Over the past several years, Republican state lawmakers have filed bill after bill meant to restrict how certain topics can be discussed in public college classrooms. A common conservative complaint — that leftist academics promote flimsy ideology rather than teach hard facts — became more than rhetoric. In some states, it became law.
But what about the First Amendment? What about academic freedom? How much control can a state really impose over professors at public colleges? In his new book, You Can’t Teach That! The Battle Over University Classrooms (Polity Press), Keith E. Whittington, a professor of politics at Princeton University, argues that the Constitution puts “meaningful constraints on the power of politicians to dictate what is taught in university classrooms.”
He spoke to The Chronicle about how the U.S. Supreme Court may rule on these pressing questions, why war challenges our commitments to free speech, and why Florida’s Republican governor, Ron DeSantis, has a point. (This conversation has been edited for length and clarity.)
These legislative measures restricting divisive concepts generally take two forms. Can you explain those forms and why you argue that they are “constitutionally fraught”?
I think we’re going to see more proposals in future years, and some of those are going to look different from what we’ve seen in the past. But the two big ones that we’ve seen so far that have made their way into statutes are really rooted in an executive order that Donald Trump issued near the end of his presidency that tried to restrict what he characterized as “divisive concepts” in federal workplace training. That has been extended into state laws as well, where the goal is to identify a set of ideas characterized as divisive concepts — more popularly known as critical race theory, although the relationship between what these laws are going after and the academic subject matter of critical race theory is fairly loose. But these divisive-concepts laws generally try to restrict the promotion or advocacy of those prescribed concepts in state university classrooms.
In other cases the language is framed a little differently, so that instead it’s focused on not just the promotion and advocacy of those concepts but any efforts to compel students to believe in those concepts. The Stop WOKE Act that Florida adopted was one of the first of these kinds of laws. It included both kinds of prohibitions.
The version that tries to prohibit the advocacy or promotion of certain ideas in the classroom seems to run headlong up against core academic-freedom principles that the court has said are also First Amendment values. Because they effectively prevent professors from talking about certain points of views about contested social and political ideas in a way that is favorable to those ideas. American constitutional law tends to be extremely skeptical of what the courts characterize as viewpoint-based discrimination. If, for example, the government says, ‘You can’t have rallies in public parks in the middle of the night,’ you can’t pick and choose which kinds of ideas can be expressed at those rallies. You have to have rules in place that are neutral, as to the perspectives that are being advocated.
These laws aimed at college classrooms absolutely do not do that. Instead, they identify some sides in controversial social debates and say professors can’t advocate or promote ideas associated with some perspectives within those debates.
The point of real uncertainty, though, is it’s unclear, given everything the court has said about government workplaces, whether that kind of regulation that would be unconstitutional in lots of other contexts might nonetheless be acceptable in a government workplace context. The state of Florida, for example, has argued, ‘These are state universities. They are created by the state to serve our purposes. We ought to be able to direct our employees to advance the ideas that we value.’ There are some government workplaces where that seems completely appropriate and the court has said that that kind of direction would be completely appropriate.
I think if there’s going to be anything left of academic freedom in a state university system, those professors have to be regarded as differently situated than most other government employees.
You write that if the Supreme Court justices are “clear-headed, it should be possible to build on existing doctrine to provide adequate protection for academic freedom.” To me, that seems like a big if. Do you think that’s likely? You include in the book a written quote from Justice Samuel Alito from when he was still a circuit court judge, and he said that: “A public university professor does not have a First Amendment right to decide what will be taught in the classroom.”
My posture at this point is cautiously optimistic. Certainly there are reasons for some skepticism about what the court might do. The justices might not be terribly sympathetic to some of the things that professors might want to be doing in the classroom. They might be somewhat sympathetic to the desire of some state government officials to exercise greater control over state universities. Any kind of constitutional rules that get developed are going to be complicated, because there has to be some level of political oversight. Everyone acknowledges that.
Universities ought to be places where we never say, ‘Now’s the time to stop talking.’
On the whole, this court is probably the most First Amendment free-speech-protective court in the nation’s history. Hopefully, they will understand the stakes here and understand that if state universities are going to be able to perform the kind of mission that we have wanted them to perform in the past, professors working within those state universities are going to need a fair amount of insulation from political oversight.
Maybe you can send them copies of your book.
Well, I hope this is informative at least to those kinds of arguments. It really does require pretty fresh thinking on the part of the court. It’s beneficial that we have some justices who have real experience in academia. They have some lived experience that will inform them about the kind of freedom that professors actually need.
You quote Ron DeSantis saying, in 2021, “It used to be thought that a university campus was a place where you would be exposed to a lot of different ideas. Unfortunately, now the norm is really, these are more intellectually repressive environments. You have orthodoxies that are promoted and other viewpoints are shunned, or even suppressed.” What do you think of the governor’s diagnosis there?
Unfortunately, I think there’s a fair amount of truth to that complaint. That complaint can be overstated. Certainly the solutions that some activists and politicians are offering in response to that concern are not very good solutions. But they’re not wrong to say that there are problems. Among those problems is a real problem of political and ideological conformity, an excess willingness to suppress ideas — not only suppress ideas among students but suppress ideas even among faculty. So I think universities have found themselves in a very awkward position. They need to defend the principle that they are wide open spaces in which all kinds of controversial ideas can be discussed. Yet there’s lots of evidence that they have not been very consistent about actually living up to those principles.
Earlier chapters of the book trace evolving ideas about academic freedom in America. I was struck by a quote that you include from Nicholas Murray Butler, Columbia University’s president when the U.S. entered the first World War. At the time, you write, Congress criminalized speech that it thought would hinder the war effort. President Butler “warned his campus against ‘vice and cowardice.’ While American entry into the war was still uncertain, ‘we gave complete freedom … freedom of assembly, freedom of speech.’ But ‘conditions sharply changed’ when Congress declared war.”
I couldn’t help but think of the moment that we’re now in. Do you think that war uniquely challenges people’s notions of what should be allowable to say on a college campus?
War always is very dangerous for free speech, in part because speech is seen as much more dangerous in these moments of great risk for the country, where there’s a real concern that we need to be united, that we can’t brook dissent, that showing internal disagreement will subvert our communal effort to solve the crisis that’s in front of us. There’s a lot less tolerance for anyone who might disagree with what the community or the nation has decided to do.
There’s a variety of temptations often in politics to say that whatever the crisis that’s confronting us at the moment is so great and so severe that we can no longer debate about it. That the answers are clear to all right-thinking people, so now’s the time to quit talking and start doing.
That’s just antithetical to the purposes of universities. Universities ought to be places where we never say, ‘Now’s the time to stop talking.’ We should always be places where no matter how big we think the crisis is, no matter how just some people think their cause is, that nonetheless universities are places where we continue to allow dissent, we continue to allow discussion about whether the cause really is just, whether the means we’re using to pursue that cause really are the right ones, whether the crisis is as grave as people say it is. But it’s hard to sustain that kind of environment. The Columbia president’s words there at the beginning of WWI represent a very familiar kind of instinct that we see replayed over and over again.
There are some sentences that I marked down as perhaps tough pills to swallow for certain professors. One of them is, “The professoriate cannot compel the public to value whatever the professoriate itself values.” For professors who don’t spend their time like you do — thinking about the relationship between the state and the university — how should they think about their work as it relates to the public?
Professors want the freedom to explore ideas that they find interesting. They often are not necessarily thinking about what concrete value those ideas might have. But it’s important for all of us who work in academia to bear in mind that we are asking other members of society to give us a lot of freedom and to give us a lot of resources to do things that we think are important and valuable. They’re not just going to take that on faith.
I don’t think we can just rely on university leaders and figure, ‘Well, it’s their job to explain what we do. It’s their job to defend the universities. I don’t have to worry about that, as a professor.’ The world that we’re in now, where there’s lots of skepticism about universities, where the internal operations of universities are much more visible than they’ve ever been before, it’s important for all of us to be willing to talk to the general public about what we do and why we do it and why it matters, and why we have these peculiar features like academic freedom and tenure that are necessary to make universities function effectively.
I think we all have some responsibility when we’re on social media, when we are in the public eye, to try to conduct ourselves in a way that would bring praise upon our institutions and our profession rather than bring criticism. That doesn’t mean that we ought to be censoring the ideas that we’re engaged in. But it does mean that we need to try to figure out how to express our ideas in a manner that is careful and deliberate and sober minded, and to avoid excesses when we can.
So everyone should stop being petty on Twitter, essentially.
Stop being petty on Twitter is probably good advice, at the very least.
