Gov. Ron DeSantis of Florida, a Republican, is attempting to control public university curricula around race and gender by insisting that college teaching is a form of government speech. That will sound insane to most faculty members. But it can’t be dismissed out of hand. As the University of Virginia Law School’s Frederick Schauer told our Francie Diep, the First Amendment protection of academic freedom “remains more of an open question than those of us who are academics would like it to be.” In Florida and states like it, we’ll soon find out just how open.
In an article forthcoming in the Wake Forest Law Review, Princeton University political scientist Keith E. Whittington explains the legal history of academic freedom and lays out a case against strategies like Governor DeSantis’s. During the Cold War, the activity of professors came to be understood as having a major claim on Constitutional protections. This was a solution to a problem that long predated the persecutions of the 1950s. In its earliest forms, American academic freedom was, as Whittington writes, a question of “contracts and custom” rather than law. But state repression of professorial political commitments in the teens — Whittington mentions Bolshevism after 1917, though even before that suspicion of pro-German sentiment during the First World War had painfully inflamed political passions — made the fragility of academic freedom clear. Nor was such repression limited to questions of insufficient patriotism or pro-Communism. As late as 1940, as Whittington recounts, the state of New York blocked City College from hiring Bertrand Russell on the grounds that his ideas about premarital sex were “immoral and salacious.”
The 1950s saw a grim amplification of political repression around suspected Communism. But for that very reason it also saw academic freedom become a properly Constitutional issue. Today’s arrangements descend substantially from a period of jurisprudence that began with Sweezy v. New Hampshire, a 1957 case in which the Supreme Court ruled that the Marxist economist Paul Sweezy could not be imprisoned for refusing to answer questions about the contents of lectures he’d given at the University of New Hampshire. A decade later, in Keyishian v. Board of Regents, the court held that the SUNY Board of Regents cannot prohibit faculty members from being Communists.
By 1967, then, academic freedom for public-university faculty members seemed to have firm constitutional grounding — Keyishian looked like the culmination of decades of jurisprudential theory recognizing that college teaching and research have special claims on the First Amendment. Chief Justice Earl Warren’s rousing words in Sweezy might stand for the whole tradition: “The essentiality of freedom in the community of American universities is almost self-evident. … 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.” Pickering v. Board of Education (1968), which held that public employees had First Amendment rights (the case involved a high-school teacher criticizing his school board in a letter to the editor), was icing on the cake.
So far, so good. Then, in 2006, a hiccup: Garcetti v. Ceballos, a Supreme Court case that, as David L. Hudson Jr. summarizes in Slate, ruled that “when public employees engage in official, job-duty speech, they are not speaking as citizens but public employees and have no free-speech rights at all. None. Zero.” Garcetti involved a district attorney’s office, not a college. But public-university professors are public employees, and teaching is a duty of the job. The consequences for professorial speech might have seemed ominous.
By exempting such job-duty speech as a memo to one’s boss from protection, Garcetti undoubtedly weakened Pickering. But its bearing on faculty members remained — and remains — unclear. In a dissent, Justice David Souter specified the risk: “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.’” Writing for the court, Justice Anthony Kennedy insisted it did not: “We 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 related to scholarship or teaching.”
Whittington, the author of the Wake Forest Law Review article, urges that Kennedy’s “proviso should be taken seriously.” Unlike other government employees, “professors are distinctive in requiring constitutional protection for their speech as government employees.” If the courts agree, the present moment of unusual peril could, like the anti-Communist persecutions of midcentury, end up solidifying academic freedom, rather than devastating it.
