You Can’t Teach That!: The Battle over University Classrooms
By Keith E. Whittington.
Polity, 2024.
Paperback, 176 pages, $19.95.
Reviewed by Donald Downs.
Keith Whittington has long been a leading prolific scholar of constitutional law and American constitutional development. In recent years, he has written widely about campus speech issues while becoming a national leader in the growing movement to restore free speech and inquiry to higher education. Among other things, in 2021 he and his former Princeton colleague Robert George founded the Academic Freedom Alliance, a national group centered at Princeton that has joined a growing list of other organizations in providing legal and instrumental support for faculty members whose academic freedom has been violated or threatened, and in disseminating ideas to reform the policies and culture of higher education.
Whittington’s new book, You Can’t Teach That!, deals with the latest set of issues in what amounts to a three-and-a-half-decade battle over the status of free speech and open inquiry in higher education. This conflict is also a microcosm of the deeper debate over the proper mission of the university. Should the university’s mission be to educate and pursue truth through academic merit, academic freedom, and free inquiry—the way of liberal education? Or should it be the pursuit of social justice, usually defined in an intellectually narrow progressive or “post-liberal” way? Campus turmoil in the wake of the Israeli-Iran & Its Proxies War after October 7, 2023, has added urgency to this question.
The growing free speech/academic freedom movement has included calls for greater input by relevant campus stakeholders in university governance. Traditionally, it was assumed that the faculty would be the best protectors of academic integrity and the academic freedom that is the lifeblood of the pursuit of truth. After all, they possess the most expertise, and academic freedom is their bread and butter. Outside interference by trustees and, especially, politicians over academic matters was rightly considered verboten. Politicizing pedagogy and research by outside forces harkens the end of the university as a leading institution in the republic’s pursuit of truth and knowledge.
Alas, this traditional deference to the faculty and representative administrators came with a proviso or understanding: that faculty and campus leaders would honor their duty to protect academic freedom from improper pressures, whether they emanate from outside or inside the institution. Hence, the troubled question of our times is: What if the leaders of the institution themselves become politicized and intolerant of dissent from regnant campus orthodoxies? Who or what can protect free and open inquiry from that forsaking of duty to the institutional mind?
Since the rise of the speech code movement in the late 1980s and early 1990s, faculty and administrators have ineluctably grown less tolerant of free speech and inquiry that opposes progressive orthodoxy. Hence the call for widening the scope of governing input, including trustees, regents, donors, alumni, and even politicians. Reforming the nature of institutional governance can be a useful remedy to the present situation, but it is also fraught with risk if not done right and with due caution.
The risk is especially prominent when politicians stick their noses into governance matters. You Can’t Teach That! warns us that reform must avoid creating its own set of problems in lieu of the problems it sets out to remedy. And it provides a useful set of guidelines or guardrails to help us navigate the new reality of ferment surrounding higher education.
Early chapters lay out the key issues and the historical and analytical background of the First Amendment’s incremental coming to grips with speech in educational contexts. Whittington focuses on public institutions because the First Amendment and the Constitution apply only to state action, not private. That said, many, even most, private colleges and universities protect free speech and academic freedom in their institutional policies and contracts, so the spirit of the First Amendment is present in their disputes, though indirectly.
A virtue of the book is Whittington’s successful attempt to tailor his proposals to long-established free speech jurisprudence in areas relevant to the school topics he addresses. This jurisprudence has served the republic well and needs to be taken seriously.
A key example is Whittington’s critique of new state legislation designed to prohibit or limit the teaching of critical race theory and other “divisive concepts” in class. In the past, such legislation applied mostly to schools beneath the college level, but the new populist wave in the culture wars has caused some states to target higher education as well. Whittington convincingly shows how Supreme Court “loyalty” cases in the post-World War II era established a jurisprudential basis to invalidate such laws. This application is logical because, as the Court asserted in a pivotal college case involving a state law requiring teachers to sign an oath disclaiming communist allegiance, Keyishian v. Board of Regents of the University of the State of New York (1967), academic freedom is a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
In his final substantive chapter, Whittington returns to a special problem posed by the anti-woke laws passed in Florida, Texas, and other states: the attempt to protect students from being “compelled” to believe and accept divisive and related concepts. Though the doctrine against compelled speech is a vital component of First Amendment jurisprudence, its application to faculty speech in class is laden with difficult analytical and practical distinctions. Drawing the line between compelled and non-compelled speech by an instructor is notably open to dispute. Furthermore, the monitoring such a policy requires would constitute a conservative version of the infamous and ubiquitous “bias-reporting” programs that progressive-authoritarian diversity bureaucracies have inflicted on campuses across the country and which critics properly decry. Whittington writes, “These policies are not designed to protect students from compelled belief. They are designed to protect students from ideas that politicians do not like.”
More typical compelled speech cases involving instructors requiring writing or student speeches also require considered judgment. Generally, such expression is not “compelled speech” if it serves “a reasonable” or “legitimate pedagogical purpose.”
Another issue is what rights faculty members have to speak and teach independently of the institutions and states that hire them. Are they mere “hired hands,” like most employees, or are their roles “distinct” in some respects that should grant them more speech protection than non-academic state employees? This is a vital question given the internal pressures to conform in higher education today. The original Keyishian case dealt with orthodoxy enforced by outside legislative interference. But today’s orthodoxy comes mainly from inside institutions, with politicized administrative DEI bureaucracies and faculty members sponsoring or tolerating speech-inhibiting policies that stifle intellectual honesty and viewpoint diversity. An example is compelling faculty members and job applicants to support various diversity statements.
Consequently, academic freedom protections for those individuals with the courage to speak out against their own institutions is more necessary than ever, lest a “pall of [internal] orthodoxy” prevail.
That said, the question of public employee speech is tricky because employers possess a common sense right to ensure workplace comity and efficiency. Historically, as Whittington shows, public employees had no right to speak on their own, as they were considered by practice to have left their speech rights at the company’s doors, so to speak.
Such was the state of the law until the Supreme Court, as part of its general liberalization of free speech jurisprudence in the 1960s, gave special, though limited First Amendment protection to public employees in Pickering v. Board of Education (1968). Pickering and later cases applied a special balancing test in cases in which an employee’s right to speak as a “citizen” about a “matter of public concern” is protected unless it demonstratively interferes with or harms the efficiency and functionality of the institution.
Then, a 2006 Supreme Court case, Garcetti v. Ceballos, upset the delicate balance precedents had set. The Court ruled that public employees were not even entitled to the more limited form of First Amendment protection established in Pickering if their speech was made “pursuant to their official duties.” No exception was made for academics and academic freedom, even though the role of an academic embraces commentary on institutional matters and matters of public concern. In effect, Garcetti allows institutions to punish faculty criticism if the criticism is related to the speaker’s official duties.
Lower courts have not done much to clean up this mess, leaving reform largely to the institutions themselves. Not long after Garcetti came down, the University of Minnesota and the University of Wisconsin-Madison, led by pro-academic freedom forces in their faculty senates, changed their own official institutional rules to expressly protect faculty criticism of institutional policies and actions. But most schools have not so ventured forth. If professors in these institutions want to publicly criticize expenditures, athletic department excesses, DEI abuses, or speech codes, their appeals must be to Jeptha, not the law.
Whittington convincingly calls for a post-Garcetti carve out that protects faculty speech because their “distinctive” role is precisely to speak honestly about public matters and academic affairs. Though the public is understandably skeptical of academics claiming special protection because of the “distinctiveness” of their roles, it should realize that this very protection is one meaningful tool to hold higher education accountable in an era in which such accountability is increasingly called for. But gaining public trust in this area also presupposes that faculty are willing to speak out when needed.
Whittington also examines the extent and limits of faculty speech in the classroom. Again, this question matters because administrative programs and incentives have increasingly pressured classroom speech to conform to DEI and related orthodoxies. As the Foundation for Individual Rights and Expression has rightly stressed, faculty members should be presumed—strongly—to decide how to teach and what to say. Whittington agrees but acknowledges that not anything goes. He supports well-established limits: classroom speech must, with reasonable wriggle room, be relevant to the subject matter at hand, and teachers must be competent in their fields. Basic civility and comity should be expected. Drawing on a 1956 Bulletin of the American Association of University Professors, he writes that dismissal of a faculty member should take place only if “incompetence, lack of scholarly objectivity, serious misuse of the classroom…gross personal misconduct, or conscious participation in conspiracy against the government.”
You Can’t Teach That! is essential reading for anyone who aspires to meaningful reform of campus culture and policy that does not itself jeopardize indispensable free speech and academic principles. This book is also vital for those who want to hear from a highly knowledgeable source with great intellectual freedom street cred.
If I were writing the book, I would have paid more attention to the reasons why the culture of higher education cries out for reform in the first place, including the need to increase intellectual diversity and provide principled checks versus faculty and administrative conformity. There are reasons that outsiders are calling for reform, and institutions have themselves to blame for the ferment we are witnessing. Whittington’s book is an important reminder that harm can arise from many directions.
Donald Downs is the Alexander Meiklejohn Emeritus Professor of Political Science and Affiliate Emeritus Professor of Law at the University of Wisconsin-Madison. His scholarship and professional work have often dealt with First Amendment and campus freedom issues, including his last book, Free Speech and Liberal Education: A Plea for Intellectual Diversity and Tolerance (Cato, 2020).
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