I’m glad to see that my latest article on the efforts of state legislatures to restrict what ideas professors can endorse in the classroom has now been published. “Professional Speech, the First Amendment, and Legislative Restrictions on Classroom Discussions” appears in the latest issue of the Wake Forest Law Review.
From the summary:
Academic freedom enjoys an uncertain status in US constitutional law under the First Amendment. It’s especially unclear how the First Amendment applies when it comes to professorial classroom speech. This lack of clarity has serious implications in the current political environment. There is now an unprecedented wave of legislative proposals aimed at restricting teaching and discussing controversial topics related to race and gender in state university classrooms, and the constitutionality of these measures will soon have to be decided. resolved.
This article presents a new argument for protecting the way state university professors teach their courses from legislative interference. Drawing on existing First Amendment case law regarding academic freedom and government employee speech, the article exposes constitutional infirmities with anti-Critical Race Theory propositions and clarifies the scope of an individual’s constitutional freedom in the context of professorial speech.
From the conclusion:
The Supreme Court caused confusion by noting but not fleshing out an academic freedom exception to the ordinary government employee speech doctrine. It is possible to flesh out this exception in a manner consistent with the Court’s various doctrinal commitments, but it will need to be reaffirmed that professorial speech is “a particular concern of the First Amendment.” When state government officials attempt to restrict the ideas that can be taught in the classrooms of public universities, they do real damage not only to the intellectual life of those universities, but also to the nation’s public discourse. The First Amendment is based on the fundamental commitment to the idea that ideas should be freely discussed and cannot be rejected or adopted as a result of government diktat. In the mid-twentieth century, the government sought to prevent the spread on college campuses of what it considered dangerous ideas by dismissing any professor who might endorse, discuss, or teach them. The Court then rejected the strangling hand of censorship. The tools of censorship used by the government today are different, but the ultimate goal is the same. Government officials do not want state university professors to discuss ideas with which those government officials, and perhaps even popular democratic majorities, do not agree. The first amendment prevents them from having what they want.
The argument developed in the article is relevant to legislation such as Florida’s Stop WOKE Act, whose constitutionality is now before the 11th circuit.
