PROFESSORIAL SPEECH, THE FIRST AMENDMENT, AND

PROFESSORIAL

SPEECH,

THE

FIRST

AMENDMENT,

AND

LEGISLATIVE

RESTRICTIONS

ON

CLASSROOM

DISCUSSIONS

Keith

E.

Whittington*

Academic

freedom

enjoys

an

uncertain

status

in

American

constitutional

law

under

the

First

Amendment.

It

is

particularly

unclear

how

the

First

Amendment

applies

when

it

comes

to

professorial

speech

in

the

classroom.

This

lack

of

clarity

has

grave

implications

in

the

current

political

environment.

There

is

now

an

unprecedented

wave

of

legislative

proposals

aimed

at

curtailing

teaching

and

discussing

controversial

topics

relating

to

race

and

gender

in

state-university

classrooms,

and

the

constitutionality

of

such

measures

will

soon

need

to

be

resolved.

This

Article

sets

out

a

new

argument

for

protecting

from

legislative

interference

the

way

faculty

at

state

universities

teach

their

courses.

Building

on

existing

First

Amendment

jurisprudence

regarding

academic

freedom

and

government-

employee

speech,

the

Article

lays

out

the

constitutional

infirmities

with

anti-Critical

Race

Theory

proposals

and

clarifies

the

scope

of

an

individual

constitutional

liberty

in

the

context

of

professorial

speech.

TABLE

OF

CONTENTS

IN

TR

O

D

U

CTIO

N

...............................................................................

464

I.

THE

CULTURE

WAR

AND

ANTI-CRITICAL

RACE

THEORY

LEGISLATION

.......................................................

467

II.

THE

COLD

WAR

AND

ANTI-SUBVERSIVE

LEGISLATION

........................................................................

477

III.

THE

FIRST

AMENDMENT

AND

ACADEMIC

FREEDOM

...............................................................................

482

IV.

PICKERING,

GARCETTI,

AND

ACADEMIC

F

R

E

D

O

M

...............................................................................

492

V.

GOVERNMENT

SPEECH

AND

PRIVATE

SPEECH

IN

STATE

UNIVERSITIES....................................513

*

William

Nelson

Cromwell

Professor

of

Politics,

Princeton

University;

visiting

fellow,

Hoover

Institution.

My

thanks

for

the

helpful

comments

from

Donald

Downs,

Matthew

Finkin,

Howard

Gillman,

Frank

Michelman,

Robert

Post,

David

Rabban,

and

Timothy

Zick.

463

WAKE

FOREST

LAW

REVIEW

CONCLUSION

...................................................................................

522

INTRODUCTION

We

are

in

the

midst

of

an unprecedented

legislative

assault

on

traditional

commitments

to

academic

freedom

in

state

universities.

Despite

the

robust

protections

for

controversial

speech

that

the

Supreme

Court

has

built

up

under the

First

Amendment

over

the

past

century,

the

constitutional

status

of

professorial

classroom

speech

remains

unclear.

This

Article

brings

clarity

to

that

problem.

It

demonstrates

that

the

so-called

anti-Critical

Race

Theory

("anti-

CRT")

bills

impermissibly

burden

constitutionally

protected

speech.

They

cannot

be

reconciled

with

core

principles

of

the

First

Amendment.

If

the

state

governments

were

to

attempt

to

prohibit

ordinary

citizens

engaged

in

their

private

speech

activities

from

endorsing,

advocating,

or

promoting

the

same

substantive

ideas identified

in

the

anti-CRT

bills,

it

seems

evident

that

courts

would

regard

them

as

unconstitutional

under

current

First

Amendment

doctrine.

The

anti-

CRT

bills

are,

on

their

face,

regulations

of

speech

based

on

the

content

of

that

speech.

As

the

US

Supreme

Court

has

pointed

out,

a

long

line

of

modern

jurisprudence

has

emphasized

that

"above

all

else,

the

First

Amendment

means

that

government

has

no

power to

restrict

expression

because

of

its

message,

its

ideas,

its

subject

matter,

or

its

content."

1

As a

result,

"[c]ontent-based

regulations

are

presumptively

invalid."

2

Moreover,

"[w]hen

the

government

targets

not

subject

matter,

but

particular

views

taken

by

speakers

on

a

subject,

the

violation

of

the

First

Amendment

is

all

the

more

blatant."

3

The

First

Amendment,

"subject

only

to

narrow

and

well-understood

exceptions,

does

not

countenance

governmental

control

over

the

content

of

messages

expressed

by

private

individuals."

4

Promoting

divisive

concepts

does

not

fall

within

one

of

the

"narrow

and

well-understood

exceptions"

to

First

Amendment

protections,

nor

can

the

suppression

of

such

speech

be

expected

to

overcome

their

presumptive

invalidity.

5

Endorsing

the

belief

that

one

race

is

"inherently

superior"

to

another

or

that

members

of some

groups

should

receive

"adverse

treatment"

in

society

6

might

be

contrary

to

current

American

constitutional

commitments

and

public

values,

but

it

is

constitutionally

protected

political

expression.

7

1.

Police

Dep't

of

Chi.

v.

Mosley,

408

U.S.

92,

95

(1972).

2.

R.A.V.

v.

City

of

St.

Paul,

505

U.S.

377,

382

(1992).

3.

Rosenberger

v.

Rector

&

Visitors

of

the

Univ.

of

Va., 515

U.S.

819,

829

(1995).

4.

Turner

Broad.

Sys.,

Inc.

v.

FCC,

512

U.S.

622,

641

(1994).

5.

Id.

6.

See

infra

notes

42-43

and

accompanying

text.

7.

See,

e.g.,

Texas

v.

Johnson,

491

U.S.

397,

414

(1989)

("If

there

is

a

bedrock

principle

underlying

the

First

Amendment,

it

is

that

the

government

may

not

464

[Vol.

58

CLASSROOM

DISCUSSIONS

Although

one

might

think

that

"social

justice

ideology

poses

a

grave

threat

to

America

and

to

the

American

way

of

life,"

"teaches

students

to

hate

everything

that

makes

America

great,"

and

"divides

America

by

race,"

8

no

court

is

likely

to

accept

that

a

ban

on

the

expression

of

some

political

ideas

"is

justified

by

a compelling

government

interest

and

is

narrowly

drawn

to

serve

that

interest."

9

The

more

difficult

question

is

whether

professors

in

a

classroom

at

a

state

university

can

claim

similar

First

Amendment

protection.

If

a

state

were

to

prohibit

the

expression

of

such

ideas

by

a

private

citizen

in

a

public

park,

it

would

clearly

be

unconstitutional.

The

state

has

far

greater

leeway,

however,

in

regulating

the

speech

of

government

employees

when

they

are

performing

their

job

responsibilities.

10

When

subjecting

students

to

the

tenets

of

Critical

Race

Theory

in

the

classroom

of

a

state

university,

for

example,

are

professors

"speaking

as

citizens

for

First

Amendment

purposes"

or

are

they

subject

to

"employer

discipline"

if

the

state

government

objects

to

such

classroom

speech?

11

This

Article

argues

that

professorial

classroom

speech

should

be

regarded

as

constitutionally

protected

under

the

First

Amendment.

As

a

consequence,

state

legislatures

are

subject

to

significant

constitutional

limitations

in

attempting

to

suppress

such

speech.

12

Common

provisions

of

anti-CRT

bills

now

being

considered

by

state

legislatures

across

the

country

are

unconstitutional.

13

A

federal

judge

prohibit

the

expression

of

an

idea

simply

because

society

finds

the

idea

itself

offensive

or

disagreeable");

id.

at

418

("The

First

Amendment

does

not

guarantee

that

other

concepts

virtually

sacred

to

our

Nation

as

a

whole-such

as

the

principle

that

discrimination

on

the

basis

of

race

is

odious

and

destructive-will

go

unquestioned

in

the

marketplace

of

ideas.").

8.

H.R.

Con.

Res.

12,

66th

Leg.,

1st

Reg.

Sess.

(Idaho

2021).

9.

Brown

v.

Ent.

Merchs.

Ass'n,

564

U.S.

786,

799

(2011).

10.

Garcetti

v.

Ceballos,

547

U.S.

410,

418

(2006).

11.

Id.

at

421.

12.

I

do

not

address

in

this

Article

possible

due

process

concerns

arising

from

the

vagueness

of

these

proposals.

Such

concerns

are

real

given

how

many

of

these

bills

are

drafted,

but

at

least

in theory

statutory

language

could

be

improved

to

mitigate

such

problems.

The

First

Amendment

problem

would

remain

no

matter

how

well

drafted

the

bills

might

be.

13.

For

purposes

of

this

Article,

I

focus

on

the

individual

academic

freedom

of

university

professors.

I

lay

aside

alternative

arguments

that

might

be

grounded

in

what

is

sometimes

called

"institutional

academic

freedom"

(generally

understood

as the

freedom

of

the

educational

institution

to

pursue

its

mission

free

from

governmental

interference)

or

in

state

constitutional

provisions

securing

some

measure

of

independence

to

state

universities.

On

institutional

academic

freedom,

see

Matthew

W.

Finkin,

On

"Institutional"

Academic

Freedom,

61

TEX.

L.

REV.

817

(1983);

Mark

G.

Yudof,

Three

Faces

of Academic

Freedom,

32

LOY.

L.

REV.

831

(1987);

J.

Peter

Byrne,

Academic

Freedom:

A

"Special

Concern

of

the

First

Amendment,"

99

YALE

L.

J.

251

(1989);

David

M.

Rabban,

A

Functional

Analysis

of

"Individual"

and

"Institutional"

Academic

Freedom

under

the

First

Amendment,

53

LAw

&

CONTEMP.

PROBS.

227

(1990);

465

2023]

WAKE

FOREST

LAW

REVIEW

pointed out

some

time

ago, "To

suggest

that

the

First

Amendment,

as

a

matter

of

law,

is

never

implicated

when

a

professor

speaks

in

class,

is

fantastic."

14

Anti-CRT

policies

raise

novel

constitutional

problems

because

they

pose

the

most

aggressive

legislative

threat

to academic

freedom

in

decades,

but

it

would

be

fantastic

to

believe

that

established

First

Amendment

principles

would

not

extend

to

prohibiting

such

policies.

Even

a

fairly

modest

approach

to

recognizing

a

First

Amendment

interest

in

academic

freedom

should

be

sufficient

to

establish

the

constitutional

defects

with

the

current

legislative

proposals.

William

Van

Alstyne

once

contended,

"[A]cademic

freedom

is

a

special

subset

of

First

Amendment

freedoms."

15

Academic

freedom

is

not

a

freestanding

commitment

but

rather

protects

the

"peculiar

character

and

function

of

the

university

scholar."

16

It

is

the

particular

function

of

a

university

as

a

domain

of

free

inquiry

that

necessitates

protections

for

academic

freedom.

17

Given

the kind

of

modern

universities

that

have

been

constituted

in

the

United

States,

courts

have

recognized

that

the

academic

speech

that

takes

place

there

implicates

important

First

Amendment

values.

As

even

Chief

Justice

William

Rehnquist

noted,

"the

university

is

a

traditional

sphere

of

free

expression

so

fundamental

to

the

functioning

of

our

society

that

the

Government's

ability

to

control

speech

within

that

sphere"

is

constitutionally

limited.

18

By

attempting

to

suppress

university

classroom

speech

about

disfavored

ideas-and

more

particularly,

disfavored

viewpoints

about

contentious

social

issues-state

policymakers

are

impinging

on

First

Amendment

values

that

courts

can

and

should

protect.

Richard

H.

Hiers,

Institutional

Academic

Freedom

vs.

Faculty

Academic

Freedom

in

Public

Colleges

and

Universities:

A

Dubious

Dichotomy,

29

J.

COLL.

&

UNIV.

L.

35

(2002).

On

university

autonomy

under

state

constitutional

provisions,

see

Joseph

Beckham,

Reasonable

Independence

for

Public

Higher

Education:

Legal

Implications

of

Constitutionally

Autonomous

Status,

7

J.L.

&

EDUC.

177

(1978);

Caitlin

M.

Scully,

Note,

Autonomy

and

Accountability:

The

University

of

California

and

the

State

Constitution,

38

HASTINGS

L.J.

927

(1987);

Karen

Petroski,

Lessons

for

Academic

Freedom

Law:

The

California

Approach

to

University Autonomy

and

Accountability,

32

J.

COLL.

&

UNIV.

L.

149

(2005);

Neal

H.

Hutchens,

Preserving

the

Independence

of

Public

Higher

Education:

An

Examination

of

State

Constitutional

Autonomy

Provisions

for

Public

Colleges

and

Universities,

35

J.

COLL.

&

UNIV.

L.

271

(2009).

14.

Scallet

v.

Rosenblum,

911

F.

Supp.

999,

1013-14

(W.D.

Va.

1996).

15.

William

W.

Van

Alstyne,

The

Specific

Theory

of

Academic

Freedom

and

the

General

Issue

of

Civil

Liberties,

404

ANNALS

AM.

ACAD.

POL.

&

Soc.

Sc.

140,

143 (1972).

16.

Id.

at

142.

17.

See

Robert

C.

Post, The

Classic

First

Amendment

Tradition

Under

Stress:

Freedom

of

Speech

and

the

University,

in

THE

FREE

SPEECH

CENTURY

106,

121

(Lee

C.

Bollinger

&

Geoffrey

R.

Stone

eds.,

2019).

18.

Rust

v.

Sullivan,

500

U.S.

173,

200

(1991).

466

[Vol.

58

CLASSROOM

DISCUSSIONS

In

Part

I,

I

review

the

current

legislative

efforts

to

restrict

speech

about

race

in

higher

education.

This

review

will

reveal

the

scope

of

the

problem

and

the

common

speech

restrictions

now

being

contemplated

by

state

officials.

In

Part

II,

I

briefly

survey

an

earlier

legislative

effort

to

restrict

professorial

speech.

The

concerted

effort

to

stamp

out

"radical"

and

"subversive"

ideas

on

college

campuses

in

the

mid-twentieth

century

helped

create

the

First

Amendment

jurisprudence

on

academic

freedom.

In

Part

III,

I

outline

the

relationship

between

the

First

Amendment

and

principles

of

academic

freedom

with

a

particular

focus

on

elaborating

how

best

to

think

about

constitutional

protections

for

professorial

classroom

speech.

In

Part

IV,

I

examine

what

the

US

Supreme

Court

has

said

about

government-employee

speech

and

how

it

relates

to

academic

freedom.

The

Court

has

left

unclear

the

scope

of

constitutional

academic-freedom

protections

in

that

context,

and

I

argue

that

the

principles

that

have

been

articulated

by

the

justices

over

time

are

best

resolved

by

more

clearly

recognizing

robust

constitutional

protections

in

this

context.

In

doing

so,

I

will

clarify

the

extent

to

which

professorial

speech

ought

to

be

constitutionally

protected

from

legislative

interference

in

three

distinct

but

important

contexts:

classroom

speech,

scholarly

speech,

and

purely

private

speech.

In

Part

V,

I

examine

the

Court's

jurisprudence

on

distinguishing

between

governmental

and

private

speech

in

spaces

where

the

government

is

heavily

involved,

like

a

state-university

campus.

I

argue

that

professorial

classroom

speech

should

not

be

understood

to

be

a

form

of

government

speech

that

can

be

properly

regulated

by

government

officials.

I.

THE

CULTURE

WAR

AND

ANTI-CRITICAL

RACE

THEORY

LEGISLATION

With

remarkable

speed,

policymakers

across

the

country

have

focused

their

attention

on

what

are

sometimes

characterized

as

"divisive

concepts."

19

President

Donald

Trump

got

the

ball

rolling

when

he

issued

an

executive

order

at

the

beginning

of

the

2020

electoral

campaign

season

seeking

to

root

out

"divisive

concepts"

in

the

federal

government.

20

His

executive

order

identified

a

list

of

concepts,

including

such

claims

as

that

the

"United

States

is

fundamentally

racist"

and

that

"any

individual

should

feel

discomfort,

guilt,

anguish,

or

any

form

of

psychological

distress

on

account

of

his

or

her

race

or

sex,"

that

should

be

purged

from

federal

employee

training.

21

Soon,

Republican

legislators

across

the

country

19.

Sarah

Schwartz,

Map:

Where

Critical

Race

Theory

is

Under

Attack,

EDWEEK

(Feb.

3,

2023),

https://www.edweek.org/policy-politics/map-where-

critical-race-theory-is-under-attack/2021/06.

20.

Exec.

Order

No.

13950,

3

C.F.R.

§

433

(2021).

21.

Id.

at

§

436.

467

2023]

WAKE

FOREST

LAW

REVIEW

were

rushing

to

introduce

bills

that

were

similarly

aimed

at

divisive

concepts

in

state

government.

2

Unlike

Trump's

executive

order,

however,

many

of

these

state-level

bills

were

aimed

at

educational

institutions.

The

first

wave

of

bills

generally

focused

on

primary

and

secondary

schools.

23

An

emerging

wave

has

taken

greater

aim

at

higher

education.

24

22.

Char

Adams,

How

Trump

Ignited

the

Fight

over

Critical

Race

Theory

in

Schools,

NBC

NEWS

(May

10,

2021,

6:05

AM),

https://www.nbcnews.com/news/nbcblk/how-trump-ignited-fight-over-critical-

race-theory-schools-n1266701.

23.

Peter

Greene,

Teacher

Anti-CRT

Bills

Coast

to

Coast:

A

State

by

State

Guide,

FORBES

(Feb.

16,

2022,

2:00

PM),

https://www.forbes.com/sites/petergreene/2022/02/16/teacher-anti-crt-bills-coast-

to-coast-a-state-by-state-guide/;

Rashawn

Ray

&

Alexandra

Gibbons,

Why

Are

States

Banning

Critical

Race

Theory?,

BROOKINGs

(Nov.

21,

2021),

https://www.brookings.edublog/fixgov/2021/07/02/why-are-states-banning-

critical-race-theory/.

This

Article

brackets

the

policy

and

constitutional

questions

surrounding

the

anti-CRT

bills

aimed

at

primary

and

secondary

education,

where

arguably

the

government's

role

as

a

speaker

is

much

stronger

and

the

teacher's

First

Amendment

interests

in

the

classroom

are

much weaker.

I

contend

that,

for

First

Amendment

purposes,

professorial

speech

at

the

university

level

should

be

distinguished

from

teacher

speech

at

the

primary

and

secondary

school

level

and

that

analogizing

university

classrooms

to

secondary

school

classrooms

is

largely

inapt.

Universities

are

importantly

sites

of

free

inquiry

on

the

boundaries

of

human

knowledge.

Fulfilling

such

a

mission

of

advancing

knowledge

requires

greater

freedom

for exploring

controversial

ideas.

Universities

are

not

about

socializing

children into

a

community's

values

but

about

challenging

adults

to

think

about

difficult

ideas.

Both

state

universities

and

public

schools

have

an

educational

mission,

but

the

nature

of

that

mission

is

quite

different.

See,

e.g.,

Mayer

v.

Monroe

Cnty.

Cmty.

Sch.

Corp.,

474

F.3d

477,

479

(7th

Cir.

2007) ("[T]he

school

system

does

not

'regulate'

teachers'

speech

as

much

as

it

hires

that

speech.

Expression

is

a

teacher's

stock

in

trade,

the

commodity

she

sells

to

her

employer

in

exchange

for

a

salary.

A

teacher

hired

to

lead

a

social-studies

class

can't

use

it

as a

platform

for

a

revisionist

perspective

that

Benedict

Arnold

wasn't

really

a

traitor,

when

the

approved

program

calls

him

one.");

Boring

v.

Buncombe

Cnty.

Bd.

of

Educ.,

136

F.3d

364, 371

(4th

Cir.

1998)

("Someone

must

fix

the

curriculum

of

any

school,

public

or

private.

In

the

case

of

a

public

school,

in

our

opinion,

it

is

far

better

public

policy,

absent

a

valid

statutory

directive

on

the

subject,

that

the

makeup

of

the

curriculum

be

entrusted

to

the

local

school

authorities

who

are

in

some

sense

responsible,

rather

than

to

the

teachers,

who

would

be

responsible

only

to

the

judges,

had

they

a

First

Amendment

right

to

participate

in

the

makeup

of

the

curriculum.");

Kirkland

v.

Northside

Indep.

Sch.

Dist.,

890

F.2d

794,

800

(5th

Cir.

1989)

("Although,

the

concept

of

academic

freedom

has

been

recognized

in

our

jurisprudence,

the

doctrine

has

never

conferred

upon

teachers

the

control

of

public

school

curricula.").

24.

Wyatt

Myskow,

Legislation

to

Limit

Critical

Race

Theory

at

Colleges

Has

Reached

Fever

Pitch,

CHRON.

HIGHER

EDUC.

(June

8,

2022),

https://www.chronicle.com/article/legislation-to-limit-critical-race-theory-at-

colleges-has-reached-fever-pitch.

468

[Vol.

58

CLASSROOM

DISCUSSIONS

These

bills

have

become

more

popularly

known

as

anti-CRT

legislation.

In

a

strict

academic

sense,

Critical

Race

Theory

is

a

body

of

literature

that

has

emphasized

the

routine

prevalence

of

racism,

often

subtle

and

institutionalized,

in

contemporary

American

society.

25

In

a

legal

context,

that

work

has

emphasized

the

inadequacy

of

the

civil

rights

efforts

of

the

mid-twentieth

century

and

the

need

for

a

transformation

of

civil

rights

thinking

and

law.

26

Although

Critical

Race

Theory

may

have

gotten

its

start

in

the

law

schools,

it

has

had

an

enormous

impact

in

the

field

of

education

as

well.

27

Developing

an

"analogous"

mode

of

analysis,

this

literature

has

emphasized

the

importance

of

racism

and

capitalism

as

the

drivers

of

educational

inequities.

28

A

self-consciously

activist

literature,

it

has

sought

to

train

teachers

to

uproot

"normative

whiteness"

and

"a

system

of

achievement

premised

on

competition."

29

Such

scholarly

enterprises

might

have

been

little

known

outside

their

immediate

environments,

but

they

gained

new

prominence

in

the

wake

of

the

Black

Lives

Matters

protests

during

the

summer

of

2020.

In

particular,

Christopher

Rufo

of

the

Manhattan

Institute,

a

conservative

think

tank,

is

generally

credited

with

giving

the

term

political

salience.

30

Rufo

called

attention

to

the

growing

popularity

of

employee

training,

including

in

government

agencies,

aimed

at

ferreting

out

"whiteness."

31

Infamously,

Rufo

laid

out

his

rhetorical

strategy

in

public

via

Twitter:

"The

goal

is

to

have

the

public

read

something

crazy

in

the

newspaper

and

immediately

think

'critical

25.

See,

e.g.,

CRITICAL

RACE

THEORY:

THE

KEY

WRITINGS

THAT

FORMED

THE

MOVEMENT

(Kimberl6

Crenshaw

et

al.

eds.,

1995);

Richard

Delgado

&

Jean

Stefancic,

CRITICAL

RACE

THEORY:

AN

INTRODUCTION

3

(3d

ed.

2017).

26.

See,

e.g.,

Derick

A.

Bell,

Jr.,

Comment,

Brown

v.

Board

of

Education

and

the

Interest-Convergence

Dilemma,

93

HARV.

L.

REV.

518

(1980);

Kimberl6

Williams

Crenshaw,

Race,

Reform,

and

Retrenchment:

Transformation

and

Legitimation

in

Antidiscrimination

Law,

101

HARV.

L.

REV.

1331

(1988);

MARI

J.

MATSUDA

ET

AL.,

WORDS

THAT

WOUND

(1993).

27.

See,

e.g.,

HANDBOOK

OF

CRITICAL

RACE

THEORY

IN

EDUCATION

(2d

ed.

Marvin

Lynn

&

Adrienne

D.

Dixson

eds.

2022).

28.

Gloria

Ladson-Billings

&

William

F.

Tate

IV,

Toward

a

Critical

Race

Theory

of

Education,

97

TCHRS.

COLL.

REC.

47,

47 (1995).

29.

Adrienne

D.

Dixson

&

Celia

Rousseau

Anderson,

Where

are

We?

Critical

Race

Theory

in

Education

20

Years

Later,

93

PEABODY

J.

OF

EDUC.

121,

122

(2018).

30.

Christopher

F.

Rufo,

"White

Fragility"

Comes

to

Washington,

CITY

J.

(July

18,

2020),

https://www.city-journal.org/white-fragility-comes-to-

washington.

31.

Adam

Harris,

The

GOP's

'Critical

Race

Theory'

Obsession,

ATL.

(May

7,

2021),

https://www.theatlantic.com/politics/archive/2021/05/gops-critical-race-

theory-fixation-explained/618828/;

Laura

Meckler

&

Josh

Dawsey,

Republicans,

Spurred

by

an

Unlikely

Figure,

See

Political

Promise

in

Targeting

Critical

Race

Theory,

WASH.

POST

(June

21,

2021,

6:22

PM),

https://www.washingtonpost.com/education/2021/06/19/critical-race-theory-rufo-

republicans/.

469

2023]

WAKE

FOREST

LAW

REVIEW

race

theory."'

32

The

plan

seems

to

have

worked.

Lots

of

things

were

soon

lumped

under

the

label,

and

"critical

race theory"

became

a

catch-all,

if

dimly

understood,

way

for

conservatives

to

describe

racial

ideas

and

arguments

that

they

did

not

like.

As a

result,

the

anti-CRT

proposals

have

only

a

loose

connection

to

the

academic

literature

known

as Critical

Race

Theory.

This

development

generates

confusion

and

obfuscation

but

has

little

substantive

consequence.

33

For

purposes

of

this

Article,

"critical

race

theory"

can

be

understood

to

have

implicit

scare

quotes

as

it

refers

to

this

political

debate

rather

than

to

the

scholarly

literature.

The

policies

in

play

would

be

no

better

or

worse from

an

academic-freedom

perspective

if

they

were

aimed

more

accurately

at

a

particular

scholarly

movement

or

literature.

Of

more

immediate

significance,

the attack

on

Critical

Race

Theory

quickly

moved

beyond

employee

training

sessions

to

the

school

curriculum.

President

Trump's

divisive-concepts

executive

order

served

as

a

model

for

state

and

local

policymaking

activity in

subsequent

months.

34

Arizona

prohibited

state

agencies

from

making

use

of

employee

training

that

"presents

any

form

of

blame

or

judgment

on

the basis

of

race,

ethnicity,

or

sex."

35

Georgia

adopted

the

Protect

Students

First

Act,

which

prohibited

"classroom

instruction"

that

"advocate[s]

for

divisive

concepts."

Among

those

divisive

concepts

are

the

claims

that

individuals

should

feel

anguish

or

guilt

"by

virtue

of

his

or

her

race"

and

that

"recognition

and

appreciation

of

character

traits

such

as

a

hard

work

ethic

are

racist."

36

North

Dakota

required

that

the

public-school

curriculum

be

"factual"

and

"objective"

and

"not

include

instruction

relating

to

critical

race

theory."

37

South

Carolina

included

a

budget

rider

on

"partisanship

curriculum"

that

prohibited

curricula,

textbooks,

or

instructional

materials

that

"serve

to

inculcate"

various

disfavored

32.

Christopher

F.

Rufo

(@realchrisrufo),

TWITTER

(Mar.

15,

2021,

3:17

PM),

https://twitter.com/realchrisrufo/status/1371541044592996352?lang=en.

33.

Some

legislative

proposals

are

substantively

affected

by

the

confusion

to

the

extent

that

they

are

vague

about

exactly

what

speech

is

being

banned,

but

most

of

the

proposals

do

not

attempt

to

ban

"critical

race

theory"

as

such

but

instead

delineate

a

set

of

more

specific

ideas

that

should

not

be

discussed.

Many

of

the

proposals

still

have

vagueness

problems,

but

not

as

a

result

of

confusion

of

the

meaning

of

"critical

race

theory."

On

the

lack

of

clarity

in

the

anti-CRT

bills,

see

Keith Whittington,

The

Trouble

with

Banning

Critical

Race

Theory,

AREO

(June

16,

2021),

https://areomagazine.com/2021/06/16/the-trouble-with-banning-

critical-race-theory/.

34.

JONATHAN

FRIEDMAN

&

JAMES

TAGER,

EDUCATIONAL

GAG

ORDERS

25-26

(2022);

Whittington,

supra

note

33.

35.

H.B.

2906,

55th

Leg.,

1st

Reg.

Sess.

(Ariz. 2021).

36. H.B.

1084,

2022 Leg.,

Reg.

Sess.

(Ga.

2022).

37.

H.B.

1508,

67th

Leg.,

Spec.

Sess.

(N.D. 2021).

470

[Vol.

58

CLASSROOM

DISCUSSIONS

concepts.

3

8

Texas

adopted

a

civics

training

program

that

included

a

prohibited

list

of

divisive

concepts.

39

With

the

ink

barely

dry

on

policies

focused

on

primary

and

secondary

education,

legislators

began

to

advance

similar

bills

focused

on

higher

education.

A

small

number

have

passed

into

law,

but

many

more

are

in

the

pipeline.

The

various

proposals

have

many

commonalities,

but

they

are

not

all

the

same.

Some

examples

will

indicate

the

challenges

posed

by

such

legislation.

The

common

theme

is

that

they

all

burden

professorial

speech

in

the

classroom

by

restricting

the

topics

and

perspectives

that

a

professor

may

discuss

or

advance

while

performing

his

or

her

instructional

duties.

Perhaps

the

most

high-profile

of

the

bills

signed

into

law

is

Florida's

so-called

"Stop

WOKE

Act,"

or

House

Bill

7.

Passed

with

great

fanfare

at

the

behest

of

the

governor's

office,

Florida

Republican

Governor

Ron

DeSantis

declared

that

"we

will

not

let

the

far-left

woke

agenda

take

over

our

schools"

and

that

"there

is

no

place

for

indoctrination"

in

the

state.

40

A

key

feature

of

the

law

echoes

other

divisive-concepts

proposals.

It

declares

it

to

be

prohibited

"discrimination

on

the

basis

of

race"

for

any

student

in

the

state

to

be

exposed

to

"training

or

instruction

that

espouses,

promotes,

advances,

inculcates,

or

compels

such

student

..

.

to

believe

any"

of

a

list

of

concepts,

including

that

members

of

one

race

are

"morally

superior"

to

members

of

another;

that

a

person's

"status"

is

"either

privileged

or

oppressed"

as

a

result

of

their

race

or

sex;

that

a

person

"should

be

discriminated

against

or

receive

adverse

treatment

to

achieve

diversity,

equity,

or

inclusion;"

or

that

"such

virtues

as

merit,

excellence,

hard

work,

fairness,

objectivity,

and

racial

colorblindness

are

racist

or

sexist."

4

1

The

discussion

of

such

concepts

is

not

prohibited

so

long

as

they

are

"part

of

a

larger

course

of

training

or

instruction"

and

such

instruction

"is

given

in

an

objective

manner

without

endorsement

of

the

concepts."

42

By

prohibiting

university

instruction

that

"espouses,"

"promotes,"

"advances,"

or

offers

with

"endorsement"

such

concepts,

the

state

restricts

ordinary

academic

discourse

in

a

range

of

disciplines

and

hampers

the

ability

of

38.

H.B.

4100,

124th

Gen.

Assemb.,

Reg.

Sess.

(S.C.

2022).

39.

S.B.

3,

87th

Leg.,

Reg.

Sess.

(Tex.

2021).

40.

John

Kennedy,

DeSantis'

'Stop

WOKE

Act'

Faces

Court

Test

as

Universities

Become

Targets.

At

Issue:

Free

Speech,

FLA.

TIMES-UNION

(June

19,

2022,

6:05

PM),

https://www.jacksonville.com/story/news/politics/2022/06/16/desantis-florida-

stop-woke-act-challenged-universities-free-speech/

7 6

3

00

3 3

001/.

41.

H.B.

7,

2022

Leg.,

Reg.

Sess.

(Fla.

2022);

FLA.

STAT.

§

1000.05(4)(a)

(2022).

42.

FLA.

STAT.

§

1000.05(4)(b)

(2022).

471

2023]

WAKE

FOREST

LAW

REVIEW

professors

to

construct

ordinary

political

and

policy

arguments

relating

to

a

variety

of

disputed

issues

involving

race

and

sex.

4 3

The

Idaho

anti-CRT

statute

makes

direct

reference

to

"tenets

.

. .

often

found

in

'critical

race

theory"'

in

its

new

legislation

on

"dignity

and

nondiscrimination

in

public

education."

44

Because

the

legislature

regards

such

concepts

as

likely

to

"exacerbate

and

inflame

divisions,"

it

prohibits

any

"public

institution

of

higher

education"

from

directing

or

compelling

students

"to

personally

affirm,

adopt,

or

adhere

to"

a

list

of

tenets,

including

that

a

race

or sex

is

inherently

superior

to

another,

that

individuals

should

be

adversely

treated

on

the

basis

of

such

characteristics,

or

that

individuals

are

"inherently

responsible"

for

actions

committed

in

the

past

by

other

individuals

who

share

such

characteristics.4

5

This

legislation

has

a

far

narrower

scope

than

other

versions

of

divisive-concepts

bills

since

it

does

not

prohibit

mere

advocacy

or

promotion

of

such

ideas

by

instructors

but

only

compelling

students

to

"personally

affirm"

them.

46

Other

proposals

that

have

been

advanced

in

the

Idaho

legislature

but

not

yet

adopted

into

law

are

more

sweeping.

A

House

concurrent

resolution

declared

that

"universities

should

eliminate

courses

.

that

are

infused

with

social

justice

ideology"

and

threatened

future

cuts

in

state

funding

to

universities

that

failed

to

do

so.4

7

House

Bill

352

takes

a

broader

approach

to

banning

divisive

concepts

from

university

classrooms.

It

would

prohibit

a

list

of

"racist

or

sexist

concept[s]"

and

bar

professors

at

public

universities

from

"teach[ing],"

"advocat[ing],

or

"encourage[ing]

the

adoption"

of

such

concepts

"while

instructing

students."

48

Universities

would

be

further

barred

from

hosting

speakers

who

advocate

such

positions

or

43.

The

Stop

WOKE

Act

has

been

enjoined

by

a

federal

district

court.

Novoa

v.

Diaz,

No.

4:22-cv-00324-MW/MAF

(N.D.

Fla.

2022)

(Court

Listener).

44.

IDAHO

CODE

§

33-138(2)

(2021).

45.

IDAHO

CODE

§

33-138(3)(a)

(2021).

46.

What

counts

as

"personally

affirming"

a

tenet

of

critical

race

theory

might

still

create

mischief

in

an

educational

setting,

however.

Compelled

speech

is

constitutionally

disfavored.

As

Justice

Robert

Jackson

noted

in

the

flag-salute

case,

it

is

not

"open

to

public

authorities

to

compel

[an

individual]

to

utter

what

is

not in

his

mind."

W.

Va.

State

Bd.

of

Educ.

v.

Barnette,

319

U.S.

624,

634

(1943).

It

is

clear

that

what

concerned

the

Court

was

compelling

a

certain

"attitude

of

mind"

and

forcing

individuals

to

"confess

by

word

or

act

their

faith"

in

government

prescribed

orthodoxies.

Id.

at

633,

642.

But

it

is

also

familiar

that

in

an

educational

context

students

might

well

be

asked

to

express

"words

without

belief'

in

the

context

of

a

debate

or

an

examination

in

ways

that

do

not

look

like

the

kind

of

"prescribed

ceremony"

at

stake

in

the

flag-salute

context.

Id.

at

633.

If

the

statute

is

read

narrowly

to

apply

to forced

expressions

of

belief

comparable

to

reciting

the

Pledge

of

Allegiance,

then

it

would

avoid

such

pitfalls

and

reaffirm

the constitutional

right

that

students

already

possess

to

be

free

from

compelled

speech.

47.

H.R.

12,

66th

Leg.,

1st

Reg.

Sess.

(Idaho

2021).

48.

H.B.

352,

66th

Leg.,

1st

Reg.

Sess.

(Idaho

2021).

472

[Vol.

58

CLASSROOM

DISCUSSIONS

requiring

students

to

read

any

"learning

material"

that

espouses

such

views.

49

With

such

proposals

on

the

loose,

university

officials

became

proactive

in

trying

to

avoid

enflaming

legislative

passions.

50

The

Iowa

legislature

adopted

a

new

law

restricting

diversity

training

in

state

and

local

government,

including

institutions

of

higher

education.

51

Mandatory

"staff

or

student

training"

may

not

"teach"

or

"advocate"

a

number

of

disfavored

views,

but

the

law

includes

a

qualification

that

its

requirements

should

not

be

read

to

"inhibit

or

violate

the

first

amendment

rights

of

students

or

faculty,

or

undermine

a

public

institution

of

higher

education's

duty

to

protect

to

the

fullest

degree

intellectual

freedom

and

free

expression."

5

2

South

Dakota

5 3

and

Tennessee

5 4

adopted

similar

measures.

Other

legislative

proposals

that

have

not

yet

become

law

are

less

circumspect.

Some

directly

single

out

specific

texts

to

be

banished

from

the

classroom.

The

"1619

Project"

was

sponsored

by

the

New

York

Times

and

won

a

Pulitzer

Prize

for

a

series

of

essays

on

the

history

of

race

and

slavery

in

the

United

States.

55

The

Project,

which

tried

to

resituate

the

true

American

founding

as

the

date

in

which

African

slaves

arrived

in

North

America,

has

spurred

extended

scholarly

and

political

controversy

over

its

historical

claims,

thematic

narrative,

and

normative

aspirations.

5

6

House

Bill

222

in

Iowa

would

cut

funds

for

any

public

universities

that

utilized

any

material

from

49.

Id.

50.

Kevin

Richert,

Analysis:

By

Staying

Silent,

the

State

Board

Loses

the

Education

Narrative,

IDAHO

ED

NEWS

(Apr.

22,

2021),

https://www.idahoednews.org/top-news/analysis-by-staying-silent-the-state-

board-loses-the-education-narrative/;

Betsy

Russell,

The

'Social

Justice'

Debate

in

Higher

Ed,

from

'Equity'

to

Cannibalism,

IDAHo

PRESS

(Jan.

25,

2022),

https://www.idahopress.com/eyeonboise/the-social-justice-debate-in-higher-ed-

from-equity-to-cannibalism/article_727a169b-26ea-5b5e-9ce7-

a752db6f1f71.html;

Colleen

Flaherty,

Ethics

and

Diversity

Course

on

Hold,

INSIDE

HIGHER

ED

(Mar.

18,

2021),

https://www.insidehighered.com/news/20

2

1/03/18/boise-state-suspends-

diversity-course-1300-students.

51.

H.B.

802,

2021

Leg.

(Iowa

2021).

52.

Id.

53.

H.B.

1012,

97th

Leg.,

Reg.

Sess.

(S.D.

2022).

54.

H.B.

2670,

112th

Gen.

Assemb.

(Tenn.

2022).

55.

Nikole

Hannah-Jones,

Our

Democracy's

Founding

Ideals

Were

False

When

They

Were

Written.

Black

Americans

Have

Fought

to

Make

Them

True,

N.Y.

TIMES

(Aug.

14,

2019),

https://www.nytimes.com/interactive/2019/08/14/magazine/black-history-

american-democracy.html.

56.

David

Waldstreicher,

The

Hidden

Stakes

of

the

1619

Controversy,

Bos.

REv.

(Jan.

24,

2020),

https://bostonreview.net/articles/david-waldstreicher-

hidden-stakes-1619-controversy/;

William

Hogeland,

The

Historians

are

Fighting,

SLATE

(Oct.

30,

2021,

5:59

AM),

https://slate.com/news-and-

politics/2021/10/

1619-project-historians-controversy-gordon-wood-woody-

holton.html.

473

2023]

WAKE

FOREST

LAW

REVIEW

the

"1619

Project"

in

its

curriculum.

57

The

Iowa

bill

is

one

of

several

legislative

proposals

in

multiple

states

aimed

at

banning

the

1619

Project

from

public

school

or

public

university

classrooms.

58

Measures

introduced

in

Oklahoma

and

Missouri

would

cut

state

funds

to

any

universities

using

the

materials.

5

9

A

separate

Missouri

bill

would

have

imposed

similar

financial

penalties

on

any

state

university

that

adopted

a

"curriculum

implementing

critical

race

theory"

or

taught

"components

of

critical

race

theory

as

part

of

any

curriculum,

course

syllabus,

or

instruction

in

any

course

or

program

of

study."

60

A

New

York

bill

would

have

prohibited

requiring

college

students

to

"study

the

1619

Project"

or

taking

a

course

that

"teaches

individuals

to

feel

discomfort

...

due

to

the

individual's

race

or

religion."

61

Others

would

bring

the

divisive-concepts

bans

into

college-level

teaching.

A

bill

introduced

in

Alabama

directed

that

no

university

professor

shall

"teach"

anything

on

a

list

of

divisive

concepts.

6

2

A

bill

in

Arkansas

would

have

barred

university

professors

from

"promot[ing]"

"social

justice"

or

"division

between"

races,

genders,

social

classes,

or

political

groups.

6 3

A

bill

in

Kentucky

with

the

straightforward

title

of

"an

act

relating

to

prohibited

instruction"

would

have

mandated

that

no

student

"be

subjected

to

any

classroom

instruction

or

discussion"

or

"textbooks

and

instructional

materials"

that

promote

a

divisive

concept.

64

A

similar

measure

in

South

Carolina

would

have

likewise

freed

college

students

from

"ideological

coercion

and

indoctrination"

by

banning

delineated

"discriminatory

concepts"

from

any

"instruction,

presentations,

discussions,

or

counseling."

65

The

"Teaching

Racial

and

Universal

Equality

(TRUE)

Act"

in

Mississippi

would

have

prohibited

including

"divisive

concepts

as

part

of

a course

of

instruction

or

in

a

curriculum

or

instructional

program"

at

a

state

university.

66

Its

list

of

divisive

concepts

was

a

bit

more

expansive

than

most,

including

on

the

list

of

prohibited

ideas

57.

H.B.

222, 2021

Leg.

(Iowa

2021).

58.

Sarah

Schwartz,

Lawmakers

Push

to

Ban

"1619

Project"

from

Schools,

EDUC.

WEEK

(Feb.

3,

2021),

https://www.edweek.org/teaching-

learning/lawmakers-push-to-ban-1619-project-from-schools/2021/02;

Barbara

Rodriguez,

Republican

State

Lawmakers

Want

to

Punish

Schools

that

Teach

the

1619

Project,

USA

TODAY

(Feb.

10,

2021,

11:39

AM),

https://www.usatoday.com/story/news/education/2021/02/10/slavery-and-history-

states-threaten-funding-schools-teach-1619-project/4454195001/.

59.

H.B.

2988,

58th

Leg.,

2d

Sess.

(Okla.

2022);

H.B.

952,

101st

Gen.

Assemb.,

1st

Reg.

Sess.

(Mo.

2021).

60.

H.B.

1634,

101st

Gen.

Assemb.,

2d

Reg.

Sess.

(Mo.

2021).

61.

A.B.

8253,

2021

Leg.,

Reg.

Sess.

(N.Y.

2021).

62.

H.B.

9,

2021

Leg.,

Reg.

Sess.

(Ala.

2022).

63.

H.B.

1218,

93d

Gen.

Assemb.,

Reg.

Sess.

(Ark.

2021).

64.

H.B.

18,

2022

Leg.,

Reg.

Sess.

(Ky.

2022).

65.

H.B.

4605,

2021

Gen.

Assemb.,

124th

Sess.

(S.C.

2021).

66.

H.B.

437,

2022

Leg.,

Reg.

Sess.

(Miss.

2022).

474

[Vol.

58

CLASSROOM

DISCUSSIONS

that

"capitalism"

or

"free

markets"

"are

racist

and

sexist

or

oppress

a

given

race

or

sex"

and

ideas

that

promote

"the

violent

overthrow

of

the

United

States

government."

67

A

New

Hampshire

bill

would

have

simply

extended

its

divisive-concepts

law

that

applied

to

state

employee

training

68

to

include

university

classroom

instruction.

6

9

Pennsylvania

would

have

prohibited

professors

from

"teach[ing]"

or

"advocat[ing]"

a

divisive

concept

"while

instructing

students."

70

To

date,

legislative

proposals

relating

to

divisive

concepts

in

higher

education

have

focused

on

training

sessions

and

classroom

instruction.

They

have

proposed

regulating

college

curricula,

banning

instructional

materials,

and

curtailing

classroom

discussions.

We

are

still

in

the

early

stages

of

the

anti-CRT

movement,

however.

It

is

not

hard

to

imagine

state

government

officials

setting

their

sights

on

other

expression

of

such

disfavored

ideas

by

state-university

professors

in

other

contexts.

In

addition

to

classroom

speech,

professors

routinely

speak

in

two

other

contexts

that

traditional

academic-freedom

policies

and

principles

have

also

tried

to

protect.

71

Scholarly

speech

in

the

form

of

presentations

in

scholarly

venues

and

publication

of

scholarly

research

might

not

directly

involve

students,

but

it

can

certainly

develop

and

promote

the

same

disfavored

ideas

targeted

by

the

current

divisive-concepts

proposals.

It

would

not

be

hard

to

imagine

policymakers

attempting

to

likewise

suppress

scholarship

that

might

be

characterized

as

"racist."

72

Professors

also

engage

in

private

speech,

or

what

in

the

academic-freedom

context

is

characterized

as

"extramural

speech."

7

3

It

is

not

at

all

obvious

that

politicians

concerned

with

divisive

and

dangerous

ideas

being

promoted

by

state-university

professors

will

limit

their

attention

to

what

those

professors

say

in

the

classroom.

74

67.

Id.

68.

H.B.

544,

2021

Gen.

Ct.,

Reg.

Sess.

(N.H.

2021).

69.

H.B.

1313,

2022

Gen.

Ct.,

Reg.

Sess.

(N.H.

2022).

70.

H.B.

1532,

2021

Gen.

Assemb.,

Reg.

Sess.

(Pa.

2021).

71.

See

infra

text

accompanying

notes

113-14.

72.

Indeed,

such

proposals

are

already

on

the

table

but

with

a

different

political

valence.

Many

of

my

colleagues

at

Princeton

University

have

urged

the

university

to

carve

out

an

exception

from

academic-freedom

protections

for

"racist"

scholarship.

Only

modest

tinkering

would

be

needed

to

make

such

proposals

serve

the

goals

of

the

politicians

currently

advancing

bills

aimed

at

"discriminatory

concepts."

Keith

Whittington,

Chipping

Away

at

Academic

Freedom,

REAL

CLEAR

POL.

(Aug.

23,

2020),

https://www.realclearpolitics.com/articles/2020/08/23/chipping_awayatacadem

ic_freedom_144012.html.

73.

Keith

E.

Whittington,

Academic

Freedom

and

the

Scope

of

Protections

for

Extramural

Speech,

105

ACADEME

20,

22

(2019).

74.

In

fact,

the

extramural

speech

of

professors

frequently

generates

political

controversy,

though

these

efforts

to

sanction

faculty

for

unpopular

things

that

they

have

said

in

public

are

more

often

ad

hoc

than

systematic.

See,

e.g.,

Keith

E.

Whittington,

Protecting

Extramural

Speech,

AcADEME

BLOC

(Feb.

15,

2019),

475

2023]

WAKE

FOREST

LAW

REVIEW

A

trustee

at

a

state

university

in

Florida

recently

complained

that

they

should

be more

involved

in

faculty

tenure

decisions

and

would

need

more

information

in

order

to

make

such

decisions.

75

Governor-

appointed

board

members

needed

to

know

about

a

professor's

"viewpoints,

about

his

research,

about

his

political

affiliations

or

potential

donations."

76

The

powerful

lieutenant

governor

of

Texas

has

called

for new

legislation

specifying

that

"teaching

Critical

Race

Theory"

would

be

a

"cause

for

a

tenured

professor

to

be

dismissed,"

while

seeking

to

shift

faculty

to

annual

"tenure

reviews"

in

order

to

remain

employed.

77

If

professors

spouting

"nonsense"

is

a

good

reason

for

government

officials

to

get

rid

of

them,

it

seems

unlikely

that

the

only

nonsense

that

will

matter

is

that

being

expressed

in

the

classroom.

78

Problematic

bills

get

introduced

into

state

legislatures

all

the

time.

Given

the

number

of

state

legislators

in

the

country,

it

is

not

hard

to

engage

in

an

exercise

of

"nutpicking"

to

feed

worries

about

ill-

conceived

legislative

proposals

with

little

chance

of

adoption

or

influence.

Unfortunately,

there

is

more

substantial

cause

for

concern

regarding

the

anti-CRT

bills.

The

first

wave

of

divisive-concepts

bills

already

yielded

some

legislative

success,

and

their

advocates

have

only

just

started

to

turn

their

attention

to

higher

education.

The

volume

and

prominence

of

legislative

proposals

looking

to

restrict

what

can

be

included

in

the

curriculum

of

state

universities

cannot

be

easily

dismissed

as political

longshots.

Universities

have

already

begun

to

react

to

the

new

political

environment

by

seeking

to

curtail

https://academeblog.org/2019/02/15/protecting-extramural-speech/;

Keith

E.

Whittington,

Extramural

Speech

at

Auburn,

VOLOKH

CONsPIRACY

(Aug.

3,

2020,

9:52

PM),

https://reason.com/volokh/2020/08/03/extramural-speech-at-auburn/;

Keith

E.

Whittington,

Controversial

Researcher

Driven

from

Campus

at

Old

Dominion

University,

VOLOKH

CONSPIRACY

(Dec.

1,

2021,

11:10

AM),

https://reason.com/volokh/2021/12/01/controversial-researcher-driven-from-

campus-at-old-dominion-university/;

Keith

E.

Whittington,

A

State

Attorney

General

Demands

that

a

Professor

be

Held

'Accountable"

for

a

Tweet,

VoLoKH

CONSPIRACY

(Dec.

11,

2021,

12:52

PM),

https://reason.com/volokh/2021/12/11/a-

state-attorney-general-demands-that-a-professor-be-held-accountable-for-a-

tweet/.

75.

Colleen

Flaherty,

Having

Their

Say-and

Then

Some,

INSIDE

HIGHER

ED

(May

17,

2021),

https://www.insidehighered.com/news/2021/05/17/trustees-

florida-atlantic-want-play-role-faculty-tenure-process.

76.

Id.

77.

Lt.

Gov.

Dan

Patrick,

State

of

Texas,

Statement

on

Plans

for

Higher

Education

and

Tenure,

LIEUTENANT

Gov.

TEX.

(Feb.

18,

2022),

https://www.ltgov.texas.gov/2022/02/18/lt-gov-dan-patrick-statement-on-plans-

for-higher-education-and-tenure/.

78.

Kate

McGee,

Lt.

Gov.

Dan

Patrick

Proposes

Ending

University

Tenure

to

Combat

Critical

Race

Theory

Teachings,

TEX.

TRIB.

(Feb.

18,

2022,

12:00

PM),

https://www.texastribune.org/2022/02/18/dan-patrick-texas-tenure-critical-race-

theory/.

476

[Vol.

58

CLASSROOM

DISCUSSIONS

programmatic

and

instructional

activities

that

might

incense

state

politicians.

79

While

it

is

certainly

too

early

to

predict

what

form

restrictions

might

take,

it

is

not

too

early

to

begin

to

grapple

with

the

constitutional

issues

that

such

proposals

raise.

The

possibility

of

legislative

restrictions

on

state-university

classroom

teaching

has

moved

from

the

world

of

idle

hypotheticals

to

the

political

mainstream.

80

II.

THE

COLD

WAR

AND

ANTI-SUBVERSIVE

LEGISLATION

The

current

political

assault

on

state

universities

is

perhaps

the

most

substantial

since

the

early

days

of

the

Cold

War.

It

remains

to

be

seen

whether

the

current

political

efforts

will

be

as

consequential

as

those

of

the

mid-twentieth

century,

but

political

interest

in

speech

activities

on

college

campuses

is

higher

now

than

it

has

been

in

decades.

The

search

for

"subversives"

in

the

postwar

period

sought

to

suppress

radical

ideas

in

public

and

private

institutions

of

higher

education.

81

The

current

wave

of

anti-CRT

legislation

has

similar

goals.

The

anti-subversive

legislation

of

the

Cold

War

era

spurred

the

Supreme

Court

to

begin

to

constitutionalize

academic-freedom

principles.

8

2

The

anti-CRT

legislation

could

prod

the

Court

to

push

those

developments

further.

79.

See,

e.g.,

Mike

Schneider,

Florida

Professors

Cite

Fear

of

State

Politicians

on

Campus,

AP

(Dec.

7,

2021),

https://apnews.comlarticle/coronavirus-pandemic-

health-education-florida-censorship-3eb326e17c91077ae1fe7d5b45fldf89;

Frequently

Asked

Questions:

Iowa

House

File

802,

IOWA

STATE

UNIV.

(Aug.

5,

2021),

https://www.provost.iastate.edu/policies/iowa-house-file-

80

2

---

requirements-related-to-racism-and-sexism-trainings.

80.

It

should

be

noted

that

this

Article

focuses

on

legislative

restrictions

on

classroom

teaching

in universities,

but

the

current

threat

to

academic

freedom

in

public

universities

is

broader.

Significant

alteration

in

the

tenure

system

has

been

proposed

in

several

states

and

politically

appointed

boards

of

trustees

in

public

university

systems

have

toyed

with

the

idea

of

becoming

more

interventionist

in

the

academic

affairs

of

the

universities

they

oversee.

Keith

E.

Whittington,

The

Intellectual

Freedom

that

Made

Public

Colleges

Great

is

Under

Threat,

WASH.

PosT

(Dec.

15,

2021,

6:00

AM),

https://www.washingtonpost.com/outlook/

2

0

2

1/12/15/academic-freedom-crt-

public-universities/.

Private

universities

are

facing

their

own

academic-freedom

challenges

as

well.

Keith

E.

Whittington,

Free

Speech

is

Under

Threat

on

College

Campuses.

Here's

How

to

Fight

Back,

NAT.

REV.

(Mar.

18,

2021,

6:30

AM),

https://www.nationalreview.com/2021/03/free-speech-is-under-threat-on-college-

campuses-heres-how-to-fight-back/.

81.

See

generally

Ellen

Schrecker,

Academic

Freedom

and

the

Cold

War,

38

ANTIOCH

REV.

313,

318-22

(1980).

82.

See,

e.g.,

Sweezy

v.

New

Hampshire,

354

U.S.

234,

236-38

(1957)

(plurality

opinion).

"We

believe

that

there

unquestionably

was

an

invasion

of

petitioner's

liberties

in

the

areas

of

academic

freedom

and

political

expression-

areas

in

which

government

should

be

extremely

reticent

to

tread."

Id.

at

250

(opinion

of

Warren,

C.J.).

477

2023]

WAKE

FOREST

LAW

REVIEW

The

original

impetus

for

the

anti-subversive

push

predated

the

Cold

War.

The

Bolshevik

Revolution

in

Russia

and

World

War

I

generated

their

own

demands

for

ensuring

that

subversive

ideas

did

not

get

a

foothold

in

the

United

States.

83

New

York

took

the

lead,

with

a

particular

focus

on

rooting subversives

out

of

public

schools.

8

4

The

laws

were

not

without

controversy.

Democratic

Governor

Alfred

E.

Smith

denounced

one

such

bill,

saying,

"It

deprives

teachers

of

their

right

to

freedom

of

thought,

it

limits

the

teaching

staff

of

the

public

schools to

those

only

who

lack

the

courage

of

mind

to

exercise

their

legal

right

to

just

criticism

of

existing

institutions."

85

Of

another

that

sought

to

create

a

licensing

system

for

private

schools,

he

wrote,

"[I]t

strikes

at

the

very

foundation

of

one

of

the

most

cardinal

institutions

of

our

nation-the

fundamental

right

of

the

people

to

enjoy

full

liberty

in

the

domain

of

idea

and

speech."

86

"It

is,"

he

thought,

"unthinkable

that

in

a

representative

democracy

there

should

be

delegated

to

any

body

of

men

the

absolute

power

to

prohibit

the

teaching

of

any

subject

of

which

it

may

disapprove."

87

Nonetheless,

just

a

few

years

later

the

American

Civil

Liberties

Union

reported

that

"[m]ore

laws

interfering

with

the

school

curriculum

have

been

passed

[since

World

War

I]

than

in

all

the

years

preceding."

88

While

the

current

anti-CRT

bills

have

taken

direct

aim

at

university

instruction,

the

anti-subversive

efforts

of

the

Cold

War

period

were

generally

less

direct. Loyalty

oaths

became

a

condition

for

employment

not

only

for

teachers

but

for

state

employees

of

all

sorts,

including

professors

at

state

universities.

89

New

York

eventually

barred

individuals

"from

any

office

or

position

in

the

service

of

the

state"

including

"in

a

state

normal

school

or

college,

or

any

other

state

educational

institution"

who

"willfully

and

deliberately

advocates,

advises

or

teaches

the

doctrine

that

the

government

of

the

United

States

.

. .

should

be

overthrown

or

overturned

by

force,

violence or

any unlawful

means"

or becomes

"a

member

of

any

society

or

group

of

persons

which

teaches

or

83.

PAUL

L.

MURPHY,

WORLD

WAR

I

AND

THE

ORIGIN

OF

CIVIL

LIBERTIES

IN

THE

UNITED

STATES

133-34,

177-78

(1979).

On

the

transition

in

free

speech

doctrine,

see

MARK

A.

GRABER,

TRANSFORMING

FREE

SPEECH

165-84

(1991);

DAVID

M.

RABBAN,

FREE

SPEECH

IN

ITS

FORGOTTEN

YEARS

175-76

(1997).

84.

See

generally

LAWRENCE

H.

CHAMBERLAIN,

LOYALTY

AND

LEGISLATIVE

ACTION

(1951).

85.

ALFRED

E.

SMITH,

2 PUBLIC

PAPERS

OF

ALFRED

E.

SMITH,

GOVERNOR

369

(1921).

86.

Id.

87.

Id.

at

370.

88.

AM.

C.L.

UNION,

THE

GAG

ON

TEACHING

4

(1931).

See

also,

M.J.

HEALE,

MCCARTHY'S

AMERICANS:

RED

SCARE

POLITICS

IN

STATE

AND

NATION,

1935-1965,

30-33

(1998)

("By

1953

the

great

majority

of

states

were

using

loyalty

oaths

of

some

kind.").

89.

HEALE,

supra

note

88,

at

30-31.

478

[Vol.

58

2023]

CLASSROOM

DISCUSSIONS

479

advocates"

such

a

doctrine.

9

0

The

notorious

Feinberg

Law

directed

the

state's

board

of

regents

to

adopt

rules

to

identify

and

remove

such

teachers

and

create

a

list

of

prohibited

subversive

organizations.

91

As

a

New

York

court

said

in

upholding

the

law,

"We

are

not

so

naive

as

to

accept

as

gospel

the

argument

that

a

teacher

who

believes

in

the

destruction

of

our

form

of

Government

will

not

affect

his

students."

92

The

state

had

a

particular

interest

in

the

thoughts

of

those

who

would

be

molding

"the

childish

mind."

93

The

fate

of

young

schoolchildren

might

have

been

of

particular

interest

to

legislators

in

the

postwar

period,

but

the

intellectual

environment

of

college

students

did

not

escape

their

attention.

94

University

professors

were

widely

required

to

attest

that

they

had

not

belonged

to

subversive

organizations

like

the

Communist

Party.

95

Texas

went

so

far

as

to

require

that

authors

of

school

textbooks

attest

that

they

had

not

been

a

member

of

a

movement

that

had

been

"designated

as

totalitarian,

fascist,

communist

or

subversive"

or

that

advocated

"acts

of

force

or

violence

to

deny

others

their

rights"

or

sought

to

"alter

the

form

of

Government

of

the

United

States

by

unconstitutional

means."

96

Refusing

to

testify

in

an

un-American

affairs

investigation

was

specified

as

grounds

for

dismissal

from

a

faculty

position.

97

State-university

officials,

like

the

president

of

Ohio

90.

N.Y.

Laws

1939,

c.

547,

as

amended

N.Y.

Laws

1940,

c.

564.

See

Adler

v.

Bd.

of

Educ.,

342

U.S.

485,

486

n.1

(1952)

(citing

the

statute).

91.

N.Y.

Laws

1949,

c.

360.

See

Adler,

342

U.S.

at

487

n.2

(citing

statute).

92.

L'Hommedieu

v.

Bd.

of

Regents,

95

N.Y.S.2d

443,

453

(N.Y.

App.

Div.

1950).

93.

Id.

94.

The

appointment

of

famed

British

philosopher

Bertrand

Russell

to

a

position

at

City

College

was

overturned

by

a

state

court

as

appalling

and

unlawful

in

part

because

the

taxpayers

of

New

York

"are

not

spending

that

money

nor

was

the

money

appropriated

for

the

purpose

of

employing

teachers

who

are

not

of

good

moral

character,"

and

"Mr.

Russell

has

taught

in

his

books

immoral

and

salacious

doctrines"

relating

to

premarital

sex.

Kay

v.

Bd.

of

Higher

Educ.,

18

N.Y.S.2d

821,

826-27

(N.Y.

Civ.

Ct.

1940).

95.

See

generally

ELLEN

W.

SCHRECKER,

No

IVORY

TOWER

(1986);

see

also

JANE

SANDERS,

COLD

WAR

ON

THE

CAMPUS

153-54

(1979).

96.

H.B.

21,

53d

Leg.,

Reg.

Sess.

(1953)

(requiring

an

oath

or

affirmation

of

Texas

educators).

The

state

attorney

general

instructed

the

board

of

education

that

the

provision

was

unconstitutional

and

should

not

be

implemented.

Att'y

Gen.

of

Tex.,

Opinion

No.

M-417

on

Whether

the

State

Board

of

Education

May

Require

a

Loyalty

Oath

(June

11,

1969).

The

state's

requirement

that

professors

sign

a

loyalty

oath

as

a

condition

of

employment

had

recently

been

struck

down

in

federal

court.

Gilmore

v.

James,

274

F.

Supp.

75,

79-80,

92-93

(N.D.

Tex.

1967),

affirmed

sub

nom.

James

v.

Gilmore,

389

U.S.

572

(1968)

(per

curiam).

"While

such

membership

may

furnish

a

basis

for

further

inquiry

into

an

applicant's

present

or

past

activities,

it

does

not

itself

constitute

a

threat

to

the

state."

Gilmore,

274

F.

Supp.

at

92.

97.

MARJORIE

HEINS,

PRIESTS

OF

OUR

DEMOCRACY

130-150

(2013).

New

York's

Section

903

was

struck

down

in

Slochower

v.

Bd.

of

Higher

Educ.,

350

U.S.

WAKE

FOREST

LAW

REVIEW

State

University,

declared

that

refusal

to

cooperate

with

anti-

Communism

investigations

was

"gross

insubordination"

and

"conduct

clearly

inimical

to

the

best

interests

of

the

university,"

which

created

"serious

doubt

as

to

[a

professor's]

fitness

for

the

position"

and

justified

the

stripping

of

tenure

and

termination

of

employment.

98

A

New

York

court

concluded

that

"the

assertion

of

the

privilege

against

self-incrimination

is

equivalent

to

a

resignation."

99

States

like

Arkansas

required

professors

to

divulge

the

organizations

with

which

they

had

been

associated.

1

00

States

like

North

Carolina

banned

speakers

who

had

advocated

the

overthrow

of

the

American

government

from

college

campuses.

101

The

fear

of

tenured

radicals

was

not

limited

to

state

universities

by

any

means.

When

Dwight

Eisenhower

left Columbia

University

to

move

to

the

White

House

after

a

brief

stint

as

its

president,

he

delivered

a

farewell

address

to

a

crowd

of

faculty

and

students.

He

confessed

that

before

arriving

at

Columbia

he

"heard

of

this

constant

rumor

and

black

suspicion

that

our

universities

were

cut

and

honeycombed

with

subversion."

102

He

agreed

to

accept

that

job

only

if

the

university

would

rid

itself

of

anyone

adhering

to

"any

kind

of

traitorous

doctrine."

103

In

"a

war

of

great

ideologies,"

"no

man

flying

a

war

plane

.

can

possibly

be more

important

than

the

teacher."

104

Fortunately,

in

his

short

stay

he

had

not

found

a

Communist

"behind

every

brick

on

the

campus,"

but

he

expected

the

campus

to

remain

vigilant

after

he

had

left.

105

As

pressure

built

on

universities

to

dispel

this

"black

suspicion,"

Yale

University

president

Charles

Seymour

551

(1956).

"We

do

not

decide

whether

a

claim

under

the

'privileges

or

immunities'

clause

was

raised

below,

since

we

conclude

the

summary

dismissal

of

[the]

appellant

in

the

circumstances

of

this

case

violates

due

process

of

law."

Id.

at

555

(citing

U.S.

CONST.

amend.

XIV,

§

1).

98.

Investigation

of

Communist

Activities

in

the

Los

Angeles

Area-Part

2:

Hearings

Before

the

Comm.

on

Un-American

Activities,

83d

Cong.

520

(1953).

See

also

ERVING

E.

BEAUREGARD,

HISTORY

OF

ACADEMIC

FREEDOM

IN

OHIO

93

(1988).

99.

Daniman

v.

Bd.

of

Educ.,

119

N.E.2d

373,

377

(N.Y.

1954).

100.

JEFF

WOODs,

BLACK

STRUGGLE,

RED

SCARE

70-77

(2004).

Arkansas's

Act

10

was

struck

down

in Shelton

v.

Tucker,

364

U.S.

479

(1960).

"The

statute's

comprehensive

interference

with

associational

freedom

goes

far

beyond

what

might

be

justified

in

the

exercise

of

the

State's

legitimate

inquiry

into

the

fitness

and

competency

of

its

teachers."

Id.

at

490

(reversing

the

judgments

below).

101.

WILLIAM

J.

BILLINGSLEY,

COMMUNISTS

ON

CAMPUS

1-21

(1999).

North

Carolina's

speaker

ban

was

struck

down

in

Dickson

v.

Sitterson,

280

F.

Supp.

486

(M.D.N.C.

1968).

See

id.

at

499

("When

the

statutes

and

regulations

in

question

are

applied

to

the

unbroken

line

of

Supreme

Court

decisions

.

. .

the

conclusion

is

inescapable

that

they

run

afoul

of

constitutional

principles.").

102.

William

R.

Conklin,

Eisenhower

Says

Farewell

to

Columbia

University,

N.Y.

TIMES,

Jan.

17,

1953,

at

Al.

103.

Id.

104.

Id.

105.

Id.

480

[Vol.

58

CLASSROOM

DISCUSSIONS

declared,

"There

will

be

no

witch-hunts

at

Yale

because

there

will

be

no

witches.

We

do

not

intend

to

hire

Communists."

10

6

The

American

Association

of

Universities

tried

to

walk

a

fine

line

in

a

1953

statement.

On

the

one

hand,

it

insisted

that

"the

scholar's

mission

requires

the

study

and

examination

of

unpopular

ideas,

of

ideas

considered

abhorrent

and

even

dangerous."1

07

The

scholar

"has

no

obligation

to

be

silent

in

the

face

of

popular

disapproval,"

and

the

teacher

has

the

responsibility

and

right

"to

express

his

own

critical

opinion

and

the

reasons

for

holding

it,"

limited

only

by

"the

requirements

of

citizenship,

of

professional

competence

and

good

taste."1

08

At

the

same

time,

those

appointed

to

a

university

faculty

have

"the

affirmative

obligation

of

being

diligent

and

loyal

in

citizenship"

and

a

particular

obligation

to

reject

the

Communist

Party

principles

including

"the

fomenting

of

world-wide

revolution

as

a

step

to

seizing

power;

the

use

of

falsehood

and

deceit

as

normal

means

of

persuasion;

[and]

thought

control-the

dictation

of

doctrines

which

must

be

accepted

and

taught

by

all

party

members."

09

Why

bother

targeting

hard-to-monitor

classroom

speech

when

it

was

possible

to

use

a

broader

brush

and

remove

instructors

for

their

extramural

expression

and

activity?

At

least

initially,

state

governments

understood

themselves

to

have

a

free

hand

to

purge

subversives

from

the

ranks

of

the

faculty

and

did

not

need

to

worry

over

what

those

subversives

were

actually

doing

in

the

classroom.

In

1952,

for

example,

the

Supreme

Court

upheld

the

Feinberg

Law

in

Adler

v.

Board

of

Education

of

the

City

of

New

York.110

Justice

Sherman

Minton

wrote

for

the

Court

that

"the

state

has

a

vital

concern"

with

those

employed

in

its

educational

institutions

and

has

the

right

to

"maintain

the

integrity

of

the

schools

as

a

part

of

ordered

society."

1

'

The

state

had

the

power

"to

protect

the

schools

from

pollution

and

thereby

to

defend

its

own

existence,"

and

individuals

106.

Quoted

in

SCHRECKER,

supra

note

95,

at

111.

While

Eisenhower

and

others

thought

that

in

the

midst

of

a

great

war

of

ideologies

universities

should

not

employ

the

enemies

of

freedom,

many

others

simply

concluded

that

Communists

were

different.

To

the

extent

that

the

"fundamental

doctrines

of

the

Communist

Party

deny

to

its

members

that

freedom

to

think

and

speak

independently

which

is

the

basis

of

University

policy,"

as

a

dean

at

the

University

of

Michigan

put

it,

committed

Communists

were

necessarily

unfit

to

be

scholars.

Id.

at

110.

107.

Ass'n

Am.

Univs.,

The

Rights

and

Responsibilities

of

Universities

and

their

Faculties,

1

UNiv.

BULL.

[Cal.]

161

(Mar.

24,

1953).

108.

Id.

at

162-63.

109.

Id.

at

167.

110.

342

U.S.

485

(1952).

111.

Id.

at

493

(1952).

Irving

Adler

was

a

public

high

school

math

teacher,

labor

union

leader,

and

a

longtime

member

of

the

Communist

Party.

He

had

declined

to

answer

the

required

question

about

his

organizational

affiliations.

Ralph

Blumenthal,

When

Suspicion

of

Teachers

Ran

Unchecked,

N.Y.

TIMES

(June

15,

2009),

https://www.nytimes.com/2009/06/16/nyregion/16teachers.html.

481

2023]

WAKE

FOREST

LAW

REVIEW

had

a

right

to

choose

between

their

freedom

to

advocate

radical

doctrines

and the

privilege

of

government

employment.

11 2

Minton's

view

would

soon

fall

out

of

favor

as

the

Court

confronted

the

application

of

anti-subversive

policies

in

higher

education

and

as

the

Court

became

more

civil

libertarian.

III.

THE

FIRST

AMENDMENT

AND

ACADEMIC

FREEDOM

Academic

freedom

in

the

United

States

was

first

and

primarily

a

matter

of

contract,

custom,

and

norms.

The

American

Association

of

University

Professors

("AAUP")

organized

in

the

early

twentieth

century

to

advocate

for

greater

recognition

of

and

protection

for

principles

of

academic

freedom

in

the

United

States.

11

3

Most

significantly,

the

AAUP

and

the

American

Association

of

Universities

agreed

to

a

joint

Statement

of

Principles

on

Academic

Freedom

and

Tenure

in

1940.114

The

1940

Statement

identified

three

basic

principles

of

academic

freedom

and

reduced

them

into

language

that

could

be,

and

was,

widely

adopted

as

university

policy

governing

employment

relations

with

faculty.

Specifically,

the

AAUP's

principles

of

academic

freedom

called

for

freedom

of

research,

freedom

of

teaching,

and

freedom

of

speech.

First,

professors

should

be free

to

conduct

and

publish

research

without

interference

or

censorship

from

their

university

employers.

11 5

Second,

professors

should

be

free

from

administrative

interference

with

classroom

discussions,

subject

to

the

condition

that

such

classroom

speech

should

be

germane

to

the

subject

matter

of

the

class

and

professionally

competent.

1

16

Third,

professors

should

be

free

to

"speak

or

write

as

citizens"

in

intramural

and

extramural

contexts

without

fear

of

institutional

reprisal.

11 7

Tenure

provides

procedural

protections

to

help

effectuate

those

principles

by

making

it

difficult

for

universities

to

terminate

faculty

without

cause.

118

It

was

only

after

the

articulation

and

general

acceptance

of

those

doctrines

that

the

Supreme

Court

began

to

suggest

their

relevance

to

American

constitutional

law.

The

Cold

War

put the

strength

of

the

commitment

of

American

higher

education

to

academic-freedom

112.

Adler,

342

U.S.

at

493.

113.

See

MATTHEW

W.

FINKIN

& ROBERT

C.

POST,

FOR

THE COMMON

GOOD

29-

52

(2009);

HENRY

REICHMAN,

UNDERSTANDING

ACADEMIC

FREEDOM

20-25

(2021).

114.

AM.

Ass'N

OF

UNIv.

PROFESSORS,

STATEMENT

OF

PRINCIPLES

ON

ACADEMIC

FREEDOM

AND

TENURE

(1940)

[hereinafter

STATEMENT

OF

PRINCIPLES],

https://www.aaup.org/file/1940%2oStatement.pdf.

115.

Id.

at

14;

FINKIN

&

POST,

supra

note

113,

at

53-78;

REICHMAN,

supra

note

113,

at

26-53.

116.

STATEMENT

OF

PRINCIPLES,

supra

note

114,

at

14;

FINKIN

&

PosT,

supra

note

113,

at

79-112;

REICHMAN,

supra

note

113,

at

54-82.

117.

STATEMENT

OF

PRINCIPLES,

supra

note

114,

at

14;

FINKIN

&

POST,

supra

note

113,

at

127-48;

REICHMAN,

supra

note

113,

at

83-114.

118.

STATEMENT

OF

PRINCIPLES,

supra

note

114,

at

15.

482

[Vol.

58

CLASSROOM

DISCUSSIONS

principles

to

the

test.

By

the

postwar

period,

American

universities

had

largely

adopted

the

position

that

tenure-line

faculty

could

not

be

treated

as

at-will

employees

and

dismissed

whenever

they

became

politically

inconvenient,

as

they

had

been

at

the

beginning

of

the

twentieth

century.

11

9

Those

academic-freedom

principles

were

not

simply

rolled

back

in

the

context

of

the

Cold

War,

but

there

was

substantial

pressure

to

find

a

way

of

accommodating

them

to

the

needs

of

the

anti-subversive

drive.

120

Under

myriad

circumstances,

expressing

subversive

ideas

could

be

characterized

as

a

sufficient

cause

to

merit

removal.1

21

The

emerging

system

of

contracts

and

custom

was

overridden

by

statute

and

administrative

activism.

At

least

in

the

context

of

state

universities,

the

Court

began

to

bolster

contracts

and

custom

with

the

First

Amendment.

A

precondition

for

that

specific

development

was

the

more

general

flowering

of

First

Amendment

doctrine

in

the

early

twentieth

century.

122

By

the

time

of

the

Cold

War,

the

Court

had

already

made

it

clear

that

radical

political

ideas

were

not

in

and

of

themselves

beyond

the

protection

of

the

First

Amendment.

12

3

In

doing

so

they

had

also

refrained

the

ethos

of

the

First

Amendment

itself.

Justice

Oliver

Wendell

Holmes

did

more

than

try

to

expand

the

margins

of

free

speech

protections

when

he

argued

that

[T]he

best

test

of

truth

is

the

power

of

the

thought

to

get

itself

accepted

in

the

competition

of

the

market,

and

that

truth

is

the

only

ground

upon

which

their

wishes

safely

can

be

carried

out.

That

at

any

rate

is

the

theory

of

our

Constitution.

It

is

an

experiment,

as

all

life

is

an

experiment.

Every

year

if

not

every

day

we

have

to

wager

our

salvation

upon

some

prophecy

based

upon

imperfect

knowledge.

While

that

experiment

is

part

of

our

system,

I

think

that

we

should

be

eternally

vigilant

against

attempts

to

check

the

expression

of

opinions

that

we

loathe

and

believe

to

be

fraught

with

death,

unless

they

so

imminently

threaten

immediate

interference

with

the

lawful

and

pressing

purposes

of

the

law

that

an

immediate

check

is

required

to

save

the

country.

1

24

Holmes

posited

a

new

"theory

of

our

Constitution"

that

was

grounded

in

making

space

for

"opinions

that

we

loathe"

and

119.

Robert

P.

Ludlum,

Academic

Freedom

and

Tenure:

A

History,

10

ANTIOCH

REV.

3,

13-14,

18

(1950);

MATTHEW

J.

HERTZOG,

PROTEcTIONS

OF

TENURE

AND

ACADEMIC

FREEDOM

IN

THE

UNITED

STATES

23-82

(2017).

120.

Schrecker,

supra

note

81,

at

15-20.

121.

Id.

at

15-20,

25-26.

122.

See

generally

William

W.

Van

Alstyne,

Academic

Freedom

and

the

First

Amendment

in

the

Supreme

Court

of

the

United

States:

An

Unhurried

Historical

Review,

53

LAW

&

CONTEMP.

PROBS.

79

(1990).

123.

See

Herndon

v.

Lowery,

301

U.S.

242,

259-261

(1937).

124.

Abrams

v.

United

States,

250

U.S.

616,

630

(1919)

(Holmes,

J.,

dissenting).

483

2023]

WAKE

FOREST

LAW

REVIEW

countering

ideas

only

with

argument

and

persuasion.

125

Similarly,

as

he

put

it

a

few

years

later,

"If

in

the

long

run

the

beliefs

expressed

in

proletarian

dictatorship

are

destined

to

be

accepted

by

the

dominant

forces

of

the

community,

the

only

meaning

of

free

speech

is

that

they

should

be

given

their

chance

and

have

their

way."

12

6

Or,

"if

there

is

any

principle

of

the

Constitution

that

more

imperatively

calls

for

attachment

than

any other,

it

is

the

principle

of

free

thought-not

free

thought

for

those

who

agree

with

us

but

freedom

for

the

thought

that

we

hate."

127

For

this

new

vision

of

the

Constitution,

"it

cannot

show

lack

of

attachment

to

the

principles

of

the

Constitution

that

[a

citizen]

thinks

that

it

can

be

improved."

128

Justice

Louis

Brandeis

added,

"Those

who

won

our

independence

believed

that

the

final

end

of

the

State

was

to

make

men

free

to

develop

their

faculties,

and

that

in

its

government

the

deliberative

forces

should

prevail

over

the

arbitrary."

129

Such

views

initially

expressed

in

dissent

over

time

found

their

way

into

the

Court's

majority.130

The

vision

of

the

Constitution

advanced

by

Holmes

and

Brandeis

still

put

some

speech

outside

the

bounds

of

constitutional

protection;

however,

it

not

only

brought

far

more

speech

under

the

umbrella

of

the

First

Amendment

but

also

placed

the

contestation

over

ideas

at

the

heart

of

the

American

constitutional

project.

The

state

could

rule

out

violent

action,

but

it

could

not

rule

out

the

possibility

of

radical

political

change.

If

the

First

Amendment

enshrined

the

belief

that

the

ideas

we

hate

have

to

be

overcome

through

argument

rather

than

coercion,

then

it

was

a

repudiation

of

the

American

constitutional

experiment

for

the

state

to

attempt

to

suppress

disfavored

ideas.

The

very

"theory

of

our

Constitution"

is

that

ideas

we

think

are

true

must

be

put

through

the

crucible

of

criticism,

and

that

ideas

we

hate

must

be

allowed

to

have

their

say.

131

As

Justice

Frank

Murphy

emphasized

in

a

different

First

Amendment

setting,

"It

is

our

proud

achievement

to

have

demonstrated

that

unity

and

strength

are

best

accomplished,

not

by

enforced

orthodoxy

of

views,

but

by

diversity

of

opinion

through

the

fullest

possible

measure

of

freedom

of

conscience

and thought."

3 2

Justice

Robert

Jackson

kicked

an

important

leg

out

from

under

the

state's

authority

to

stifle

dissent

in

schools

in

the

flag

salute

case,

125.

Id.

126.

Gitlow

v.

New

York,

268

U.S.

652,

673

(1925)

(Holmes,

J.,

dissenting).

127.

United

States

v.

Schwimmer,

279

U.S.

644,

654-655

(1929)

(Holmes,

J.,

dissenting).

128.

Id.

at

654.

129.

Whitney

v.

California,

274

U.S.

357,

375

(1927)

(Brandeis,

J.,

concurring).

130.

Stromberg

v.

California,

283

U.S.

359,

369

(1931).

131.

Abrams

v.

United

States,

250

U.S.

616,

630

(1919)

(Holmes,

J.,

dissenting).

132.

Martin

v.

City

of

Struthers,

319

U.S.

141,

150

(1943)

(Murphy,

J.,

concurring).

484

[Vol.

58

CLASSROOM

DISCUSSIONS

declaring,

"If

there

is

any

fixed

star

in

our

constitutional

constellation,

it

is

that

no

official,

high

or

petty,

can

prescribe

what

shall

be

orthodox

in

politics,

nationalism,

religion,

or

other

matters

of

opinion

or

force

citizens

to

confess

by

word

or

act

their

faith

therein."

13 3

The

very

"purpose

of

the

First

Amendment"

is

to

protect

"from

all

official

control"

"the

sphere

of

intellect

and

spirit."

13

4

The

"principle

of

free

thought"

is

at

the

center

of

the

highest

of

constitutional

ideals.

13

5

The

tolerance

of

free

speech

did

not

just

set

outer

bounds

on

the

imperative

of

maintaining

public

order.

Protecting

free

speech

was

the

constitutional

imperative

itself.

If

freedom

of

thought

is

a

core

constitutional

value,

then

impinging

on

academic

freedom

could

readily

be

seen

as

a

betrayal

of

the

constitutional

enterprise.

Across

the

1950s

and

into

the

1960s,

the

Court

began

to

give

constitutional

recognition

to

principles

of

academic

freedom.

When

Minton

wrote

for

the

Court

upholding

the

Feinberg

Law,

former

Yale

Law

professor

Justice

William

O.

Douglas

wrote

a

dissent

giving

academic

freedom

a

toehold

in

the

First

Amendment.

136

He

began

necessarily

with

the

problem

of

government-employee

speech.

Minton

relied

on

the

traditional

assumption

famously

captured

in

an

early

Holmesian

quip,

"The

petitioner

may

have

a

constitutional

right

to

talk

politics,

but

he

has

no

constitutional

right

to

be

a

policeman."

137

Douglas,

joined

by

Justice

Hugo

Black,

by

contrast

could

not

"find

in

our

constitutional

scheme

the

power

of

a

state

to

place

its

employees

in

the

category

of

second-class

citizens

by

denying

them

freedom

of

thought

and

expression."

1

3

8

Douglas

quickly

turned

his

attention

to

the

implications

of

anti-

subversive

measures

operating

in

schools

and

emphasized

how

they

would

necessarily

encroach

on

the

intellectual

freedom

that

schools

should

be

fostering.

The

intrinsic

problem

of

"guilt

by

association"

raised

by

the

requirement

of

identifying

current

and

past

membership

in

potentially

subversive

groups

"is

certain

to

raise

havoc

with

academic

freedom."

13

9

Fearing

being

enmeshed

in

such

investigations

"when

the

witch

hunt

is

on,"

those

subjected

to

such

requirements

"will

tend

to

shrink

from

any

association

that

stirs

controversy"

and

as

a

result

"freedom

of

expression

will

be

stifled."

140

More

directly,

"the

law

inevitably

turns

the

school

system

into

a

spying

project."141

With

students

and

parents

becoming

"informers,"

133.

W.

Va.

State

Bd.

of

Educ.

v.

Barnette,

319

U.S.

624,

642

(1943).

134.

Id.

135.

United

States

v.

Schwimmer,

279

U.S.

644,

655

(1929).

136.

Adler

v.

Bd.

of

Educ.,

342

U.S.

485,

508

(1952)

(Douglas,

J.,

dissenting).

137.

McAuliffe

v.

City

of

New

Bedford,

29

N.E.

517,

517

(1892).

138.

Adler,

342

U.S.

at

508

(Douglas,

J.,

dissenting).

139.

Id.

at

508-09.

140.

Id.

at

509.

141.

Id.

485

2023]

WAKE

FOREST

LAW

REVIEW

"it

is

a

system

which

searches

for

hidden

meanings

in

a

teacher's

utterances."

14 2

Where

"teachers

are

under

constant

surveillance,"

"[t]here

can

be

no

real

academic

freedom."

1

4

3

Where

every

utterance

could

become

grounds

for

political

reprisal,

"[s]upineness

and

dogmatism

take

the

place

of

inquiry."

1

44

Such

laws

force

teachers

into

mouthing

"the

orthodox

view,"

"the

conventional

thought,"

and

to

avoid

any

"adventurous

thinking."

1

4

5

"A

deadening

dogma

takes

the

place

of

free

inquiry."

146

Justice

Hugo

Black

wrote

separately

without

using

the

term

"academic

freedom,"

but

similarly

emphasized

that

"these

laws

rest

on

the

belief

that

government

should

supervise

and

limit

the

flow

of

ideas

into

the

minds

of

men."

147

The

First

Amendment

was

designed

to

prevent

"a

transient

majority"

from

being

able "to

select

the

ideas

people

can

think

about."

148

The

Court's

majority

reached

a

different

conclusion

than

it

had

in

Adler

when

confronted

with

an

Oklahoma

statute

that

it

thought

swept

more

broadly

than

the

Feinberg

Law.

Dismissing

government

employees

who

had

no

specific

knowledge

of

the

subversive

purposes

of

the

organizations

that

they

had

joined

"offends

due

process."

149

This

time

former

Harvard

law

professor

Justice

Felix

Frankfurter

wrote

separately

for

himself

and

Douglas

in

laying

out

specific

concerns

with

how

such laws

affected

teachers.

150

The

case

from

Oklahoma

involved

not

secondary

school

teachers

but

members

of

the

faculty

and

staff

at

the

Oklahoma

Agricultural

and

Mechanical

College

(now

Oklahoma

State

University).151

Frankfurter

did

not

use

the

specific

term

"academic

freedom,"

but

he

thought

"in

view

of

the

nature

of

the

teacher's

relation

to

the

effective

exercise

of

the

rights

which

are

safeguarded

by

the

Bill

of

Rights

and

by

the

Fourteenth

Amendment,

inhibition

of

freedom

of

thought,

and

of

action

upon

thought,

in

the

case

of

teachers

brings

the

safeguards

of

those

amendments

vividly

into

operation."

15 2

Teachers

were,

Frankfurter

warned,

"the

priests

of

our

democracy"

who

"must

be

exemplars

of

open-mindedness

and

free

inquiry."

1

53

They

"must

be

free

to

sift

evanescent

doctrine,

qualified

by

time

and

circumstance,

from

that

restless,

enduring

process

of

extending

the

bounds

of

understanding

142.

Id.

at

510.

143.

Id.

144.

Id.

145.

Id.

146.

Id.

147.

Id.

at

497 (Black,

J.,

dissenting).

148.

Id.

149.

Wieman

v.

Updegraff,

344

U.S.

183,

191

(1952).

150.

Frankfurter

had

dissented

in

Adler,

but

there

he

had

thought

the

case

was

not

yet

ripe

for

a

constitutional

argument.

Adler,

342

U.S.

at

497-98

(Frankfurter,

J., dissenting).

151.

Wieman,

344

U.S.

at

185.

152.

Id.

at

195

(Frankfurter,

J.,

concurring).

153.

Id.

at

196.

486

[Vol.

58

CLASSROOM

DISCUSSIONS

and

wisdom."

15

4

He

concluded

with

an

extended

quote

from

Robert

Hutchins,

the

former

dean

of

Yale

Law

School

and

influential

president

of

the

University

of

Chicago,

that

began,

[A]

university

is

a

place

that

is

established

and

will

function

for

the

benefit

of

society,

provided

it

is

a

center

of

independent

thought.

It

is

a

center

of

independent

thought

and

criticism

that

is

created

in

the

interest

of

the

progress

of

society,

and

the

one

reason

that

we

know

that

every

totalitarian

government

must

fail

is

that

no

totalitarian

government

is

prepared

to

face

the

consequences

of

creating

free

universities.

155

The

quote

was

drawn

from

testimony

that

Hutchins

had

recently

given

before

a

House

committee

investigating

tax-exempt

foundations,

where

he

was

grilled

in

part

about

allegations

of

subversive

activities

at

the

University

of

Chicago.

15

6

Hutchins

contended

that

the

Communists

were

best

met

by

Americans

maintaining

and

developing

"the

basic

sources

of

our

strength,"

namely

"the

western

tradition

of

freedom,

freedom

of

thought,

freedom

of

discussion,

and

freedom

of

association."

157

As

a

university

president,

Hutchins

thought

he

had

an

obligation

to

take

"immediate

action"

if

any

member

of

the

faculty

"had

been

engaged

in

subversive

activity,"

but

mere

membership

in

questionable

organizations

or

interest

in

"the

study

of

Marxism"

did

not

disqualify

someone

from

being

a

member

in

good

standing

of

the

scholarly

community.

1

58

The

Court

soon

had

another

opportunity

to

consider

the

impact

of

anti-subversive

measures

on

the

academic

activities

of

universities.

The

attorney

general

of

New

Hampshire

launched

an

investigation

of

Paul

Sweezy,

a

Marxist

economist

who

had

left

a

lecturer

position

at

Harvard

University

to

found

the

socialist

journal

Monthly

Review.

15

9

In

1954,

Sweezy

gave

a

guest

lecture

in

an

undergraduate

class

at

the

University

of

New

Hampshire.

160

Sweezy

refused

to

answer

questions

about

the

lecture

as

he

had

refused

to

answer

questions

about

his

other

activities

and

was

held

in

contempt.1

61

Writing

for

the

Court,

Chief

Justice

Earl

Warren

observed,

"We

believe

that

there

unquestionably

was

an

invasion

of

petitioner's

liberties

in

the

areas

of

academic

freedom

and

free

expression-areas

in

which

the

154.

Id.

155.

Id.

at

197.

156.

Tax-Exempt

Foundations:

Hearings

Before

the

Select

Comm.

to

Investigate

Tax-Exempt

Foundations

&

Comparable

Organizations,

82d

Cong.

291

(1952).

157.

Id.

158.

Id.

at

292-93.

159.

Sweezy

v.

New

Hampshire,

354

U.S.

234,

258

(1957)

(Frankfurter,

J.,

concurring).

160.

Id.

at

243

(majority

opinion).

161.

Id.

at

259

(Frankfurter,

J.,

concurring).

487

2023]

WAKE

FOREST

LAW

REVIEW

government

should

be

extremely

reticent

to

tread."

1

62

He

then

elaborated,

The

essentiality

of

freedom

in

the

community

of

American

universities

is

almost

self-evident.

No

one

should

underestimate

the

vital

role

in

a

democracy

that

is

played

by

those

who

guide

and

train

our

youth.

To

impose

any

strait

jacket

upon

the

intellectual

leaders

in

our

colleges

and

universities

would

imperil

the

future

of

our

Nation.

No

field

of

education

is

so

thoroughly

comprehended

by

man

that

new

discoveries

cannot

yet

be

made.

Particularly

is

that

true

in

the

social

sciences,

where

few,

if

any,

principles

are

accepted

as

absolutes.

Scholarship

cannot

flourish

in

an

atmosphere

of

suspicion

and

distrust.

Teachers

and

students

must

always

remain

free

to

inquire,

to

study

and

to

evaluate,

to

gain

new

maturity

and

understanding;

otherwise,

our

civilization

will

stagnate

and

die.

163

The

state

supreme

court

had

admitted

as

much

but

thought

the

state's

interest

justified

the

imposition

on

Sweezy's

liberty.1

64

The

Warren

Court

disagreed,

"We

do

not

now

conceive

of

any

circumstance

wherein

a

state

interest

would

justify

infringement

of

rights

in

these

fields."

1

65

But

the

Court

ultimately

chose

instead

to

reverse

the

state

courts

on

the

inadequacy

of

the

legislature's

authorization

of

such

an

intrusive

investigation.1

6

Frankfurter,

joined

by

Justice

John

Marshall

Harlan,

thought

the

majority's

alternative

grounds

were

in fact

more

intrusive

to

state

authority.

167

Frankfurter

preferred

instead

to

rest

the

case

solely

on

the

academic-freedom

question.

The

state's

justification

was

inadequate

to

overcome

the

"grave

harm

resulting

from

governmental

intrusion

into

the intellectual

life

of

a

university."16

8

The

intellectual

life

of

a

university

"must

be

left

as

unfettered

as

possible"

and

intrusions

upon

it

could

be

justified

only

"for

reasons

that

are

exigent

and

obviously

compelling."

169

Frankfurter

thought

obvious

162.

Id.

at

250

(majority

opinion).

163.

Id.

164.

Id.

at

249-50.

165.

Id.

at

251.

166.

Id.

("But

we

do

not

need

to

reach

such

fundamental

questions

of

state

power

to

decide

this

case

....

There

was

nothing

to

connect

the

questioning

of

petitioner

with

this

fundamental

interest

of

the

State.").

This

was

not

an

uncommon

strategy

for

the

Warren

Court.

See

KEITH

E.

WHITTINGTON,

REPUGNANT

LAws

221

(2019).

167.

Sweezy,

354

U.S.

at

257

(Frankfurter,

J.,

concurring)

("[W]hether

the

Attorney

General

of

New

Hampshire

acted

within

the

scope

of

the

authority

given

him

by

the

state

legislature

is

a

matter

for

the

decision

of

the

courts

of

that

State.").

168.

Id.

at

261.

169.

Id.

at

262.

488

[Vol.

58

CLASSROOM

DISCUSSIONS

the

dependence

of

a

free

society

on

free

universities.

This

means

the

exclusion

of

governmental

intervention

in

the

intellectual

life

of

a

university.

It

matters

little

whether

such

intervention

occurs

avowedly

or

through

action

that

inevitably

tends

to

check

the

ardor

and

fearlessness

of

scholars,

qualities

at

once

so

fragile

and

so

indispensable

for

fruitful

academic

labor.

170

Frankfurter

again

concluded

with

a

lengthy

quote,

in

this

case

from

a

statement

on

open

universities

in

South

Africa:

It

is

the

business

of

a

university

to

provide

that

atmosphere

which

is

most

conducive

to

speculation,

experiment

and

creation.

It

is

an

atmosphere

in

which

there

prevail

'the

four

essential

freedoms'

of

a

university-to

determine

for

itself

on

academic

grounds

who

may

teach,

what

may

be

taught,

how

it

shall

be

taught,

and

who

may

be

admitted

to

study.

171

In

Shelton

v.

Tucker,1

7

2

the

Court

struck

down

an

Arkansas

statute

that

required

teachers

at

public

educational

institutions,

including

universities,

to

file

an

annual

affidavit

listing

all

of

their

organizational

affiliations.

17

3

When

the

Arkansas

legislature

adopted

Act

10

in

1958,

the

NAACP

was

as

much

a

concern

as

the

Communist

Party.

1

74

The

Court

recognized

(as

it

had

in

Adler)

that

the

state

had

the

right

"to

investigate

the

competence

and

fitness

of

those

whom

it

hires

to

teach

in

its

schools,"

1

75

but

also

noted

(as

it

had

in

Sweezy)

that

"[t]he

vigilant

protection

of

constitutional

freedoms

is

nowhere

more

vital

than

in

the

community

of

American

schools."

176

Ultimately,

the

majority

thought

the

state's

inquiry

was

too

sweeping

and

indiscriminate.

17 7

Notably,

Frankfurter

now

found

himself

in

dissent.

Although

heedful

of

the

danger

of

"crude

intrusions

by

the

state

into

the

atmosphere

of

creative

freedom

in

which

alone

the

spirit

and

mind

of

a

teacher

can

fruitfully

function,"

he

thought

that

academic

freedom

"in

its

most

creative

reaches,

is

dependent

in

no

small

part

upon

the

careful

and

discriminating

selection

of

teachers."1

78

He

did

not

think

the

record

had

yet

established

that

the

170.

Id.

171.

Id.

at

263.

(Frankfurter,

J.,

concurring)

(quoting

CoNF.

OF

REPRESENTATIVES

OF

THE

UNIV.

OF

CAPE

TOWN

&

THE

UNIV.

OF

THE

WITWATERSRAND,

THE

OPEN

UNIVERSITIES

IN

SOUTH

AFRICA

11-12

(1957)).

The

statement

was

the

product

of

a

conference

organized

to

protest

the

imposition

of

racial

apartheid

to

the

heretofore

color-blind

universities.

172.

364

U.S.

479

(1960).

173.

Id.

at

480,

490.

174.

JoY

ANN-WILLIAMSON-LoTT,

JIM

CROW

CAMPUS:

HIGHER

EDUCATION

AND

THE

STRUGGLE

FOR

A

NEW

SOUTHERN

SOCIAL

ORDER

60-68

(2018);

WOODS,

supra

note

100,

at

70-77.

175.

Shelton,

364

U.S.

at

485.

176.

Id.

at

487.

177.

Id.

at

490.

178.

Id.

at

490,

496.

489

2023]

WAKE

FOREST

LAW

REVIEW

state

was

using

Act

10

"to

further

a

scheme

of

terminating

the

employment

of

teachers

solely

because

of

their

membership

in

unpopular

organizations."1

7

9

As

long

as

the

state

was

just

asking

questions,

Frankfurter

was

not

prepared

to

intervene.

180

Near

the

end

of

the

Warren

Court,

the

justices

had

an

opportunity

to

revisit

the

Feinberg

Law

and

in

doing

so

consolidate

the

developments

in

the

Court's

thinking

since

Adler

had

been

decided

fifteen

years

before.

In

Keyishian

v.

Board

of

Regents,1

8

1

members

of

the

faculty

in

the

State

University

of

New York

system

had

refused

to

sign

certificates

saying

that

they

had

never

been

Communists.1

82

Writing

for

the

Court,

Justice

William

Brennan

observed

that

"pertinent

constitutional

doctrines

have

since

rejected

the

premises

upon

which

that

conclusion

[in

Adler]

rested."

18

3

The

Court

now

thought

the

law

was

fatally

vague

and

overbroad.

"The

crucial

consideration

is

that

no

teacher

can

know

just

where

the

line

is

drawn

between

'seditious' and

nonseditious

utterances

and

acts."

184

"Does

the

teacher

who

informs

his

class

about

the

precepts

of

Marxism

or

the

Declaration

of

Independence

violate

this

prohibition?"

185

"[D]oes

the

prohibition

of

distribution

of

matter

'containing'

the

doctrine

[of

the

forceful

overthrow

of

the

existing

government]

bar

histories

of

the

evolution

of

Marxist

doctrine

or

tracing

the

background

of

the

French,

American,

or

Russian

revolutions?"

186

The

inevitable

effect

of

the

law

was

to

interfere

with

constitutionally

protected

academic

freedom.

It

would

be

a

bold

teacher

who

would

not

stay

as

far

as

possible

from

utterances

or

acts

which

might

jeopardize

his

living

by

enmeshing

him

in

this

intricate

machinery.

The

uncertainty

as

to

the

utterances

and

acts

proscribed

increases

that

caution

in

"those

who

believe

the

written

law

means

what

it

says."

Baggett

v.

Bullitt,

377

U.S.

360,

374

(1964).

The

result

must

be

to

stifle

"that

free

play

of

the

spirit

which

all

teachers

ought

especially

to

cultivate

and

practice

.

. .

."

That

probability

is

enhanced

by

the

provisions

requiring

an

annual

review

of

every

teacher

to

determine

whether

any

utterance

or

act

of

his,

inside

the

classroom

or

out,

came

within

the

sanctions

of

the

laws.

187

179.

Id.

at

496.

180.

Frankfurter

was

understating

the

impact

that

Act

10

had

already

had

on

university

campuses

in

the

state.

See

WOODS,

supra

note

100,

at

75-78.

181.

385

U.S.

589 (1967).

182.

Id.

at

592.

183.

Id.

at

595.

184.

Id.

at

599.

185.

Id.

at

600.

186.

Id.

at

600-01.

187.

Id.

at

601-02.

490

[Vol.

58

CLASSROOM

DISCUSSIONS

Citing

the

cases

since

Adler,

Brennan

gave

firm

recognition

of

a

constitutionalized

academic

freedom.

Our

Nation

is

deeply

committed

to

safeguarding

academic

freedom,

which

is

of

transcendent

value

to

all

of

us,

and

not

merely

to

the

teachers

concerned.

That

freedom

is

therefore

a

special

concern

of

the

First

Amendment,

which

does

not

tolerate

laws

that

cast

a

pall

of

orthodoxy

over

the

classroom.

18

8

Laws

that

trench

on

that

freedom

must

be

drawn

with

a

"narrow

specificity"

that

the

anti-subversive

laws

lacked.

18

9

"The

danger

of

that

chilling

effect

upon

the

exercise

of

vital

First

Amendment

rights

must

be

guarded

against

by

sensitive

tools

which

clearly

inform

teachers

what

is

being

proscribed."

1

90

After

Keyishian,

a

First

Amendment

interest

in

an

individualized

academic

freedom

seemed

firmly

established,

if

not

entirely

clear

in

its

implications.

Academic

freedom

was

now

recognized

as

"a

special

concern

of

the

First

Amendment,"191

if

not

exactly

a

right

comparable

to

classic

First

Amendment

rules.

1

92

In

the

Court

struck

down

an

anti-evolution

statute

with

Justice

Abe

Fortas

noting,

"It

is

much

too

late

to

argue

that

the

State

may

impose

upon

the

teachers

in

its

schools

any

conditions

that

it

chooses,

however

restrictive

they

may

be

of

constitutional

guarantees."

19

3

The

Cold

War

(and

eventually

in

the

South

the

Jim

Crow)

194

wave

of

anti-

subversive

measures

by

state

legislatures

had

forced

the

Court

to

confront

efforts

to

suppress

professorial

speech.

In

doing

so,

they

recognized

that

universities

are

what

Paul

Horwitz

has

called

"First

Amendment

institutions"

1

9 5

and

what

Jonathan

Rauch

has

called

"reality-based

communities"

196

because

of

their

central

role

in

generating,

investigating,

and

promulgating

ideas.

Suppressing

ideas

in

a

university

context

poses

a

particular

threat

to

the

values

that

the

First

Amendment

enshrines.

188.

Id.

at

603.

189.

Id.

at

604

(quoting

Brennan's

own

majority

opinion

in

NAACP

v.

Button,

371

U.S.

415,

433

(1963)).

190.

Keyishian,

385

U.S.

at

604.

191.

Id.

at

603.

192.

PosT,

supra

note

17,

at

112-14.

193.

Epperson

v.

Arkansas,

393

U.S.

97,

107

(1968)

(citing

Keyishian,

385

U.S.

at

605-06).

194.

A

year

after

the

Court

struck

down

Arkansas's

Act

10

in

Shelton,

the

historian

C.

Vann

Woodward

reported

that

"academic

freedom

is

still

taking

a

beating

in

the

lower

South."

C.

Vann

Woodward,

The

Unreported

Crisis

in

the

Southern

Colleges,

HARPER'S

MAG.,

Oct.

1,

1962,

at

82.

195.

PAUL

HORWITZ,

FIRST

AMENDMENT

INSTITUTIONS

(2013).

196.

JONATHAN

RAUCH,

THE

CONSTITUTION

OF

KNOWLEDGE:

A

DEFENSE

OF

TRUTH

100-02

(2021).

491

2023]

WAKE

FOREST

LAW

REVIEW

IV.

PICKERING,

GARCETTI,

AND

ACADEMIC

FREEDOM

University

professors

may

be

the

"priests

of

our

democracy"

with

which

the

First

Amendment

has

a

particular

concern,

but

when

they

work

at

state

universities,

they

are

still

government

employees.

197

The

Court

has

not

clearly

resolved

the

tension

inherent

in

that

framework.

As

government

employees,

professors

can

be

disciplined

or

penalized

for

their

conduct,

including

in

some

cases

for

their

speech

acts.

198

What

then

are

the

limits

to

when

university

officials

acting

as

agents

of

the

state

can

sanction

members

of

the

faculty

for

their

speech,

and

what

are

the

implications

for

the

anti-CRT

policies?

In

this

Part,

I

offer

an

approach

to

reconciling

constitutional

protections

for

academic

freedom

with

governmental

supervision

of

its

employees.

In

doing

so

I

extend

the

principles

that

the

Court

has

laid

out

regarding

the

First

Amendment

and

government-employee

speech

in

the

particular

context

of

a

university

setting.

The

Court

established

a

balancing

test

for

assessing

when

governmental

interests

can

override

the

First

Amendment

interests

of

a

government

employee

in

Pickering

v.

Board

of

Education.

199

Pointing

to

the

academic-freedom

cases

arising

out

of

the

McCarthy

era,

Pickering

recognized

that

government

employees

had

First

Amendment

rights

that

governments

as employers

had

to

respect

but

also

identified

circumstances

in

which

those

rights

could

nonetheless

be

overridden.

200

Pickering

arose

in

the

context

of

a

public-school

teacher

engaging

in

extramural

speech,

where

we

might

think

that

First

Amendment

interests

are

particularly

high.

Marvin

Pickering

had

written

a

letter

to

the

editor

that

was

published

in

a

local

newspaper

in

which

he

criticized

a

proposed

school

bond

issuance

that

was

supported

by

school

administrators

and

the

board

of

education.

20

1

He

was

fired

for

writing

the

letter.

202

As

the

Court

noted,

"The

problem

in

any

case

is

to

arrive

at

a

balance

between

the

interests

of

the

teacher,

as

a

citizen,

in

commenting

upon

matters

of

public

concern

and

the

interest

of

the

State,

as

an

employer,

in

promoting

the

efficiency

of

the

public

services

it

performs

through

its

197.

Wieman

v.

Updegraff,

344

U.S.

183,

196

(1952).

198.

Moreover,

professors

as

employees

are

routinely

evaluated

in

part

on

the

content,

or

quality,

of

their

professorial

speech.

199.

391

U.S.

563

(1968).

200.

Id.

at

568

("To

the

extent

that

the

Illinois

Supreme

Court's

opinion

may

be

read

to

suggest

that

teachers

may

constitutionally

be compelled

to

relinquish

the

First

Amendment

rights

they

would

otherwise

enjoy

as

citizens

to

comment

on

matters

of

public

interest

in

connection

with

the

operation

of

the

public

schools

in which

they

work,

it

proceeds

on

a

premise

that

has

been

unequivocally

rejected

in

numerous

prior

decisions

of

this

Court.").

201.

Id.

at

566.

202.

Id.

492

[Vol.

58

CLASSROOM

DISCUSSIONS

employees."

20

3

The

First

Amendment

rights

of

government

employees

are

not

only

not

absolute

but

necessarily

more

circumscribed

than

the

speech

of

a

private

citizen.

The

Pickering

Court

identified

both

the

circumstances

in

which

employee

speech

is

entitled

to

First

Amendment

protection

and

the

conditions

under

which

an

employee

can

be

sanctioned

for

such

speech.

Government-employee

speech

is

entitled

to

First

Amendment

consideration

when

the

employee,

"as

a

citizen,"

is

"commenting

upon

matters

of

public

concern."

20

4

Even

so,

the

government

employer

can

sanction

an

employee

for

such

speech

if,

in

this

case,

it

could

demonstrate

that

the

teacher's

speech

"impeded

the

teacher's

proper

performance

of

his

daily

duties

in

the

classroom"

2

05

or

"interfered

with

the

regular

operation

of

the

schools

generally."

2

06

The

government

must

have

an

interest

in

suppressing

the

employee's

speech

that

is

particular

to

the

employment

context

and

distinguishable

from

the

government's

general

interest

in

suppressing

such

speech

if

it

had

come

from

an ordinary

citizen.

207

Similarly

and

in

a

separate

case,

the

Court

concluded

that

a

professor

at

a

state

university

could

not

be

dismissed

specifically

because

he

had

provided

testimony

to

a

legislative

committee

that

was

critical

of

the

board

of

regents.

20

8

In

Connick

v.

Myers,

20

9

the

Court

further

elaborated

on

the

conditions

in

which

government-employee

speech

is

protected.

2

10

Connick

arose

in

the

context

of

a

district

attorney's

office

rather

than

a

school

and

internal

speech

within

the

office

about

office

policies.

21

1

There,

the

Court

emphasized

"the

common-sense

realization

that

government

offices

could

not

function

if

every

employment

decision

became

a

constitutional

matter."

2

12

The

employee's

constitutional

interest

is

at

its

highest

when

the

government

"s[eeks]

to

suppress

the

rights

of

public

employees

to

participate

in

public

affairs,"

as

it

had

done

in

the

anti-subversive

cases.

213

By

contrast,

"when

employee

expression

cannot

be

fairly

considered

as

relating

to

any

matter

of

political,

social,

or

other

concern

to

the

community,"

no

substantial

First

Amendment

interests

arise

that

might

hinder

a

governmental

employer

from

sanctioning

an

employee

for

such

speech.

21

4

When

an

employee

speaks

"upon

matters

only

of

personal

203.

Id.

at

568.

204.

Id.

at

568.

205.

Id.

at

572-73.

206.

Id.

at

573.

207.

Id.

208.

Perry

v.

Sindermann,

408

U.S.

593,

598

(1972).

209.

461

U.S.

138

(1983).

210.

Id.

at

138.

211.

Id.

at

141.

212.

Id.

at

143.

213.

Id.

at

144-45.

214.

Id.

at

146.

493

2023]

WAKE

FOREST

LAW

REVIEW

interest"

or

"internal

office

affairs,"

the

courts

should

not

intervene.

2

15

The

First

Amendment

does

not

"constitutionalize

the

employee

grievance."

2

1

6

The

"content,

form,

and

context

of

a

given

statement"

helps

determine

whether

it

"addresses

a

matter

of

public

concern."

217

The

Connick

Court

also

elaborated

on

the

government's

interest

in

addressing

"the disruption

of

the

office

and

the

destruction

of

working

relationships"

that

stem

from

an

employee's

speech,

but

warned

that

"a

stronger

showing

may

be

necessary

if

the

employee's

speech

more

substantially

involved

matters

of

public

concern."

218

The

Pickering

balancing

test

was

significantly

modified

in

Garcetti

v.

Ceballos,

219

which

has

particular

significance

to

the

context

of

the

anti-CRT

policies.

220

Like

Connick,

Garcetti

involved

internal

communications

in

a

district

attorney's

office.

2

21

The

key

issue

in

Garcetti

was

whether

those

internal

communications,

there

a

memo

regarding

the

disposition

of

a

case

being

handled

by

the

office,

passed

the

initial

threshold

of

the

Pickering

test

and

involved

speech

in

which

the

employee

had

a

First

Amendment

interest.

222

Unlike

Connick,

the

memo

in

Garcetti

did

not

deal

with

a

matter

of

only

"personal

interest"

but

rather

with

the

substantive

public

business

with

which

the

office

routinely

dealt.

223

Although

the

memo

in

question

addressed

matters

of

public

interest,

the

Court

concluded

that

the

deputy

district

attorney

was

not

speaking

"as

a

citizen"

in

writing

the

memo

to

his

superiors.

224

Unlike

Pickering's

letter

to

the

editor

or

the

speech

suppressed

in

the

anti-subversive

cases,

the

internal

office

memo

was

not

promoting

an

"informed,

vibrant

dialogue

in

a

democratic

society."

225

The

Garcetti

Court

accepted

that

some

"speech

within

the

office"

can

receive

constitutional

protection,

as can

"some

expressions

the

speaker's

job."226

But

the

Court

thought

the

distinguishing

feature

of

the

deputy

district

attorney's

memo

was

that

it

was

"made

pursuant

to

his

duties."

227

He

was

speaking

"as

a

prosecutor"

in

writing

the

memo,

not

as

a

citizen,

and

the

memo

"owes

its

existence

to

a

public

employee's

professional

responsibilities."

228

It

was

speech

"commissioned

or

created"

by

the

215.

Id.

at

147,

149.

216.

Id.

at

154.

217.

Id.

at

147-48.

218.

Id.

at

152.

219.

547

U.S.

410

(2006).

220.

Id.

at

410.

221.

Id.

at

413.

222.

Id.

at

415.

223.

Connick,

461

U.S.

at

147.

224.

Garcetti,

547

U.S.

at

422.

225.

Id.

at

419.

226.

Id.

at

420-21.

227.

Id.

at

421.

228.

Id.

494

[Vol.

58

CLASSROOM

DISCUSSIONS

employer.

2

29

He

was

performing

"the

tasks

he

was

paid

to

perform."

23

0

Even

if

the

content

of

the

memo

addressed

a

matter

of

public

concern,

it

was

outside

the

scope

of

First

Amendment

protection

because

it

was

made

"pursuant

to

official

responsibilities."

23

1

Garcetti

thus

added

to

the

threshold

question

in

evaluating

government-employee

speech.

To

receive

greater

constitutional

protection,

the

employee

must

not

only

be

speaking

about

a

matter

of

public

concern

but

must

also

be

speaking

in

their

private

capacity

as

a

citizen.

On

its

face,

Garcetti

is

debilitating

to

many

academic-freedom

claims

in

state

universities,

but

the

Court

added

an

important

proviso.

23

2

In

dissent,

Justice

David

Souter

highlighted

the

potential

implications

and

added,

"I

have

to

hope

that

today's

majority

does

not

mean

to

imperil

First

Amendment

protection

of

academic

freedom

in

public

colleges

and

universities,

whose

teachers

necessarily

speak

and

write

'pursuant

to

.

. .

official

duties."'

23

3

In

response,

Justice

Anthony

Kennedy,

writing

for

the

Court,

added

that

academic-

freedom

cases

might

be

different

and

"[w]e

need

not,

and

for

that

reason

do

not,

decide

whether

the

analysis

we

conduct

today

would

apply

in

the

same

manner

to

a

case

involving

speech

scholarship

or

teaching."

234

The

proviso

should

be

taken

seriously

most

obviously

because

it

explicitly

refrains

from

calling

into

question

the

"additional

constitutional

interests"

in

"academic

scholarship

or

classroom

instruction."

235

Moreover,

Kennedy

elsewhere

had

pointed

to

the

importance

of

the

anti-subversive

cases

in

establishing

the

critical

principle

that

the

danger

of

the

state

chilling

"individual

thought

and

expression"

was

"especially

real

in

the

University

setting,

where

the

State

acts

against

a

background

and

tradition

of

thought

and

experiment

that

is

at

the

center

of

our

intellectual

and

philosophical

tradition."

236

A

critical

question,

therefore,

is

how

Pickering

and

Garcetti

should

be

applied

to

legislative

regulation

of

academic

speech

in

state

229.

Id.

at

422.

230.

Id.

231.

Id.

at

424.

232.

The

Court's

opinion

has

nonetheless

created

confusion

about

how

to

think

about

the

professional

speech

of

professors.

A

recent

district

court

opinion,

for

example,

remarked

that

had

a

professor's

speech

been

"made

as

part

of

his

official

duties,

rather

than

as

a

citizen,

Garcetti

would

dictate

dismissal

of

his

retaliation

claim

....

But

it

is

undisputed

that

Hiers's

speech

was

not

part

of

his

official

duties,

so

Garcetti

does

not

apply

here."

Hiers

v.

Bd.

of

Regents,

No.

4:20-

CV-321-SDJ,

slip

op

at

6

n.2

(E.D.

Tex.

Mar.

11,

2022).

But

the

academic-freedom

proviso

seems

specifically

meant

to

preclude

such

a

result.

233.

Garcetti,

547

U.S.

at

438

(Souter,

J.,

dissenting).

234.

Id.

at

425.

235.

Id.

236.

Rosenberger

v.

Rector

&

Visitors,

515

U.S.

819,

835

(1995).

495

2023]

WAKE

FOREST

LAW

REVIEW

universities.

237

Such

regulations

would

force

courts

to

confront

precisely

the

question

that

the

Garcetti

Court

bracketed.

Professorial

speech

in

the

classroom

is

certainly

an

example

of

speech

made

pursuant

to

the

professor's

official

responsibilities

and

as

part

of

a

task

that

a

professor

is

paid

to

perform.

When

speaking

in

class,

a

professor

is

speaking

as

a

professor,

that

is,

as

a

government

employee,

not

as

a

citizen.

23

8

The

substantive

content

of

classroom

speech

might

well

be,

and

generally

is,

about

matters

of

public

concern,

but

Garcetti,

at

least

without

its

reservation

regarding

academic

freedom,

tells

us

that

is

not

enough

to

give

government-

employee

speech

constitutional

protection.

How

then

should

Pickering

and

Garcetti

be

understood

in

the

context

of

classroom

speech?

I

argue

that

academic

speech

should

be

understood

to

be

an

exception

to

the

Garcetti

framework.

Garcetti

can

only

be

reconciled

with

Keyishian

if

we

understand

that

the

particular

kind

of

speech

that

professors

are

employed

to

engage

in

as

part

of

their

job

responsibilities

is

speech

that

is

of

"special

concern

to

the

First

Amendment."

23

9

By

engaging

in

speech

as

a

professor,

these

particular

government

employees

are

engaging

in

speech

that

is

sheltered

by

the

First

Amendment,

even

though

that

is

not

true

in

the

case

of

other

government

employees

speaking

in

their

role

as

employees.

In

order

to

create

a

workable

doctrine

regarding

classroom

speech,

however,

it

is

important

to

understand

both

the

reasons

why

this

form

of

speech

as

an

employee

should

receive

237.

I

use

"academic

speech"

here

to

refer

broadly

to

professorial

speech

on

academic

matters,

whether

in

the

context

of

classroom

instruction,

scholarly

research,

or

scholarly

programming

on

and

off

campus.

All

such

speech

can

readily

be

understood

as

pursuant

to

a

professor's

professional

duties,

unlike

the

expression

of

private

opinions

in

an

extramural

context.

The

anti-CRT

proposals

thus

far

have

focused

particularly

on

classroom

speech

(whether

oral

discussion

or

classroom

materials),

but

it

is

not

hard

to

imagine

those

restrictions

being

extended

to

other

academic

contexts

and

the

core

academic-freedom

questions

would

be

the

same

whether

dealing

with

scholarship

or

teaching.

238.

It

should

be

noted

that

the

third

component

of

"academic

freedom"

laid

out

by

the

AAUP

is

when

professors

speak

"as

a

citizen"

in

extramural

or

intramural

settings.

See

STATEMENT

OF

PRINCIPLES,

supra

note

114,

at

14.

This

is

perhaps

more

properly

understood

as

falling

within

a

general

commitment

to

freedom

of

speech

rather

than

a

specific

theory

of

academic

freedom

as such.

When

speaking

"as

a

citizen"

about

matters

of

general

public

concern,

professors

are

no

differently

situated

than

other

government

employees.

It

is

when

speaking

"as

a

professor"

that

the

specific

constitutional

protections

for

academic

freedom

have

particular

significance.

See

Van

Alstyne,

supra

note

15,

at

142;

J.

Peter

Byrne,

Academic

Freedom:

A

"Special

Concern

of

the

First

Amendment,"

99

YALE

L.J.

251,

258

(1989);

David

M.

Rabban,

A

Functional

Analysis

of

"Individual"

and

"Institutional"

Academic

Freedom

under

the

First

Amendment,

53

LAw

&

CONTEMP.

PROBs.

227,

229

(1990);

Keith

E.

Whittington,

What

Can

Professors

Say

in

Public?

Extramural

Speech

and

the

First

Amendment,

73

CASE

W.

REs.

L.

REV.

(forthcoming

2023).

239.

Keyishian

v.

Bd.

of

Regents,

385

U.S.

589,

603

(1967).

496

[Vol.

58

CLASSROOM

DISCUSSIONS

protection

and

how

that

protection

can

be

appropriately

delimited

in

a

way

that

is

consistent

with

the

Court's

concerns

in

both

Garcetti

and

Keyishian.

We

should

begin

with

why

classroom

speech

is

not

like

a

disposition

memorandum.

Politicians

tried

to

suppress

professorial

expression

of

radical

ideas

in

the

mid-twentieth

century,

like

divisive

ideas

about

race

and

gender

today,

precisely

because

such

ideas

speak

to

matters

of

public

concern

and

are

politically

disfavored.

The

attempt

to

suppress

them

is

not

motivated

by

such

ordinary

concerns

as

ensuring

that

universities

operate

efficiently

but

rather

by

broad

political

motivations

regarding

what

ideas

politicians

believe

are

most

compatible

with

a

good

society.

The

desire

to

censor

such

ideas

on

campus

is

the

same

as

the

desire

to

censor

such

ideas

in the

public

sphere

more

broadly.

This

was

particularly

evident

in

the

case

of

the

anti-subversive

legislation,

when

regulations

of

professorial

speech

were

of a

piece

with

regulations

of

speech

more

generally.

As

the

Court's

First

Amendment

jurisprudence

gradually

made

it

clear

that

radical

ideas

as

expressed

by

ordinary

citizens

were

constitutionally

beyond

the

reach

of

politicians,

the

effort

to

suppress

such

speech

by

government

employees

lingered

until

the

Court

began

to

pare

back

those

efforts

as

well.

In

the

early

twenty-first

century,

it

is

clear

that

"Critical

Race

Theory"

or

"divisive

concepts"

could

not

be

erased

from

the

public

sphere

by

government

decree.

As a

consequence,

politicians

have

generally

240

focused

more

narrowly

on

domains

where

they

think

they

might

have

more

constitutional

leeway-

government

agencies,

241

public

schools,

242

public

libraries,

243

and

perhaps

state

universities.

244

The

government's

interest

in

censoring

speech

about

divisive

concepts

in

higher

education

raises

all

the

familiar

concerns

with

censorship

broadly

that

the

Court

has

systematically

rejected

since

the

early

years

of

the

twentieth

century.

Suppressing

divisive

concepts

in

higher

education

does

not

look

like

the

normal

work

of

an

employer

managing

the

workplace

but

instead

raises

Hugo

Black's

specter

of

"a

transient

majority"

trying

"to

select

the

ideas

people

can

think

about."

245

The

state's

interest

in

suppressing

a

professor's

speech

in

this

context

is

"not

significantly

greater

than

its

interest

in

limiting

a

similar

contribution

by

any

240.

There

are

some

exceptions.

See,

e.g.,

Hannah

Natanson,

Va.

Republicans

Seek

to

Limit

Sale

of

2

Books

in

Barnes

&

Noble

for

"Obscenity,"WASH.

POST

(May

20,

2022,

6:58 PM),

https://www.washingtonpost.com/education/2022/05/20/gender-queer-barnes-

and-noble/.

241.

See,

e.g.,

H.B.

2906,

55th

Leg.,

1st

Reg.

Sess.

(Ariz.

2021).

242.

See,

e.g.,

H.B.

2898,

55th

Leg.,

1st

Reg.

Sess.

(Ariz.

2021).

243.

See,

e.g., H.B.

2721,

110th

Gen.

Assemb.,

Reg.

Sess.

(Tenn.

2018).

244.

See,

e.g.,

H.B.

1012,

97th

Leg.,

Reg.

Sess.

(S.D.

2022).

245.

Adler

v.

Bd.

of

Educ.,

342

U.S.

485,

497

(1952)

(Black,

J.,

dissenting).

497

2023]

WAKE

FOREST

LAW

REVIEW

member

of

the

general

public."

246

Rather

than

reinforcing

the

logic

of

Connick

and

Garcetti

of

avoiding

the

constitutionalization

of

workplace

grievances,

allowing

Critical

Race

Theory

bans

to

stand

in

higher

education

would

be

anomalous

within

modern

First

Amendment

jurisprudence.

Protecting

academic

speech

from

the

undue

influence

of

politicians

is

close

to

the

heart

of

why

the

Court

responded

to

the

anti-

subversive

legislation

by

recognizing

a

constitutional

interest

in

academic

freedom

in

the

first

place.

It

was

not because

professors

had

unusually

interesting

things

to

say

when

opining

in

public

about

matters

far

distant

from

their

scholarly

expertise

that

the

justices

in

the

mid-twentieth

century

took

a

particular

interest

in

universities.

It

was

the

need

to

protect

free

inquiry

in

scholarship

and

the

classroom

that

the

Keyishian

Court

concluded

that

"[o]ur

Nation

is

deeply

committed

to

safeguarding

academic

freedom."

2

4

7

It

is

because

of

teaching

and scholarship

that

the

university

was

a

"center

of

independent

thought."

248

It

is

in

the

context

of

teaching

and

scholarship

that

Douglas

worried

about

"a

deadening

dogma"

taking

the

"place

of

free

inquiry."

249

The

"intellectual

life

of

a

university"

is

centrally

focused

on

its

academic

endeavors.

250

In

laying

down

constitutional

protections

for

academic

freedom,

the

justices

returned

again

and

again

to

the

importance

of

free

inquiry

in

the

classroom.

25

i

Most

obviously,

the

important

Sweezy

case

was

centered

in

part

on

a

political

investigation

of

the

content

of

a

lecture

to

a college

class,

an

area

in

which

the

Court

thought

the

"government

should

be

extremely

reticent

to

tread."

25 2

Universities

do

many things,

but

at

the

heart

of

a

university's

mission

is

the

effort

to

advance,

preserve,

and

communicate

knowledge.

253

Fulfilling

that

valuable

mission

requires

freedom

of

thought.

25

4

Academic

speech

is

by

design

communicative

to

a

broad

audience.

That

is

not

to

say

that

it

is

necessarily

accessible

to

or

of

interest

to

a

mass

audience.

Most

academic

speech

is

highly

specialized

and

is

fortunate

if

it

attracts

the

attention

of

even

a

specialized

audience.

But

it

is

central

to

the

academic

enterprise

to

disseminate

knowledge

246.

Pickering

v.

Bd.

of

Educ.,

391

U.S.

563,

573

(1968).

247.

Keyishian

v.

Bd.

of

Regents,

385

U.S.

589,

603

(1967).

248.

Wieman

v.

Updegraff,

344

U.S.

183,

197

(1952).

249.

Adler,

342 U.S.

at

510

(Douglas,

J.,

dissenting).

250.

Sweezy

v.

New

Hampshire,

354

U.S.

234,

261

(1957).

251.

See

Keyishian,

385 U.S.

at

603

(warning

of

a

"pall

of

orthodoxy

over

the

classroom");

Sweezy,

354

U.S.

at

250

("Teachers

and

students

must

always

remain

free

to

inquire,

to

study

and

to

evaluate,

to

gain

new

maturity

and

understanding;

otherwise

our

civilization

will

stagnate

and

die.").

252.

Sweezy,

354

U.S.

at

250.

253.

See

generally

KEITH

E.

WHITTINGTON,

SPEAK

FREELY

(2018).

254.

Id.

See

also

Keith

E.

Whittington,

Academic

Freedom

and

the

Mission

of

the

University,

59

Hous.

L.

REv.

821,

822

(2022).

498

[Vol.

58

CLASSROOM

DISCUSSIONS

to

others.

25

5

Teachers

in

the

classroom

are

seeking

to

impart

knowledge

to

a

body

of

students.

Scholars

producing

research

have

a

responsibility

to

share

the

fruits

of

their

research

with

others,

whether

those

others

are

expert

scholars

or

members

of

the

mass

public.

Academic

speech

is

concerned

not

only

with

advancing

and

preserving

knowledge

but

also

with

disseminating

it.

Distinctively

academic

speech

is

done

in

public

and

before

an

audience

in

a

way

that

is

quite

distant

from

a

lawyer

writing

a

memo

for

his

supervisor

and

in

a

way

that

distinguishes

it

from

the

kind

of

"expressions

made

at

work"

that

could

be

found

in

most

governmental

or

nongovernmental

offices.

25

6

The

Court

in

Garcetti

noted

that

whether

speech

took

place

in

public

or

in

the

office

is

not

"dispositive"

for

the

question

of

whether

it

is

protected

by

the

First

Amendment,

but

the

more

speech

resembles

speech

in

public

the

more

credibly

it

is

the

type

that

merits

First

Amendment

protection.

25

7

The

Court

in

Connick

clarified

that

constitutional

protections

for

government-employee

speech

depended

on

the

"content,

form,

and

context

of

a

given

statement."

258

The

content

of

academic

speech

is

255.

How

broad

or

narrow

the

audience

for

a

particular

example

of

professorial

speech

should

not

be

a

salient

factor

in

determining

whether

the

content

of

that

speech

involves

a

matter

of

public

concern

under

Pickering.

In

the

context

of

scholarly

communication,

matters

of

public

concern

are

probably

most

analogous

to

the

Court's

approach

to

obscenity

and

whether

a

given

expression

has

"serious

literary,

artistic,

political,

or

scientific

value."

Miller

v.

California,

413

U.S.

15,

24

(1973).

Esoteric

literary

criticism

or

technical

scientific

analysis

has

comparable

constitutional

value

for

academic-freedom

purposes

as

applied

ethics.

From

the

perspective

of

Keyishian,

it

would

be

equally

alarming

if

the

state

attempted

to

suppress

frequentist

statistical

analyses

because

it

favored

Bayesianism,

even

though

most

members

of

the

general

public

have

no

familiarity

with

either

school

of

thought.

Cf.

Heim

v.

Daniel,

No.

1:18-CV-836,

slip

op.

at

14

(N.D.N.Y.

May

10,

2022)

("Heim's

academic

writings

about

Keynesian

economic

concepts,

which

concern

complex

statistical

modeling

intended

for

consumption

by

a

relatively

narrow

audience,

do

not

qualify

as

speech

on

matters

of

'public

concern."').

256.

Garcetti

v.

Ceballos,

547

U.S.

410,

420

(2006).

257.

Id.

Certainly,

there

are

examples

of

speech

that

are

part

of

a

professor's

job

responsibilities

that

do

more

closely

resemble

the

kind

of

speech

at

issue

in

Connick

and

Garcetti.

Like

other

employees,

professors

write

memoranda,

reports,

performance

evaluations,

and

the

like,

and

such

speech

that

is

comparable

to

generic

employee

speech

is

traditionally

understood

to

fall

outside

the

scope

of

even

contractual

academic-freedom

protections.

While

there

are

border

cases

of

various

sort,

generally

speaking

the

more

professorial

speech

resembles

the

kind

of

speech

that

is

routinely

found

in

nonacademic

workspaces

the

less

the

justification

for

treating

it

as

academic

speech

that

is

special

under

the

First

Amendment.

See,

e.g.,

Demers

v.

Austin,

746

F.3d

402,

406

(9th

Cir.

2014)

(holding

that

a

faculty

member's

pamphlet

on

the

future

organization

of

the

communications

school

at

a

state

university

is

a

matter

of

public

concern

under

Pickering).

258.

Connick

v.

Myers,

461

U.S.

138,

147

(1983).

499

2023]

WAKE

FOREST

LAW

REVIEW

generally

a

matter

of

public

concern,

but

Connick

and

Garcetti

tell

us

that

is

not

sufficient.

Academic

speech

also

has

a

form

and

context,

however,

that

places

it

closer

to

traditional

public

speech.

Recognizing

academic

speech

as

constitutionally

protected

is

not

without

challenges.

In

particular,

the

courts

should

still

want

to

avoid

being

drawn

into

what

are

essentially

workplace

grievances,

even

when

those

grievances

involve

academic

speech.

The

central

concern

of

the

academic-freedom

cases

culminating

in

Keyishian

and

of

Pickering

balancing

of

government-employee

speech

is

to

insulate

academic

speech

from

outside

political

influence.

It

is

the

political

imposition

of

dogma

and

orthodoxy

that

is

of

constitutional

concern.

Courts

have,

quite

reasonably,

taken

a

highly

deferential

approach

to

claims

that

reduce

to

disagreements

about

the

scholarly

merits

of

faculty

hiring

and

promotion

cases,

for

example.

2 9

It

would

be

an

error

to

adopt

a

constitutional

standard

that

invites

judicial

oversight

of

how

such

internal

academic

affairs

are

resolved.

In

the

context

of

a

state

university,

academic

speech

by

professors

made

"pursuant

to

.

..

official

duties"

should

be

understood

to

be

constitutionally

protected.

26

0

For

most

government

employees,

Garcetti

holds

the

opposite,

that

employee

speech

loses

constitutional

protection

precisely

because

it

has

been

specifically

commissioned

by

a

governmental

employer.

But

professors

are

employed

to

perform

an

unusual

and

specific

role,

a

role

that

is

close

to

the

constitutional

enterprise.

They

are

employed,

in

part,

to

produce

and

disseminate

the

kind

of

ideas

that

are

of

public

interest

and

that

the

First

Amendment

is

understood

to

safeguard.

26

1

Recognizing

that

259.

See,

e.g.,

Allworth

v.

Howard

Univ.,

890

A.2d

194,

202

(D.C.

2006)

(giving

"deference

to

the

discretion

exercised

by

university

officials"

in

a

university

context);

Brown

v.

Trs.

of

Bos.

Univ.,

891

F.2d

337,

346

(1st

Cir.

1989)

("courts

must

take

special

care

to

preserve

the

University's

autonomy

in

making

lawful

tenure

decisions");

Keddie

v.

Pa.

State

Univ.,

412

F.

Supp.

1264,

1270

(M.D.

Pa.

1976)

("The

courts

will

not

serve

as

a

Super-Tenure

Review

Committee.");

McGill

v.

Regents

of

Univ.

of

Cal.,

52

Cal.

Rptr.

2d

466,,

471-73

(1996)

(adopting

an

arbitrary

and

capricious

standard

for

judging

a

denial

of

tenure

in

a

public

university);

Craine

v.

Trinity

Coll.,

791

A.2d

518,

536

(Conn.

2002)

("A

court

must

be

careful

not

to

substitute

its

judgment

improperly

for

the

academic

judgment

of

the

school.");

260.

Garcetti,

547

U.S.

at

438

(Souter,

J.,

dissenting).

261.

This

is

a

contingent

fact

about

American

universities.

It

is conceivable

that

a

state

could

radically

restructure

the

mission

of

a

state

university

such

that

its

faculty

were

not

engaged

in

free

inquiry

but

were

instead

expected

to

propagate

governmentally

approved

messages.

Under

such

circumstances,

academic

freedom

would

be

sharply

curtailed,

and

professors

would

be

more

analogous

to

public

school

teachers.

The

First

Amendment

values

associated

with

modern

American

universities

are

a

function

of

their

traditional

institutional

mission.

To

the

extent

that

states

have

currently

and

historically

committed

public

universities

to

such

a

mission,

then

First

Amendment

implications

follow

from

those

commitments.

500

[Vol.

58

CLASSROOM

DISCUSSIONS

government-employee

speech

crosses

that

threshold

does

not

end

the

judicial

inquiry.

A

court

would

still

need

to

consider

how

to

balance

the

First

Amendment

interest

against

the

government

employer's

legitimate

interests

in

managing

the

workplace.

26

2

Academic

speech

that

professors

are

"paid

to

perform"

comes

with

its

own

limits.

26

3

Professors

are

paid

to

perform

constitutionally

protected

speech,

but

not

all

professorial

speech

is

what

universities

have

commissioned.

Such

speech

might

better

be

regarded

as

private

speech

and

not

academic

speech

at

all.

That

is,

some

things

professors

say

while

"on

the

job"

and

in

the

workplace

are

not

examples

of

them

speaking

as

a

professor

but

of

them

speaking

as

a

private

citizen.

When

professors

are

engaging

in

academic

speech

in

the

context

of

scholarship

or

teaching,

the

First

Amendment

interest

in

protecting

such

speech

is

particularly

high.

The

question

then

becomes

what

legitimate

interests

the

state

has

in

regulating

such

speech

and

how

weighty

those

interests

are.

There

are

circumstances

in

which

the

state

has

recognizable

interests

in

managing

classroom

speech.

The

university

can

set

the

curriculum

and

can

expect

that

professorial

speech

in

the

classroom

will

be

both

germane

to

that

curriculum

and

professionally

competent.

When,

however,

professorial

speech

in

the

classroom

is

both

germane

and

professionally

competent,

the

state's

legitimate

interest

in

sanctioning

professors

for

such

speech

is

quite

low.

Viewpoint-based

discrimination

by

state

officials

far

removed

from

the

disciplinary

authorities

best

situated

to

assess

academic

speech

should

be

especially

suspect.

Traditional

principles

of

academic

freedom

are

understood

to

be

qualified,

not

absolute.

26

4

In

the

particular

context

of

classroom

speech,

faculty

speech

is

delimited

by

requirements

of

germaneness

and

professional

competence.

The

AAUP's

Statement

of

Principles

nods

to

the

germaneness

condition

by

noting

that

teachers

"should

be

careful

not

to

introduce

into

their

teaching

controversial

matter

which

has

no

relation

to

their

subject."

2

6 5

A

teacher

in

a

classroom

has

a

captive

audience

of

students,

which

creates

a

responsibility

on

the

part

of

the

teacher

not

to

abuse

that

captive

audience

with

262.

Traditional

Pickering

balancing

as

it

has

been

applied

by

the

courts

is

not

sufficiently

sensitive

to

the

unique

concerns

of

the

academic

context.

For

more

detail

of

how

Pickering

balancing

should

be

performed

when

professors

are

speaking

outside

the

scope

of

their

employment

duties,

see

Keith

E.

Whittington,

What

Can

Professors

Say

in

Public?

Extramural

Speech

and

the

First

Amendment,

73

WAKE

FOREST

L.

REV.

(forthcoming

2023).

The

considerations

discussed

there

are

applicable

to

the

context

of

speech

within

the

scope

of

their

employment

duties

as

well.

263.

Garcetti,

547

U.S.

at

422.

264.

See

Whittington,

supra

note

254,

at

829.

265.

STATEMENT

OF

PRINcIPLES,

supra

note

114,

at

14.

501

2023]

WAKE

FOREST

LAW

REVIEW

irrelevant

remarks.

Teachers

are

given a

privileged

platform

in

a

classroom

for

a

particular

purpose.

From

the

student's

perspective,

their

time is

not

to

be

frittered

away

with

speech

that

is

irrelevant

to

the

educational

purpose

of

the

class.

From

the

university's

perspective,

the

professional

duty

that

a

teacher

is

to

perform

is

to

instruct

students

in

the

subject

matter

of

the

class.

Teachers

who

spend

their

time

in

the

classroom

doing

something

else

are

not

performing

their

professional

duty and

as

a consequence

can

be

reasonably

sanctioned

by

the

university

for

that

malfeasance.

Courts

have

found

the

germaneness

standard

useful

for

assessing

how

much

protection

classroom

speech

should

receive,

and

they

have

had

to

make

similar

judgments

in

adjudicating

other

types

of

legal

claims.

In

Kracunas

v.

Iona

College,

2

66

for

example,

the

Second

Circuit

Court

of

Appeals

emphasized

that

"conduct

that

is

shown

to

be

harassment

(as

opposed

to

teaching)"

could

appropriately

be

sanctioned.

26 7

Although

the

college

raised

academic-freedom

concerns

that

might

arise

from

administrative

monitoring

of

how

professors

interact

with

students

as

they

perform

their

duties,

the

court

thought

that,

at

least

in

this

case,

both

university

officials

and

judges

could

assess

evidence

of

whether

professorial

conduct

"was

done

in

good

faith

as

a

part

of

his

teaching,

.. .

[or

could]

reasonably

be

seen

as

appropriate

to

further

a

pedagogical

purpose."

2

68

In

another

sexual

harassment

case

involving

"classroom

language,"

the

Sixth

Circuit

made

use

of

the

university's

own

harassment

policy

which

recognized

that

"speech

in

the

classroom

which

is

germane

to

course

content

is

not

subject

to

this

policy."

269

The

"unique

context"

of

"a

classroom

where

a

college

professor

is

speaking

to a

captive

audience

of

students"

both

raised

the

threat

of

professors

abusing

their

positions

to

harass

their

students

and

served

as

a

"unique

milieu

.. .

where

debate

and

the

clash

of

viewpoints

are

encouraged-

if

not

necessary-to

spur

intellectual

growth."

270

Where

classroom

speech

"was

found

to

serve

the

purpose

of

advancing

viewpoints,

however

repugnant,"

or

"had

as

their

purpose

influencing

or

informing

public

debate,"

then

it

merited

substantial

constitutional

protection.

271

The

governmental

employer's

interest

in

regulating

professorial

classroom

speech

that

is

not

"germane

to

the

course

266.

119

F.3d

80

(2d

Cir.

1997).

267.

Id.

at

88.

268.

Id.

The

court

recognized

that

there

will

be

cases

in

which

"the

line

between

pedagogy

and

harassment

will

be

difficult

to

draw,"

and

"the

use

of

these

legitimate

teaching

methods"

should

not

be

thrown

aside as

universities

and

courts

try

to

weed

out

sexual

harassment.

Id.

at

88

n.5.

269.

Bonnell

v.

Lorenzo,

241

F.3d

800,

818

n.10

(6th

Cir. 2001).

270.

Id.

at

820-21.

See

also,

Martin

v.

Parrish,

805

F.2d

583,

586

(5th

Cir.

1986)

(classroom

profanity

"constituted

a

deliberate,

superfluous

attack

on

a

'captive

audience' with

no

academic

purpose

or

justification").

271.

Bonnell,

241

F.3d

at

820.

502

[Vol.

58

CLASSROOM

DISCUSSIONS

content"

is

much

higher.

27

2

"[G]ratuitous

in-class"

speech

is

of

a

different

constitutional

nature

than

speech

that

was

a

legitimate

part

of

"an

academic

discussion."

273

It

should

be

noted

that

one

circuit

court

has

recently

suggested

that

germaneness

to

course

content

should

not

be

deemed

relevant

to

determining

what

professorial

classroom

speech

is

constitutionally

protected.

A

panel

of

the

Sixth

Circuit

resolved

a

case

involving

a

public

university's

pronoun

policy

as

applied

to

a

professor's

classroom

speech.

2

74

In

doing

so,

the

court

rejected

the

claim

that

there

was

no

"academic-freedom

exception

to

Garcetti"

and

that

governmental

employers

had

a

free

hand

to

regulate

professorial

classroom

speech.

275

The

court

thought

the

thrust

of

the

Supreme

Court's

decisions

growing

out

of

the

anti-subversive

controversies

had

established

that

"a

professor's

in-class

speech

to

his

students

is

anything

but

speech

by

an

ordinary

government

employee."

276

The

"need

for

the

free

exchange

of

ideas

in

the

college

classroom

is

unlike

that

in

other

public

workplace

settings."

27

7

The

court

was

emphatic

that

public

universities

do

not

have

a

license

to

act

as

classroom

thought

police.

They

cannot

force

professors

to

avoid

controversial

viewpoints

altogether

in

deference

to

a

state-

mandated

orthodoxy.

Otherwise,

our

public

universities

could

transform

the

of

leaders

into

"closed-circuit

recipients

of

only

that

which

the

State

chooses

to

communicate."

27

8

So

far,

so

good.

At

one

point,

however,

the

court

characterized

that

academic-

freedom

exception

as

covering

"all

classroom

speech

matters

of

public

concern,

whether

that

speech

is

germane

to

the

contents

of

the

lecture

or

not."

2

79

It

is

not

clear

that

the

court

thought

the

germaneness

issue

was

relevant

to

resolving

the

case before

it,

and

the

court

never

explicitly

referred

to

germaneness

beyond

this

brief

mention.

The

court

specifically

noted

that

"some

classroom

speech

falls

outside

the

[Garcetti

academic-freedom]

exception,"

272.

Id.

at

819.

273.

Hardy

v.

Jefferson

Cmty.

Coll.,

260

F.3d

671,

679

(6th

Cir.

2001).

274.

Meriwether

v.

Hartop,

992

F.3d

492,

507

(6th

Cir.

2021).

The

state

university

adopted

a

policy

requiring

that

university

officials,

including

professors,

refer

to

students

by

their

"preferred

pronoun[s]"

reflecting

the

students'

"self-asserted

gender

identity."

Id.

at

498.

275.

Id.

at

506.

276.

Id.

at

507.

277.

Id.

278.

Id.

(quoting

Tinker

v.

Des

Moines

Indep.

Cmty.

Sch.

Dist.,

393

U.S.

503,

511

(1969)).

279.

Id.

503

2023]

WAKE

FOREST

LAW

REVIEW

including

"non-ideological

ministerial"

speech

that

professors

might

be

called

upon

to

make

in

the

classroom.

280

Moreover,

the

court

was

also

concerned

with

arguing

that

the

instructor's

selection

of

pronouns

to

be

used

in

the

classroom

conveyed

a

salient

"message."

281

This

particular

case

involved

a

philosophy

professor

teaching

courses

on

political

philosophy,

ethics,

and

the

history

of

Christian

thought,

and the

university's

directives

extended

to

restricting

the

professor

from

stating

his

views

on

the

pronoun

policy

in

his

course

syllabus.

282

The

court

also

thought

that

the

professor's

speech

had

not

"inhibited

his

duties

in

the

classroom."

28

3

The

court's

extension

of

the

academic-

freedom

exception

to

classroom

speech

whether

or

not

"that

speech

is

germane"

is

not clearly

rooted

in

the

broader jurisprudence

regarding

academic

freedom,

was

not

specifically

explained

or

justified

by

the

court,

and

may

not

have

been

necessary

to resolving

this

particular

case.

2 84

Casting

aside

a

germaneness

requirement

risks

tying

the

hands

of

university

officials

to

address

problems

with

how

professors

treat

their

captive

audience

and

even

with

whether

they

are

performing

their

core

duties,

which

do

not

primarily

include

sharing

with

students

in

class

the

professor's

"core

religious

and

philosophical

beliefs."

285

Such

a

move

should

not

be

necessary

to

resolving

the

main

issues

associated

with

the recent

anti-CRT

policies

either,

since

in

many

cases

they

would

implicate

classroom

speech

that

is

germane

to

the

subject

matter

of

the

course.

Whether

university

officials,

or

state

legislatures,

could

reasonably

take

action

against

professors

who

unnecessarily

introduce

into

their

classes

controversial

content

that

is

not

germane

to

their

subject

matter

can

be

put

off

to

another

day.

286

A

second

condition

on

professorial

speech

in the

classroom

is

that

it

be

professionally

competent.

The

professional

duty

of

the

instructor

in

the

classroom

is

to

provide

professionally

competent

instruction.

That

is

the

type

of

speech

professors

are

commissioned

to

perform,

and

it

is

the

type

of

speech

both

students

and

university

officials

can

280.

Id.

281.

Id.

at

508.

282.

Id.

at

498,

500.

283.

Id.

at

511.

It

is

not

obvious

that

the

court's

judgment

about

the

application

of

those

principles

to

the

facts

of

this

case

is

fully

justified.

The

university

employer's

interest

in

how

professors

address

students

in

the

classroom

is

relatively

strong.

284.

Id.

at

507.

The

court

briefly

noted

that

this

pronoun

policy

also

raised

issues

of

"compelled

speech

on a

matter

of

public

concern,"

but

did not rely

on

it.

Id.

at

510.

Policies

that

compel

professors

to

say

things

in

the

classroom

that

they

do

not

believe

raise

distinct

constitutional

problems,

but

such

problems

are

generally

not

immediately

relevant

to

the

anti-CRT

context.

285.

Id.

at

509.

286.

That

is

to

say,

there

may

be

important

constitutional

differences

between

critical

race

theory being

discussed

in

a

chemistry

class

and

in

an

African

American

studies

class.

504

[Vol.

58

CLASSROOM

DISCUSSIONS

reasonably

expect

to

receive.

It

is

entailed

within

the

scope

of

academic

freedom

that

a

professor

might

introduce

students

to

radical,

marginal,

or

not

widely

accepted

ideas,

but

an

instructor

has

a

responsibility

to

ensure

that

students

recognize

the

context

of

those

ideas

and

how

they

fit

within

the

broader

body

of

knowledge.

A

professor

who

routinely

presented

to

students

as

mainstream

and

correct

ideas

that

are

in

fact

roundly

rejected

by

experts

in

the

field

or

a

professor

who

routinely

conveys

a

false

understanding

of

what

the

state

of

knowledge

within

a

field

of

study

might

be

is

not

conducting

themselves

in

a

professionally

competent

manner.

Academic

freedom

has

value

to

the

extent

that

it

protects

professionally

competent

speech.

If

it

instead

becomes

a

mechanism

for

shielding

instructors

peddling

proverbial

snake

oil

to

their

students,

then

it

serves

no

social

function.

A

civil

engineering

professor

who

teaches

students

in

such

a

way

that

bridges

that

they

built

would

fall

down

rather

than

stay

upright

is

not

protected

by

academic

freedom.

Universities

could

reasonably

sanction

professors

for

indulging

in

such

classroom

speech

without

raising

constitutional

concerns.

28

7

Professional

competence

both

conditions

and

underwrites

protections

for

academic

freedom.

The

founding

statement

of

the

AAUP,

the

1915

Declaration

of

Principles,

called

for

greater

security

of

tenure

in

order

to

give

scholars

and

teachers

the

independence

necessary

to

engage

in

free

inquiry

without

fear

of

reprisal

for

reaching

unpopular

or

inconvenient

conclusions.

288

The

AAUP

recognized,

however,

that

"there

are

no

rights

without

corresponding

duties."

28

9

It

is

only

those

"who

carry

on

their

work

in

the

temper

of

the

scientific

inquirer

who

may

justly

assert

this

claim"

to

freedom

of

teaching.

290

A

professor

who

seeks

to

indoctrinate

rather

than

teach

cannot

legitimately

hide

behind

a

claim

of

a freedom

to

teach.

In

the

words

of

that

1915

Declaration,

"his

business

is

not

to

provide

his

students

with

ready-made

conclusions,

but

to

train

them

to

think

for

themselves,

and

to

provide

them

access

to

those

materials

which

they

need

if

they

are

to

think

intelligently."

2

91

A

professor

who

fails

in

that

task

should

not

be

sheltered

from

discipline,

and

287.

For

doubts

about

constitutionalizing

individual

academic

freedom

because

of

the

problem

of

judges

assessing

the

quality

of

scholarly

work,

see

generally

Lawrence

Rosenthal,

Does

the

First

Amendment

Protect

Academic

Freedom?,

46

J.

COLL.

&

UNIV.

L.

223

(2021).

288.

AM.

Ass'N

OF

UNIV.

PROFESSORS,

DECLARATION

OF

PRINCIPLES

ON

ACADEMIC

FREEDOM

AND

TENURE

300

(1915)

[hereinafter

DECLARATION

OF

PRINCIPLES],

https://www.aaup.orgNR/rdonlyres/A6520A9D-OA9A-4

7

B

3

-B

5

0-

C006B5B224E7/0/1915Declaration.pdf.

289.

Id.

at

298.

290.

Id.

291.

Id.

505

2023]

WAKE

FOREST

LAW

REVIEW

[i]f

this

profession

should

prove

itself

unwilling

to

purge

its

ranks

of

the

incompetent

and

the

unworthy,

or

to

prevent

the

freedom

which

it

claims

in the

name

of

science

from

being

used

as a

shelter

for

inefficiency,

for

superficiality,

or

for

uncritical

and

intemperate

partisanship,

it

is

certain

that

the

task

will

be

performed

by

others.

292

In

responding

to

the

anti-subversive

push

of

the

McCarthy

era,

the

AAUP

laid

out

what

should

qualify

as

good

cause

to

terminate

a

member

of

the

faculty.

"Action

against

a

faculty

member

cannot

rightly

be

taken

on

grounds

that

limit

his

freedom

as

an

individual,

as

a

member

of

the

academic

community,

or

as

a

teacher

and

scholar."

293

Terminating

a

professor

merely

for

engaging

in

politically

unpopular

speech,

whether

in

the

classroom

or

in

scholarship,

is

hardly

consistent

with

such

an

aspiration.

Removal

from

the

faculty

merely

for

being

a

member

of

the

Communist

Party,

for

example,

would

violate

those

principles.

29

4

"Removal

can

be

justified

only

on

the

ground,

established

by

evidence,

of

unfitness

to

teach

because

of

incompetence,

lack

of

scholarly

objectivity

or

integrity,

serious

misuse

of

the

classroom

or

of

academic

prestige,

gross

personal

misconduct,

or

conscious

participation

in

conspiracy

against

the

government."

295

Professionally

competent

speech

merits

protection,

even

if

it

is

unpopular

or

controversial.

Professionally

incompetent

speech

merits

sanction,

even

if

it

is

popular

or

conformist.

As

Robert

Post

has

highlighted,

professional

competence

is

not

only

a

standard

that

the

individual

faculty

member

must

meet

but

one

that

the

profession

must

enforce.

It

is

also

a

standard

that

government

officials

cannot

appropriately

abrogate.

"[W]e

should

expect,"

he

notes,

"to

see

First

Amendment

coverage

triggered

whenever

government

seeks

by

.

..

legislation

to

disrupt

the

communication

of

accurate

expert

knowledge."

296

He

observes

that

courts

have

rebuffed

legislation

that

requires,

for

example,

medical

providers

"to

give

untruthful,

misleading

and

irrelevant

information

to

patients."

297

Such

governmental

requirements

that

professional

speech

be

incompetent

so

as

to

better

satisfy

political

sensibilities

implicates

First

Amendment

rights.

298

As

one

court

noted,

"the

State

cannot

compel

an

individual

simply

to

speak

the

State's

ideological

message,"

though

it

can

reasonably

require

professionals

to

convey

292.

Id.

293.

Am.

Ass'n

of

Univ.

Professors,

Academic

Freedom

and

Tenure

in

the

Quest

for

National

Security,

42

AM.

ASS'N

UNIV.

PROFESSORS

BULL.

49,

57

(1956).

294.

Id.

at

58.

295.

Id.

296.

ROBERT

C.

POST,

DEMOCRACY,

EXPERTISE,

ACADEMIC

FREEDOM:

A

FIRST

AMENDMENT

JURISPRUDENCE

FOR

THE

MODERN

STATE

48

(Yale

Univ.

Press

2012).

297.

Id.

298.

Planned

Parenthood

of

the

Heartland

v.

Heineman,

724

F.

Supp.

2d

1025,

1048

(D.

Neb.

2010).

506

[Vol.

58

CLASSROOM

DISCUSSIONS

"truthful"

and

"relevant"

information.

299

The

Supreme

Court

has

recently

pointed

out

that,

"[a]s

with

other

kinds

of

speech,

regulating

the

content

of

professionals'

speech

'pose

[s]

the

inherent

risk

that

the

Government

seeks

not

to

advance

a

legitimate

regulatory

goal,

but

to

suppress

unpopular

ideas

or

information.'

30

0

Whether

the

state

compels

a

professional

to

communicate

information

that

the

professional

community

believes

is

untrue

or

prohibits

a

professional

from

communicating

information

that

the

professional

community

believes

is

true,

the

result

is

that

the

state

is

substituting

its

own

ideological

commitments

for

the

free

pursuit

of

truth

by

the

relevant

experts.

For

the

state

to

require

professorial

speech

in

the

classroom

to

be

incompetent,

whether

by

omission

or

commission,

it

would

vitiate

the

value

that

academic

freedom

under

the

First

Amendment

is

intended

to

provide

to

society.

Professorial

classroom

speech

that

is

neither

germane

to

the

class

nor

professionally

competent

is

deserving

of

little

constitutional

protection.

Note,

however,

that

such

speech

might

still

be

on

matters

of

public

concern.

A

chemistry

professor

who

spends

his

class

time

talking

about

the

presidential

election

or

a

medical

professor

who

instructs

his

class

that

vaccines

cause

autism

might

well

be

engaging

in

speech

that

in

other

circumstances

would

be

entitled

to

robust

constitutional

protection.

A

professor

who

indulges

in

such

speech

on

their

private

blog

on

their

own

time

would

enjoy

some

presumptive

protection

under

Pickering.

30

1

We

can

imagine

four

separate

scenarios

of

professorial

speech

in

a

state

university

to

clarify

how

Pickering,

Garcetti,

and

the

constitutionalized

protection

for

academic

freedom

referenced

in

Keyishian

would

interact.

The

examples

demonstrate

how

the

three

cases

can

be

reconciled

to

simultaneously

protect

free

inquiry

into

controversial

ideas

in

a

university

setting

and

the

efficient

functioning

of

a

university

as

a

particular

kind

of

state

agency.

299.

Planned

Parenthood

Minn.,

N.

Dakota,

S.

Dakota

v.

Rounds,

530

F.3d

724,

734-35

(8th

Cir.

2008).

300.

Nat'l

Inst.

of

Fam.

&

Life

Advocs.

v.

Becerra,

138

S.

Ct.

2361,

2374

(2018)

(alteration

in

original)

(quoting

Turner

Broad.

Sys.,

Inc.

v.

FCC,

512

U.S.

622,

641

(1994)).

301.

Private

extramural

speech

that

is

professionally

incompetent

might

well

raise

questions

about

professional

fitness

for

an

academic

position.

The

AAUP

emphasizes

that

extramural

speech

should

not

be

the

sole

basis

for

determining

that

a

professor

is

professionally

unfit,

but

it

might

well

lead

a

university

to,

for

example,

take

a

closer

look

at

that

faculty

member's

scholarship

and

classroom

speech,

to

ensure

that

it

is

professionally

competent.

AM.

ASS'N

OF

UNIv.

PROFESSORS,

Committee

A

Statement

on

Extramural

Utterances,

in

PoLICY

DOCUMENTS

AND

REPORTS

31,

31

(Johns

Hopkins

Univ.

Press

11th

ed.

2015)

("Extramural

utterances

rarely

bear

upon

the

faculty

member's

fitness

for

continuing

service.

Moreover,

a

final

decision

should

take

into

account

the

faculty

member's

entire

record

as

a

teacher

and

scholar.").

507

2023]

WAKE

FOREST

LAW

REVIEW

Scenario

1:

A

law

school

professor

teaching

a

class

on

race

and

American

law

conducts

a

classroom

discussion

of

core

ideas

associated

with

the

scholarly

literature

on

Critical

Race

Theory

and

in

the

process

distributes

class

materials

and

advocates

ideas

that

run

afoul

of

legislative

proposals

curtailing

the

introduction

of

divisive

concepts

into

university

classes.

Such

classroom

speech

would

fall

squarely

within

the

domain

of

speech

made

pursuant

to

official

duties.

But

for

an

academic-freedom

exception,

Garcetti

would

allow

government

officials

to

suppress

such

speech.

A

proper

academic

freedom-exception,

however,

would

recognize

such

speech

as

robustly

protected

under

Keyishian.

The

anti-CRT

bills

would

be

a

viewpoint-discriminatory

interference

with

constitutionally

protected

speech,

which

should

weigh

heavily

in

favor

of

the

professor.

Indeed,

the

anti-CRT

bills

look

like

precisely

the

kind

of

prior

restraint

through

"sweeping

statutory

impediment

to

speech"

that

the

Court

has

said

is

particularly

disfavored

even

within

a

government

employment

context.

302

If

a

court

were

to

engage

in

a

balancing

exercise

as

suggested

by

the

Pickering

framework,

the

government

would

have

a

heavy

burden

to

bear

in

demonstrating

that

a

statutory

prior

restraint

on

the

expression

of

certain

viewpoints

in

a

university

classroom

is

justified.

The

professor

in

this

scenario

is

engaging

in professionally

competent

speech

appropriate

to

the

subject

matter

of

the

course.

By

attempting

to

restrain

professors

from

engaging

in

such

speech,

the

state

legislature

would

not

simply

be

attempting

to

specify

the

curriculum

of

the

university.

It

would

be

attempting

to

legislate

what

can

be

said

when

teaching

that

curriculum.

The

state

sanctions

teaching

certain

course

content,

but

here

it

also

demands

an

orthodoxy

on

how

that

content

is

understood.

Professors

are

free

to

discuss

controversies

regarding

race,

but

only

if

they

toe

the

legislature's

line

on

how

those

controversies

are

to

be

viewed.

It

is

precisely

such

an

imposition

of

orthodoxy

in

higher

education

that

the

Court

regarded

as

repugnant

to

the

Constitution.

Scenario

2:

A

law

school

professor

teaching

a

class

on

contracts

regularly

spends

large

portions

of

the

class

time

discussing

recent

political

events

and

hosting

guest

lecturers

to

advocate

for

the

professor's

pet

political

causes.

Such

classroom

speech

is

not

made

pursuant

to

official

duties

since

no

professor

is

employed

for

the

purpose

of

sharing

political

opinions

with

a

captive

audience

of

students

to

the

exclusion

of

the

course

material

that

students

are

supposed

to

be

learning.

It

does,

however,

take

advantage

of

the

privileged

access

to

the

student's

time

that

a

professor

has

as

a

consequence

of

his

state

employment.

Lecturing

to

students

was

"within

the

scope

of

an

employee's

302.

United

States

v.

Nat'l

Treasury

Emps.

Union,

513

U.S.

454, 467

(1995).

508

[Vol.

58

CLASSROOM

DISCUSSIONS

duties,"

30 3

but

lecturing

to

students

about

his

personal

political

beliefs

was

not.

The

content

of

such

private

speech

does

involve

"commenting

upon

matters

of

public

concern,"

however,

and

Pickering

would

suggest

that

it

would

be

necessary

"to

arrive

at

a

balance

between

the

interests

of

the

teacher, as

a

citizen,

. . .

and

the

interest

of

the

State,

as

an

employer,

in

promoting

the

efficiency

of

the

public

services

it

performs

through

its

employees."

304

However,

the

timing

and

circumstances

of

such

speech

weighs

heavily

in

favor

of

the

state

as

an

employer

restricting

it.

Pickering

itself

emphasized

that

a

letter

to

the

editor

of

a

newspaper

could

not

"be

presumed

to

have

in

any

way

.

..

impeded

the

teacher's

proper

performance

of

his

daily

duties."

3

05

Departing

from

assigned

duties

in

order

to

engage

in

private

political

speech,

on

the

other

hand,

implicates

the

need

of

the

public

employer

to

"be

able

to

control

the

operations

of

its

workplace."

3

06

A

state-university

employer

has

a

strong

interest

in

preventing

a

professor

from

imposing

on

a

captive

audience

of

students

speech

"with

no

academic

purpose

or

justification."

307

A

germaneness

test

for

professorial

classroom

speech

distinguishes

between

the

kind

of

speech

that

is

properly

protected

by

the

First

Amendment

concerns

raised

in

Keyishian

and

the

kind

of

speech

that

interferes

with

the

delivery

of

the

public

services

that

the

state

has

an

interest

in

maintaining.

Scenario

3:

A

political

science

professor

teaching

a

class

on

campaigns

and

elections

in

American

politics

dedicates

the

semester

to

expounding

on

his

belief

that

Italian

defense

firms

use

satellites

to

change

American

vote

tallies,

that

Venezuela

manipulates

American

voting

machines,

and

that

North

Korea

smuggles

into

American

ballot

boxes

counterfeit

paper

ballots

produced

in

China.

Unlike

the

private

speech

at

issue

in

Scenario

2,

the

classroom

speech

in

this

situation

is

indeed

pursuant

to

the

professor's

duties.

The

professor

is

commissioned

to

lecture

to

students

about

how

elections

operate

in

the

United

States,

and

that

is

what

the

professor

303.

Lane

v.

Franks,

573

U.S.

228,

240

(2014).

304.

Pickering

v.

Bd.

of

Educ.,

391

U.S.

563,

568

(1968).

305.

Id.

at

572.

306.

Helget

v.

City

of

Hays,

844

F.3d

1216,

1221

(10th

Cir.

2017)

(citing

Pickering,

391

U.S.

at

568).

See

also

Miller

v.

Clinton

Cnty.,

544

F.3d

542,

547

(3d

Cir.

2008)

("public

employers

are

still

employers,

and

they

therefore

have

the

same

concern

for

efficiency

and

the

need

to

review

and

evaluate

employees

as

any

other

employer

in

order

to

ensure

that

the

actions

of

employees

do

not

interfere

with

the

performance

of

public

functions.")

(citing

Rankin

v.

McPherson,

483

U.S.

378,

383-89

(1987));

Dougherty

v.

Sch.

Dist.

of

Phila.,

772

F.3d

979,

987

(3d

Cir.

2014)

("the

Supreme

Court

also

aptly

recognizes

the

government's

countervailing

interest-as

an

employer-in

maintaining

control

over

their

employees'

words

and

actions

for

the

proper

performance

of

the

workplace")

(citing

Garcetti

v.

Ceballos,

547

U.S.

410,

418-19

(2006)).

307.

Martin

v.

Parrish,

805

F.2d

583,

586

(5th

Cir.

1986).

509

2023]

WAKE

FOREST

LAW

REVIEW

is

doing.

The

trouble

is

that

the

professor

is

performing

those duties

in an

incompetent

fashion

by

conveying

to

students

ideas

that

are

roundly

rejected

within

the

relevant

expert

community

and

conveying

them

as

if

they

enjoyed

scholarly

validity.

The

state's

interest

in

excluding

such

speech

from

the

classroom

is

just

as

real,

even

though

it

bears

a

closer

relationship

to

the

kind

of

speech

the

academic-freedom

cases

are

concerned

with

protecting.

Even

when

government-employee

speech

merits

First

Amendment

protection,

the

government

still

has

an

"employer's

legitimate

interest[]

in

its

mission."

3

08

The

core

mission

of

the

university

is

truth-seeking,

which

it

advances

by

nurturing

a

scholarly

community

capable

of

building

up

expert

knowledge

through

a

process

of

inquiry

governed

by

disciplinary

norms

and

ways

of

testing

and

evaluating

claims.

309

Both

the

field

of

accepted

knowledge

and

the

modes

of

proceeding

in

advancing

knowledge

are

subject

to

change

within

a

vibrant

scholarly

enterprise.

Ideas

that

were

once

accepted

get

rejected

over

time.

Modes

of

inquiry

that

were

once

taken

seriously

get

discarded

as

unreliable.

Academia

gives

a

great

deal

of

leeway

to

individual

scholars

to

test

those

boundaries

on

the

assumption

that

fields

of

scholarly

inquiry

should

always

hold

themselves

open

to

legitimate

challenge.

But

there

are

still

limits,

and

a

great

deal

of

scholarly

activity

is

expended in

evaluating the

quality

of

research

and

of

scholars

and

making

determinations

about

what

to

embrace

and

what

to

reject.

Scholarly

assessments

of

the

substantive

quality

of

scholarly

writing

and

teaching

have

always

been

accepted

as

consistent

with

academic-freedom

principles.

A

key

consideration

is

who

is

making

such

an

assessment.

The

AAUP

has

long

emphasized

that

academic

freedom

is

endangered

if

such

judgments

are

made

by

nonscholars,

whether

legislators

or

boards

of

trustees.

3

10

Even

when

fellow

scholars

are

making

such

judgments,

we

might

still

worry

that

scholarly

assessments

can

become

a

mere

pretext

for

exercising

power

for

inappropriate

ends,

whether

racial

or

sexual

discrimination

or

political

hostility.

Academic-freedom

principles

do

not

exclude

the

need

for

such

basic

judgments

of

whether

to

confer

a

scholarly

degree

on

a

student

or

whether

to

employ

or

promote

a

potential

member

of

the

faculty.

308.

Engquist

v.

Or.

Dep't

of

Agric.,

478

F.3d

985,

994

(9th

Cir. 2007).

See

also

City

of

San

Diego

v.

Roe,

543

U.S.

77,

82

(2004)

("the

government

employer's

right

to

protect

its

own

legitimate

interests

in

performing

its

mission").

309.

WHITTINGTON,

supra

note

253,

at

7.

310.

DECLARATION

OF

PRINCIPLES,

supra

note

288,

at

294

("[T]he

proper

fulfillment

of

the

work

of

the

professoriate

requires

that

our

universities

shall

be

so

free

that

no

fair-minded

person

shall

find any

excuse

for

even

a

suspicion

that

the

utterances

of

university

teachers

are

shaped

or

restricted

by

the

judgment,

not

of

professional

scholars,

but

of

inexpert

and

possibly

not

wholly

disinterested

persons

outside

of

their

ranks.").

510

[Vol.

58

CLASSROOM

DISCUSSIONS

In

the

specific

context

of

government-employee

speech,

courts

have

likewise

recognized

that

the

need

to

make

such

judgments

weigh

in

the

balance

on

the

side

of

governmental

interests.

When

engaged

in

a

Pickering

balancing

of

interests,

courts

have

noted

that

even

constitutionally

protected

employee

speech

might

"reflect

upon

the

employee's

competence

to

perform

his

or

her

job."

31

1

Government

employers

are

"entirely

justified"

in

"evaluating

the

soundness"

of

employees'

speech

when

that

speech

is

relevant

to

their

job

functions.

3

12

Determining

whether

an

employee

displays

"a

lack

of

professional

competence"

is

an

unavoidable

aspect

of

the

government

acting

in

its

role

as

an

employer,

and

that

need

does

not

evaporate

when

the

speech

in

question

occurs

in

a

classroom

setting

or

has

First

Amendment

relevance.

3

13

"[C]lassroom

performance"

is

within

the

scope

of

an

employer's

interest.

314

Even

given

robust

First

Amendment

protection

for

academic

freedom,

state

universities

retain

the

ability

to

dismiss

the

historian

of

twentieth-century

European

history

who

insists

on

instructing

his

students

that

the

Holocaust

is

a

myth

or

the

astronomer

who

requires

his

students

to

learn

that

the

sun

revolves

around

the

earth.

31

5

Scenario

4:

A

group

of

professors

eating

lunch

in

a

faculty

lounge

on

campus

get

into

a

spirited

discussion

about

the

role

of

race

in

American

society

in

which

one

loudly

proclaims

the

truth

of

ideas

banned

by

legislation

aimed

at

excluding

divisive

concepts

from

higher

education.

A

portion

of

the

conversation

is

recorded

by

a

passing

student

and

posted

on

social

media,

resulting

in

demands

from

state

political

leaders

that

the

professor

be

fired.

Such

a

case

falls

neatly

within

a

traditional

Pickering

framework.

Although

the

speech

at

issue

here

takes

place

on

the

job

site

rather

than

in

an

extramural

context,

the

speech

is

clearly

private

and

not

part

of

the

ordinary

duties

of

a

professor.

The

professor

in

this

context

is

acting

as

a

citizen,

not

as

a

government

employee.

Moreover,

the

speech

relates

to

matters

of

public

concern,

and

thus

passes

the

threshold

question

of

whether

they

are

entitled

to

constitutional

consideration.

The

question

then

becomes

whether

the

state

as

an

employer

has

a

sufficiently

weighty

countervailing

interest

in

restricting

such

speech.

Private

remarks

in

ordinary

workplace

conversations

diminish

the

state's

interest

in

regulating

such

speech

unless

it

311.

Koch

v.

Hutchinson,

847

F.2d

1436,

1442

(10th

Cir.

1988).

312.

Egger

v.

Phillips,

710

F.2d

292,

317

(7th

Cir.

1983).

313.

Id.

at

318.

314.

Wren

v.

Spurlock,

798

F.2d

1313,

1318

(10th

Cir.

1986).

315.

On

academic-freedom

principles

and

professional

incompetence,

see

Brian

G.

Brooks,

Adequate

Cause

for

Dismissal:

The

Missing

Element

in

Academic

Freedom,

22

J.

COLL.

&

UNIV.

L.

331,

331-32

(1995);

David

M.

Rabban,

The

Regrettable

Underenforcement

of

Incompetence

as

Cause

to

Dismiss

Tenured

Faculty,

91

IND.

L.J.

39,

42

(2015).

511

2023]

WAKE

FOREST

LAW

REVIEW

directly

"interfered

with

the

efficient

functioning

of

the

office."

3

1

6

The

faculty

lounge

is

recognized

as

a

place

"where

professors

regularly

talk

about

political

and

social

issues

with

one

another"

and

where

the

state

employer's

interest

in

regulating

the

content

of

the

ideas

expressed

is

quite

limited.

3

17

The

fact

that

the

speech

was

to

a

small

audience

and

"in-house"

might

be

"considered

in

determining

whether

the

speech

addressed

a

matter

of

public

concern,"

but

it

does

not

in

itself

heighten

the

state's

legitimate

interest

in

punishing

such

speech.

318

Pickering

is

most

helpful

in

thinking

about

government-employee

speech

that

does

not

involve

the

employee's

duties

as

an

employee.

When

a

professor

is

speaking

"as

a

citizen,"

whether

outside

the

workplace

or

even

in

the

workplace,

then

the

Pickering

framework

usefully

identifies

the

considerations

at

play

when

governmental

employers

attempt

to

sanction

such

speech.

31

9

It

is

less

helpful,

however,

in

identifying

when

speech

should

be

protected

or

what

considerations

ought

to

be

relevant

to

the

employer's

actions

when

a

professor

is

performing

his

or

her

duties

as

a

professor.

Garcetti

establishes

that

government

employees

outside

the

educational

context

have

few

First

Amendment

rights

when

performing

their

duties

but

provides

little

guidance

for

the

educational

context.

Garcetti

raises,

but

does

not

answer,

the

question

of

how

the

courts

should

address

First

Amendment

claims

raised

by

professorial

speech

that

is

pursuant

to

their

official

duties.

When

grappling

with

the

anti-subversive

legislation

of

the

mid-

twentieth

century,

the

Court

came

to

appreciate

the

extent

to

which

the

speech

that

professors

routinely

engage

in

as

part

of

their

academic

duties,

in

both

their

scholarly

activities

and

in

the

classroom,

is

central

to

the

First

Amendment.

The

Court

cannot

now

allow

state

legislatures

to

restrict

the

set

of

ideas

professors

are

allowed

to

discuss

in

the

classroom

or

the

viewpoint

that

professors

adopt

relative

to

those

ideas

without

repudiating

those

hard-won

lessons.

While

most

government

employees

enjoy

their

greatest

constitutional

protection

when

speaking

in

their

private

capacity

as

citizens,

as

the

Court

recognized

in

Pickering,

university

professors

are

distinctive

in

requiring

constitutional

protection

for

their

speech

as

government

employees.

To

effectuate

the

insight

that

academic

freedom

is

of

"a

special

concern

to

the

First

Amendment,"

320

the

Court

would

need

to

insulate

classroom

speech

from

legislative

intrusions

that

serve

a

primary

purpose

of

attempting

to

control

what

ideas

are

316.

Rankin

v.

McPherson,

483

U.S.

378,

389

(1987).

317.

Hiers

v.

Bd.

of

Regents,

No.

4:20-CV-321-SDJ,

slip

op

at

25

(E.D.

Tex.

Mar.

11,

2022).

318.

Davis

v.

W.

Cmty.

Hosp.,

755

F.2d

455,

461

(5th

Cir.

1985).

319.

Pickering

v.

Bd.

of

Educ.,

391

U.S.

563,

568

(1968).

320.

Keyishian

v.

Bd.

of

Regents,

385

U.S.

589,

603

(1967).

512

[Vol.

58

CLASSROOM

DISCUSSIONS

discussed

and

taken

seriously

in

the

public

sphere.

The

fact

that

some

professors

are

government

employees

does

not

eliminate

their

First

Amendment

interest

in

being

able

to

teach

students

ideas

that

may

be

controversial

and

out

of

favor

with

incumbent

government

officials

but

that

are

germane

to

their

classes

and

within

the

realm

of

professional

competence.

The

state

has

no

distinctive

interest

as

an

employer

in

sanctioning

such

controversial

but

germane

and

professionally

competent

speech.

321

When

state

officials

take

steps

to

suppress

such

speech,

they

are

doing

so

not

in

their

role

as

employers

but

in their

role

as

regulators.

And

relative

to

the

government

as

regulators,

the

Court

has

emphasized

that

the

First

Amendment

interest

in

developing,

expressing,

and

deliberating

on

controversial

ideas

is

exceedingly

strong.

V.

GOVERNMENT

SPEECH

AND

PRIVATE

SPEECH

IN

STATE

UNIVERSITIES

A

second

possibility

for

upholding

anti-CRT

policies

is

by

characterizing

the

speech

of

professors

in

classrooms

at

state

university

as

a

form

of

government

speech.

The

"Government's

own

speech

...

is

exempt

from

First

Amendment

scrutiny."

3

22

When

the

government

speaks

with

its

own

voice,

it

necessarily

must

make

decisions

based

on

the

content

and

viewpoint

of

the

substantive

issues

on

which

it

chooses

to

speak.

The

government

may

legitimately

favor

some

ideas

and

express

disapproval

of

others

when

the

government

is

engaged

in

its

own

speech.

The

First

Amendment

prevents

the

government

from

suppressing

or

disadvantaging

disfavored

ideas,

but

"it

does

not

regulate

government

speech."

3

23

The

government

can

participate

in

the

marketplace

of

ideas

and

advocate

on

behalf

of

its

own

favored

ideas.

It

just

cannot

dictate

to

the

citizenry

that

it

must

embrace

the

government's

favored

ideas

or

prevent

the

citizenry

from

hearing

competing

perspectives.

It

is

the

very

business

of

government

to

favor

and

disfavor

points

of

view

on

(in

modern

times,

at

least)

innumerable

subjects.

...

And

it

makes

not

a

bit

of

difference,

insofar

as

either

common

sense

or

the

Constitution

is

concerned,

whether

these

officials

further

their

(and,

in

a

democracy,

our)

favored

point

of

view

by

achieving

it

directly

(having

government-

employed

artists

paint

pictures,

for

example,

or

government-

employed

doctors

perform

abortions);

or

by

advocating

it

officially

(establishing

an

Office

of

Art

Appreciation,

for

321.

At

least

this

is

true

given

the

current

mission

of

American

universities

to

preserve,

advance,

and

disseminate

knowledge.

If

the

university

had

a

different

mission,

then

the

state's

interest

as

an

employer

in

suppressing

such

speech

might

likewise

change.

322.

Johanns

v.

Livestock

Mktg.

Ass'n,

544

U.S.

550,

553

(2005).

323.

Pleasant

Grove

City

v.

Summum,

555

U.S.

460,

467

(2009).

513

2023]

WAKE

FOREST

LAW

REVIEW

example,

or

an

Office

of

Voluntary

Population

Control);

or by

giving

money

to

others

who

achieve

or

advocate

it

(funding

private

art

classes,

for

example,

or

Planned

Parenthood).

None

of

this

has

anything

to

do

with

abridging

anyone's

speech.

324

The

curriculum

of

a public

school

might readily

be

understood

to

be

an

example

of

such

government

speech.

The

government

creates

the

public

school,

determines

the

curriculum,

chooses

the

textbooks,

and

employs

the

teachers.

When

those

teachers

teach

the

curriculum

in

the

classroom,

they

might

not

be

speaking

for

themselves

but

are

instead

speaking

on

behalf

of

the

government.

325

Teachers

might

be

the

mere

mouthpieces

of

the

government,

and

if

so

then

the

government

necessarily

has the right

to

determine

what

that

mouthpiece

will

say.

When

government

speech

is

at

stake,

the

government

might

give

positive

direction

so

that

certain

ideas

are

expressed

on

its

behalf,

or

it

might

set

negative

limits

so

that

certain

ideas

are

forbidden

to

be

expressed

on

its

behalf.

Even

as

the

Court

recognized

a

First

Amendment

interest

in

resisting

compelled

speech

in

the

flag

salute

case,

it

admitted

that

"the

State

may

'require

teaching

by

instruction

and

study

of

all in

our

history

and

in

the

structure

and

organization

of

our

government,

including

the

guaranties

of

civil

liberty

which

tend

to

inspire

patriotism

and

love

of

country."'

3

2

6

California,

for

example,

not

only

imposes

requirements

regarding

public

school

curriculum,

such

as

the

directive

that

"instruction

in

the

social

sciences

shall

include

.

. .

a

study

of

the

role

and

contributions"

of

myriad

groups

to

the

development

of

the

state

and

the nation

"with

particular

emphasis

on

portraying

the

role

of

these

groups

in

contemporary

society."

327

It

also

prohibits

some

ideas

from

being

included

within

the

public

school

curriculum,

such

as

the

directive

that

no school

board

may

"adopt

any

instructional

materials

for

use

in

the

schools"

that

include

"[a]ny

matter

reflecting

adversely

upon

persons

on

the

basis

of

race

or

ethnicity,

gender,

religion,

disability,

nationality,

or

sexual

orientation"

or

"[a]ny

sectarian

or

denominational

doctrine

or

propaganda

contrary

to law."

328

Through

324.

Nat'l

Endowment

for

the

Arts

v.

Finley,

524

U.S.

569,

598

(1998)

(Scalia,

J., concurring

in

judgment).

325.

See

infra

notes

328-30.

326.

W.

Va.

State

Bd.

of

Educ.

v.

Barnette,

319

U.S.

624,

631

(1943)

(quoting

Minersville

Sch.

Dist.

v.

Gobitis,

310

U.S.

586,

604

(1940)

(Stone,

J.,

dissenting)).

327.

CAL.

EDUC.

CODE

§

51204.5

(West

2012).

The

Texas

anti-CRT

bill

aimed

at

primary

and

secondary

schools

also

included

a

directive

to

the State

Board

of

Education

to

adopt

a

social

studies

curriculum

that

included

specific

topics

and

texts.

H.B.

3979,

87th

Leg.

(Tex.

2021).

The

preexisting

state

code

already

included

substantial

detail

on

what

knowledge

social

studies

in

public

schools

should

cover.

19

TEX.

ADMIN.

CODE

§

113

(2022).

328.

CAL.

EDUC.

CODE

§

60044

(West

2013).

See

also

Steven

Shiffrin,

Government

Speech,

27

UCLA

L.

REv.

565,

568

n.11

(1980).

514

[Vol.

58

CLASSROOM

DISCUSSIONS

the

apparatus

of

the

public

school

system

"the

state

commands

powerful

machinery

to

prescribe

and

to

instill

basic

values

in

politics,

nationalism,

and

other

matters

of

opinion."

329

Giving

the

government

free

rein

to

convey

its

own

messages

nonetheless

creates

some

First

Amendment

complications.

The

state

may

advance

its

"official

view

as

to

proper

appreciation

of

history,

state

pride,

and

individualism,"

for

example,

in any

number

of

ways,

but

it

cannot

dragoon

a

private

individual

into

becoming

"the

courier

for

such

[a]

message."

33

0

Given

the

expansive

scope

of

the

modern

government,

however,

it

is

not

always

obvious

how

to

disentangle

government

speech

from

private

speech.

There

is

a

particular

risk

that

the

government

might

use

the

government-speech

doctrine

"as

a

cover

for

censorship"

331

or

a

"subterfuge

for

favoring

certain

private

speakers

over

others

based

on

viewpoint."

332

It

thus

becomes

particularly

important

to

determine

"whether

the

government

is

actually

expressing

its

own

views

or

the

real

speaker

is

a

private

party

and

the

government

is

surreptitiously

engaged

in

the

'regulation

of

private

speech."'

3

The

academic-freedom

exception

to

government-employee

speech

explored

in

Part

IV

complicates

an

easy

resolution

of

the

government

speech

problem.

It

is

easier

to

distinguish

between

private

speakers

and

government

speakers

when

considering

speech

by

government

employees

than

when

considering

private

speakers

making

use

of

government

property.

When

a

government

employee

engages

in

speech

pursuant

to

their

official

duties

and

speaks

as

an

employee,

there

is

at

least

a

prima

facie

expectation

that

the

employee

is

speaking

on

behalf

of

the

government.

Government-employee

speech

and

government

speech

are

largely

reconciled

by

Garcetti's

emphasis

on

the

employee's

official

responsibilities,

but

the

academic-freedom

exception

leaves

that

reconciliation

incomplete

in

the

educational

context.

More

work

needs

to

be

done

to

tie

these

threads

together.

The

critical

inquiry

is,

as

Justice

Alito

has

reminded

us,

determining

"whether

the

government

is

speaking

instead

of

regulating

private

expression."

33

4

Professorial

speech

is

recognizably

private

speech

within

the

frameworks

the

Court

has

provided

for

separating

government

speech

from

private

speech.

The

anti-CRT

policies

are

therefore

best

understood

as

efforts

to

regulate

private

expression

rather

than

as

efforts

to

direct

government

speech.

Moreover,

characterizing

professorial

speech

as

private

speech

rather

329.

Shiffrin,

supra

note

328,

at

568.

330.

Wooley

v.

Maynard,

430

U.S.

705,

717

(1977).

331.

Shurtleff

v.

City

of

Boston,

142

S.

Ct.

1583,

1595-96

(2022)

(Alito,

J.,

concurring).

332.

Pleasant

Grove

City

v.

Summum,

555

U.S.

460,

473

(2009).

333.

Shurtleff,

142

S.

Ct.

at

1596

(quoting

Pleasant

Grove

City

v.

Summum,

555

U.S.

460,

467

(2009)).

334.

Id.

at

1595.

515

2023]

WAKE

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REVIEW

than

government

speech

is

essential

to

realizing

the

aspirations

of

the

academic-freedom

cases

arising

out

of

the

Cold

War.

The

Court

has

not

settled

on

a

single

approach

to

identifying

government

speech.

Justice

Breyer

has

characterized

the

Court's

efforts

in

this

regard

as

one

of

conducting

"a

holistic

inquiry."

335

Justice

Alito

has

characterized

the

Court's

approach

as

"a

fact-bound

totality-of-the-circumstances

inquiry."

33

6

In

canvassing

the

factors

that

the

Court

has

found

relevant

to

marking

out

government

speech,

the

analysis

is

not

unambiguous

but

there

are

good

reasons

for

thinking

that

professorial

speech

is

best

considered

to

be

private

expression.

In

some

recent

cases,

the

Court

has

emphasized

three

main

factors

in

identifying

government

speech:

whether

the

history

of

the

medium

of

expression

"long

[has]

communicated

messages

from

the"

government,

337

whether

the

medium

is

"often

closely

identified

in

the

public

mind

with

the

government,"

33 8

and

whether

the

government

maintains

"direct

control

over

the

messages

conveyed"

through

the

medium.

339

These

factors

cut

against

treating

professorial

speech

at

state

universities

as

a

form of

government

speech.

34

0

State

universities

are

agencies

of

the

state

and

professors

at

those

universities

are

government

employees,

but

state

universities

have

not

generally

been

understood

as

vehicles

for

communicating

messages

from

the

government.

State

universities

have

instead

generally

been

understood

to

be

peculiar

institutions

within

the

state

government

that

operate

with

a

high

degree

of

autonomy

from

state

political

leaders.

The

state

maintains

oversight,

generally

through

a

politically

appointed

board

of

regents,

but

does

not

attempt

to

direct

its

institutions

of

higher

education.

State

officials

do

not

specify

the

textbooks

or

detail

the

curriculum

to

be

taught

in

universities.

If

state-university

professors

were

engaged

in

government

speech

when

in

the

classroom,

then

we

would

expect

government

officials

to

comprehensively

direct

what

it

is

that

professors

say.

Instead,

state

officials

have

contented

themselves

to

intervene

only

to

prohibit

the

discussion

of

certain

ideas

in

the

classroom,

which

looks

far

less

like

335.

Id.

at

1589.

336.

Id.

at

1596.

337.

Walker

v.

Tex.

Div.,

Sons

of

Confederate

Veterans,

Inc.,

576

U.S.

200,

211

(2015).

See

also

Summum,

555

U.S.

at

470;

Shurtleff,

142

S.

Ct.

at

1590.

338.

Summum,

555

U.S.

at

472.

See

also

Walker,

576

U.S.

at

212;

Shurtleff,

142

S.

Ct.

at

1591.

339.

Walker,

576

U.S.

at

213.

See

also

Summum,

555

U.S.

at

470;

Shurtleff,

142

S.

Ct.

at

1592.

340.

In

evaluating

whether

a

high

school

football

coach's

prayer

was

government

speech,

the

Court

largely

relied

on

the

government-employee

speech

cases

to

determine

whether

the

prayer

was

delivered

pursuant

to

the

coach's

duties

as

a

government

employee.

Kennedy

v.

Bremerton

Sch.

Dist.,

142

S.

Ct.

2407,

2423-25

(2022).

As

outlined

in

Part

IV,

that

analysis

would

be

inadequate

for

thinking

about

the

particular

circumstances

of

professorial

speech.

516

[Vol.

58

CLASSROOM

DISCUSSIONS

using

classroom

lectures

as

vehicles

for

communicating

messages

from

the

government

and

far

more

like

the

government

censoring

ideas

that

it

does

not

like.

Some

state

constitutions

enshrine

an

element

of

independence

for

their

universities.

The

California

Constitution

of

1879,

for

example,

specifies

that

the

University

of

California

"shall

constitute

a

public

trust

..

.

subject

only

to

such

legislative

control

as

may

be

necessary

to

insure

.

. .

compliance

with

the

terms

of

the

endowments."

341

The

University

of

California

was

to

be

"entirely

independent

of

all

political

or

sectarian

influence."

3

42

The

launch

of

some

state

universities

emphasized

their

political

independence.

The

great

education

reformer

James

Angell

began

his

term

as

president

of

the

University

of

Michigan

in

1871

by

emphasizing

that

"the

University

cannot

do

its

work

with

the

highest

success

unless

it

have

[sic]

a

certain

degree

of

independence

and

self-control."

3

43

The

university

should

be

"catholic

and

unsectarian,"

3

4

and

the

faculty

should

never

be

required

to

mouth

"the

shibboleths

of

sect

or

party."

34

5

Andrew

Sloan

Draper

took

the

reins

of

the

University

of

Illinois

by

declaring

that

public

universities

"must

exhibit

catholicity

of

spirit;

it

must

tolerate

all

creeds;

it

must

inspire

all

schools."

3

46

Andrew

Dickson

White

at

Cornell

proclaimed,

"[N]o

professor,

officer

or

student

shall

ever

be

accepted

or

rejected

on

account

of

any

religious

or

political

views

which

he

may

or

may

not

hold."

34

7

State

universities

have

historically

been

held

out

as

independent

institutions

that

were

explicitly

not

represented

as

conduits

for

government

speech.

State

universities

were

created

to

advance

a

public

purpose

but

not

to

express

a

governmental

message.

They

were

understood

to

be

useful

for

training

well-educated

citizens

and

for

generating

useful

knowledge

in

the

arts

and

sciences.

Charles

Van

Hise

at

the

University

of

Wisconsin

voiced

the

aspiration

of

many

in

declaring,

"The

practical

man

of

all

practical

men

is

he

who,

with

his

face

toward

truth,

follows

wherever

it

may

lead."

3

48

It

was

hoped

that

the

unleashing

of

that

scholarly

spirit

to

follow

the

truth

wherever

it

might

lead

would

allow

the

university

and

its

faculty

"to

be

benefactors,

not

only

of

the

state,

but

of

the

entire

earth;

for

a

new

truth,

a

new

principle,

is

not

the

property

of

any

state,

but

instantly

belongs

to

the

world."

34

9

State

universities

could

only

accomplish

341.

CAL.

CONST.

art.

IX,

§

9

(1879).

342.

Id.

343.

JAMES

BURRILL

ANGELL,

SELECTED

ADDRESSES

30

(1912).

344.

Id.

at

29.

345.

Id.

at

31.

346.

ANDREW

S.

DRAPER,

AMERICAN

EDUCATION

197

(1909).

347.

THE

CORNELL

UNIVERSITY

REGISTER,

1869-70

21

(1870).

348.

THE

JUBILEE

OF

THE

UNIVERSITY

OF

WISCONSIN

123

(1905).

349.

Id.

517

2023]

WAKE

FOREST

LAW

REVIEW

their

purpose

if

they

were

not

restricted

to

repeating

popular

orthodoxies

and

if

they

were

insulated

from

the

expectation

of

being

a

mere

mouthpiece

of

incumbent

politicians.

There

is

no

question

that

state

universities

are

associated

in

the

public

mind

with

the

state

itself,

but

it

seems

much

more

dubious

that

the

public

identifies

professorial

speech

with

the

state

government.

Indeed,

a

common

complaint

about

state

universities

and

state-

university

professors

is

how

divorced

they

are

from

the

attitudes

and

perspectives

of

the

ordinary

citizens

of

the

state.

Unlike

a

monument

on

public

land

or

a

slogan

emblazoned

on

a

"government

ID,"350

professorial

speech

is

not

a

static

message

presumptively

endorsed

by

a

government.

Professors

are

far

more

likely

to

be

seen

as

individuals,

or

as

part

of

a

distinctive

professorial

class,

than

as

avatars

of

the

governments

that

happen

to

employ

them.

When

conservatives

complain

about

"tenured

radicals"

351

or

populists

complain

about

"pointy-headed

intellectuals,"

3

5

2

they

are

emphasizing

the

gap

between

the

professoriate

and

the

government

and

community

they

serve.

Professorial

speech

is

not

"effectively

controlled"

by

the

government.

35

3

What

an

individual

professor

might

say

in

the

classroom

or

in

his

or

her

scholarly

research

certainly

is

not

"set

out

.

..

from

beginning

to

end"

by

the

government.

35 4

Professorial

speech

is

not

"selected"

by

the

government

"for

the

purpose

of

presenting

the

image

of

the

[government]

that

it

wishes

to

project

to

all"

who

might

hear

it.355

Professors

themselves

are

not

even

directly

selected

by

"government

decisionmakers"

in

any

traditional

sense

but

are

rather

selected

by

their

faculty

peers

to

occupy

their

positions.

356

Although

content-based

judgments

are

made

to

assess

the

quality

of

their

work,

they

are

not

the

kind

of

content-based

factors

that

are

designed

to

align

professorial

speech

with

governmental

preferences.

Scholars

are

chosen

to

advance

knowledge

within

their

discipline

and

not

to

rehearse

"the

shibboleths

of

sect

or

party."

35

7

Once

professors

are

appointed

to

their

positions,

government

officials

do

not

"exercise

editorial

control"

over

the

content

of

their

classroom

or

scholarly

speech.

3

58

To

the

extent

that

there

are

gatekeepers

to

the

publication

of

scholarly

research,

it

is

a

network

of

scholarly

peers

hailing

from

350.

Walker

v.

Tex.

Div.,

Sons

of

Confederate

Veterans,

Inc.,

576

U.S.

200,

212

(2015).

351.

ROGER

KIMBALL,

TENURED

RADICALS

(1990).

352.

Norman

C.

Miller,

A

Place

in

the

Sun:

George

Wallace

Faces

Crucial

Test

in

Florida

-

On

Favorable

Ground,

WALL

ST.

J.,

Feb.

9,

1972,

at

1.

353.

Johanns

v.

Livestock

Mktg.

Ass'n,

544

U.S.

550,

560

(2005).

354.

Id.

355.

Pleasant

Grove

City

v.

Summum,

555

U.S.

460,

473

(2009).

356.

Id.

at

472.

357.

ANGELL,

supra

note

343,

at

31.

358.

Summum,

555

U.S.

at

472.

518

[Vol.

58

CLASSROOM

DISCUSSIONS

across

the

country

and

the

globe

and

who

likely

have

no

connection

whatsoever

to

the

state

government

that

might

employ

the

author

of

the

work.

In

appointing

professors

to

the

faculty

of

state

universities,

even

university

officials

largely

cede

control

over

the

content

of

professorial

speech

to

the

individual

professor

and

to

the

larger

scholarly

community.

In

short,

professorial

speech

in

state

universities

shows

none

of

the

expected

characteristics

of

government

speech.

Classroom

lectures

in

state

universities

have

not

traditionally

been

understood

to

communicate

messages

from

the

government.

University

professors

are

not

associated

in

the

public

mind

with

the

government.

The

government

does

not

exercise

direct

control

over

the

content

of

classroom

lectures.

This

is

not

a

situation

in

which

"the

government

established

the

message;

maintained

control

of

its

content;

and

controlled

its

dissemination

to

the

public."

35 9

Professorial

speech

likewise

does

not

meet

the

looser

analysis

favored

by

Justice

Alito

for

identifying

government

speech.

The

government

exercises

even

less

control

over

professorial

speech

than

it

does

over

trademark

registration,

for

example.

There

is

no

examiner

of

professorial

speech

who

is

attempting

to

"inquire

whether

any

viewpoint

conveyed

by

[that

speech]

is

consistent

with

Government

policy

or

whether

any

such

viewpoint

is

consistent

with

that

expressed

by

other"

professors

employed

at

the

university.

36

0

Given

the

diversity

of

scholarly

views

of

professors,

if

professorial

speech

is

government

speech,

then

the

government

"is

babbling

prodigiously

and

incoherently."

36

1

Justice

Alito's

thought

experiment

in

the

specialty

license

plate

case

asked

whether

a

reasonable

observer

could

see

myriad

college

football

teams

promoted

on

specialty

license

plates

and

"assume

that

the

State

of

Texas

was

officially

(and

perhaps

treasonously)

rooting

for

the

Longhorns'

opponents?"

3

6

2

Justice

Alito

has

identified

what

he

considers

"the

minimum

conditions"

for

identifying

speech

as

government

speech

and

that

is

that

the

"government

purposefully

expresses

a

message

of

its

own

through

persons

authorized

to

speak

on

its

behalf,

and

in

doing

so,

does

not

rely

on

a

means

that

abridges

private

speech."

3

63

"Government

speech

is

thus

the

purposeful

communication

of

a

governmentally

determined

message

by

a

person

exercising

a

power

to

speak

for

a

government."

36

4

But

no

one

thinks

that

a

state-

359.

Page

v.

Lexington

Cnty.

Sch.

Dist.

One,

531

F.3d

275,

282

(4th

Cir.

2008).

360.

Matal

v.

Tam,

137

S.

Ct.

1744,

1758

(2017).

361.

Id.

362.

Walker

v.

Tex.

Div.,

Sons

of

Confederate

Veterans,

Inc.,

576

U.S.

200,

222

(2015).

363.

Shurtleff

v.

City

of

Boston,

142

S.

Ct.

1583,

1598

(2022)

(Alito,

J.,

concurring).

364.

Id.

519

2023]

WAKE

FOREST

LAW

REVIEW

university

professor

is

"a

person

with

the

power

to

determine

what

messages

the

government

will

communicate."

365

To

take

but

a

single

example,

nobody

believes

that

when

Sandy

Levinson,

the

W.

St.

John

Garwood

and

W.

St.

John

Garwood,

Jr.

Centennial

Professor

at

the

University

of

Texas

School

of

Law,

deigns

to

speak

in

class

about

Marbury

v.

Madison,

3

66

that

his

views

on

that

case

are

shared

even

by

other

members

of

the

law

school

faculty

or

the

Garwood

family,

let

alone

by

Governor

Greg

Abbott

or

Attorney

General

Ken

Paxton.

36

7

Levinson

is

neither

authorized

to

nor

understood

to

be

communicating

"a

governmentally

determined

message"

when

speaking

in

class

at

a

state

university.

36

8

He

is

employed

to

provide

his

idiosyncratic

scholarly

expertise,

not

to

be

a

spokesman

for

the

state

of

Texas.

His

classroom

speech

does

not

"amount

to

government

speech

attributable"

to

the

Texas

government.

3

69

Recognizing

that

a

professor's

speech

in

a

classroom

"represent[s]

his

own

private

speech"

37 0

and

not

government

speech

is

ultimately

necessary

to

preserving

the

logic

and

goals

of

the

Court's

academic-

freedom

jurisprudence.

The

stated

purpose

of

protecting

academic

freedom

under

the

First

Amendment

is

to

prevent

"laws

that

cast

a

pall

of

orthodoxy

over

the

classroom."

37

1

If

classroom

speech

is

best

understood

as

government

speech,

then

the

entire

point

would

be

to

impose

orthodoxy.

Students

might

not

have

to

accept

that

orthodoxy

as

true,

but

professors

would

be

obliged

to

convey

it.

If

professors

are

paid

strictly

to

toe

the

company

line

when

speaking

to

students,

it

would

have

"an

unmistakable

tendency

to

chill

that

free

play

of

the

spirit

which

all

teachers

ought

especially

to

cultivate

and

practice."

372

The

academic-freedom

cases

defend

the

possibility

that

professors

in

their

classrooms

will

dissent

from

the

government's

own

policies,

principles,

and

values.

Indeed,

at

the

heart

of

the

academic-freedom

cases

was

whether

professors

could

advocate

that

the

US

government

itself

be

dissolved.

There

is

no

sense

in

which

Paul

Sweezy's

lecture

to

the

students

in

a

class

at

the

University

of

New

Hampshire

could

be

regarded

as

government

speech.

For

the

Court

to

uphold

the

right

of

Sweezy

and

others

like

him

to

teach

the

truth

as

he

understood

it

in

state-university

classrooms,

that

speech

had

to

be

understood

as

private

speech

subject

to

First

Amendment

protection.

And

it

had

to

365.

Id.

366.

1

Cranch

137

(1803);

see

Sanford

Levinson

&

Jack

M.

Balkin,

What

Are

the

Facts

of

Marbury

v.

Madison?,

20

CONST.

COMMENT.

255

(2003).

367.

On

Levinson's

reluctance

to

teach

Marbury,

see

Sanford

Levinson,

Why

I

Do

Not

Teach

Marbury

(Except

to

Eastern

Europeans)

and

Why

You

Shouldn't

Either,

38

WAKE

FOREST

L.

REV.

553

(2003).

368.

Shurtleff,

142

S.

Ct.

at

1598.

369.

Kennedy

v.

Bremerton

Sch.

Dist.,

142

S.

Ct.

2407,

2424

(2022).

370.

Id.

at

2425.

371.

Keyishian

v.

Bd.

of

Regents,

385

U.S.

589,

603

(1967).

372.

Wieman

v.

Updegraff,

344

U.S.

183,

195

(1952).

520

[Vol.

58

2023]

CLASSROOM

DISCUSSIONS

521

be

understood

as

private

speech

subject

to

First

Amendment

protection

even

when

expressed

by

a

state-university

professor

acting

pursuant

to

his

official

duties

as

an

instructor

in

a

classroom.

That

is

not

to

say

that

there

may

be

no

government

speech

on

state-university

campuses.

37

3

The

government

might

require,

for

example,

that

an

official

governmental

statement

be

included

in

course

syllabi

or

distributed

to

university

students,

comparable

to

the

"ministerial"

speech

that

university

officials

sometimes

require

of

faculty.

374

The

government

might

specially

authorize

particular

programming

or

even

particular

classes

and

course

materials

in

which

professors

might

choose

to

participate.

In

that

way,

government

officials

might

supplement

the

regular

academic

offerings

of

the

university

and

exercise

greater

editorial

control

over

that

specific

subset

of

academic

activities

in

a

manner

that

made

it

clear

that

the

course

content

was

in

fact

government

speech.

375

373.

I

set

aside

the

question

of

the

implications

for

academic

freedom

for

professorial

speech

if

a

state

were

to

resolve

to

comprehensively

direct

the

university

curriculum

as

it

does

the

primary

and

secondary

school

curriculum.

No

state

has

sought

to

treat

higher

education

as

it

does

secondary

education,

or

to

say

of

a

university

board

of

trustees

what

can be

said

of

a

local

school

board,

that

"[o]nly

the

school

board

has

ultimate

responsibility

for

what

goes

on

the

classroom,

legitimately

giving

it

a

say

over

what

teachers

may

(or

may

not)

teach

in

the

classroom."

Evans-Marshall

v.

Bd.

of

Educ.,

624

F.3d

332,

340

(6th

Cir.

2010).

Whether

the

First

Amendment

creates

an

impassable

obstacle

to

a

state

attempting

to

exercise

such

control

over

a

university

is

a

distinguishable

question

from

whether

a

state

can

attempt

to

impose

discrete

constraints

on

professorial

speech

given

the

kinds

of

universities

that

they

have

established.

For

skepticism

that

even

primary

and

secondary

schools

should

be

understood

as

pure

instruments

of

government

speech,

see

MARK

G.

YUDOF,

WHEN

GOVERNMENT

SPEAKS

215-18

(1983).

374.

Meriwether

v.

Hartop,

992

F.3d

492,

507

(6th

Cir.

2021).

It

is

not

obvious

that

ministerial

speech

must

also

be

"non-ideological"

in

order

to

be

consistent

with

First

Amendment

protections

for

academic

freedom.

A

professor

cannot

be

compelled

to

endorse

ideological

statements

or

express

them

as

her

own

without

running

afoul

of

the

protections

outlined

in

Barnette.

W.

Va.

State

Bd.

of

Educ.

v.

Barnette,

319

U.S.

624

(1943).

But

if,

for

example,

a

state

university

required

a

professor

to

convey

the

state's

own

ideologically

freighted

message

in

a

manner

that

made

clear

that

the

message

came

from

the

state

and

not

from

the

professor,

then

it

is

not

apparent

that

the

professor's

First

Amendment

rights

have

been

infringed.

Even

if

it

is

permissible

for

a

university

to

require

a

professor

to

include

the

government's

message

in

the

form

of

a

specified

land

acknowledgement

or

diversity

statement

in

a

course

syllabus,

it

is

surely

not

permissible

for

a

university

to

compel

a

professor

to

present

such

a

message

as

if

it

were

the

professor's

own

or

to

refrain

from

supplementing

the

government's

message

with

an

alternative

viewpoint

on

that

topic.

On

the

value

of

a

transparency

requirement

for

government

speech,

see

HELEN

NORTON,

THE

GOVERNMENT'S

SPEECH

AND

THE

CONSTITUTION

43-49

(2019).

375.

Such

an

academic

unit

might

be

modeled

on

pontifical

faculty

accredited

by

the

Holy

See

at

the

Catholic

University

of

America.

Professors

in

the

school

of

theology

are

expected

to

adhere

to

Church

teachings,

but

professors

in

the

WAKE

FOREST

LAW

REVIEW

In

short,

the

government

might,

consistent

with

academic

freedom,

add

government

speech

to

the

intellectual

life

of

a

state

university,

so

long

as

it

does

so

in

a

manner

that

does

not

restrain

or

crowd

out

the

freedom

of

members

of

the

faculty

to

express

countervailing

ideas

in

the

course

of

their

teaching

and

scholarship.

It

cannot,

however,

displace

private

professorial

speech

with

government

speech

or

use

government

speech

as

a

cover

for

censoring

private

professorial

speech.

376

To

borrow

from

a

different

line

of

First

Amendment

doctrine,

in

adding

government

speech

to

a

university

environment,

the

state

must

"leave

open

ample

alternative

channels"

for

communicating

the

private

professorial

speech

protected

by

academic

freedom.

377

CONCLUSION

Relative

to

both

government-employee

speech

doctrine

and

government-speech

doctrine,

"academic

freedom

is

.

. .

a

special

subset

of

First

Amendment

freedoms,"

as

William

Van

Alstyne

once

argued.

378

If

academic

freedom-specifically

the

freedom

of

state-

university

professors

to

teach

and

to

engage

in

scholarship

without

interference

from

government

officials-is

worth

protecting,

and

the

Supreme

Court

has

held

that

it

is,

379

then

it

cannot

be

subsumed

under

common