Professorial Speech, the First Amendment, and the 'Anti-CRT' Laws

Abstract

Academic freedom enjoys an uncertain status in American constitutional law under the First Amendment. It is particularly unclear how the First Amendment applies when it comes to professorial speech in the classroom. This lack of clarity has grave implications in the current political environment. There is now an unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms, and the constitutionality of such measures will soon need to be resolved.

This Article sets out a new argument for protecting from legislative interference how faculty at state universities teach their courses. Building on existing First Amendment jurisprudence regarding academic freedom and government employee speech, the article lays out the constitutional infirmities with anti-Critical Race Theory proposals and clarifies the scope of an individual constitutional liberty in the context of professorial speech.

Keywords: academic freedom, free speech, government speech, government employee speech, critical race theory, pickering, garcetti