The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The New Wave of Faculty Terminations
My two recent pieces in Chronicle of Higher Education
The Fall semester is not going well so far when it comes to campus speech. Obviously the most horrible event in this regard was the murder of Charlie Kirk while he was engaged in a public speaking event on a university campus. A few years ago there were numerous instances of mobs of students and agitators disrupting conservative speakers and rioting when conservative speakers came to a college campus. The pace of such mob activity seemed to have slowed, but the Kirk shooting is a terrible escalation.
Unfortunately, the Kirk shooting is not the only news on the campus speech front. In just the past few days, I have written two pieces for the Chronicle of Higher Education on moves to fire professors for speech that has drawn the ire of politicians.
The first responded on events at Texas A&M University, where an English lecturer was quickly fired after a viral video promulgated by a Republican state legislator. The video shows a confrontation in a class on children's literature in which a student objected to the professor presenting materials on gender identity. The university president initially defended the instructor and her academic freedom, until the Texas governor started demanding that she be fired.
From the piece:
Events in Texas have been fast moving, and a great deal of factual information about the case remains unknown. What is clear is that state-government officials are extremely willing to intervene to punish professors at state universities for saying things in the classroom that those politicians do not like, and that university presidents there are under immense pressure to comply with such demands. Academic freedom is a tenuous thing in such an environment.
Read the whole thing here (you will need a free account to sign in).
The second is at the top of the website this morning. This longer piece walks through the First Amendment rights of government employees and particularly professors and other employees of state universities. Since the murder of Charlie Kirk, there has been an orchestrated campaign to identify individuals who posted on social media celebrations of his death (or worse) and to pressure their employers to fire them for those posts. University employees have been just one target of that campaign, but several universities have been extremely quick to bow to that pressure and suspend or fire professors for their speech relating to Charlie Kirk. In the process, some universities have issued public statements egregiously mischaracterizing First Amendment doctrine. The piece points out the circumstances when such terminations are constitutionally permissible -- and when they are not.
From the conclusion of the piece:
The American Association of University Professors once emphasized that, when speaking in public, professors should remember that the public will "judge their profession and their institution by their utterances," so they should conduct themselves with discretion when speaking in public. That remains good advice. Higher education is now under extraordinary political pressure, and public confidence in colleges and the academic profession is in free fall. Professors who behave immaturely (or worse) in public exacerbate those problems. Perhaps more immediately, constitutional doctrine that treats professors as different and special compared to other government employees depends on a judgment that professors make positive contributions to our public discourse, even when those contributions are controversial. If professors are seen as polluting the public environment and contributing to political polarization and intolerance, the calculation of how to balance the competing constitutional interests is likely to change. Perhaps judges should continue to insist that professors are different even when they are chanting on the campus quad or posting on social media, but they are likely to do so only if they think professors are acting responsibly.
Even if a sense of public virtue is not sufficient to encourage professors to exercise more care when speaking in public, self-interest should.
For a more extensive discussion of constitutional doctrine and academic freedom principles related to professors speaking in public about matters of public concern, see my law review article here.
