A College Free Speech Crisis: The Supreme Court’s Big Hand in the Campus Free Speech Chaos

This is Part 3 of a four-part series in which a college professor examines modern challenges to campus free speech and how we can overcome them. Part 1 examines the unnatural and counterintuitive nature of academic freedom and freedom of expression, and Part 2 looks at college administrators’ complicity in cracking down on free speech.

It’s in the halls and quads of America’s colleges and universities where core First Amendment activities—teaching, researching, writing, learning—should be both incubated and most fully realized. Nowhere is freedom of expression more essential, yet nowhere is it more in peril. Losing the right to free speech on campus would be like pulling out the bottom block during a game of Jenga—our entire national edifice of civil liberties would teeter and, if uncorrected, eventually collapse.

In properly functioning universities, professors spend their careers modeling the freedom of expression for their students and improving the intellectual lives of their communities by publishing work that broadens the scope of our collective knowledge. Meanwhile, the young adults they teach are mentored in a life of the mind through structured reading, debate and research—all while thinking deeply, freely and fearlessly. Spread over four years, well-taught students acquire new habits of mind and come to appreciate the importance of free thought and the uninhibited exchange of ideas.

Of course, “properly functioning” is doing a lot of the heavy lifting in this description—and even though state schools and private universities alike have adopted academic freedom policies, free speech is still under threat on many campuses. If it dies there, where it should be constantly practiced and most valued by future leaders, it begins to die everywhere. This is not a theoretical crisis; it’s a very real one. Furthermore, it’s one that is being perpetuated by the nation’s highest court.

A Shameful Occurrence at Stanford

Judge Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit had been invited to speak by Stanford Law School’s student chapter of The Federalist Society—and it was clear that his arrival on campus would bring controversy. Prior to taking the bench, Judge Duncan had made a name for himself as an attorney by opposing gay and transsexual rights. Later, as a judge, he’d refused to refer to a transsexual woman by her preferred pronouns. This made him a loathsome figure to many of Stanford’s progressively minded law students.

When he arrived at the lecture hall for his March 2023 speech, all hell broke loose. Judge Duncan was met with profane, sexually explicit protest signs and faced some of the vilest heckling imaginable. This spectacle was not a spontaneous outburst; it had been planned. As they prepared to disrupt the judge’s speech, the students knew that they’d have the support of at least some of the faculty and deans in charge.

When Judge Duncan realized that finishing his speech would be impossible, he asked for help from an administrator. Instead of the help he expected, he got blindsided. Associate Dean for Diversity, Equity and Inclusion Tirien Steinbach arose from her front-row seat and came to the podium. During the course of her six-minute speech—prepared remarks, mind you—she told the judge that he was “literally den[ying] the humanity of people” and that she was “glad this is going on here.” Bizarrely, she also announced that “[M]e and many people in this administration do absolutely believe in free speech.” At that moment, the judge understood exactly what was happening. “This is a total setup,” he responded.

Video of the event went viral and caused a national furor against Stanford’s handling of the situation. Dean Steinbach’s supervisor, Dean Jenny Martinez, put Dean Steinbach on leave, joined the university president in an apology to Judge Duncan, and earned widespread praise from civil libertarians for defending free speech principles and promising “mandatory educational programming” on academic freedom for students in a letter to the law school community. Defenders of free speech and academic freedom were encouraged. The embarrassing event seemed to have a happy ending.

Half-Measures

With the benefit of hindsight, however, Dean Martinez’s responses to the event, while great public relations for Stanford, were mere half-measures at best. Free speech principles aside, the basic tenets of human decency dictate that a student who allegedly calls for the rape of the daughters of a campus visitor, let alone a sitting federal judge about to give an academic presentation, deserves to be disciplined. Any reasonably competent high school principal would’ve punished that student, along with many of the other hundred or so who embarrassed the university that day. Dean Martinez refused to do so. Instead, every heckling student continued on their path to America’s legal aristocracy with impunity. Conduct unpunished by a dean is conduct tolerated by a dean.

Dean Martinez explained in her letter that a “failure by administrators in the room” sent “conflicting signals” to students, implying that Dean Steinbach’s complicity in the disruption made disciplining the students inappropriate. However, instead of firing her for the obvious misconduct, Dean Martinez wrote another email to the law school community a few months later—after the controversy had died down and students were away for the summer—in which she concluded that Dean Steinbach participated in the event in good faith, that she had merely “intended to de-escalate a tense situation,” and “that the impact of her statements was not as she hoped for or intended.”

The email also explained that Dean Steinbach had “decided to leave” Stanford for “another opportunity” and went on to praise her for her “valuable work enhancing the sense of community and belonging at the Law School.” (Needless to say, Dean Steinbach hardly extended an “enhance[ed] sense of community and belonging” to the students who’d invited Judge Duncan to campus and had hoped to listen to him speak.)

As time has passed, it’s become even more clear that Stanford’s pledges to support free speech in the wake of the Judge Duncan protest were toothless. The “mandatory educational programming” Dean Martinez promised in the letter—a promise that brought a great deal of relief to civil libertarians—turned out to be a simple online training module students can breeze through, if they bother to participate at all. One of the student organizers of the protest was put on a search committee for the next law school dean. Even if Dean Martinez had indeed pushed Dean Steinbach out of Stanford, as some have speculated, her actions were hardly a profile in courage on behalf of constitutional principles. Instead of facing accountability for an anemic commitment to free speech, Martinez has since been promoted to provost of the university.

Meanwhile, many in the academic community have rallied to the support of the students and their blatant attack on free expression. The Chronicle of Higher Education, academia’s most respected trade journal, published one such defense from Portland State University professor and dean, Jennifer Ruth. Her position is no surprise: Ruth recently co-authored a book that calls for the decoupling of “academic freedom” from the First Amendment, maintaining that the First Amendment has no place on college campuses. Any faculty accused of objectionable speech, the book argues, should be made to appear before a “committee or review panel” on which “[t]he professionals hired by the university to [diversity, equity and inclusion] positions would retain significant influence.”

To my knowledge, no one—least of all Dean Ruth’s opponents on this question who champion the First Amendment—has criticized the Stanford students for protesting Judge Duncan’s speech. Instead, they’ve been criticized for censoring it, which is precisely what they did by heckling so loudly and distractingly that it was impossible for him to finish. Free speech for all, including protesters—regardless of their politics— is exactly what Dean Ruth opposes. Of course, such a belief flies in the face of what the college experience is supposed to be all about.

The Supreme Court’s Unhelpful Free Speech Punt

Debacles like the Stanford event and its aftermath have occurred too many times to count over the past few years. Sadly, the Supreme Court is largely to blame. The most important case the court has ever heard on the First Amendment right to exchange ideas on campuses is Keyishian v. Board of Regents, decided in 1967. In this case, the court clearly stated that the First Amendment guaranteed freedom of expression, especially for professors and students.

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely the teachers concerned,” Justice William J. Brennan, Jr. wrote for the majority of the court. “That freedom is therefore a special concern of the First Amendment.”

Keyishian involved a group of State University of New York of Buffalo employees who challenged the constitutionality of the notorious “Feinberg Law.” Named for Benjamin Feinberg, the anti-communist state senator who sponsored it, the law was New York’s primary means of policing the political views of its public school educators during the hysteria that swept over the nation in the early days of the Cold War. It was passed in 1949, at the height of the second Red Scare, as part of a massive national effort to purge “subversives” from the faculty of state schools.

The court’s ruling in this case, striking down the law with a 5-4 vote, was brave and controversial—and a sign of change on the court. Just 15 years before, in Adler v. Board of Education, when McCarthyism was at its apex, the court had upheld the Feinberg Law by a 6-3 vote. The majority opinion in that case reasoned that not only did the state of New York have the power to deny employment to those with dangerous political beliefs, but it had a special responsibility to do so in the case of educators because of the sizable influence teachers had on their students.

The parallels between the methods used to ferret out dissenters during this era of academic repression mirror those being used today in many ways. Compelled oaths, political indoctrination sessions, and exhortations to inform on classmates and teachers are all tried and true techniques from college life in the 1950s. Dissenting in Adler, Justice William O. Douglas—the greatest voice for free speech in the history of the Supreme Court—made a special point of condemning a tactic everyone familiar with contemporary cancel culture knows all too well: dredging up writings from the past and vetting them by new standards of ideological purity. He likened the Feinberg Law to “what happens in a police state,” where “[y]outhful indiscretions, mistaken causes, misguided enthusiasms—all long forgotten—become the ghosts of a harrowing present.”

By striking down the Feinberg Law in Keyishian, the court finally put the nail in the coffin of the McCarthyite academic witch hunts that had terrorized academics for more than 20 years. “The classroom is peculiarly the ‘marketplace of ideas,’” the court wrote. “The Nation’s future depends on leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues [rather] than through any kind of authoritative selection.’” With this ruling, First Amendment principles, particularly the protection of all political views, became binding law on our campuses.

Keyishian should have settled the question of whether the constitution protects lecturers on campus once and for all. But that wasn’t the case. Despite the majority opinion’s plain language (as well as a subsequent, though non-binding, opinion written 17 years later by Justice Brennan, which affirmed that his opinion conferred a “First Amendment freedom to explore novel or controversial ideas in the classroom”), the court’s neglect of academic freedom cases since this ruling has left faculty, administrators and lower court judges puzzled.

The court let decades pass without applying or building on the teachings of Keyishian. As a result, debates about its scope and meaning began to widen and proliferate. In 1991, a lower federal court ruled that a Christian professor at the University of Alabama didn’t have a First Amendment right, under Keyishian, to teach “intelligent” design against the wishes of his supervisors because schools, not particular professors, should have control of curricula. In 2000, a lower federal court in Virginia interpreted the right recognized in Keyishian very narrowly—maintaining that once a professor’s employment began, the First Amendment only protected conditions for employment, not speech at the university.

However, it was the Supreme Court’s decision in the 2006 case of Garcetti v. Ceballos that has contributed the most to the current chaos—and is causing civil libertarians the most dread. Garcetti involved a deputy district attorney who alleged that his supervisor had violated the First Amendment by punishing him for views about a criminal case about which he’d written in an internal memo. The court ruled that public employees, speaking as employees rather than as citizens, had no First Amendment protections.

Justice David Souter, writing in dissent, expressed concern that should this rule be applied to professors at state universities, it would destroy the First Amendment right to academic freedom recognized in Keyishian. Instead of giving Justice Souter the assurance he’d hoped for that this would not happen, the court decided to maintain the confusing status quo in its majority opinion in Garcetti by punting on the question of whether professors at state schools, speaking as professors, would be deprived of their free speech rights as public employees.

Because “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests,” the court wrote, “[w]e need not … decide whether the analysis we conduct today would apply in the same manner to … scholarship or teaching.” With this, the court opened the door even wider for those seeking to undermine Keyishian.

Dean Ruth and many of her colleagues in the academic establishment attack free speech and academic freedom as part of a left-wing political agenda. But the appetite for academic censorship is no less voracious on the right, where politicians have seen the Garcetti case as a means to neutralize, or even overturn, Keyishian. There isn’t an elected leader in America more determined to prevent the First Amendment from entering the schoolhouse gate than the Republican governor of Florida, Ron DeSantis, who recently signed into law a heavy-handed education bill, designed to end DEI and limit “wokeness” in Florida universities, in direct contradiction of the court’s Keyishian opinion.

Lawyers for the DeSantis administration have argued that under Garcetti the First Amendment offers no protections to professors against state regulation because they are state employees. In Pernell v. Florida Board of Governors of the State University System, DeSantis’s lawyers argued before a lower federal court that “[t]hese [Garcetti] principles apply no less to public educators than to all other government employees,” adding that the state must have the final say in a dispute with a professor over the content in the courses he or she teaches. The state of Florida lost its argument: The Pernell court ruled that Keyishian had made a “binding pronouncement that ‘the First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.’”

Other lower courts have similarly used Keyishian as a shield against state censorship on campus recently. In 2021, a federal court in Ohio ruled that a professor couldn’t be punished for refusing to address one of his students by her preferred pronouns. Another in California ruled that a professor couldn’t be fired for outspoken opposition to his school’s DEI mandates in 2023.

However, at the same time, many courts are ruling in the opposite direction. In 2023, a federal court ruled that a psychology professor “whose teaching focused on sex and sexuality” could be fired for candidly discussing intimate sexual matters with his graduate students (and otherwise making them uncomfortable) outside the classroom. Also last year, a court in North Carolina ruled that a tenured professor who opposed DEI and the “social justice” orientation of his academic department could be fired for his “lack of collegiality.”

Scholars around the country are likewise split. On the Yale campus alone, two of the leading authorities in this area, Profs. Robert Post and Keith Whittington, disagree on whether the First Amendment protects academic freedom.

As Chief Justice John Marshall famously wrote, “It is emphatically the province and duty of the judicial department to say what the law is.” But the Supreme Court is doing the opposite when it comes to setting the parameters for the protection of campus free speech and academic freedom. Lower courts are confused and contradicting one another. No longer seeing the First Amendment as an impediment, state legislatures are passing laws that run roughshod over the prerogatives of educators. University administrators are firing professors and allowing mobs of students to yell over those who visit their campuses to share their ideas.

The time has long since passed for the Supreme Court to end the current academic reign of terror the way it ended the last one, by clearly stating what the First Amendment law of academic freedom is. And that should start with a demonstrated respect for its Keyishian decision: Without that, the confusing and chaotic campus free speech climate will no doubt continue.