Perilous Times in the Classroom
Political pressure to enforce a campaign against "gender ideology" has led to the firing of a professor and administrators at Texas A&M University.
Classroom Speech Conflicts
In general, what professors teach in the classroom and how they do so are protected by longstanding academic freedom principles. The relationship of those principles to the First Amendment is a complex matter, but this has long been a space in which government power is understood to be very limited.
However, Republican activists and officials have targeted certain ideas and concepts, sought to prohibit instructors from teaching them, and called for their termination if they should do so. So far, most of the threats have come from state officials and legislatures, in particular in states like Florida and Texas. But it is becoming apparent that President Trump’s campaign to prohibit the communication of disfavored ideas regarding race, gender, and other matters will exacerbate the perils for university professors.
Gender Identity in the Classroom
Consider a recent incident that occurred in a Texas A&M University children’s literature class. A student in the class objected to instruction that addressed gender identity. She also recorded both her in-class colloquy with the professor and subsequent conversations with the University’s president, who initially refused the student’s demand that the professor be terminated.
You can view the recording, which a Republic state legislator posed to X, yourself. It is not clear yet precisely what the instructor conveyed, but the student apparently began filming when an image of a “gender unicorn,” a teaching tool to explain the differences between gender identity and gender expression, was projected at the front of the classroom. Here is the substance of the student’s objection:
I’m not entirely sure this is legal to be teaching because, according to our president, there’s only two genders. He said that he would be freezing agencies’ funding programs that promote gender ideology. And this also very much goes against not only myself but a lot of people’s religious beliefs, and so I am not going to participate in this because it’s not legal.
The professor responded, “You are under a misconception that what I’m saying is illegal.”
Some Preliminary Observations About the Student’s Objection
Before I consider the legal merits, I want to make a few preliminary points about the substance and manner of the student’s objection.
First, President Trump’s Executive Order does not apply in university classrooms. It is true that the President has threatened to terminate, and in some cases his administration has terminated, funding for universities that engage in “Diversity Equity, and Inclusion” and “gender ideology.” But the President has no direct authority to dictate what is or isn’t taught in university classrooms. Granted, that has not prevented President Trump and his administration from adopting expansive interpretations of their regulatory power when it comes to expression. In this incident and in other contexts, the President’s Order has been interpreted as a general charge on the political right to erase any discussion or conception of gender that is not strictly biological. Tellingly, that interpretation was articulated in this case by the student (who claimed speech about gender identity was not “legal”), the Texas governor, a Republican state representative, and the Department of Justice Civil Rights Division.
Second, the fact that a student concludes classroom material “goes against” her “religious beliefs” does not dictate or determine whether it should be taught in a public university classroom. A student is, of course, free not to enroll in a course that covers material they do not want to be exposed to, for whatever reason, or to withdraw from such a course. But instructors are not bound by the dictates of individual students’ faith when determining what to teach or how to teach it. Under established principles of academic freedom, faculty do have a responsibility to teach in ways that comply with professional standards and an duty not to denigrate or discriminate against students in the classroom. But that does not extend to avoiding all material that may offend students, whether on religious or other grounds. A contract conclusion would eviscerate the exercise of professional judgment as to classroom pedagogy and place in the hands of individual students or groups of students a veto over course material. Nor can students opt out of assignments based on religious offense, although a professor can accommodate those concerns. For example, my students may decide, without sanction, not to attend class on the day we cover the right to abortion, or the right to die, or marriage equality, or animal “crush videos.” I encourage students to engage even with material they find disturbing, but do not demand they do so. But that is far different from allowing students to prevent others from learning material they wish to learn. Students have academic freedom rights too, one of which is the right to learn.
Third, some have characterized the dispute as resulting in the student being “kicked out of class.” Based on the video, that’s nonsense. The professor listened respectfully to the student’s (lengthy and repeated) objection and offered a measured response. The student and the professor both knew the student would be meeting with the president of the university later that day. The professor acted appropriately. Students do not have a right to disrupt instruction by repeating their objections to the “legality” or propriety of instruction or, again, to otherwise interfere with the learning of others.
The Merits
On what basis, then, could the university terminate the professor and others based on this incident?
As already noted, the President’s Executive Order does not address classroom speech directly. Texas Governor Abbott claimed that the instruction “violated Texas law.” But there is no Texas law in Texas that bans teaching “gender identity.” There is a law banning the teaching of “DEI” and other disfavored topics in K-12 schools in the state, but that law does not apply in this instance. [Incidentally, if there were such a law, it would face a serious First Amendment challenge, since it would constitute a presumptively unconstitutional viewpoint-discriminatory speech regulation.]
According to Texas A&M’s President, Mark A. Welsh III, the instructor was terminated for “deviation from the course catalog.” His statement, in part, says:
This summer, a children’s literature course contained content that did not align with any reasonable expectation of standard curriculum for the course. After this issue was raised, college and department leadership worked with students to offer alternative opportunities for students to complete the course, and made changes to ensure this course content does not continue in future semesters. At that time, I made it clear to our academic leadership that course content must match catalog descriptions for each and every one of our course sections.
However, I learned late yesterday that despite that directive, the college continued to teach content that was inconsistent with the published course description for another course this fall. As a result, I took the above administrative actions, and deans and department heads will conduct an audit of course offerings to ensure they align with the course descriptions.
Our students use the published information in the course catalog to make important decisions about the courses they take in pursuit of their degrees. If we allow different course content to be taught from what is advertised, we break trust with our students. When it comes to our academic offerings, we must keep faith with our students and with the state of Texas.
Course catalogs and descriptions? I can say with certainty that given the nature of classroom instruction, I have probably covered material that is not within the four walls of the course description. Anyway, this appears to be the course catalog entry for the course in question:
ENGL 360 Literature for Children
Credits 3. 3 Lecture Hours. Representative writers, genres, texts and movements. Prerequisite: Junior or senior classification.
If that’s the catalog description, I defy anyone to identify where it identifies gender identity issues as outside its scope.
In essence, it appears that a professor was terminated because the content of the course deviated in some as-yet unspecified way from the course catalogue. That sure seems pretextual, not to mention disproportionate. It is especially suspicious since President Welsh responded to the student’s demand that the instructor be terminated by saying “that’s not going to happen.” What changed? Could it be that the university caved to state-level and perhaps even federal-level political pressure and fired a faculty member and two administrators based on their presenting disfavored viewpoint in the classroom?
The First Amendment Rights of Public Employees
I have already mentioned that academic freedom principles support faculty independence from just this kind of interference with pedagogy. What about the First Amendment? Under a line of cases that begins with Pickering v. Board of Education (1968), speech by public employees is covered by the First Amendment when they (1) speak as citizens (2) on a matter of public concern. If both conditions are met, then the courts weigh or balance the employee’s speech rights and the employer’s interests in efficient operations. If the employer’s concerns are deemed to be more weighty or substantial than the employee’s interest in communicating the viewpoint or idea in question, then the employer wins.
As I discuss in a recent book chapter, these First Amendment standards are a horrible fit for the speech of professors, in particular for speech that occurs inside the classroom. One problem is that the Supreme Court has held that when an individual speaks not “as a citizen” but “as an employee,” the First Amendment does not apply at all. Thus, when a person performs the job she is paid to do, the Court has explained, speech that results from that performance is not protected.
In the case of faculty members, that would likely mean that classroom teaching is speech “as an employee” and therefore entitled to zero protection. In a post-Pickering decision, the Court duly recognized its formulation of doctrine was a real problem for classroom speech. It simply kicked that can down the road. Lower courts, which can’t just give it the boot, have generally carved out an exception for classroom speech to the “as an employee” factor. If you need such as significant exception to the general rule, that might well tell you the doctrine is a poor fit for academic speech.
In any event, let’s assume that classroom instruction is or can be speech “as a citizen.” In that case, a faculty member’s classroom instruction is protected unless the employer’s interest in efficient operation outweighs it. Balancing standards are notoriously squishy, and in many cases courts have deferred to employers’ interests in preventing material disruption.
Consider the A&M case. The university claims that the faculty member broke a rule regarding course descriptions and course content. Is that a form of insubordination sufficient to outweigh the professor’s interest in teaching the material? What about the disruption this caused when the student interrupted class? How or should that be weighed in the balance, on the university’s side? Suppose there are other students with similar concerns. Or that the university concludes the department has gone rogue and has to be reigned in.
The bottom line is the scope of protection for the professor is far less clear than it ought to be. What has happened here is that a professor (and two other employees) have lost their livelihoods because they presented material relating to gender identity. The university will, because it must, dress this up as a case of insubordination and disruption. But the political pressure to act here was obvious, as was the reason for the campaign to terminate all involved.
The Classroom Climate
There is more at stake here than individual free speech rights. Even if the professor eventually prevails, after an expensive and protracted legal fight, what about the classroom climate?
As a law professor, would I be certain where the lines on teaching controversial matters relating to race, gender, or abortion have been drawn? Do I want to enter a classroom burdened by concerns that any supposed misstep may result in my termination, suspension, or other discipline?
Those on the political right talk a lot about the perils of censorship and the need to protect free inquiry (just “asking questions”). But apparently some questions cannot be asked, and some concepts must not be taught. I can think of few things more damaging to the free exchange of ideas, whether in the classroom or outside that context, than governmental edicts about what can or cannot be communicated.
What attracted me to teaching, and what I suspect brought most academics to the profession, was the thrill of sharing ideas and examining complex concepts. I do my best to share or elicit different perspectives - including perspectives about sex, gender, equality, reproductive freedom, religious freedom, and the right to keep and bear arms. I cannot do that effectively if I must worry that what shows up on my PowerPoint slides or other instructional materials, or what I convey during class, will be cause for sanction should government officials and university leadership determine the speech is verboten.
This case also raises one final concern, this one relating to the actions of the student. When students have on rare occasions had concerns about controversial statements, usually by other students, they have sought me out after class to discuss them. By contrast, the Texas A&M student not only paused the class but also recorded her interaction with the professor, during which she asserted what was being said was “illegal.” This brand of “gotcha” video has become distressingly familiar in our politics. In my view, it has no place in a university classroom.
Good pedagogy depends on a relationship of trust and mutual respect between instructor and student. Gunning for your professor may make you a short-term hero in some quarters, but it substantially undermines that relationship. It creates distrust and paranoia. It puts everyone, including other students in the class, on the defensive.
When students worry that their own statements, which may also be recorded, will be cause for public ridicule or worse, they will naturally self-censor. I can assure you that it is already challenging to elicit discussion on controversial matters, including those at the center of the A&M controversy. This kind of behavior will only make it more so. And it may lead to paranoid forms of pedagogy. For example, I may have sound reasons not to want to record all my class sessions, But I may decide this is necessary, if only to defend myself from charges of inappropriate teaching.
I want to stress that I have been incredibly fortunate to teach conscientious, responsible, and respectful students at two law schools. Unfortunately, as this incident shows, it takes only one student to alter the classroom dynamic.