It’s unclear whether public college professors have First Amendment rights when teaching
Professors at public universities do not have the right to free speech while teaching, Florida state attorneys argued in a filing in court Last week. Over the past few days, many academics have expressed outrage, describing Florida’s position as a direct and troubling attack on academic freedom. Some even called him a fascist.
It’s a powerful argument if you can sell it. The First Amendment just falls out of the picture.
But there is genuine uncertainty about the extent to which the state can dictate what state college instructors teach, two law professors said. The Chronicle.
As university instructors themselves, they obviously had a position. Still, they admitted that the existing law and precedents are not entirely clear. “It remains a more open question than those of us who are academics would like it to be,” said Frederick Schauer, a First Amendment scholar at the University of Virginia School of Law.
The case filed in court was in defense of the state’s Individual Liberty Act, commonly referred to as the “Stop WOKE Act,” which prohibits instructors in public institutions from teaching certain ideas related to race, racism and gender. sex, and that at least two groups of students and the professors filed a complaint.
“The curriculum used at state universities and the classroom instruction offered by state employees” counts as the Florida government’s “own speech,” the attorneys wrote. Therefore: “The First Amendment simply has no application in this context.”
“It’s a powerful argument if you can get it accepted,” said Timothy Zick, a professor who teaches the First Amendment at William & Mary Law School. “The First Amendment just disappears from the picture.”
But will the argument be accepted?
The Florida case deals with a 2006 Supreme Court decision in Garcetti vs. Ceballos. In that case, the court decided 5 to 4 that state employees did not have First Amendment rights while doing their jobs. (Schauer gave the hypothetical example of a public television presenter needing to read his script, as part of his job.) But Supreme Court justices at the time deliberately left it unanswered. whether this principle extended to college classrooms.
“We need not … decide whether the analysis we conduct today would apply equally to a case involving discourse related to scholarship or teaching,” wrote the Retired Judge Anthony M. Kennedy in the court opinion.
Since then, lower courts have often decided that garcetti does not apply to college scholarships and education. Courts have recognized “the virtues of relatively free academic inquiry, at least at the academic level,” Schauer said.
In addition, two mid-century Supreme Courts casedecided at a time when American institutions were panicking about communism and trying to get professors to sign anti-communist statements, tied the idea of academic freedom to First Amendment rights for professors, Zick said.
But these cases stop short of establishing that something like garcetti certainly would not apply to college education, Schauer said. The courts didn’t say whether there was anything special about professors that gave them protections that other state employees might not have, he said.
In addition, there are clearly limits to the work. A professor charged with teaching constitutional law cannot simply decide to talk about astrology instead and claim it was a free speech issue, which Schauer offered as another example.
Both Schauer and Zick issued warnings about what public higher education might look like if Florida prevails. More liberal and more conservative states could relax their ability to define curriculum mandates. A state could even require professors to say things they don’t believe, Zick said.
“All of this would make us much worse,” he said, “compared to the main mission of the university, which is to develop knowledge and disseminate it, to teach and learn.”