Academic Freedom in Peril

For much of the last fifty years, academic freedom has been, you might say, academic. Its central principle—that politicians have no authority to censor the teaching, research, and writing of professors in the nation’s universities—was so well accepted that it was rarely even tested. No more. Academic freedom today is under attack in ways the country has not seen since the cold war. Yet at the very moment it is most needed, universities seem reluctant to defend it.

It was during the cold war that the Supreme Court initially recognized that the First Amendment protects academic freedom. In 1957 the Court overturned a New Hampshire contempt conviction of Paul Sweezy, a Marxist economist, for refusing to answer questions about an allegedly Communist lecture he had given. Ten years later the Court struck down a New York law barring Communists from teaching in state universities, proclaiming academic freedom “a special concern of the First Amendment” and warning that even in the public universities it operates, government may not “cast a pall of orthodoxy over the classroom.”

Those cases put politicians on notice that they should not interfere with the curricular or scholarship decisions of universities and professors. As a result the Court has not had much occasion to elaborate on the contours of the right to academic freedom.

But it appears that a refresher course is in order. In recent years, and especially recent months, politicians have once again sought to control fundamental academic decisions about what professors teach their students and how universities regulate freedom of expression on campus. President Trump has issued an executive order targeting “diversity, equity, and inclusion” in universities.¹ Last fall and spring Republican members of Congress held widely publicized hearings to demand suppression of pro-Palestinian protests in the opportunistic name of fighting antisemitism. Multiple Department of Education investigations into alleged campus antisemitism are ongoing, and the House has passed a bill, the Antisemitism Awareness Act, that would treat much criticism of Israel as evidence of antisemitism. On March 4 Trump wrote on Truth Social that “All Federal Funding will STOP for any College, School, or University that allows illegal protests.” Ed Martin, the interim US attorney for the District of Columbia, threatened Georgetown Law School, where I teach, that his office would hire no Georgetown students or graduates as long as the law school includes “DEI” in its curriculum.

Most chillingly, the Department of Education notified Columbia University in early March that it had suspended $400 million in federal grants, as a first step in punishing the university for failing to respond sufficiently harshly to pro-Palestinian protests that some students claimed were antisemitic—even though Columbia arrested more protesters than probably any other school last spring. It followed that suspension with a letter demanding that Columbia institute a wide range of reforms, including placing its Middle Eastern, South Asian, and African Studies department in receivership, expelling or suspending students involved in encampments and the occupation of Hamilton Hall, and eliminating faculty review of student disciplinary decisions—all basic matters of internal academic administration.

Despite widespread condemnation of the administration’s actions as a violation of federal law and academic freedom, on March 21 Columbia agreed to most of the demands. Christopher Rufo, a senior fellow at the Manhattan Institute, posted on social media, “Columbia is folding and the other universities will follow suit…. This is only the beginning.” It appeared that Columbia was unwilling to challenge the administration’s illegal actions and thereby risk losing not just the $400 million but another $5 billion in federal funding.

Barely a week after the Columbia suspension Trump withheld $175 million from the University of Pennsylvania for allowing a transgender woman to compete on the women’s swim team in 2022. The university’s decision to do so did not conceivably violate Title IX, the federal law that prohibits educational institutions from sex discrimination. Allowing a transgender woman to compete on a women’s team does not violate that law because it does not deny participation to any student because of their sex. The swim team at Penn does not have limited slots, so no one was denied participation at all. Indeed, several courts have ruled that denying a transgender woman the ability to participate merely because she is transgender is itself sex discrimination in violation of Title IX, because that denial would be based on the woman’s sex at birth. In any event, Penn follows rules set by the NCAA, which at the time permitted such participation but now bars it. So the Trump administration’s actions here, too, are illegal—and interfere with the legitimate student governance decisions of the university. But Penn, like Columbia and other major research universities, relies heavily on federal funding. It has not yet said whether it will challenge the Trump administration’s action or settle.

So the publication of two books on academic freedom by two of the nation’s leading First Amendment scholars could not be more timely. In Academic Freedom: From Professional Norm to First Amendment Right, David Rabban, a professor at the University of Texas, Austin, and longtime lawyer with the American Association of University Professors, offers a definitive treatment of the subject, comprehensively surveying the entire landscape of relevant court decisions and advancing a lucid and persuasive theory of academic freedom as a distinctive First Amendment right. Meanwhile, the Yale law professor Keith Whittington, a prominent conservative scholar, has written You Can’t Teach That! The Battle Over University Classrooms, which focuses specifically on the threat posed by political attempts to control professors’ speech. He uses as a case study Florida’s Stop WOKE Act, which prohibits professors from promoting certain proscribed ideas in their classrooms. Both authors agree that at its core, academic freedom presumptively prohibits politicians from censoring academic decisions of universities and professors.

It seems inevitable that one or more of the current academic freedom controversies will make their way to the Supreme Court. When they do, it will be in a highly polarized environment where many on the right have lambasted universities as bastions of elite liberalism tainted by groupthink and, ironically, intolerance. The latter criticism is not entirely unwarranted; the faculty of many of the nation’s top universities skew heavily to the left—though it is difficult to say whether that is because conservatives are more likely to pursue other (often more remunerative) careers, or because liberal faculties tend to reproduce themselves, or both. But as a result the academy has lost the trust of a significant portion of the public, especially those who have not attended college and who heavily favored Trump in the last election. That has emboldened opportunistic conservatives (most of whom couldn’t care less about, say, antisemitism) to go on the offensive. And this political setting may not bode well for a case before today’s politically divided Supreme Court.

Still, a similar divide existed during the cold war, and the Court nonetheless rose above it. Then as now, conservatives viewed universities as hotbeds of radical thought. And some colleges probably were, at least compared with other parts of American society. Yet while the Court initially allowed some attacks on universities to stand, it eventually acted strongly in defense of academic freedom. The question—and it is an existential one for universities—is whether today’s Court will learn from those lessons and reaffirm that defense. But as Columbia’s recent surrender to the Trump administration indicates, that issue will not even be addressed unless colleges are courageous enough to fight for their rights.

Rabban’s scrupulous survey illustrates that most disputes over academic freedom that reach the courts do not involve political interference in the affairs of the university at all. Rather, they concern internal disagreements between professors and universities, both of whom are protected by academic freedom, or between students and universities. When a college disciplines a professor for something she said in class, online, or in her scholarship, the question is often not whether but whose academic freedom will prevail. The university’s academic freedom includes the authority to enforce professional standards, but the professor has the right to express herself within those standards as she deems fit. (Such disputes formally implicate the First Amendment only when the university is public, because the First Amendment does not limit private entities’ disciplinary decisions. But many if not most private universities have voluntarily adopted policies that require them to respect free speech as if they were governed by the First Amendment.)

These intramural disputes often cannot be resolved by resort to ordinary First Amendment principles. As the Yale law professor Robert Post has observed, a university’s governance of speech on campus functions very differently from ordinary state speech regulation.² Outside the university, the state must maintain neutrality toward the content of speech, cannot dictate what is true or false, and cannot compel speech. In the classroom, by contrast, professors routinely regulate what can be discussed, are paid to distinguish between truth and falsehood, and often require students to argue particular viewpoints for pedagogical purposes. Universities also routinely make judgments about the content of a professor’s teaching and writing in hiring and tenure decisions, and they demand that professors “publish or perish.” Thus even a public university, which is bound by the First Amendment, must have leeway to judge and control speech in ways that other government entities do not.

At the same time, as Rabban and Whittington note, public university professors have significantly broader freedom to speak than other public employees. The Supreme Court has ruled that most public employees’ speech rights must bow to the state employer’s need to control the speech of its workforce. When a public employee speaks in her official capacity, for example, she has no First Amendment rights, because she is effectively speaking for the government. Her boss can tell her what to say and what not to say. Only when she speaks as a private citizen and only when she addresses “a matter of public concern” is her speech protected by the First Amendment—and even then her right to speak must be balanced against the state’s interest in an efficient and productive workplace.

That cannot be the rule for public university professors. When they teach their classes, conduct research, or write papers, they are acting in their capacity as government employees. Yet no one thinks they are expressing the government’s message. And for academic work to be legitimate, professors must have the freedom to follow the evidence and logic wherever they may lead. For this reason, when the Supreme Court ruled that the First Amendment does not protect most government employees’ on-the-job speech, it expressly noted that a different rule might apply to public university professors, and many lower courts have held that those professors’ on-the-job speech is protected.

Academic freedom is therefore both more expansive and more limited than First Amendment rights more generally. On one hand, professors cannot be punished for the views they express in class, as long as their speech is germane to the subject of the course and consistent with professional standards—even though other public employees have no rights when they speak on the job. Yet professors’ speech is protected only insofar as it meets academic standards—unlike the speech of ordinary people, which is protected regardless of whether it meets any standard of worthiness. Gregory Johnson’s burning of the American flag, at issue in Texas v. Johnson (1989), may have been equivalent to an “inarticulate grunt,” as Chief Justice William Rehnquist put it in dissent. But it was protected. Professors, by contrast, cannot get tenure based on inarticulate grunts.

So what does academic freedom protect? Rabban and Whittington agree that if we afford it “special” protection, as the Supreme Court has said, because of the contribution professors and universities make to public discourse, the pursuit of knowledge, and the teaching of critical thinking, its protection should apply when professors are speaking within their academic expertise. A law professor speaking on a matter of law or a medical school professor addressing the effectiveness of vaccines should be protected. But Rabban and Whittington agree that a law school professor speaking about medicine or a doctor speaking about constitutional law should not have any special protection. On matters outside their expertise, the professor’s rights are no different than an ordinary citizen’s.

While there is no shortage of intramural disputes about academic speech, the Supreme Court has thus far limited its involvement to instances of external threats, namely, where politicians have sought to interfere in the academic decision-making of professors and universities. And while there have been few of those disputes since the cold war ended, they have resumed with full force today.

The Florida Stop WOKE Act case, the focus of Whittington’s book, offers a clear example. (As national legal director of the ACLU, I worked on this case for the challengers.) The law’s very name announces its purpose: to “stop” viewpoints the legislature deems “woke.” It prohibits professors in Florida’s public universities from promoting or advancing eight specific ideas loosely associated with critical race theory by its right-wing critics. They include the ideas that “a person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion” and that “such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist.” Both are matters on which reasonable scholars can and do disagree. Indeed, for fifty years the Supreme Court held that white applicants could be disadvantaged to further diversity in higher education, and virtually every university did so. While the Court reversed that precedent in 2023, three justices strongly defended affirmative action in dissent. Yet the Stop WOKE Act bars professors in Florida state universities from even expressing agreement with the dissent, as that would be “advancing” an officially proscribed idea.

There are, as Rabban’s book illustrates, countless difficult academic freedom cases. This should not be one of them. If New Hampshire could not punish Paul Sweezy for refusing even to answer questions about what he said in a lecture, surely Florida cannot prohibit professors from expressing views on topics germane to their courses merely because the legislature disapproves of them.

Florida’s lawyers invoke the “government employee” cases and argue that because the professors teach their courses as state employees, they are engaged in “government speech,” and the state can control that speech without any First Amendment limitation. Just as President Trump can require his press secretary to defend his idea of converting Gaza into a resort, so, Florida argues, its legislature can control the speech of state university professors. Whittington rejects that argument: no one thinks that professors in a public university are expressing the government’s message in their classrooms or scholarship. They are not press secretaries.

The public employment speech cases are concerned with ensuring that state employers can effectively manage the workplace, which often requires controlling what their employees say on the job. But when the legislature bars the teaching of “critical race theory,” Whittington maintains, that is not ordinary office management but an example of “political efforts to prevent the public from hearing about ideas that incumbent politicians do not like.” And while many public offices could not function if bosses could not direct what their subordinates say on the government’s behalf, the management of a public university requires precisely the opposite—respect for the freedom of professors to reach whatever conclusions they choose, so long as they act according to professional standards.

Whittington and Rabban caution that academic freedom is not absolute; professors can be required to teach material that is germane to their subject matter and to do so within the norms and standards of the profession. Professors can be disciplined for introducing extraneous material in class, for representing as true views that are uniformly rejected (such as denying the Holocaust), or for demeaning or harassing students. But as long as they are engaged in legitimate pedagogy as the profession defines it, politicians cannot censor the views they express. And that should make not only the Stop WOKE Act but many of Trump’s efforts to regulate the internal academic affairs of universities easy cases—as a legal matter. Even when the government is simply placing conditions on a university’s funding, it is legally bound to respect the First Amendment. As Chief Justice Rehnquist wrote in a 1991 case:

The university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.

But law is only part of the picture. Universities must do their part, both to defend and to deserve academic freedom. The obligation to defend it is made especially difficult when universities depend on billions of dollars in federal grants and contracts, as all the top research institutions do. Columbia’s surrender to patently illegal demands by the Trump administration illustrates the point. Had the university sued, it almost certainly would have won in court; the law was strongly on its side.³ But in the meantime, both the executive and a Republican-controlled Congress might well have chosen not to fund it, in decisions that would be hard to prove were retaliatory. That’s a tough call for a university president. Fighting for principle might mean having to lay off hundreds of staff. But if universities do not fight for themselves, who will?

At the same time, as Whittington argues, universities also need to conduct their affairs in such a way as to deserve special protection. Academic freedom rests on

the social bargain that professors…would be granted some measure of security and independence in exchange for nurturing the kind of expertise and knowledge accumulation that would pay dividends to society at large.

And that bargain places responsibilities on the academy as well as the state:

Matters are made exponentially more difficult, however, when the professoriate is perceived to be set a world apart from the society that it hopes to serve. Academia tilts sharply to the left, and that has rapidly become much more true in recent decades. If universities are believed to have been captured by a particular political or ideological faction, they will lose their ability to provide trusted neutral expertise and will instead be perceived as and treated as partisans in the political fray. Appeals to academic freedom will likely fall on deaf ears.

It is a two-way street, Whittington suggests. And he has a point. Universities could and should do more to cultivate a robust range of political opinions and to hire those who directly challenge the prevailing orthodoxies of a particular department or institution. That’s necessary to critical inquiry and the search for truth, after all. But as Whittington and Rabban both underscore, the answer to insufficient ideological diversity on college campuses is not empowering politicians to silence views with which they disagree—whether on critical race theory, DEI, or Israel–Palestine. That way lies not just the end of academic freedom but the end of the academy as we know it.

—March 27, 2025