How 2 Lawsuits Could Tee Up National Academic Freedom Fight

The American Association of University Professors sued Texas A&M University officials and the system Board of Regents last week to block a policy that limits discussion of “race or gender ideology” in class unless preapproved by the institution’s president.

The policy, implemented last November, resulted in a systemwide course review and several canceled courses. The lawsuit followed another, brought by the AAUP in July against Texas Tech officials, which similarly argues that Chancellor Brandon Creighton’s memos preventing faculty from teaching content related to ill-defined concepts of sexual orientation and gender ideology violate the First and 14th Amendments.

At both institutions, faculty resorted to self-censorship, unsure what material might violate the vague rules and put them at risk of discipline, including termination.

The twin suits are the latest effort by the AAUP to fight mounting censorship in Texas, and their outcomes could have serious implications for professors beyond the Lone Star State, experts say. Together the lawsuits are poised to bring the issue before the Fifth Circuit, a notoriously conservative appellate court that has yet to weigh in on whether and how the government can exert its influence over what faculty can say and teach at state institutions.

“The Fifth Circuit is a very unusual circuit,” said Robert Post, a professor at Yale Law School and co-author of For the Common Good: Principles of American Academic Freedom. “It’s unpredictable and tends to extremes, so you never know where the Fifth Circuit is going to go.”

The timing of the lawsuits was no accident, said Howard Miller, an education, labor and employment attorney at Bond, Schoeneck and King. On July 7, the day before the AAUP filed its complaint against Texas Tech, the Court of Appeals for the 11th Circuit upheld a lower court’s decision and struck down provisions in Florida’s Stop WOKE Act, arguing in no uncertain terms that the state could not control what professors say and teach.

“Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them,” Judge Britt C. Grant, a Trump appointee, wrote in the court’s opinion. “Forcing an official government line—in a college classroom of all places—is exactly the ‘pall of orthodoxy’ that the First Amendment will not tolerate.”

The plaintiffs in the Texas lawsuits will likely “rely heavily” on the 11th Circuit decision in making their arguments, Miller said. The Fifth Circuit has no obligation to follow the 11th Circuit’s precedent, but “it’s kind of hard to ignore some of what the 11th Circuit was saying,” he said.

The Fifth Circuit “is going to have to address [the decision], but what may happen is the Fifth Circuit may say, ‘Well, OK, that was what the 11th Circuit decided, but we find the dissent in that decision more persuasive.’ Or they’ll try to distinguish the Texas policies against the Florida legislation,” Miller said. Ultimately, “if they want to uphold what Texas has done, they’re going to have to reject the 11th Circuit.”

That rejection would result in a “very profound” circuit split that could send the case to the Supreme Court, should they decide to take it, Post said.

“It’s definitely a concern” that a Fifth Circuit ruling could favor the universities, said Zach Greenberg, director of the faculty legal defense at the Foundation for Individual Rights and Expression. “The Fifth Circuit has not always been the most friendly towards the First Amendment, free speech and professors.”

Still, Greenberg is optimistic that the AAUP will prevail at the district level.

“Even the district court should find that professors aren’t just mouthpieces of the government—that they have individual academic freedom to determine what they can teach, and that the [decision] by the 11th Circuit is binding authority,” he said. “We expect the results to be successful.”

As of Wednesday afternoon, Texas A&M had yet to file a response to the AAUP’s complaint. Texas Tech officials filed their initial response on July 31. In it, their lawyers echoed Judge Barbara Lagoa’s 11th Circuit dissent, arguing that what happens in state higher education classrooms is subject to the state’s control.

“It is [Texas Tech], and not plaintiffs’ members, who have the legal right to determine what courses will be taught at [the university], and the content of those courses,” the defendants wrote. “While [Texas Tech] faculty have First Amendment rights in connection with many of their non-classroom activities, the courses [Texas Tech] pays them to teach, and their speech in teaching those courses, is their employer’s speech and is not protected by the First Amendment.”

Should the courts agree with this argument, the precedent it sets could come back to bite conservatives by challenging the free speech rights of conservative professors in liberal states, Miller said.

Post agreed. “No court that has a shred of self-respect would say, ‘Oh, they’re state employees when it comes to mouthing left-wing ideology, but independent when it comes to mouthing right-wing ideology,’” he said. “I don’t know how they could possibly sustain that position.”

Texas Tech’s argument “is basically saying there’s nothing special about university faculty. They are employees like any other, and therefore subject to the political direction that the state wishes to give them,” Post said. He called the argument a “second cousin” to the currently delayed Office of Management and Budget rule that would align federal research grants with the president’s political priorities.

Post, Miller and Greenberg all said that it was necessary for the AAUP to bring these cases. Without them, Texas’s—and other states’—encroachment on academic freedom would continue unchecked.

“I think they have to challenge, especially now. They have a win in the 11th Circuit, and they can ride that win and hope that the Fifth Circuit follows it,” Miller said. “And again, if the Fifth Circuit doesn’t follow it, now they’ve got their ticket to the Supreme Court.”