LazingBee/iStock/Getty Images Plus
The hostile takeover of public higher education in Florida continues, as seen in the latest higher education bill introduced in the state’s House of Representatives. Among its provisions, the legislation would force public colleges and universities to remove any academic major or minor focused on “Critical Race Theory, Gender Studies, or Intersectionality, or any derivative major or minor.” Language in the bill would also ban any general education core courses from including an array of critical schools of thought such as CRT.
No matter one’s views on CRT or related lines of critical inquiry, current efforts in Florida are an attempt to subvert academic freedom and assert complete governmental control over faculty speech in public college and university classrooms. Events in the Sunshine State also reflect an ongoing legal debate over the extent that First Amendment rights apply to public college and university professors in carrying out their teaching, research and service duties.
We contend that the First Amendment should protect professors in public higher education from laws like the Stop WOKE Act, as Florida’s version of anti-CRT legislation is commonly called. Specifically, we argue (in the Journal of College and University Law and Penn State Law Review) that courts should look to the academic freedom policies adopted by public colleges and universities, including those in Florida, in defining the First Amendment rights of faculty in carrying out their professional duties.
Litigation Over Florida’s Stop WOKE Act—‘Positively Dystopian’
In litigation challenging the Stop WOKE Act’s application to public higher education, a federal district court issued a sharp rebuke to Florida (the case is currently on appeal). The district court compared the actions in the state to events depicted in George Orwell’s novel 1984, and rejected the Florida public higher education governing board’s “positively dystopian” argument that professors possessed academic freedom only as long as they expressed viewpoints approved by the state.
Florida looked to a 2006 U.S. Supreme Court decision, Garcetti v. Ceballos, to support its position that faculty classroom speech should be classified under the First Amendment as government speech and subject to complete control by state officials. In Garcetti, the Supreme Court ruled that public employees do not possess First Amendment rights for speech made as part of carrying out their official job duties. However, while acknowledging potential academic freedom concerns, the Supreme Court declined in the case to state if Garcetti extends to professors at public colleges and universities. Since Garcetti was decided, it remains an open issue whether the case applies to public college and university faculty or if they are protected by the First Amendment for speech made in carrying out their professional job duties.
Declining to apply Garcetti to faculty members’ in-class speech, the federal court in the Stop WOKE Act case ruled that the law violates the First Amendment rights of professors at Florida’s public colleges and universities. The ruling adds to multiple court decisions, including four by federal appeals courts addressing Garcetti, that conclude public higher education faculty possess individual First Amendment rights related to their teaching and research and potentially to other areas, such as service on university committees.
While pleased that the federal district court ruled against the Stop WOKE Act, we contend that courts have overlooked an additional consideration when it comes to the First Amendment and faculty speech rights. Namely, public higher education institutions should not be able to tout broad commitments to academic freedom in their official policies and mission statements and then, in practice, seek to deny professors academic freedom, including in court proceedings, based on the whims of politicians or other officials.
Institutional Academic Freedom Statements and the First Amendment
One key argument against upholding First Amendment academic freedom protection for public higher education faculty is that it shows them special treatment compared to other public employees.
However, that stance ignores the nature of the working relationship between professors and their employers. Specifically, other public employers do not define employment duties in the same way as public colleges and universities do for faculty.
A state’s Department of Motor Vehicles does not depend on academic freedom protections for the agency to function. But the success of a public college or university is premised on professors serving as independent voices and actors as opposed to institutional mouthpieces. Unlike other state employees, public college and university faculty are hired to function as individual and independent voices in teaching, research and institutional service.
Academic freedom policies and standards, such as those adopted by public colleges and universities in Florida, provide a compelling basis for courts not to apply the Garcetti standard to public higher education faculty. While such academic freedom policies or standards may also be incorporated into faculty contracts, contractual protections for academic freedom do not preclude courts from recognizing distinct First Amendment protection for public higher education faculty based, at least in part, on such institutional policies or standards.
The University of Florida, one of the institutions affected by the Stop WOKE Act, has adopted an academic freedom policy as a stand-alone institutional regulation intended to apply to the academic affairs of the institution. When a public college or university has elected to assign its faculty members employment duties that require independent speech, then courts should give legal weight to such policies and actions when issuing rulings about professors’ First Amendment rights related to their professional job duties, including in the classroom.
Interpreting public employee speech standards in light of institutional academic freedom statements aligns with other ways the Supreme Court has considered the unique nature of public higher education. In one instructive case, the Supreme Court held that public colleges and universities could use mandatory student fees to support speech by officially recognized student groups. The court held such a practice was constitutionally permissible as long as fees were distributed in a viewpoint-neutral way. In reaching this decision, the Supreme Court rejected a rule applied in cases involving mandatory fees in labor unions and bar associations. In deviating from this prior standard, the Supreme Court noted the special nature of public higher education, where institutions seek to “stimulate the whole universe of speech and ideas.”
Just as it did with mandatory student fees, the Supreme Court should take into account the special nature of public higher education and the unique employment conditions of public higher education faculty compared to other public employees. In alignment with institutional academic freedom policies, public higher education faculty should not fall under Garcetti. Instead, they should be eligible for First Amendment protection in carrying out their teaching, research and service duties. Courts could tailor the public employee speech analysis used pre-Garcetti—which seeks to balance an employee’s First Amendment right to comment on matters of public concern against the interests of the state, as the employer, to operate efficiently—to a higher education context. In fact, at least one federal appeals court has discussed how to adjust these standards in a legal decision where it upheld a faculty member’s First Amendment speech claims.
Protecting public higher education professors for their employment-related speech does not make faculty immune from institutional oversight. But it should not be acceptable to censor professors’ speech made in carrying out their job duties for nonacademic reasons and to assert total control over faculty classroom speech, which is exactly what Florida is trying to do.
What if Institutions Abandon Commitments to Academic Freedom?
The argument to use institutional academic freedom policies as one basis to support First Amendment rights for faculty could cause worry over a college or university rescinding its academic freedom policies or standards. We acknowledge this concern, but we caution that any public college or university taking this action should have to contend with the debilitating consequences of such a decision.
A public college or university should not be able to rely on Garcetti as a legal back door to strip faculty of their academic freedom. This is the strategy that Florida’s public higher education governing board is trying to use in ongoing litigation over the Stop WOKE Act. If a public higher education institution or system wants to take the legal position that the academic speech of its faculty is subject to complete governmental control, then the institution or system should have to accept the overall consequences for such a legal stance.
Accrediting bodies, for example, have adopted standards dealing with academic freedom and shared governance. A public institution that relies on Garcetti as a rationale to try and disavow faculty academic freedom in teaching, research and service, including shared governance participation, has explicitly rejected this key accreditation requirement. In fact, this argument has already been extended to Florida institutions.
Additionally, external funding opportunities, including from the federal government, are premised on scholarly integrity and independence in research. If courts recognize states’ authority to limit and censor faculty speech under anti-CRT laws, then research and grant activity at these public colleges and universities would potentially be subject to restriction and censorship that is at odds with the research independence required by external research funders like the federal government. Public colleges and universities that claim all faculty speech is government-controlled should be ready to forgo external funding opportunities that require independence in the research process.
Public higher education institutions cannot have it both ways when it comes to asserting complete control over faculty speech and also aspiring to teaching and scholarly excellence. In his inaugural email message to faculty, new University of Florida president Ben Sasse asked, “How do we ensure UF is an attractive home for more top-tier talent across the widest range of disciplines?” Were a university to revoke its academic freedom statements and policies and risk its accreditation or make itself less attractive to external funders, it would undermine its own efforts to recruit nationally and globally recognized faculty.
If a state views autocratic control over the professional speech of public higher education faculty, including in the classroom, as a desirable benefit, then it should also be ready to take on the burdens that come with abandoning a commitment to maintaining legitimate colleges and universities. Courts, along with policy makers and funding entities, should demand truth in advertising when it comes to states and their public higher education institutions and commitments to academic freedom.