The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So a magistrate judge concluded today in Meriwether v. Shawnee State Univ. (S.D. Ohio); the government as employer, the judge reasoned, may require its employees—including professors—to do this as part of their jobs.
I think that this is likely right, precisely because the government is acting as employer. The government is trying to make sure that its students are effectively taught; it can insist that its employees use techniques that the employer views as conducive to that, and to avoid techniques that the employer thinks will interfere with effective teaching. Indeed, I think that public universities have broad latitude under the First Amendment to tell their professors how to teach and what to teach, just as public K-12 schools do (though in practice most universities leave their professors with a great deal of discretion).
I think similar requirements imposed by the government acting as sovereign might well be unconstitutional—for instance, if the law require private employers (including private colleges) to impose similar rules on their employees (or on students or on patrons or on tenants), or risk lawsuits for tolerating a supposed "hostile public accommodations environment," "hostile educational environment," "hostile work environment," or "hostile housing environment." This case, thankfully, does not involve that, but future cases might.