A review of You Can’t Teach That! The Battle Over University Classrooms, by Keith E. Whittington
There has always been—and likely will always be—a debate over who controls what is taught at America’s colleges and universities. Should it be determined by the board of trustees, the administration, or the faculty of each institution? What role, if any, do state legislatures have in determining the curriculum at public colleges and universities? After all, most public institutions of higher education receive millions of taxpayer dollars every year. Shouldn’t the legislature have some say in how those tax dollars are spent? What about the student body or alumni of each institution? Should they have any influence in the decision-making process? All these questions have been debated for more than one hundred years.
Throughout most of this history, these debates have been largely confined to the leafy campuses and ivory towers of academia or the hoary halls of state legislatures. But there are certain times when current events cause the debate to become more acute and draw the attention of the general public. This is one of those times. Over the last several years, the question of who should control what is taught at higher education institutions has once again become the subject of intense debate throughout the country.
One side argues that state legislatures should be able to control, at least to some extent, the content of the curriculum at public institutions of higher education because they are funded by millions of taxpayer dollars. The other side argues that any restriction imposed on the content of the curriculum infringes on the academic freedom of both the faculty and the institution. Both sides make important points and raise legitimate concerns. But in these polarized times, it can be difficult to discern the proper way forward amidst all the posturing and shouting.
Thankfully, Keith Whittington's new book, You Can't Teach That! The Battle Over University Classrooms, helps to make sense of the debate and provides a constitutional framework for analyzing these issues. Whittington spent most of his career at Princeton University where he served as the William Nelson Cromwell Professor of Politics. Whittington recently joined the faculty of Yale Law School where he now serves as the David Boies Professor of Law.
In Chapter One, Whittington details the confluence of events that precipitated the current debate surrounding higher education. He explains how George Floyd’s death in the spring of 2020 brought to the public’s attention various academic ideas that had previously flown under the radar. These ideas included calls to defund the police and abolish prisons, and demands for racial reparations. The debate surrounding race was further highlighted when Nikole Hannah-Jones was awarded a Pulitzer Prize for The 1619 Project, her controversial collection of essays in the New York Times on race in American history.
In response, many state legislators began introducing bills to prohibit the teaching of “critical race theory” and other “divisive concepts” in both public primary and secondary schools and public higher educational institutions. The most high-profile example is the “Stop WOKE Act” in Florida. This law prohibits any student in Florida from being exposed to training or instruction that promotes certain concepts. The banned concepts include that members of one race are morally superior to members of another or that a person should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
Whittington contends that by prohibiting university instruction from espousing certain ideas, Florida and likeminded states are restricting academic discourse in a range of disciplines and are prohibiting professors from “construct[ing] ordinary political and policy arguments relating to a variety of disputed issues involving race and sex.” This concern was the impetus for his writing the book and is the lens through which Whittington views academic freedom.
In Chapters Two and Three, Whittington traces the history of the development of the concept of academic freedom. He explains how the concept developed over time as various debates arose over contentious issues. These chapters detail numerous examples from the 1870s through the 1950s of professors being fired for teaching on various controversial topics, including evolution, socialism, and communism. Over time, many of the top professors began organizing to protect professors’ intellectual freedom. Eventually, this resulted in the formation of the American Association of University Professors (AAUP). In 1915, the AAUP published its first Declaration of Principles on Academic Freedom and Tenure.
The AAUP began lobbying university leaders to adopt policies protecting academic freedom. This effort eventually resulted in the 1940 Statement of Principles on Academic Freedom and Tenure, which was jointly adopted by the AAUP and the Association of American Colleges, an organization representing many university presidents. The 1940 Statement was the first time that professors and university officials together expressed broad support for the importance of protecting academic freedom in American universities.
According to Whittington, the 1940 Statement is important because it demonstrates how academic freedom is different than freedom of expression. Whittington explains that academic freedom does not give professors the right to say whatever they want. Rather, it provides professors “the freedom to carry out their professional duties without inappropriate pressures being placed on them by their university employers. They are insulated from outside forces so that they might tell the truth as best they understand it.” Whittington contends that this understanding of academic freedom has been the mainstream commitment of American universities since the Second World War.
Chapter Four details how the Cold War and the era of loyalty oaths challenged this commitment. For the first time, these challenges caused the Supreme Court to substantively weigh in on whether the First Amendment imposed a limit on how state legislatures could regulate what was taught in state universities. In 1967, the Court firmly established, in Keyishian v. Board of Regents, a constitutional right to academic freedom. Keyishian held that “[o]ur Nation is deeply committed to safeguarding academic freedom” and that the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” But since Keyishian, the Supreme Court has done little to develop the parameters around academic freedom. Thus, lower courts do not have much guidance as to how to protect academic freedom in practice.
In Chapter Five, we come to the heart of the book. Here, Whittington lays out his approach to reconciling constitutional protections for academic freedom with the government’s right to supervise its employees. The chapter first details the Court’s decisions in Pickering v. Board of Education and Garcetti v. Ceballos, which establish the parameters governing the government’s ability to terminate its employees for engaging in speech. In Garcetti, the Court held that “speech made pursuant to official responsibilities” is outside the scope of First Amendment protection. Notably for Whittington’s topic, in addressing the dissent’s concerns about the destructive effects the decision would have on academic freedom, the Court said that it was not ruling on whether this same principle would apply “to a case involving speech related to scholarship and teaching.”
Whittington uses the remainder of the chapter to explain his position on how Garcetti’s “official duties” test can be squared with Keyishian’s broad protection of academic freedom. He argues that academic speech should be considered an exception to the Garcetti framework. Whittington contends that professors’ in-class speech is different than other government employees’ speech because it necessarily concerns topics of public concern. Universities that seek to punish professors for speaking on divisive topics do so precisely because they are matters of public concern and are politically disfavored. This is the same reason that the government seeks to censor ideas in the public sphere more broadly. Thus, according to Whittington, the government’s interest in censoring speech about divisive concepts in higher education raises all the same concerns with censorship more broadly that the Court has rejected since the early 20th century.
Whittington acknowledges that the government has the authority to establish the curriculum and that this authority necessarily limits a professor’s in-class speech. Whittington proposes, however, that a university should only limit a professor’s in-class speech by requiring that it be both germane and professionally competent. A professor’s professional duty is to instruct students in the subject matter of the class. If a professor spends his time doing something else, the university can punish him because he is not performing his professional duty. Whittington spends the rest of the chapter expounding on these principles and illustrating their application through various hypotheticals.
In Chapter Six, Whittington addresses the government speech doctrine and explains why he believes that a professor’s in-class speech should be considered the professor’s private speech and not government speech. Finally, in Chapter Seven, Whittington lays out his constitutional concerns with laws that prohibit professors from compelling students to believe in disfavored ideas.
Whittington’s advocacy for the robust protection of academic freedom is undoubtedly influenced by his position as a professor and long-time member of the academy. But overall, Whittington takes a balanced and even-handed approach to a weighty and divisive topic. This book is a must-read for anyone who is interested in gaining a more thorough understanding of the important constitutional questions surrounding efforts to impose restrictions on the content of the curriculum being taught at America’s colleges and universities.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].