New Scholarly Works on Academic Freedom

Jun 24, 2024 | Interviews

New Scholarly Works on Academic Freedom

Below is a transcription from a recorded session at the Academic Freedom Alliance’s recent annual
meeting. The meeting took place from June 9-11 and was held at Nassau Inn in Princeton, New

Howard Muncy: Our final session today is titled New Scholarly Works on Academic Freedom. This will feature Cary Nelson from the University of Illinois, Urbana-Champaign, David Rabban from the University of Texas School of Law, and Keith Whittington from Princeton University. All three have recent or upcoming publications addressing matters related to academic freedom. Nelson’s book is called Hate Speech and Academic Freedom: The Antisemitic Assault on Basic Principles. Rabban’s book, which will be available later this summer, is called Academic Freedom: From Professional Norm to First Amendment Right. We will end with Keith Whittington’s  You Can’t Teach That!: The Battle Over University Classrooms. Let’s begin with David. 

David Rabban: As Howard said, my book Academic Freedom: From Professional Norm to First Amendment Right covers a lot of ground and I’m just going to cover a small fraction of the book’s content in my opening comments. I’ll focus on the current law of academic freedom as a First Amendment right of professors just trying to give you a sense of what the law is in all its confusion as we’ll see. 

Ever since debates over evolutionary theories in the late 19th century, issues of academic freedom and free speech at American universities have received widespread attention from the general public as well as within universities themselves. But very few of these issues reached the judiciary before the 1950s when the Supreme Court began applying the First Amendment to speech by professors in cases reflecting general concerns about subversive activities throughout American institutions during the Cold War.

There were two key Supreme Court decisions during the 1950s and 1960s. In Sweezy versus New Hampshire, decided in 1957, the Supreme Court, for the first time, identified academic freedom as a First Amendment right and in doing so, differentiated academic freedom from general political expression.  Ten years later in 1967, in a case called Keyishian versus Board of Regents, the Supreme Court called academic freedom “a special concern of the First Amendment.” What does that mean? We still don’t know. Initially identified as a First Amendment right of professors, the Supreme Court subsequently extended the First Amendment protection of academic freedom to universities as institutions beginning with affirmative action cases, but also in other areas. And occasionally courts have indicated that academic freedom might also be a First Amendment right of students. The law has been least developed in that area. But as I said, I’ll focus on academic freedom as a First Amendment right of professors. If people are interested in the extensions of it, I’d be happy to talk about that later on. 

I feel it’s important to reiterate that the First Amendment only applies to actions by the state. It does not apply to private action. I think many people, even lawyers, often lose sight of this very important fact. The legislative and executive branches of government are state actors, as are public universities, but private universities are not state actors. So, the First Amendment right of academic freedom protects against legislative and executive actions that affect professors and universities. It applies to disputes between professors and administrators and trustees at public universities. But the First Amendment right of academic freedom does not apply to disputes within private universities. A professor at a private university can invoke the First Amendment right of academic freedom to challenge legislation on an issue, but not to challenge actions by administrators and trustees at the private university.

I think it’s important to add that many private universities, though not bound by the First Amendment, voluntarily accept the requirements that the First Amendment imposes on public universities because private universities don’t want to be perceived as giving less protection for free speech and academic freedom than their public counterparts. As an example of this, I’m going to go way back to my first year in law school. I went to Stanford University, a private university that brought dismissal charges against a professor for allegedly inciting a riot. This was during anti-Vietnam war protests. The administration, in bringing the charges against the professor, said to the faculty hearing committee, we want you to apply the First Amendment standard of incitement to this case even though we don’t have to.

Ever since the initial decisions dealing with academic freedom and the First Amendment during the Cold War, which protected the teaching of Marxism from investigation and regulation by the state, many, many cases, lower court as well as Supreme Court, especially the lower courts, have held that academic freedom protects the content of academic speech. For example, in recent cases, a judge held that the First Amendment right of academic freedom covers the claim of a professor of obstetrics that the department chair had fired him for advocating vaginal delivery instead of unnecessary cesarean procedures.  At least where the views of the professor are well within the range of accepted professional opinion, the judge stressed, those views should be protected by the First Amendment right of academic freedom. Other decisions have gone further than protecting the content of academic speech. They have protected pedagogical decisions made by professors in teaching, protecting those judges feel is justified on academic grounds.

One revealing and interesting case involved a professor of English who taught a class on language and social constructivism, probably a course that would not have been taught in the 1950s. Anyway, the professor asks students to suggest words used by the dominant culture to marginalize minorities and other oppressed social groups. Student suggestions included epithets that insulted homosexuals, blacks, women, and others. The professor was disciplined by the university for allowing students to say these words. The judge in this case protected the academic freedom of the professor, claiming that this exercise was germane to the subject matter of the class and that the words elicited were not used in a gratuitously abusive manner. These are examples of extending the First Amendment right of academic freedom beyond content to pedagogy.

But other decisions have limited the First Amendment academic freedom of professors to the content of speech, not extending it further.  One judge, Frank Easterbrook, a former law professor at the University of Chicago, rejected a challenge by professors of a state law that made the use of aborted fetal tissue in academic research a felony.  One of the professors said that he used mixed cell cultures derived from aborted fetal tissues to study Alzheimer’s disease. Writing for the court, Judge Easterbrook called the professors’ academic freedom claim a “non-starter.” The judge acknowledged that the use of fetal tissue in research could lead to expression in research or in the classroom, but in his view “a desire to obtain an input into speech does not convert regulation of conduct into regulation of speech.” He emphasized that the law did not prevent the professors from saying, writing, or teaching anything, including references to results obtained from research using aborted fetal tissue in states and nations that allowed it. 

Other decisions extended academic freedom beyond the content of academic speech to protect the confidentiality of professors’ research material.  Just to give a couple of examples, a decision limited attempts by litigants to discover the identity of members of the Irish Republican Army who feared violent retribution if their participation in an oral history project at Boston College were disclosed.  Another court restricted discovery of the names of participants in a medical study because the professors conducting that study were concerned about the privacy of patient records.  

Some courts have extended the right of First Amendment academic freedom to speech by professors about university affairs generally, such as opposition to a university’s foreign exchange program and a proposal for a revised curriculum in a school of mass communications designed to remedy the perceived imbalance between theoretical and practically oriented courses. Judges held that these comments about internal academic affairs outside teaching and scholarship were also protected by academic freedom.

And a very few cases have extended academic freedom as a First Amendment right to political speech outside the university, whether conservative or radical, even if unrelated to a professor’s expertise. But most cases dealing with external political speech have been decided through the general First Amendment law of free speech without referring to academic freedom. 

To summarize, the case law since the 1950s has repeatedly recognized academic freedom as a First Amendment right of professors, but has reached inconsistent results about the extent of this right. I now want to further complicate the analysis of academic freedom as a First Amendment right of professors.

One thing that adds to confusion is that many cases, including very important cases by the Supreme Court, have not even referred to academic freedom in cases that clearly raise academic freedom issues, instead deciding the case on other grounds. To me this indicates that the First Amendment right of academic freedom, though extensively recognized, has not been firmly established. To give you one example, in cases reviewing legislation that prohibited teaching evolution or required teaching of creation science, the United States Supreme Court did not even address the academic freedom issues raised by the litigants and the lower courts. Instead, the Supreme Court said that these laws produced an unconstitutional government establishment of religion. They were decided on religion grounds, not academic freedom ones.

Another problem in understanding the First Amendment right of academic freedom is even more challenging, and this may overlap with what Keith has to say later. Courts have applied other areas of First Amendment law instead of First Amendment academic freedom, or sometimes in addition to it, in ways that deny claims that should be protected by First Amendment academic freedom.

I’ll give two examples, but I can give many more. One is from the somewhat specialized First Amendment law called “employee-speech jurisprudence,” which examines the extent to which the First Amendment applies to speech by public employees working for the government. This area of the law, in general, provides that the state as employer has greater interest in regulating the expression of its employees than the state as sovereign has in regulating the speech of citizens generally. To be protected by the First Amendment, speech by a public employee must be about a matter of public concern. And many courts have found that academic speech is not about a matter of public concern, such as “abstract theorizing,” criticism of administrators “designed to make the university better,” and claims by professors that universities violated academic freedom in denying tenure. Some courts have interpreted public concern more broadly, but it’s just difficult to fit academic freedom into the concept of public concern.

Even worse, and this is the last thing I’ll say about the state of the law, in a relatively recent First Amendment case the Supreme Court held that speech by public employees “pursuant to their official duties” is not protected by the First Amendment. What are the official duties of professors? Teaching and scholarship, aren’t they? If this holding applies to professors, it would basically undermine the First Amendment right of academic freedom that’s already been recognized. The Supreme Court left open in this case whether this “pursuant to official duties” test applies to professors. I’d like to think that’s the result of a brief filed while I was general counsel of the AAUP, which warned about the ramifications of the official duties test for academic freedom.  Lower courts have reached inconsistent results about the existence of an “academic freedom exception” to the official duties test.   Some courts have basically applied the official duties tests to professors without even addressing the possible exception.

I want to conclude my comments by stating my view, and I set this forth in my book and can discuss it later if there’s time, that we need a distinctive theory of First Amendment academic freedom—one that the courts thus far have not elaborated. The gist is that a convincing theory of First Amendment must differentiate academic freedom from general First Amendment rights of free speech while explaining why academic freedom fits within the First Amendment. If academic freedom and free speech are the same thing, you don’t need a first amendment right of academic freedom. Yet if academic freedom is different from free speech, its distinctive meaning must be connected to the First Amendment.

In my opinion, the societal value of the expert academic speech of professors provides the primary basis both for differentiating academic freedom from general rights of free speech and for connecting it to the widely recognized First Amendment interest in the production and dissemination of knowledge. You can’t expect professors to perform the socially valuable work of producing and disseminating knowledge if professors can be disciplined for coming up with academic conclusions that upset other people and that jeopardize their employment. I believe that that should be the crux of a distinctive First Amendment right of academic freedom. So, I’ll leave it at that and hand it over to Cary and Keith.

Howard Muncy: Next, we will turn to Cary Nelson.

Cary Nelson: Thank you. Thanks to everyone for help letting me participate in this event. I thought the sessions have all really been excellent and it’s really a great series of conversations to have joined. 

At the core of my new book just published a few weeks ago, Hate Speech and Academic Freedom: The Antisemitic Assault on Basic Principles, is a call for the restoration of the founding definition of academic freedom. We don’t need a new definition. We need to discredit the false understandings that have gained power over the last two generations. Conservative critics have long complained that faculty champion the rights academic freedom grants them while ignoring the responsibilities that it assigns. I think that’s true, but it partly sidesteps the definition of academic freedom that the AAUP articulated in its founding declaration of 1915. There it is clear, academic freedom was created as a social good to protect the collective search for the truth.

Individual faculty are protected so their teaching and research can contribute to that larger purpose. Unconventional or dissenting views are protected because they may be recognized as persuasive in time. The search for the truth requires us to condemn falsehood and correct error. Academic freedom does not spread a protective blanket of silence over misguided claims. It requires debate as part of the search for the truth. There’s an increasingly common nonsense that maintains that it suppresses people’s academic freedom when their opponents fault their historical or political analysis or the beliefs deployed in their work. That’s beginning to surface in tenure cases and it betrays the principle of academic freedom because that kind of debate is one of the responsibilities I believe academic freedom encompasses and imposes on us. I support the general principle that academic freedom protects your right to say what you want, but it doesn’t protect you from professional consequences for doing so. That principle addresses professional consequences as opposed to state consequences that could restrict or punish speech unconstitutionally. 

To take extreme examples, as a faculty member you could propose funded research investigating hypotheses that blacks are inferior or that Jews conspire to control the world’s economy. But your colleagues can decide those are patently false hypotheses and deny your request for support. Some claims do not contribute to the search for the truth. Moreover, the quest for the truth does not only operate at the level of broad generalization. The search for the truth also takes place every day, embodied in the kinds of questions faculty members pose for themselves and for one another. Is what I’m about to say to my class actually true? Have I thought that argument through? Is the sentence I just typed into my computer actually true or not? 

That takes us to a growing academic crisis, which is the issue of disciplinary truths. Our reliance on academic disciplines as arbiters of what academic freedom protects as true simply must no longer be doctrinal. As recently as Matthew Finkin and Robert Post’s 2009 book For the Common Good: Principles of American Academic Freedom, the disciplinary commitment to advance the sum of human knowledge seemed unshakeable. They quote Joan Scott’s quite unwarranted confidence that disciplinary communities protect a place for criticism and critical transformation at the very heart of the concept of a discipline. They quote David Hollinger’s idealized assurance that any particular disciplinary community exists within what we might see as a series of concentric circles of accountability. But those concentric circles can be very difficult to find these days.

Finkin and Post trace their understanding back to John Dewey’s observation that indoctrination consists in dogmatically promulgating as truth, ideas or opinions that a discipline does not regard as dogmatically true. Unfortunately, the reverse is often the case. Some disciplines promote false or fiercely contested opinion as settled truth. Hollinger argues that we should judge a department’s reliability in terms of the fidelity of the department to the broad contours of the learned discipline it is charged with representing on a given campus. Finkin and Post add a concluding admonition: academic freedom obliges scholars to use disciplinary standards, not political standards, to guide their teaching. Yet they give no serious consideration to those disciplines whose standards have themselves become increasingly political. We now have a series of disciplines that consider politically biased claims to be established truths. Some disciplines are thus almost entirely oblivious to evidence that would disprove some of their core beliefs. They pass those beliefs on to their students with passionate conviction. They’ve thus in some respects become indoctrination machines. The dissident faculty members within their ranks need something like an endangered species act to protect them. 

In the last few months, for example, we’ve seen faculty members declaring that Israel is pursuing a deliberate policy of genocide in Gaza. We’ve seen faculty members insisting that Zionism has been a racist enterprise from the moment it was founded. These positions can and should be investigated and debated but not presented as inarguable truths.

I once accepted the AAUP view that disciplines include reliable self-correcting mechanisms. I no longer have that faith. There are disciplines that require intervention and supervision from other faculty on campus if professional standards are to be maintained campus-wide. 

What I propose is that the departments representing those disciplines need to have their independent rights to hire and grant tenure or admit graduate students taken away from them. That will require faculty senate involvement and long-term multidisciplinary insight. This will be immensely difficult, but keep in mind that many faculty members in STEM fields already view the programs I’m talking about with complete contempt. They don’t see them as valid disciplines, as serious academic enterprises; they see them as jokes within their institution. Of course we already have campus review and oversight processes for personnel decisions in place, but they do not take seriously the need to interrogate fundamental disciplinary politicization and take action in response.

This problem gets markedly worse when we begin to deal with social media. And that leads me to my most serious complaint about current AAUP policy. The emerging consensus led by the AAUP puts faculty comments on the internet and faculty posts on social media platforms outside the reach of any and all professional evaluation. That means any such statements are to be considered extramural, unconnected to teaching, research, or university service. Academic freedom in that view serves to prohibit consideration of their content or impact at any point in a faculty member’s career. I think this is the most radical recent effort to conceive of academic freedom as a faculty right, unencumbered by any social or professional responsibilities. Some AAUP leaders, including Finkin and Post with whom I agree, consider all statements within a faculty member’s area of expertise to be intramural, that is, within the corpus of professional views and responsibilities.

But in 2015, the AAUP took the opposite stand. The AAUP at that point insisted that all social media posts are to be considered exclusively public domain statements, not professional speech. This principle, I can report, has recently been included in procedures for hiring and tenure committees. I know faculty members who’ve been told when you’re hiring someone you can consider their publications, their teaching, and their recommendations, but you can’t consider anything they’ve said on social media. So, when you hire a faculty member who’s active in extremist groups on social media, but never takes quite so extreme positions in academic journals or in class, you’re supposed to ignore the social media activity. If you want to hire someone partly in terms of the contribution they can make to your campus community you must ignore what they’ve said on social. If a faculty member builds a public reputation for his or her racist or antisemitic social media activity, it must, according to the AAUP, be considered protected activity within the university and ruled out of consideration.

The faculty member will be held harmless for all social media statements when being considered for a job, when being considered for tenure and promotion, or being reviewed for a term contract renewal. This means that a faculty member who moderates his opinions in academic essays and on campus, but offers a spectrum of continuous, persistently racist or anti-Semitic views in social media posts can only be evaluated in terms of the officially permissible texts. The anti-social character of the candidate’s views may be clear when all the evidence is considered. But for the AAUP, a responsible committee can’t consider all the evidence. It must ignore everything supposedly extramural. In fact, a faculty member could create an alternative social media persona expressing views that contradict truths accepted by most of the world. The campus can have a lunatic on board, but consider him beyond reproach if he limits lunacy to his iPhone.

A faculty Holocaust denier who limits his Holocaust denial to Facebook is protected, even if he or she is a European historian for whom Holocaust denial would ordinarily make him unfit for a job in a history department and would qualify as unfit by AAUP standards. Instead of protecting academic freedom, the AAUP’s policy will discredit it. Imagine what any normal person outside the faculty administration bubble would think if you told them that, as far as we are concerned, the virulently racist faculty member Joe Smith on Facebook and Telegram who says black people are inferior, should, in effect, be considered an entirely different person from the Joe Smith at our university. Of course they look the same, they both have the same address and they have the same social security number. But academic freedom requires us to treat them as two people so that we can preserve a purported faculty speech right. 

At this point, the public does not know that that’s the absurd principle some institutions have begun to adopt. But I am quite confident that the public would regard that model as completely irrational. And I don’t think academic freedom will suffer that misrepresentation of its principles. I take that AAUP position as perhaps the highest priority for serious review and rejection outside the organization itself.  The AAUP will not reverse the policy on its own. Indeed, the AAUP’S President in 2024 reasserted the importance of protecting all social media comments from professional evaluation. In my view, if you’re a historian or geologist and you make irresponsible remarks about history or geology on Facebook, that’s part of who you are as a professional historian or geologist. If the opposite principle persists and is asserted to be fundamental to academic freedom, then academic freedom itself will fall into disrepute.

These are among the issues I deal with in greater detail in Hate Speech and Academic Freedom. I also compare and contrast the different legal and cultural contexts that govern these issues in Britain, Canada, and the United States. In the book I detail the limited contexts in which faculty speech, including hate speech, can be subject to professional consequences. Such consequences do not include firing tenured faculty. But you do not have to hire a racist or an antisemite, even if that fact is only evident on social media. Occasional intemperate social media posts should not have consequences, but a faculty member who creates a persistent virulently antisocial persona online can be judged unfit. That is a conclusion that will have to be debated.


Howard Muncy:  And now for our final presenter, Keith Whittington.

Keith Whittington: You Can’t Teach That! is designed to be fairly specific in its orientation as well as being fairly accessible. It’s focused specifically on thinking about freedom of teaching issues and it tries to both provide an overview of the principles and underlying freedom of teaching in a university environment, what the logic is of trying to protect a fairly robust set of principles, where those principles come from, why they’re valuable and ought to be extended in various ways, as well as what the limits of them are. I then try to connect them up to thinking about the First Amendment and how the First Amendment ought to extend forward with a specific concern of applying them ultimately to a state university context and thinking about legislative interventions at university level teaching at state universities in particular.

So that sets aside a lot of things that we otherwise care about and I’m currently writing a separate book dealing with a whole range of other things associated with academic freedom and academic freedom adjacent kinds of questions. Questions about free speech by faculty, the scholarly context, extramural speech, tenure protections, and the questions of academic freedom relative to research activities, questions of institutional neutrality, questions of political diversity on university campuses and shared governance issues and the like. All I think are terribly important and I am busy writing about them in another context and hope to have a separate book focusing more on those issues coming in the near future. 

But this book really is trying to focus on this specific controversy that’s in front of us now and I tried to write it in a way that is widely accessible as well as making a scholarly contribution. So, hopefully it is appropriate for classroom use as well as for trustees and political and university leaders who might be interested in these issues as well, engaging in the early debates about how to think about integrating those academic freedom principles to First Amendment principles. As David Rabban outlined, the US Supreme Court has only given us some basic facts about what kinds of protections academic freedom might look like. There’s nothing like a robust doctrine relating to academic freedom that the US Supreme Court has endorsed, and thus the Court has left the circuit courts and lower courts to their own devices and trying to develop out what the implications of what the Court has said. They have come to somewhat different conclusions about how robust those commitments are and how they ought to be applied. Moreover, as First Amendment documents developed in other contexts it has created further complications about how to think about the little bit the court has said about academic freedom from several decades ago.

One kind of challenge that the courts are now going to have to confront as they’re thinking about legislation coming out of Florida and elsewhere is how good are those earlier statements about academic freedom in the first place? Is the Court going to continue to recognize the idea that there is faculty First Amendment interest in academic freedom at all? And if so, what if any serious or doctrinal development might those have such that they might have actual teeth in the context of thinking about legislation as it has come down? 

The particular kind of legislation I think about in the book is of two types, both of which are sort of bundled in, for example, Florida’s Stop WOKE Act, but you see them in different forms and other bills that have been circulating state legislatures, including some states that have already adopted them. There’s a separate Indiana statute that was just adopted this spring that requires intellectual diversity in classroom teaching and mandates that faculty provide a variety of works to their students. I think it raises related but somewhat different issues. I have an article I’m trying to finish up now, trying to explore the challenges of the Indiana statute. But these types of laws that have been passed lately are designed primarily to restrict the advocacy of certain ideas that legislatures deem offensive and inappropriate for articulation in state universities. These sometimes get characterized as divisive concepts bills or anti-critical race theory bills. They tend to have a set menu of ideas that are “beyond the pale” in these particular bills. It’s easy to imagine that once the principle is in place, you could extend those to lots of other concepts and ideas that politicians might also regard as unacceptable to talk about in university classrooms. There’s nothing magic about the particular list that’s currently included in these laws. Once they’re in place, you could extend that list quite dramatically if you wanted, in ways that both restricted a set of ideas that conservatives don’t like as well as set of ideas that liberals don’t like in various ways as well. 

One version of these bills pitch to the idea that you can’t advocate or promote or advance certain ideas in the classroom at the university level and then separately also an argument that you can’t inculcate in students or compel them to believe a set of ideas in the classroom. In the litigation making its way up through the federal courts now relating to Florida statute in particular, that compelled belief component has largely fallen by the wayside. The court has mostly focused attention in thinking about promoting and advancing a set of ideas in the classroom.

There is other legislation that’s already been passed and also several bills that are floating to simply strip out the advancement and promotion kind of language that the courts are currently looking at and simply focus on the compelled to believe kind of language. The court so far really have not grappled with the challenges raised by such language very seriously at all, but will at some point be forced to address it. Ultimately what both of those are designed to do, of course, is to restrict what kinds of ideas can be discussed in the classroom and how they can be discussed in the classroom.

Florida’s lawyers have argued in court, I think quite reasonably, that there are two kinds of arguments that they can appeal to support the state’s authority here to restrict what university professors do, one of which appeals to this government employee speech doctrine that David mentioned more generally. Generally speaking, the courts have recognized that government employers as supervisors of employees can manage the workplace including the speech that takes place in the workplace broadly. That’s particularly true if you’re engaged in speech that is a function of your job responsibilities. You can be disciplined, adverse employment consequences can take place including that you can be fired, for things that you say while you’re performing your job duties, things that you write while you’re performing, your job duties, et cetera. We can imagine all kinds of contexts in which that makes a great deal of sense. On the other hand, if we take that doctrine and apply it to university professors, it absolutely subverts any kind of conception of academic freedom that might have a constitutional grounding in a university context. Florida quite naturally then wants to argue that this more robust vision of a government employee speech doctrine ought to be applied to university professors as well. They ought to be regulated by their supervisors in exactly the same way that any other government employee might be regulated. 

In order to push back against that, you not only have to establish that university professors are different than other employees, but likewise you need to try to develop out some kind of coherent conceptual framework for explaining the ways in which it’s appropriate for governmental managers to intervene in what professors do while still protecting academic freedom more generally. That is, we need to reconcile broader academic freedom principles with First Amendment doctrine specifically, and the book tries to work out what that conceptual framework might look like that would allow courts to have some tools to be able to actually make sense of the kind of specific controversies that might arise in these contexts while saying things like these legislative interventions are beyond the pale. 

A second kind of argument that might provide constitutional authority for the types of laws that states are currently contemplating is what’s known as government speech doctrine. So not only can government officials regulate their employees and what kind of speech their employees are engaged in, but also the court has recognized that the government itself can engage in its own speech, it can engage in its own messaging, and that’s not constrained by the First Amendment as such. These two doctrines can reconcile themselves and the extent to which a government wants to convey a message, you have to employ somebody to convey the message and so government officials can give instructions to particular employees to deliver the government’s preferred message. The question is what happens in a university classroom by a state university professor? Is a professor’s classroom lecture really the government’s message and can the government then choose to say, if you’re going to work in a government school, we’re going to determine what the message is going to be delivered in the governmental classroom and then we can direct you and instruct you about how to convey that message more generally.

Constitutional doctrine basically accepts the idea that in K-12 education, that’s basically how things work. The public-school teachers at a K-12 level don’t have robust academic freedom protections. They are hired to deliver the government’s curriculum as determined by the government. The question really is, are university professors in the same situation as K-12 public school teachers or are they differently situated such that they can’t simply be directed to convey a governmental message more generally? At stake in how that gets resolved are very fundamental questions about the nature of state universities and to what degree they’re under the direct auspices and supervision of state political authorities more generally. The Court, if it is going to be serious about any kind of academic freedom principle of the type that it articulated in the 1950s and 1960s, is going to have to carve out some space there to say that what happens in university classroom can’t just be a form of government speech, but the Court hasn’t hinted anything yet about how to think about that issue.

So again, the book’s trying to work through what the Court has told us about government speech, how should we think about state universities and how can these two lines of doctrine be reconciled. In that sense the book tries to do something that is relatively conservative, that is, it doesn’t tell courts that you need to throw everything overboard and adopt an entirely new set of doctrines, although that might be a preferable way of doing it. But instead to argue that you can approach the existing doctrinal frameworks from a particular angle and can make use of that in order to advance a set of doctrines that are appropriate to the university context and respects these academic freedom principles that the Court has previously said is important. The book tries to provide a guide for doing that. 

The final chapter deals more specifically with this compelled speech situation, which I think is a complicated one. It highlights the potential problems and challenges of trying to identify what counts as indoctrination in the classroom, for example, indoctrination is not the language these statutes tend to talk in, but is I think the problem that they’re trying to get at fundamentally. And trying to think through how constitutional doctrine and the state legislative actions can potentially police those kinds of indoctrination efforts in the classroom is extraordinarily complex and difficult I think in practice, but also conceptually complex. The final chapter really tries to grapple with what this would mean in practice and what it looks like while also trying to put a little more flesh on the bones of traditional ideas about what counts as indoctrination in the context of the university classroom. Something that AAUP has long recognized as outside the scope of academic freedom but has not spent a lot of time over the course of its history really trying to specify what that might mean in practice or provide us with much in the way of tools that can help us control or police that kind of professional misconduct when it does take place.

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