You Can't Teach That! E-Book

Keith E. Whittington

• Herausgeber: John Wiley & Sons
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 305

Veröffentlichungsjahr: 2024

Beschreibung

Who controls what is taught in American universities – professors or politicians?

The answer is far from clear but suddenly urgent. Unprecedented efforts are now underway to restrict what ideas can be promoted and discussed in university classrooms. Professors at public universities have long assumed that their freedom to teach is unassailable and that there were firm constitutional protections shielding them from political interventions. Those assumptions might always have been more hopeful than sound. A battle over the control of the university classroom is now brewing, and the courts will be called upon to establish clearer guidelines as to what – if any – limits legislatures might have in dictating what is taught in public universities.

In this path-breaking book, Keith Whittington argues that the First Amendment imposes meaningful limits on how government officials can restrict the ideas discussed on university campuses. In clear and accessible prose, he illuminates the legal status of academic freedom in the United States and shows how existing constitutional doctrine can be deployed to protect unbridled free inquiry.

Leseprobe

CONTENTS

Cover

Table of Contents

Title Page

Copyright

Acknowledgments

Introduction

1. The Culture War and the Universities

The Ban on “Critical Race Theory”

Can You Teach That?

Notes

2. Academic Freedom in the United States

“Academic Asphyxiation”

“Unrestricted Research and Unfettered Discussion”

Notes

3. The Era of the Loyalty Oaths

The First Red Scare and the Universities

Subversive Ideas

The Cold War and the Universities

Notes

4. The First Amendment Comes to Campus

The “Hired Man”

“The Theory of Our Constitution”

Limiting the “Flow of Ideas into the Minds of Men”

“A Special Concern of the First Amendment”

Notes

5. The Professor as a Government Employee

Marvin Pickering and his Letter

The Trouble with Garcetti

Academic Freedom and Government Employees

Setting Some Guardrails on Classroom Speech

How Does a Constitutionally Bounded Academic Freedom Work in Practice?

Notes

6. Teaching in the Government School

The Government’s Own Speech

Look Who’s Talking

Does the Government Control the Content?

Academic Freedom in a Government School

Notes

7. Compelling Students to Believe

The Flag Salute Case

Compelling Speech in School

Compelling Belief in School

What Could a Ban on Compelling Belief Do?

The Problem with Policies against Compelled Belief

Notes

Conclusion

Note

Further Reading

Index

End User License Agreement

Guide

Cover

Table of Contents

Title Page

Copyright

Acknowledgments

Introduction

Begin Reading

Conclusion

Further Reading

Index

End User License Agreement

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You Can’t Teach That!

The Battle over University Classrooms

KEITH E. WHITTINGTON

polity

Copyright © Keith E. Whittington 2024

The right of Keith E. Whittington to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.

First published in 2024 by Polity Press

Polity Press65 Bridge StreetCambridge CB2 1UR, UK

Polity Press101 Station LandingSuite 300Medford, MA 02155, USA

All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.

ISBN-13: 978-1-5095-6454-5

A catalogue record for this book is available from the British Library.

Library of Congress Control Number: 2023952088

The publisher has used its best endeavors to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.

Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.

For further information on Polity, visit our website: politybooks.com

Acknowledgments

My thanks for the helpful comments from Donald Downs, Matthew Finkin, Howard Gillman, Frank Michelman, Robert Post, David Rabban, and Timothy Zick, the kind words of encouragement from Richard Delgado and Nadine Strossen, and the research assistance of Jo Wilson.

I am grateful to Karen Gantz and Louise Knight for their support of this project and their efficiency in seeing it through to completion.

An earlier version of parts of this argument appeared in the Wake Forest Law Review, and material from that article is reproduced here with the journal’s permission.

Introduction

Public confidence in American universities is in freefall, especially among more conservative citizens. Politicians have taken notice and have taken aim at everything that they think might be wrong on campus. Universities are said to have gone “woke.” Professors are denounced for trying to indoctrinate their students. University classrooms are thought to be filled with dangerous ideas like critical race theory. Red-state legislatures from Ohio to Florida to Texas have taken what were once thought to be radical reform ideas and moved them into the mainstream. Florida Governor Ron DeSantis has declared that “we will not let the far-left woke agenda take over our schools,” and the Stop WOKE Act became one of his signature pieces of legislation. Not content with that, however, he went back to his state legislature for more. Other Republican leaders have raced to make sure that they are not outflanked on this issue.

Conservatives have complained for decades about tenured radicals and political correctness on college campuses, but the willingness of politicians to do something about those complaints is a new and extraordinary development. We are at the beginning of a debate that could reshape the landscape of higher education in America.

This book guides the general reader, students, and leaders in higher education through the difficult challenges that this new movement poses to the way things have been done, and it mounts an argument that policies like the Stop WOKE Act violate the First Amendment and that the Constitution puts meaningful constraints on the power of politicians to dictate what is taught in university classrooms. Universities are on the frontlines of the new culture war, and we should understand the significance of what that means.

The book does not argue the pros and cons of critical race theory. I am on the political right myself, and I have my own concerns with the substance of those ideas. Moreover, critical race theory is only the target du jour. The public rhetoric about critical race theory does not always track well the contours of the scholarly literature in critical race theory, and the policies actually adopted do not reference critical race theory as such. From a constitutional perspective, the details of the ideas and viewpoints being suppressed do not matter. If legislatures can restrict the teaching of “critical race theory” in state university classrooms today, they can equally restrict the discussion of any number of ideas, from evolutionary theory to constitutional originalism to transgenderism to settler colonialism, tomorrow.

Likewise, I take for granted the proposition that traditional notions of academic freedom are worth defending in the current moment. That is an increasingly controversial assumption, with many on the political right starting to doubt that universities are worth preserving in their current form. Despite my worries about the state of academia, I remain optimistic about its future and believe that high-quality scholarly institutions can only be built on the foundation of robust protections for academic freedom. Ultimately, academic freedom helps protect the scholarly free inquiry that generates new and important insights and intellectual breakthroughs.

My concern in this book is with censorship and the extent to which government officials can suppress ideas that they find disturbing. Are state universities at the mercy of politicians, or are there limits to what government officials can do when they do not like what university professors are saying or teaching?

This book lays out the case for why laws like the Stop WOKE Act pose a nearly unprecedented assault on American higher education and raise deep First Amendment concerns. Scholars and commentators have spent little time thinking about who controls the classrooms in state universities. For decades public universities have been left largely to their own devices. Those days are over. Politicians have pledged that they are going to clean house and rein in radical professors. Whether they successfully do that will have lasting consequences for the future of American universities and for the divide between private and public universities and between so-called red and blue states.

The book offers an argument that the First Amendment limits the ability of politicians to suppress controversial ideas in universities. It does not call for an entirely new First Amendment jurisprudence but argues that our current understandings of the First Amendment can be sufficient to the task if we take the time to understand how they should apply in a university context. We should recognize, however, that it is far from obvious the courts would or should step in to constrain government officials who want to exclude what they regard as dangerous ideas from state university classrooms. I believe that recognizing such limits is the proper implication of what the Court has said in the past about the importance of free thought in American higher education, but the issues raised by current trends in the state legislatures are both novel and complex. In this book, I hope both to provide a reliable guide to those challenges and to advocate on behalf of a particular solution to them.

The book begins by overviewing the current controversies and policies that are now on the political agenda. It tells the story of how professors in the early twentieth century came to win some independence over what and how they taught in the United States. It recounts how those newly won gains came under pressure during the early days of the Cold War and how the government’s desire to root out radicals put universities in the political crosshairs. The U.S. Supreme Court responded to those Cold War controversies by declaring that academic freedom was protected to some degree by the First Amendment, but the Court did not provide any real guidance as to what degree that might be the case or how it was supposed to work.

With that background in view, we can turn to current controversies and how existing judicial doctrine regarding the First Amendment can impose some limits on how politicians can interfere in the scholarly and educational activities of universities. Despite the fact that state university professors are government employees, and that the government can engage in its own speech to convey its favored messages, politicians cannot necessarily commandeer state university classrooms and dictate what professors say in them. The Constitution provides more room for government officials to restrain professors from engaging in indoctrination in the classroom, but here too there are substantial constitutional and practical difficulties.

We are at the beginning of a potentially far-reaching reconsideration of the role of universities in American life and of the authority of politicians to take action against controversial ideas being taught and discussed on college campuses. These efforts will test the willingness of courts to defend professors and universities from political interventions and challenge our understanding of how the First Amendment applies to university classrooms. Potentially at stake is whether American universities will continue to be some of the preeminent institutions of scholarly research and of higher education in the world.

1The Culture War and the Universities

On December 15, 2021, Florida Governor Ron DeSantis announced a new education initiative before an enthusiastic crowd at an “active adult retirement community” in Central Florida. “Nobody wants this crap. Okay? This is an elite-driven phenomenon being driven by bureaucratic elites, elites in universities and elites in corporate America. And they’re trying to shove it down the throats of the American people. You’re not doing that in the state of Florida.”1 The crap in question was “critical race theory,” and the governor assured his supporters that Floridians were not going to take it.

With Donald Trump out of the White House, the Florida Republican was not only ramping up for his own reelection in 2022 but also eyeing a bigger prize in 2024. Much of his first term had been consumed by the COVID-19 pandemic, and DeSantis had become a GOP favorite by declaring his state open for business soon after the rollout of a vaccine and when the president and many other big-state governors were still embracing a more restrictionist approach.

Searching for a new issue that would keep him in the limelight, he quickly settled on education. He was not alone in doing so. Other Republican politicians were seeing the same political opportunities. Education provided a policy issue that allowed Republican state politicians simultaneously to put more separation between themselves and their blue state peers and to touch on multiple concerns of conservative activists and voters.

“In Florida we are taking a stand against the state-sanctioned racism that is critical race theory,” DeSantis declared. ““We won’t allow Florida tax dollars to be spent teaching kids to hate our country or to hate each other. We also have a responsibility to ensure that parents have the means to vindicate their rights when it comes to enforcing state standards.” As he moved more educational policies toward adoption, DeSantis added, “It used to be thought that a university campus was a place where you would be exposed to a lot of different ideas. Unfortunately, now the norm is really, these are more intellectually repressive environments. You have orthodoxies that are promoted and other viewpoints are shunned, or even suppressed. We don’t want that in Florida.” “We obviously want our universities to be focused on critical thinking, academic rigor. We do not want them as basically hotbeds for stale ideology. That’s not worth tax dollars and it’s not something that we will be supporting.”2

DeSantis was neither the first nor the last Republican politician to set his sights on the universities. When former Vice President Mike Pence chose to reenter the political arena, a major – and perhaps most quoted – component of his first speech focused on the problem of American universities.

We will reject critical race theory in our schools, in our public universities, and we will cancel cancel culture wherever it arises. That’s an agenda that’ll win. That’s an agenda that’ll win back America. And it’s a positive agenda in these divided times that each and every one of us needs to take to our neighbors and friends. We’ve all been through a lot over the past year. A global pandemic, civil unrest, divisive election, tragedy at our nation’s capital, and a new administration attempt on further dividing our country as they advance the agenda of the radical Left.

“Critical race theory is,” Pence later asserted, “state-sanctioned racism.”3

A new conservative advocacy group urged politicians to pledge themselves to “restore honest, patriotic education that cultivates in our children a profound love for our country.” Republican politicians scrambled to sign on. Initially focused on K-12 education, the ambitions of the group – and the scope of the pledge – soon grew to include universities. Voters were urged to work to replace everyone from school board members to deans and university presidents “who promote a false, divisive, and radical view of America and our fellow citizens.”4

Dan Patrick, the powerful Texas lieutenant governor, found himself in a war of words with members of the state university faculty over the teaching of critical race theory. After the state legislature adopted a ban on critical race theory in primary and secondary schools, the Faculty Council at the University of Texas adopted a resolution declaring that it “rejects any attempts by bodies external to the faculty to restrict or dictate the content of university curriculum on any matter, including matters related to racial and social justice.” Patrick, who was in the midst of a Republican primary campaign himself, did not let the opportunity pass. “We are not going to allow a handful of professors who do not represent the entire group to teach, and indoctrinate, students with critical race theory that we are inherently racist as a nation.” “To these professors … telling taxpayers, and the parents and the legislature and your own Board of Regents to get out of their business (and) that we have no say in what you do in the classroom, you’ve opened the door for this issue because you went too far, and we’re going to take this on. It’ll be a top priority.” For good measure, he announced “Tenure, it’s time that comes to an end in Texas.” Patrick was good to his word in getting bills on both issues through the Senate, where the lieutenant governor serves as presiding officer, though they were narrowly defeated in the lower chamber in 2023.5

The culture war was coming to campus. In hindsight, it is remarkable that it took so long.

Of course, college campuses were not exactly new to the culture war. They had long been a prime battleground, and echoes of those earlier campus battles were now resonating across the country and coming back around to the universities. State political leaders might have just been joining the battle, but right-wing activists had been in the trenches for years. A young William F. Buckley broke onto the postwar national scene with a diatribe aimed at his alma mater, Yale University. As he was organizing the modern conservative movement at mid-century, he did not forget higher education and helped put together a new student group, Young Americans for Freedom, to carry the conservative movement onto the campuses. Where Buckley focused his complaint about academia on how religion and economics were treated on campus, a young Dinesh D’Souza made his own leap onto the national stage shortly after the Berlin Wall came down with a jeremiad aimed at race and sex on campus, anticipating and reflecting the shift of conservative attention from the Cold War to the culture war. In the years after the Vietnam War, leftists joked about the pressure in their ranks to be “politically correct.” By the end of Ronald Reagan’s presidency in the 1980s, conservatives had taken to denouncing universities for enforcing an orthodoxy of political correctness. President George H.W. Bush even featured, to audience applause, that concern in a commencement address at the University of Michigan, denouncing the growing intolerance on university campuses to the freedom “to think and speak one’s mind.” During the presidency of Barack Obama, activists succeeded in popularizing “get woke” as a call to arms for social justice. By the end of the presidency of Donald Trump, conservative activists had repurposed “woke” into a term of condemnation, with special application to the denizens of American universities. As Obama was leaving the White House, the conservative advocacy group Turning Point USA launched the Professor Watchlist to spotlight professors who advocate “anti-American values.” The Marxist-turned-conservative activist David Horowitz had anticipated the Watchlist years before with his own list of the “most dangerous academics in America.” There has been a seemingly insatiable appetite on the right for sensationalistic stories about American college campuses, feeding a steady stream of books and media coverage on the failings of universities.

Despite such long-standing conservative complaints about tenured radicals, universities mostly escaped much political scrutiny. There was a significant gap between how conservatives reacted to the individual stories about political correctness on college campuses and how they felt about higher education as a whole. A populist wave changed all that.

It probably did not help that the horror stories coming out of academia no longer take the form of descriptions on the page. Conservatives living far away from college campuses could now see the political excesses with their own eyes. When American Enterprise Institute scholar Charles Murray got shouted down at Middlebury College in the spring of 2017, conservatives in the Midwest got to see the whole drama play itself out on video. Something that once might have been a brief topic of conversation on campus and in the AEI buffet line could now be watched and replayed on any computer screen and support extended coverage and dissection in conservative media. Worse yet, the Middlebury incident proved not to be unique, and videos of similar events piled up. Meanwhile, social media brought the unvarnished political views of professors across the country into the open. The most outrageous examples are helpfully curated by conservative activists and distributed to a vast, eager audience.

The confluence of the new information environment and the populist takeover of Republican politics has had dire consequences for American higher education. In 2015, nearly sixty percent of respondents told Gallup that they had a great deal or quite a lot of confidence in higher education. Eight years later that number had flipped, and more respondents indicated that they had very little confidence in higher education than said that they had a great deal of confidence. The drop was particularly dramatic among self-identified Republicans, but independents were not far behind.6 Perhaps even more dramatic were the findings of a Pew poll in 2019 that a solid majority of Republicans thought universities have a “negative effect on the way things are going in the country.”7

Such dismal approval numbers have made American universities politically vulnerable as they rarely have been before. For a time, the more treacherous political environment expressed itself in bills demanding greater protections for free speech on campus and an openness to imposing new taxes on the largest of university endowments. The fallout from the killing of George Floyd by police officers in Minneapolis just two months after the beginning of the pandemic lockdown in the spring of 2020 created a new focal point for critics of the universities. Ideas that had once flown under the radar suddenly were on full display, from calls to defund the police and abolish prisons to demands for racial reparations. At the same time Nikole Hannah-Jones was awarded a Pulitzer Prize for her controversial collection of essays on race in American history in the New York Times. A conservative backlash to progressive ideas about race was brewing, and schools became the battle ground.

The Ban on “Critical Race Theory”

With remarkable speed, policymakers across the country have focused their attention on what is sometimes characterized as “divisive concepts.” President Donald Trump got the ball rolling when he issued an executive order at the beginning of the 2020 electoral campaign season, seeking to root out “divisive concepts” in the federal government. His executive order identified a list of concepts, including such claims as that the “United States is fundamentally racist” and that “any individual should feel discomfort, guilt, anguish, or any form of psychological distress on account of his or her race or sex,” that should be purged from federal employee training.8 That executive order was immediately rescinded by President Joe Biden after his inauguration in early 2021, but it laid the groundwork for a great deal of policymaking to come.

Trump’s executive order could in turn be traced to the efforts of Christopher Rufo. A fellow at the Manhattan Institute, a conservative think tank based in New York City, Rufo published a piece in the think tank’s journal that caught the attention of the White House. Published shortly after police and Black Lives Matter protestors clashed just outside the White House fence, the short article called attention to the rise of “profiteering race theorists” peddling “white fragility” to the federal bureaucracy. Rufo had received leaked documents from workplace training sessions in the Treasury Department, which instructed federal employees that “virtually all White people contribute to racism” and do not “support the dismantling of racist institutions.” White employees were told that they should “sit in the discomfort” of their own racism and should grin and bear it “if a person of color ‘responds to their oppression in a way [they] don’t like.’” Rufo revealed that millions of federal dollars had already been spent on such training sessions and called for conservatives to “brace for a long war against the diversity–industrial complex and its enablers.”9The piece foreshadowed what soon became a staple of Rufo’s writing, the acquisition and publication of diversity training documents from schools and workplaces across the country. He became the self-appointed voice of disgruntled white-collar workers everywhere.

Almost as an afterthought, Rufo’s article attributed the ideas that permeated diversity training to critical race theory, which he characterized as “the academic discourse centered on the concepts of ‘whiteness,’ ‘white fragility,’ and ‘white privilege.’” The diversity–industrial complex was “the ultimate vision of critical race theorists” and its goal of creating “a new, radical political consciousness.” Among his proposals was an executive order banning the teaching of “the toxic principles of critical race theory, race essentialism, and neo-segregationism.”

Infamously, Rufo laid out his rhetorical strategy in public via Twitter: “The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory.’” He declared success in freezing their brand “into the public conversation” and “steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category.”10 The plan seems to have worked. Lots of things were soon lumped under the label, and “critical race theory” became a catch-all, if dimly understood, way for conservatives to describe racial ideas and arguments that they did not like.

Rufo was hardly alone in trying to freeze the brand. James Lindsay, a mathematician turned conservative cultural critic, was working the same beat. Lindsay had made a name for himself by contributing to a set of hoax academic papers designed to show the intellectual weakness of so-called “grievance studies.” He helped bring “woke” into the conservative lexicon and explored critical race theory in depth. Central to Lindsay’s charge was that critical race theory was not merely a scholarly enterprise but was a political movement pressed by a coalition of scholars and activists. What was more, critical race theorists were “totalitarians” who did not simply seek to understand the world but “to change it, to reorganize it according to social power dynamics it obsesses over but can only barely understand.” Critical race theory was, at heart, “a Marxian Theory.”11 The Cold War met the cultural war.

Soon Republican legislators across the country were rushing to introduce bills that were similarly aimed at “critical race theory” and “divisive concepts” in state government. Unlike Trump’s executive order, however, many of these state-level bills were aimed at educational institutions. The first wave of bills generally focused on primary and secondary schools. Arizona prohibited state agencies from making use of employee training that “presents any form of blame or judgment on the basis of race, ethnicity, or sex.”12 Georgia adopted the Protect Students First Act, which prohibited “classroom instruction” that “advocate[s] for divisive concepts,” including that individuals should “feel anguish” or “guilt” “by virtue of his or her race” and that “character traits such as a hard work ethic are racist.”13 North Dakota required that the public-school curriculum be “factual” and “objective” and “not include instruction relating to critical race theory.”14 South Carolina included a budget rider on “partisanship curriculum” that prohibited curricula, textbooks, or instructional materials that “serve to inculcate” various disfavored concepts.15 Texas adopted a civics training program that included a prohibited list of divisive concepts.16 The list goes on.

A second wave took aim at higher education. As state politicians looked toward state universities and colleges, they also began to move forward a broader set of higher education reforms ranging from modifying faculty tenure policies to banning the use of diversity statements in university admissions and hiring to dismantling offices of diversity, equity, and inclusion. Although there are policy arguments to be had about the wisdom of this wider array of legislative initiatives, the proposals aimed at university classroom teaching are particularly significant for how universities operate and raise distinctive constitutional challenges.

Perhaps the most high-profile of the bills that have been signed into law is Florida’s so-called “Stop WOKE Act,” or House Bill 7. Passed with great fanfare at the behest of the governor’s office, Florida Republican governor Ron DeSantis declared that “we will not let the far-left woke agenda take over our schools” and that “there is no place for indoctrination” in the state.17 A key feature of the law echoes other “divisive concepts” proposals. It declares it to be prohibited “discrimination on the basis of race” for any student in the state to be exposed to “training or instruction that espouses, promotes, advances, inculcates, or compels such students … to believe any” of a list of concepts, including that members of one race are “morally superior” to members of another, that a person’s “status” is “either privileged or oppressed” as a result of their race or sex, that a person “should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion,” or that “such virtues as merit, excellence, hard work, fairness, objectivity, and racial colorblindness are racist or sexist.”18 By prohibiting university instruction that “espouses,” “promotes,” or “advances,” or offers with “endorsement” such concepts, the state restricts ordinary academic discourse in a range of disciplines and hampers the ability of professors to construct ordinary political and policy arguments relating to a variety of disputed issues involving race and sex.19

The policy agenda regarding the discussion of controversial ideas in public universities is mutating rapidly. New targets for regulation have quickly emerged, and policymakers have considered an array of regulatory tools. Interestingly, the Manhattan Institute itself has shied away from advising legislators to restrict teaching in state university classrooms. In urging regulation of primary and secondary schools, the Institution cautioned that the “legal parameters governing how state elected officials interact with public university curricular decisions are very different from the K-12 context.”20 Other advocates have not been so hesitant, and legislators have rushed to fill the legislative hopper with anti-critical race theory bills. Hundreds of separate proposals were introduced just in the first two years of the Biden administration, with a high success rate of getting adopted in some form. A significant fraction of those measures targeted higher education.21

If Florida’s Stop WOKE Act takes a broad approach to restricting the advocacy of divisive concepts in state university classrooms, Idaho’s statute takes a narrower approach. It makes direct reference to “tenets … often found in ‘critical race theory’” in its new legislation on “dignity and nondiscrimination in public education.” Because the legislature regards such concepts as likely to “exacerbate and inflame divisions,” it prohibits any “public institution of higher education” from directing or compelling students “to personally affirm, adopt, or adhere to” a list of tenets, including that a race or sex is inherently superior to another, that individuals should be adversely treated on the basis of such characteristics, or that individuals are “inherently responsible” for actions committed in the past by other individuals who share such characteristics.22

Other proposals are even more ambitious. Some would ban universities from using Nikole Hannah-Jones’s 1619 Project in university courses. Others would prohibit university professors from “teaching” disfavored ideas or using any instructional materials discussing such ideas. Some would expand the set of divisive concepts that could not be promoted in a university classroom, such as the idea that capitalism or free markets are racist. It is not hard to imagine a further expansion of the list of forbidden divisive concepts to include such newly salient ideas as “intersectionality,” “decolonization,” or “settler colonialism.” If classroom discussions and classroom materials are to be regulated, it would not be hard to imagine policymakers turning their attention to the scholarship produced by state university faculty or their personal political activities and speech. Dan Patrick warned controversial professors to look for employment elsewhere. “Go to a private school, let them raise their own funds to teach, but we’re not going to fund them. I’m not going to pay for that nonsense.”23 If professors spouting “nonsense” is a good reason for government officials to get rid of them, it seems unlikely that the only nonsense that will matter is that being expressed in the classroom.

Can You Teach That?

Dan Patrick was flabbergasted by the implications of the resolution adopted by the University of Texas faculty. “They don’t understand that we in the legislature represent the people of Texas. We are those who distribute taxpayer dollars. We are the ones who pay their salaries, parents are the ones who pay tuition. Of course, we’re going to have a say in what the curriculum is.”24

Rufo reaches a similar conclusion by a somewhat different path. He rejects what he calls the “old right-libertarian solutions.” Better to rethink the relationship between public universities and the state. “I believe that we must revive the democratic governance of our public universities and shape them according to the principles and priorities of voters, who elect legislators to govern state institutions in the interest of the common good.” The old “norms of academic freedom” no longer work. It is time to “engage in a strategy of political recapture.” In his view, the university faculty have “broken your end of the bargain; now we’re going to bring accountability.” It is the democratically elected representatives of the state who should and do have the ultimate authority to determine what happens in state university classrooms. “This is not a free marketplace of ideas; this is a state-run monopoly on education institutions. And we have a duty and responsibility to use political power to shape them towards serving the citizen, towards serving the public good.”25

The vision of state higher education advanced by politicians like DeSantis and Patrick and activists like Rufo is gaining ground and finding its way into public policy. This book examines whether there are any constitutional limitations on whether and how that vision can be put into practice. If the legislature pays the bill (though notably a much smaller portion of the bill than once was the case), does it ultimately get to call the tune of what ideas are professed in the classroom? If public universities are instruments of the state, to what extent can legislatures direct what is taught in those state agencies?

The constitutional answer to such questions is far from clear when it comes to state universities, and it is the task of this book to try to clarify that answer. The constitutional answer is already fairly clear in two other contexts, and so it is worth calling attention to them in order to set them aside. First, public primary and secondary schools have long been recognized as being under the direct political control of public bodies, from local school boards to state government officials. Teachers in the classroom at the K-12 level are agents of the state, and they are expected to teach the publicly approved curriculum. To date the courts have recognized no meaningful First Amendment rights on the part of primary and secondary-school teachers to resist legislative restrictions on their classroom speech. The initial wave of legislation targeting primary and secondary schools may be badly written and vague in ways that are constitutionally problematic, but the basic authority of the state to control what happens in public schools is expansive. Second, private universities are largely beyond the control of the state governments. Private educational institutions have substantial First Amendment rights to design and teach their own curriculum without state interference. The constitutional space for government officials to attempt to restrict what is taught in private university