching and scholarship “based on the content and viewpoint of speech.” 

In his view, a university may decide what should be covered in Economics 101 or a Great Books course and whether faculty should “avoid cuss words and other derogatory language in class or on exams.” But if a government official tries to impose a particular viewpoint — demanding, for example, “that a professor embrace or denounce diversity, equity, and inclusion,” that may violate the First Amendment. 

We agree that universities must have some authority to evaluate and regulate faculty speech. A professor assigned to teach physics cannot be expected to teach poetry instead. But academic freedom has always rested on a simple premise: experts in their disciplines — not politicians or even administrators — are best qualified to decide the content of teaching and research. 

Recent events highlight the dangers. In addition to passing laws dictating curriculum and mandating viewpoint diversity, red state governors and legislatures are increasingly shifting power from faculty to politically appointed governing boards. In Texas, for example, a statute adopted last June gives boards the power to reverse changes to the curriculum and block key academic appointments. 

If courts accept the views advanced by Florida and Indiana, legislators could dictate what faculty may say in public university classrooms. Judge Easterbrook’s approach might yield the same result if states fill governing boards with partisan appointees. Either of these changes will diminish the quality of higher education our children and grandchildren receive.  

Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.

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