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Universities ‘have broad discretion over curricula,’ legal expert says
Faculty members are suing the Texas Tech University System over recent restrictions on classroom instruction related to race, gender identity, and sexual orientation, arguing that they violate the First Amendment’s guarantee of free speech and undermine academic freedom.
According to the lawsuit, Texas Tech’s policies require heightened scrutiny due to the materials involving race and sex. Faculty allege the policies amount to censorship and abridge content material out of fear of disciplinary action.
“This case presents an extraordinary system of censorship in higher education…” the lawsuit reads in part.
The plaintiffs argue that Texas Tech’s policy has caused a chilling effect on speech. “Defendants have created an educational environment replete with fear and confusion” and “the restrictions in the Creighton Memoranda also caused Plaintiffs’ members to immediately and constructively self-censor.”
The Creighton Memoranda mentioned in the lawsuit are two administrative directives issued by Texas Tech Chancellor Brandon Creighton that restrict discussions of race, gender identity, and sexual orientation across the university system.
The Texas Tech American Association of University Professors are seeking an injunction against the Texas Tech classroom content policy.
Antonio Ingram, the AAUP’s legal counsel, told The College Fix that the ban on discussions of certain topics “constitute textbook viewpoint discrimination.”
“For example, the Creighton Memoranda permits coursework containing the viewpoint that only cisgender people exist. Conversely, the Creighton memoranda prohibits coursework containing the fact that Black transgender women accounted for 78% of all transgender women murdered in the U.S. in a 2024 study,” he said.
When asked why AAUP chose not to continue to negotiate with college officials, Ingram said, “The Texas Tech System has no existing procedure that would have permitted faculty to request the rescission of the Creighton Memoranda. AAUP and Texas AAUP-AFT had no choice but to request the intervention of a federal court.”
Reached for comment, the university media team deferred to the university counsel, who did not provide comment.
University officials defend these academic policies as lawful and consistent with both federal and state law. A Texas Tech spokesman said that the system remains dedicated to academic integrity and First Amendment rights.
The Texas Tech faculty lawsuit raises broader First Amendment questions about the scope of academic freedom.
Legal scholar Ilya Shapiro, the former vice president of the Cato Institute and Georgetown Law Center lecturer, told The College Fix that constitutional analysis of Texas Tech’s policy will hinge on whether it is exercising legitimate authority over its curriculum or engaging in viewpoint discrimination.
“The plaintiffs appear to raise substantial First Amendment concerns,” Shapiro said.
“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.
Shapiro added that public universities generally have broad discretion over curricula, academic requirements, and the courses they offer. Faculty do not possess unlimited constitutional right to teach whatever they want.
Still, universities may not use their authority over curricular content to suppress disfavored viewpoints,
“The key question is whether Texas Tech is simply exercising its authority to determine the curriculum it offers or whether it’s imposing viewpoint-based restrictions on how professors may teach or discuss subjects within otherwise approved courses,” Shapiro said.
According to Shapiro, the outcome of the case will depend on how the college’s policies apply in practice.
“If they merely prescribe the subjects to be covered or ensure compliance with governing law, they are more likely to be upheld. If, however, they prohibit faculty from expressing or discussing particular viewpoints while permitting opposing perspectives, they face a much more difficult constitutional path,” he said.
Shapiro also cautioned against predicting the outcome of the case as it is still in its early stages.
“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.”
