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ANALYSIS: Are public college classrooms subject to state control? Depends who you ask.
Two recent lawsuits brought by the American Association of Professors against the Texas Tech and Texas A&M systems alleging free speech and academic freedom violations have raised questions, concerns, and debate about state authority over publicly funded college classrooms.
The lawsuits center on one-year-old policies within the systems limiting instruction on race or gender ideology without administrative preapproval, regulations that came in the wake of a new law giving campus leaders more oversight and authority over curricula.
The law, SB 37, was billed as a way to rid university curriculum of diversity, equity and inclusion dogma and refocus on workforce preparation, and campus leaders in the Lone Star State quickly took the opportunity to force professors to cull curricula viewed as too ideological.
While professors argue the systems’ policies are too vague, not enforced in a content-neutral manner, and have forced scholars to cancel classes and censor themselves, others see the oversight as long overdue.
Richard Lowery, a finance professor at UT-Austin and vocal DEI critic, said the state response comes after years of negligent oversight over academic institutions’ curricula.
“If they let the faculty run the school, it is still under state control,” he said. “The difference is that the legislature are elected representatives and must answer for their decisions to the public.”
Therefore, lawmakers and campus leaders are finally doing what’s been incumbent on them all along, he told The College Fix in a telephone interview.
“There is no risk to academic freedom from state intervention because there is no academic freedom,” Lowery said.
Peter Wood, president of the center-right National Association of Scholars, said the two lawsuits stray into unsettled legal territory.
He cited the Supreme Court decision Garcetti v. Ceballos, a 2006 ruling that public employees do not enjoy First Amendment protections for speech that’s part of their official duties.
While the decision is thought by some to include what professors at state universities say in the classroom, others contest this view, he said.
Inside Higher Ed recently reported that AAUP’s twin lawsuits “are poised to bring the issue before the Fifth Circuit, a notoriously conservative appellate court that has yet to weigh in on whether and how the government can exert its influence over what faculty can say and teach at state institutions.”
In a possible indication of how things may go in court, another recent legal battle over Florida’s “Stop Woke Act” showed the courts are more willing to side with academic freedom.
In July, a federal appeals court struck down the law, which restricted the topics professors can discuss in public university classrooms.
In her opinion, Judge Britt Grant of the U.S. Court of Appeals for the Eleventh Circuit wrote: “Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them.”
“Forcing an official government line—in a college classroom of all places—is exactly the ‘pall of orthodoxy’ that the First Amendment will not tolerate.”
The Foundation for Individual Rights and Expression celebrated the ruling as a “victory.”
The question still remains, how can lawmakers enforce restrictions on specific ideas without preventing professors from assigning historical or contemporary primary sources that contain controversial critical race theory concepts?
“This is a matter of the trustworthiness of the professors,” Wood told The Fix.
He said teaching about an ideology is merely informing students of its premises, purposes, arguments, and evidence.
“But the line is easily crossed by a professor who treats those sources as definitive or even just deserving of the student’s admiration,” he added. “There is, I think, no perfect barrier against this kind of bad faith.”
“But in cases of flagrant and persistent abuse on the part of a professor, the state must be prepared to use sanctions such as barring the professor from teaching that course.”
Manhattan Institute legal scholar Ilya Shapiro said the decisions may rest on whether state and campus leaders are exercising legitimate authority over the curriculum or engaging in viewpoint discrimination.
“The Supreme Court has long recognized that academic freedom occupies a special place in our constitutional tradition, even if the precise contours of that protection for public-university faculty remain unsettled,” he told The Fix in an August interview.
Shapiro said public universities generally have broad discretion over curricula, academic requirements, and courses they offer, but professors do not have an unlimited constitutional right to teach whatever they want.
“Courts will likely focus on whether the policies regulate curriculum in a content-neutral manner or instead amount to viewpoint discrimination,” he said. “That distinction is likely to determine whether the policies survive First Amendment scrutiny.”
