Backsliding on Academic Freedom
Recent events in Texas and Alabama highlight significant government threats to core academic freedoms.
I’ve posted before about the rising tide of state suppression when it comes to what faculty at universities can teach their students. The freedom to teach and produce scholarship lie at the core of the concept of academic freedom, which the Supreme Court has described as “a special concern of the First Amendment.” Unfortunately, the Court has not said much more about the relationship between academic freedom and the First Amendment or about the scope of faculty freedom to teach and engage in research. That may change, as states are asserting a new measure of control over the content of classroom teaching.
Texas
As far as academic freedom is concerned, things have been moving in the wrong direction in the “great” state of Texas. University leaders, bowing to pressure from the Texas legislature and governor, are creating an environment in which faculty are being fired for what they say in the classroom and told what materials they can and cannot assign in their courses.
Recent events began when a student, who objected to a Texas A&M English instructor’s inclusion of information about gender identity in an English class, recorded her interaction with the instructor. The student has since achieved a degree of right-wing cable news notoriety. In the video, she interrupted the class to inform the instructor that the teaching of gender identity was “illegal” - essentially, she claimed, because President Trump said so. The instructor patiently and correctly informed the student that her interpretation of the law was mistaken. The fallout was swift. State politicians took up the cause of the offended student. The instructor was fired and the university president was also terminated.
That episode, which I’ve written about, was bad enough. But then the university’s Board of Regents adopted a policy banning courses that "advocate race or gender ideology" and requiring university approval for any exemptions for materials that serve "a necessary educational purpose." Predictably, the university has enforced this policy in a manner that clearly violates academic freedom and the First Amendment rights of faculty.
A Texas A&M philosophy professor was told by the university that some of the materials assigned in his course on “Contemporary Moral Issues,” including materials from a commonly used textbook and some of Plato’s writings, violated the new policy and had to be excised from the syllabus. A “College leadership team” informed the instructor that if he did not “mitigate” his course content, he would be assigned to teach a different course. As the professor explained, he did not “advocate” race or gender ideology, but instead assigned the materials to teach students “how to structure and evaluate arguments commonly raised in discussions of contemporary moral issues.”
According to the Statement of Principles on Academic Freedom and Tenure, which was adopted by the American Association of University Professors in 1940:
Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.
The AAUP Statement has been interpreted to grant faculty freedom to discuss their subject, present differing views, and protect students' freedom to learn, mindful of their competence and educational objectives. The Statement has also been interpreted to grant faculty the freedom to choose which materials to assign students and how to present them.
Firing a tenured professor for mentioning gender identity in class violates academic freedom and the First Amendment, A faculty committee has ruled in favor of the professor who mentioned gender identity, but she has not been reinstated by the university. She may have to sue to get her job back.
Having a university censorship team, by whatever name, review course syllabi for the purpose of identifying offending or controversial materials likewise violates academic freedom and faculty First Amendment rights. The freedom to teach includes freedom to present controversial ideas. As the AAUP principles note, faculty are not free to teach whatever subject matter they wish. For example, in a philosophy course, the instructor is not free to teach biology. But assigning materials in the relevant discipline, including Plato and writings by contemporary philosophers, is not even a close case.
Recent events at Texas A&M present a cautionary tale. However, this will not end with a single faculty member. And it will not be confined to Texas A&M.
Universities, under pressure from state politicians, will review course materials, or perhaps even instructors’ individual classes, to ensure that the prohibited “advocacy” of disfavored ideas does not occur. Emboldened students, including those who want a public platform, will monitor courses and report supposed offenses to administrators - and to social media audiences, including public officials who are more than willing to join the latest culture skirmish.
As the A&M case shows, once in the business of censorship, universities (like other censors) will naturally over-suppress protected speech and materials. Policies that authorize the policing and “mitigation” of forbidden content will create a climate of uncertainty and fear among faculty. Some, perhaps many, faculty will try to comply in advance. But they may still unwittingly violate the university’s prohibition. Academic freedom is premised on protection from precisely this kind of coercion and chill from the state. The right to teach, which includes the right to determine appropriate materials from the relevant discipline, belongs to the faculty member.
I often try to imagine what a policy like A&M’s might mean for my own teaching (my university does not have such a policy). In constitutional law, for example, I teach cases relating to race, gender, and gender identity discrimination. I do not “advocate” any specific ideology, although we discuss the concepts of gender and gender identity. Might I be confronted and accused of “advocating” some forbidden perspective? I also teach about “hate speech” in my First Amendment course, where we examine the pros and cons of American exceptionalism with regard to derogatory speech. If I point out the arguments in favor of European hate speech laws, does that mean I “advocate” restrictions on racially derogatory or gender-derogatory speech? Like the philosophy professor at A&M, I assign materials that help students learn about the controversies in my field. That cannot be grounds for discipline of any kind.
No “College leadership team” or other censoring authority ought to be looking over faculty members’ shoulders as they perform these core pedagogical functions. No university that respects academic freedom would empower such a body to do so. And no state invested in supporting critical thinking would pressure universities to take such steps.
The A&M philosophy professor has told news outlets that he intends to replace the forbidden readings with ones on free speech and academic freedom. That seems entirely appropriate.
Alabama
As bad as things are in Texas, they may be even worse in Alabama. An Alabama federal district court judge has concluded that what faculty members say in the classroom is not covered by the First Amendment or protected by academic freedom. If that decision stands, faculty at Alabama public universities will have academic freedom in name only.
In Garcetti v. Ceballos (2006), the Supreme Court held that a public employee speaking “pursuant to official duties” is not engaged in speech covered by the First Amendment. When a public employee speaks “as a citizen” and about a “matter of public concern,” the Court has concluded the First Amendment applies and may afford protection. But when employees’ speech consists of communications they are paid to utter or produce, the First Amendment simply does not show up.
That doctrine poses an acute problem for faculty speech. Among the core “official duties” of faculty are teaching and producing scholarship. If Garcetti applies to those activities, then the government can punish faculty based on their teaching (and scholarship) without regard for First Amendment limitations. The Supreme Court was aware of this problem in Garcetti, but chose to kick it down the road (Garcetti involved the speech of a state prosecutor).
The problem has come home to roost. Several federal courts have concluded that Garcetti does not apply to classroom teaching and scholarship. In part based on academic freedom concerns, these courts have essentially created an exception to the “official duties” rule. But not all courts have done so.
A recent decision by a federal district court judge in Alabama went the other way. The court held that faculty classroom instruction is covered by Garcetti. The case involves an Alabama anti-DEI law [SB 129], which took effect in October 2024, that limits how race and gender can be taught on state university campuses. A group of faculty and students challenged provisions of the law they allege were enforced against them in ways that violated the freedom to teach and learn. As recounted in their appeal, plaintiffs assert that the law was enforced in the following ways against faculty:
University of Alabama officials “contended that a student-selected and student-led advocacy project in Professor Simon’s class, entitled Anti-Oppression and Social Justice, violated SB 129, and they threatened her with discipline if she did not cancel the project.” [The advocacy project, chosen by students, was a sit-in, “during which they had planned to discuss the impact of SB 129 on their campus experience.”]
The University of Alabama “investigated Professor Patton for possible violation of SB 129 due to an anonymous complaint regarding her teaching of Understanding Poverty, a freshman honors course that she has taught, without incident, for numerous years. . . . Specifically, the complaint accused Professor Patton of “embed[ding] divisive concepts” in the honors program and Understanding Poverty course lectures and assigned books, accusing her of “producing engaged global citizens as opposed to patriotic Americans.”
Another University of Alabama political science professor who teaches a course on poverty altered his syllabus to exclude materials at the center of Professor Patton’s investigation.
The pressure did not come solely from inside the university, in the form of investigations and disciplinary threats. According to Professor Patton, “after SB 129 went into effect, the Chair of the Ways and Means Committee for Education in the Alabama Legislature confronted Professor Patton at a UA football game about her teaching and her assigned books, stating that Alabama state legislators were “not going to let this go.”
In a lengthy opinion, the district court ruled that classroom and other faculty speech was “government speech” under Garcetti. The court concluded that faculty academic freedom does not override a university’s decisions about the content of classroom instruction. In their appellate brief, petitioners respond:
In treating university professors as traditional public employees under the Garcetti framework, the district court discounted decades of Supreme Court precedent recognizing the importance of protecting university professors’ free speech and academic freedom under the First Amendment. This protection has included barring state legislatures from imposing specific ideological preferences into university classrooms. Moreover, the Supreme Court has directed courts to “exercise great caution before extending our government-speech precedents” because those precedents are “susceptible to dangerous misuse.”
College “leadership committees” and state anti-DEI laws are perfect examples of this dangerous misuse. State legislative and executive officials are bidding to take over classroom pedagogy in an effort to excise disfavored views and impose a purported “balance” on instruction. Balance does have a role to play in university classrooms, in the sense that academic freedom contemplates presenting a range of materials and perspectives to students. But the partisan “balancing” Texas and Alabama are after undermines this goal. It removes ideas and views from the classroom, which the Supreme Court has described as an important marketplace of ideas.
Not surprisingly, faculty in the Alabama lawsuit have alleged that they have self-censored as a result of the threat of investigation for crossing a line between lawful teaching and unlawful “advocating.” Self-censorship is a common response to vaguely worded standards. Some of the pressure has not been so subtle. The Professor who was confronted at a football game by a legislator who told her they were “not going to let this go,” and who then implicitly threatened funding for graduate programs, surely got the message.
The district court’s conclusion is troubling, in part for the weight it gives to the state’s power to control “the content of classroom teaching.” Academic freedom presupposes an independence from state control that the district court’s “balance” simply ignores. Indeed, the decision transforms faculty into state mouthpieces, subject to sanction or discipline based on the content of their teaching.
Indeed, the logic of the court’s decision extends beyond classroom teaching. If university faculty are acting “pursuant to official duties” when they teach, then are they not also doing so when they conduct research, publish scholarship, and present at academic conferences? If so, that would mean the government could dictate or “control” both teaching and scholarship in ways that violate longstanding principles of academic freedom regarding both. [According to the AAUP Statement, “Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties.”]
The district court’s decision may be reversed on appeal. Even so, it is apparent that there is an alarming degree of support in state legislatures, university leadership, and some courts for imposing substantial constraints on faculty freedoms in the classroom and beyond.