As a College Professor, Who Owns My Speech?
This question may seem like a silly one at first blush. After all, who else could own my speech except me? But the ever developing Republican War on Higher Education has opened a new front in this discussion. Indiana passed a law requiring public colleges to deny tenure to professors who are “unlikely to foster … intellectual diversity.” The legislature did not define what this meant and left it to politically appointed trustees to figure it out. Now taken seriously this is an absurd law. Would a historian of the Holocaust have to give time to Holocaust deniers? Is a geographer supposed to seriously present flat earth theories and respond to them? I mean that would be diversity wouldn’t it? But the goal of such laws is truly partisan: colleges need to teach more conservative Republican values as normal and good. It responds to the myth that education is all evil hippy, commie, liberal, atheism. The only way to do this is to require ideological diversity which is just code for teaching students Republican Party slogans. Leaving aside the intent of the law for a second, the more interesting question is whether this is constitutional.
In defending the law, the Indiana Attorney General’s office has turned to a new argument in the Republican War on Higher Education: that as public employees of the state, anything a professor says in class is the speech of the government and, thus, the government can control and mandate whatever speech it wants in class. In other words, I am a mouthpiece of the state. The government speech doctrine is simple in many ways. Let’s take my childhood of the 1980s and ‘90s. Government of the day put out all kinds of stupid nonsense about drugs but doing so is not a free speech issue because the government is allowed to speak, just as an individual is. I might think that the drug messages of my youth were stupid, often filled with half-truths or outright lies, and counterproductive to good public policy, but obviously the government could spread the messages it wished. The professor-as-government argument was pioneered, I believe, by Florida and just takes the case a step further. Government speaks through its employees and as one such employee, a professor on the clock as a professor is subject to the rules of the government. This relies heavily on a public employee speech case, Garcetti v. Ceballos (2006), where SCOTUS declared that when “public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.”
The problem is that this runs afoul of the very concept of academic freedom. As Steve Sanders discussed in his response to this filing, modern academia has long prized at least the ideal of academic freedom. This ideal posits, in simple terms, that professors have the right to direct their teaching and research in ways that they think best achieves professional aims. This doesn’t mean that I can do anything I want. It means that within disciplinary norms I have autonomy and professional judgment. For example, I’m heading to my free speech class soon and it is heavy on core political speech, obscenity and indecency, and student speech not because these are all that is important but because I believe, in my expert judgment and experience, that deeper dives into a few broad areas is an effective way to teach core political and legal concepts of free speech. If I was teaching law students, I would do it very differently because the disciplinary goals would shift.
As a constitutional value, academic freedom is less clearly fleshed out. In Keyishian v. Board of Regents (1967), SCOTUS opined that freedom of teachers in public colleges was “a special concern of the First Amendment” because the Constitution forbids “laws that cast a pall of orthodoxy over the classroom.” There, the issue was whether New York could forbid professors from being or even appearing to be Communists. If universities and colleges are going to serve their purpose, then academic freedom is a necessity and that included the freedom of being a Communist if one wanted. Or a Republican, or Democrat, or, as a professor in my graduate program once called me “A damn British loyalist!” SCOTUS would invoke this concept again two years later when, in Tinker v. Des Moines (1969), it declared that “state-operated schools may not be enclaves of totalitarianism.” Students as well as teachers retain freedom to speak even in the classroom.
While Sanders is more focused on the hypocrisy of Indiana University joining in this attack on academic freedom, my concern is what this argument means for the future of the Republican War on Higher Education. This is not a frivolous argument. It’s goal is to undermine, and ultimately reverse, precedents discussed above. We have seen this in other parallel elements of attacks on education. For example, in cases defending book bans in public and school libraries, a number of local governments have argued that as public institutions, the books that a library includes is governmental speech and, thus, any decision to exclude a book is solely up to its fickle judgments. The Indiana defense of the tenure diversity requirement is just another continuation of that logic. If Indiana professors are found to be insufficiently open to, supportive of, endorsing Republican political orthodoxy, they can and will be fired.
This argument represents a division in the very ideology of education. As Adam Laats’s discusses in his masterful The Other School Reformers, for conservatives education is about the transmittal of tried and true values and information. Creative thought is dangerous because it leads to bad things. Interpretation is bad because it implies multiple meanings are possible and then we open the door to relativism. Ronald Reagan is the greatest president of the modern age because he defeated the Soviet Union. To question that truth, or to introduce complications like his support for brutal dictatorships, is to be ideological. The non-ideological truth is he is a hero, anything that brings him into disrepute, therefore, is dangerous ideology. In other words, what Indiana is trying to do is to open the door for the state to turn the classroom into an “enclave[] of totalitarianism” where there is “a pall of orthodoxy [cast] over the classroom.” I don’t know if the courts will go there yet, and I think SCOTUS is probably not ready, but we have deeply Republican federal courts and their ideological radicalization has pushed many once unthinkable ideas to the forefront. So we may not be too far from a future where I get a state approved message of people, ideas, events that must be celebrated/denigrated based on the ideological whims of the state. Indiana’s AG is the first step down that path.
