Advisory Opinions - Should Academic Freedom Be a Constitutional Right?

Episode Date: August 6, 2024

Sarah and David kick off the Advisory Opinions August book series and invite Professor Keith Whittington on the pod to discuss his new book You Can't Teach That!: The Battle over University Classrooms. But first the two dig into David’s conversation with Justice Neil Gorsuch. The Agenda: —Justice Gorsuch: Go to law school. —Defining originalism —The Supreme Court children’s book —The history of academic freedom —The government speech doctrine —Balancing academic freedom with job responsibilities —Private vs. public universities —The constitutionality of the Stop WOKE Act Show Notes: —Justice Gorsuch’s Over Ruled: The Human Toll of Too Much Law Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. ["I WISH I WERE A BADASS"] ["I WISH I WERE A BADASS"] ["I WISH I WERE A BADASS"] ["I WISH I WERE A BADASS"] ["I WISH I WERE A BADASS"] ["I WISH I WERE A BADASS"] Uh, Justice Gorsuch, first, thanks for taking this question.

It's one of the most common questions that we get, and it's from young people who listen to this podcast who are interested in law, but they don't know if they want to be lawyers. And so should a person who's bright, who can get into a good law school, but they don't know if they want to be a lawyer, what advice would you give them? Well, first of all, if you do want to be a lawyer, or you think you want to be a lawyer, go to law school. Right.

It's a wonderful opportunity to expand your options in life. There are so many good lives to live in the law. Look at you, right? I mean, did you think you were going to be a New York Times columnist when you started? The thought did not cross my mind. But has it helped you become a good writer? Absolutely. I think you're making my case, Justice Gorsuch.

Well, all right. But you may think you want to be a lawyer now, and who knows where it's going to lead later. And I've seen my friends do crazy and wonderful things in the law that they didn't anticipate. I certainly didn't guess I was gonna be where I am today. But you're asking about somebody who's really not sure they were maybe even convinced they don't wanna be a lawyer. I think today you have to think carefully about that. Law school when I went was a lot cheaper than it is now.

So how much debt are you going to incur? Now if you can get them to pay for it. True. That would be one thing. But I do think you have to think carefully about if you're going to walk out of law school with $150,000 in debt, how are you going to pay that off if you're not going to be a lawyer? And that's sadly, that is a question you have to pay that off if you're not going to be a lawyer? Sadly, that is a question you have to ask yourself today. But I think at the end of the day, I come down where you are, David.

And that is it is a wonderful training that leads in ways to interesting lives you cannot presently begin to imagine. Well, thank you for that, Justice Gorsuch. And you'll be happy to know that you agree with Justice Breyer. Oh, good. So that is now two justices of the Supreme Court that endorse my position, and I'll just take the victory lap on that.

Thank you so much. My pleasure. Welcome to Advisory Opinions. I'm Sarah Isger, that's David Fredchen. Oh, yeah, that was Justice Neil Gorsuch. David, you did an interview transcribed for the New York Times that just published this week, about 45 minutes, what did you say, 7,000 words or so? Yeah, it was about 7,000 words.

And, you know, on the Times website, when you go to it, it tells you the estimated time to read it. So on Sunday when it posts, you know, there's all the other essays and, you know, columns, and it'll say five minutes to read it. So on Sunday when it posts, you know, there's all the other essays and columns and it'll say five minutes to read, six minutes to read, four minutes to read. I think this one said like 26 minutes to read. This was a long and really substantive interview.

And I asked him the question about the law schools because Sarah we are in a slow-running adjudication phase where we're gonna at the end of the day whenever you know whenever however many Supreme Court current or former Supreme Court justices we get they're going to adjudicate our long-running dispute about going to law school and we just have to abide by their conclusions, Sarah. And I think right now I'm up 2-0. So I went back and read the transcript with Justice Breyer, and I'd say it's 1-1, David. So obviously, Justice Forsyth came down on your side. I disagree with him strongly. I don't think he really grappled with some of my best arguments. But let me just reread you what Justice Breyer said.

Okay. Okay. So I asked, should you go to law school? His answer was, do you want to be a lawyer? Because despite the fact that many used to think, I'll go to law school and decide what to be later, that isn't what happens. They mostly become, well, mostly all become lawyers. Not everybody. Cole Porter went to law school.

He decided he'd do better writing music. But I say, why might you want to be a lawyer? And then he talks about the wonderful parts of being a lawyer. But that's very different than, yes, you should go to law school. He's agreeing and rather disagreeing with Justice Gorsuch. It is not an opportunity opening degree. You go to law school to become a lawyer, so I hope you want to be a lawyer. And the problem is a lot of people go thinking they get to be David French, and instead they end up being a partner at a law firm who can't pay their mortgage if they leave the law firm. I thought you're going to finish that. Instead they get to be a partner at a law firm and a lot richer than David French.

But David, as you say, slow running, I think it's one-one. Okay. But we'll keep asking. I have an ask out right now. I won't tell you to who. Okay, okay. But I do want to talk about some of the rest of your discussion Yes, yes.

with Justice Gorsuch. And can we kind of start at the end, actually? Because you have a lot of fun statutory and administrative law stuff at the top. But when you get to the end about how he defines originalism, there's it's it's big stuff, David. Yes. And I really wanted to talk about this because if you don't, if you're not like eyeballs deep in this, you're gonna really miss, I think,

what's the significance of the end. And I want you to tell me if you think I'm interpreting this incorrectly, okay, Sarah? So at the very end, we get into originalism and text history and tradition. So I walked through a lot of his sort of philosophy on too much law. I talk about his, I really wanted to get into his thoughts

about COVID, which were very much a big part of the book and sort of how the COVID, some of the problems with expertise in COVID have informed sort of his thinking. So there's just a ton in here. We talked about collegiality. He did not talk about ethics. He did not talk about term limits. But then we get down to the originalism point. So he gave a definition of originalism and he starts with, so what originalism is, is just the simple idea that you're entitled to rely on the written words in the Constitution. We, the people, the American people, bothered to write it down.

Now, this is a very standard sort of description of what originalism is. And then I ask about text, history and tradition. And I want to read the question, a part of the question that I ask. And then his response. And Sarah, before I give my interpretation of it, which might be a little out there, I really want your interpretation. I was just going to compliment you on after you ask one of these questions. He says, now this really is a question for legal nerds.

Yes. And I love that response so much. Yes. When he said that, I thought, we've hit the sweet spot of the conversation, and here we are towards the end. So here was my question. The question I have is, why would these legislatures,

I'm talking about early American legislatures, colonial-era legislatures, in the text, history, and tradition context, be considered trustworthy or terribly relevant as interpreters of constitutional provisions when, A, that's not the role of the legislature to be the interpreter of the law, be considered trustworthy or terribly relevant as interpreters of constitutional provisions when a. that's not the role of the legislature to be the interpreter of the law and b. we all know that legislatures can flat out defy the constitution and you mentioned one of the most famous incidents

in the book the sedition act that was passed so quickly after the ratification of the first amendment so how important should these early american legislative enactments be? This is when he says, this really is a question for legal nerds. And I say it really is. And he says, and the answer is going to be the same, which is whenever you're looking for the original meaning of a statute, we do that all the time without objection. We're all textualists now, right? Interesting sort of side comment. Or the Constitution, there's going to be better and worse evidence of original meaning. And certainly the Alien and Sedition Acts, I would argue, very's going to be better and worse evidence of original meaning. And certainly the Alien and Sedition Acts, I would argue, very bad evidence of the First

Amendment's meaning. You're absolutely right. And yes, legislators can defy it. But what if you have an unbroken history of 100 years of legislative enactments that are consistent? Might that be some good evidence of the original understanding? Possibly. Possibly.

So like anything else, it calls for, as Madison called, judgment. Judges need to exercise judgment, not will, he said. And he goes on and he says a bit more, but that's what I really wanted to focus in on. Well, it's just our, it's our judgment. It's our judgment. Sarah, how did that answer strike you? Ah, so, right, it actually highlights the problem, I think really well,

because you never have an unbroken history of 100 years of legislative enactments that are consistent. Because even if there are 100 years of law that's consistent, you let's call that the horizontal consistency, you have a vertical problem of at what level of generality are you defining it? And almost no matter what, you will have an argument over that level of generality and that will have inconsistent answers.

Also, I can't think of very much that has that horizontal consistency at the same exact level of generality that it's always been consistent. And certainly, Rahimi is a great answer for that. But I guess the point that I was sort of exasperated with is by the time it gets to the Supreme Court, of course there's not 100 years of consistency. The whole point is you take 60 of the hardest cases.

And he talks about this at other points when he was talking about the collegiality of the court. And Justice Kagan, they had very similar answers to this question, which is, we take the 60 hardest cases and we decide half of them unanimously of the 60 hardest cases in the United States. So obviously, we are listening to each other and persuaded by each other and a great collegiality answer, I thought. That's a tremendous answer, yeah. But why doesn't that carry down to this?

By the time we're getting to these questions, they're the hardest questions. So of course there's not 100 years of legislative consistency. And that doesn't give lower courts or circuit courts any real guidance as to how they're supposed to think about these legislative enactments because it's always going to look a lot more like Rahimi, where everyone's having trouble defining the level of generality,

and then everyone's having trouble defining what's been consistent. I like to call it the, what did we fight a revolution for problem? Which are the things we were trying to import from English common law and which were the things that we fought a bloody war to get away from English common law. I don't have answers to all of those questions. So how in the world am I supposed to have answers to whether, in fact, the Alien and Sedition Acts were consistent with the First Amendment? I think we brush over that too often because there are people right now who argue that

the Alien and Seditionacks actually are evidence of what the founders believed the First Amendment meant. And they're not total wackadoos, right? Their argument is that the First Amendment was about prior restraint, but that of course you could punish people for speech that the government doesn't like after they say it. You just can't prevent them from saying it. Now, do I think that that's the First Amendment I want to live under? No. But I think they have a pretty good text history and tradition argument when you have the Alien and Sedition Acts coming right after the ratification of the Constitution and the First Amendment from President Adams, a founding father,

a Congress made up of almost all founding fathers themselves who fought either in the revolution or were part of the constitutional convention. So, Berg, Berg is my answer, David. Okay. So tell me if you think I'm just way off base here. So first, I think on text history and tradition, there was this phrase we used to use in the army that was like, well, that briefed well. In other words, like it looked good on paper and it didn't work out well in life, right?

And when it comes to the, when it comes to text history and tradition, I'm getting this vibe of, well, that briefed well, like it looked good in our heads when we were thinking about what can we do instead of tears of scrutiny? Oh, let's do text history and tradition. And that was brewing. And then Rahimi is like, oh my, okay. And then at the end of this, if you're not sort of at the, when I, when I got to the point of the answer, where he

said judges need to exercise judgment, not will. Then I immediately got to this point where I almost blurted out, this sounds like intermediate scrutiny. But I thought that that would be the, it would then catapult into a level of nerdery that from which it could never recover. But I didn't know that that was like my last question.

Because I wanted to move on to tradition and I didn't get to, we ran out of time. But that answer, which strikes me as the accurate answer. Like I'm not casting aspersions on Justice Gorsuch because the history is all over the place and if you're gonna rely on the history, we've got to judge what's good, what's bad history, or what's history that illuminates versus obscures, you know, all of those things. I think that

absolutely that's what text history and tradition drives you to by necessity, unless your name is Justice Thomas and you're like, well, if it's not an exact match for a colonial restriction, just forget about it. At least that would make sense. Right. Right. Fair enough, Justice Thomas. Right, exactly. Fair enough. But this sounds, it seems a lot like just kind of, well, we'll decide.

We'll decide. It looks like we'll disguise this judgment, if that makes sense. And so I found that answer to be incredibly interesting. To me, that was the most interesting answer. And I agree with you, I thought his answer on collegiality was really interesting. And I thought a good answer, especially for readers

who might've come into this really hostile towards him. And I'm glad that he described a lot of the dynamics here about how he votes with some of the dynamics here about how, you know, he votes with some of the justices they admire an awful lot. And the justices they admire vote with him an awful lot. It's not a one-way street where he tax left. Well, sometimes they come to him. And so I thought that was all interesting. But to me, that answer on history was most interesting because to me me it illustrated the problem with that historical prong of text history and tradition.

So his book is called Overruled, The Human Toll of Too Much Law. The Atlantic published the headline as, America Has Too Many Laws. And I guess my follow-up to Justice Gorsuch would be, so you think there's too many laws, but when we asked you whether people should go to law school, you said, yes, do you not see some correlation at least between

too many laws and too many lawyers? So I don't know, David. I mean, he's firmly in your camp, at least on the face of it, but I got to tell you, I have not budged one bit and I feel like if I could just like get a crack at him, I feel like he's not thinking this through all the way. And this is why I liked the way that Justice Scalia discussed it because his take was different than mine, right? My take is, go to law school if you want to be a lawyer, great. Justice Scalia actually wouldn't even go that far. Justice Scalia's take was, we need our smartest people going into science and biochemistry and nuclear physics.

And so we actually have a problem where our incentives, economically and culturally, are to have our smartest people go into law and finance and hedge fundery. And in fact, that that is a terrible consequence for our overall society. Look, Sarah, I appreciate you relying on dicta from Justice Scalia in this argument.

And you're welcome to include it when you file your motion for rehearing before Justice Gorsuch. But as of now, I've got the vote and I'll grant you Breyer. I'll grant you Breyer. I do think it is one to one as of right now. When you read that, okay, I'll grant you Briar. It's a shaky one to one, but it's a one to one. So yeah, I'll grant you. But one other thing I want to highlight from the interview and going back to the discussion of COVID, that is a very big part of the book.

And that is one thing that I would invite a lot of our listeners who might be more on the yay experts side of the equation to listen or to read that part of the interview with Justice Gorsuch. If you're gonna get the book, read that part of the interview with Justice Gorsuch, if you're gonna get the book, read that part of the book, and you really begin to see how the deferral to expertise, and again, what he says is we do need experts, absolutely, but the theme of the book is we need experts

and experts are human. And so I think that a lot of folks who are very, very angry about Chevron being overturned, and are sort of primed from 15 to 20 years of ideological combat under old right versus old left categories, they're sort of really primed to see technocracy more as coding in their direction. Man, wrestle with all of the wildly, wildly disparate conclusions arrived at by experts in the COVID arena combined with, as he described it, extreme executive authority, extreme executive authority, where legislatures were often just out of the loop

in many ways. And I think you often just out of the loop in many ways. And I think you can see some of the problems here with this deferral to expertise. And I feel like COVID was this laboratory where expertise, had it been functioning well, really would have come to the fore. And it did in some ways. The vaccine, for example, Operation Warp Speed

was a tremendous success. But in other ways, we can't, it's tough to argue that everybody was really, that all the experts performed magnificently during this. It's really tough to argue that. I think it's impossible to argue that. But David, this was the perfect amuse-bouche for our August theme this year. Each August, we've taken off from covering the minute to minute of all the circuit

and Supreme Court cases, because in part, there aren't that many. And instead, we've done off topic August. And this year, we're doing book August. So we're going to be talking about legal books from across the legal world. And so starting with Justice Gorsuch's book, great way to start.

We will also be talking on this episode in just a moment to Professor Keith Whittington about his book on academic freedom, which is so much fun. But David, before we even get to that, I have a children's book that I have about the Supreme Court. It's called The Supreme Court Counting Book, actually written by a law school classmate of mine, Tessa Dysart.

And David, I don't want to ruin the ending for you, but you're going to say the word certiorari so many times in reading this book to your kiddo and your grandkids. It's really actually well done. There's amicus briefs, there's the rule of four, I mean, everything you need. But certiorari, I didn't count, maybe 10 times you're gonna say that word. And you know, you're gonna have to decide, you're gonna have to pick a team of how you pronounce that word

because the Chief Justice, along with Scalia and Breyer, they say Sir Sherari, rhyming with fair guy, Sir Sherari. Sir Sherari, okay rhyming with fair guy, Sirsirare. Sirsirare, okay. Alito and Stevens, Sirsirare, like with Ferrari. Justice Thomas is close, the Rare is the same, but the first part is Sirtsi. So Sirtsiari for Justice Thomas, Justice Kennedy, certiorari

with far cry or zar guy, Justice Sotomayor, certiorari. I think that's what I do. I think I'm a Justice Sotomayor. Certiorari. Yeah. Sertiorari. Yeah. And then we have Chief Justice Rehnquist, Justice Sandra Day O'Connor, Justice Souter, Sir Sherrari, rhyming with dairy, and Justice Kagan, and Justice Ginsburg. They simply refuse to say it entirely and just say cert.

They've never been caught in public saying the entire word. So I have a theory, Sarah, and some people, depending on what region you're from, you're gonna have difficulty pronouncing certain words. Like for example, I can always tell somebody who's from the South when they talk about if the University of Pennsylvania, they'll say I went to Penn and pronounce P-I-N.

And that's the only way I know how to pronounce pen. When I hear people talking about the universe, I went to pen, pen, I can't, what? It's hard for my mouth. I have a hard time with certiorari. Like I said it okay then, but there's a lot of times when there's just something about it, like the mechanics of it get messed up in my mouth,

certiorari. And so it doesn't surprise me that there are 15 different pronunciations, but the book is just a hoot. You can shorten it when you're reading it to your grandkids until they can learn to read and then they're going to ask you how that word is pronounced cert. So the Supreme Court counting book. And then for our third book of this podcast David, let's let's go Wherever you're going you better believe American Express will be right there with you heading for adventure

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It's time for sensible reform. To learn more about third-party litigation funding, visit apci.org. funding. It's time for sensible reform. To learn more about third party litigation funding, visit apci.org. That's apci.org. And now, our featured special guest, Professor Keith Whittington has just written a book called You Can't Teach That about academic freedom and the First Amendment and his own proposals for how we might create a constitutional structure around this. David, just before Professor Whittington comes on, could there have been a book more written

directly for the two of us slash the advisory opinions audience? I don't think so. I would say if all the podcasts in the universe, unless there's a podcast called Free Speech in the Classroom, we've probably spent more time on that topic than any other podcast in the history of the world, would you say, Sarah? I would not having listened to the podcast, Free, what would you just call it?

Academic, whatever you just said, that podcast. Free Speech in the Classroom, the podcast, yes. But I will also say that I really enjoyed reading this because I felt like I learned stuff for sure, but more importantly, you know how when you read a book about a subject that you know a lot about, but it gives you this like mental freedom to like move in and out from first principles

to what should be versus what is. And so Professor Whittington, thank you for coming to talk about this book, because I enjoyed the book so much that I might, you might have convinced me to come out the other way from you. Oh, I don't know. That's a good sign. Not sure that's what I was going for. That's why, that's what I get for being so fair-minded and tried to write it. You were so fair-minded. I actually just want to use your outline because I thought it was perfectly done. Obviously, we're not going to be able to get through everything on a podcast about the book.

But this was such a great book to start out our August legal books event with so you really start out by talking about the history of Academic freedom or perhaps what should be called the history of not academic freedom in the United States from the fights over the theory of evolution to Sedition e stuff around World War I and II into the Red Scare. Will you just sort of give us a lay of the land of what it was like to be a professor in the United States, basically up until 30 years ago? Yeah, not great, oftentimes. And so, yeah, relatively recently, we have experienced a bit of a golden age

in terms of what academic freedom looks like in the United States. Prior to the early 20th century, there's really no concept at all of academic freedom in higher education in the United States. This idea had been developed in Europe and in particular in German universities. American academics were beginning to go to Germany in the late 19th century, which really had the best universities in the world at the time and were offering advanced scholarly degrees and So the aspiring professional academics were going to Germany Learning partially how to be a professor and how to do the kind of scholarly research in their particular subject matter and bringing all that back to the United States

but also imbibing these new ideas about academic freedom, which they also brought back to the United States. And part of, and the core of that starts getting argued for in the early 20th century by American professors really arguing they ought to have the freedom to teach controversial ideas in the university classroom and to engage in controversial, scarily work and publish that work without fear of being fired. The primary thing they're trying to shield themselves from is oversight by university officials, and most immediately, university presidents. University presidents are the mechanism then that are

constraining and punishing and censoring professors, but often sometimes because the president themselves are unhappy, but often because the president becomes the vehicle for other pressures. It's parents, students, alumni, donors, trustees, politicians, community members, could be all kinds of people who put pressure on university presidents and say that person is way too out there, and they need to be fired. And university presidents thought, per their job description, was when university professors are embarrassing to the university in some fashion

or another, the university president's job is to fire that person. And so they routinely would get fired if they offended the wrong people. And that was routinely true in the 19th century. In the early 20th century, it started being increasingly contested. And there's sort of a long process of trying to fight inside of universities to change that expectation and build up some protections, insulation for professors.

It seemed important to start the book off with that in order to explain, look, if we're going to rethink academic freedom, if you think academic freedom is not important, this is the world that we escaped from, and this is the world you could be finding yourself slipping back to if you're not too careful about it. I will note, you are a professor who's advocating for Fox freedom around the henhouse, but we'll get to that.

I want to talk a little bit again just to stay on this history for a second. Will you tell us about the Feinberg law, the last time the Supreme Court really weighed in on academic freedom? Of course, I just have to read the Justice Holmes most famous quote, touching at least on academic freedom, because we just did our Holmes episode. Sure. The petitioner may have a constitutional right to talk politics, but he has no constitutional

right to be a policeman. You go on to describe the rest of that case. The majority of the justices reaffirmed that everyone had the right under our law to assemble, speak, think, and believe as they will. But the privilege of working for the state could be withheld from those who expressed radical ideas. If individuals do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere." So that was sort of the state of the law at the turn of the century heading into the 20th century and then the Feinberg law and striking that down in 1967. Yeah. So there are real conceptual problems with the idea of academic freedom and especially when

you carry it into a public university context. And so universities in the United States initially started off as training ministers, private universities, places like Harvard and Princeton. And so if you're a member of the board of trustees at a place that's training ministers, part of your goal is how do we make sure that the people we're training are orthodox ministers and actually learning the right stuff and going out into the world identifying rights. And in that kind of world, that's what you understand universities to do, then maintaining a certain kind of orthodoxy about what happens in the classroom becomes terribly important. And it's easy to imagine that's still the case as we think about universities, including especially public universities, where we might

think why should the taxpayers be supporting a public institution that doesn't maintain a certain kind of orthodoxy about what happens in the classroom, including, for example, orthodoxy about politics? And especially why shouldn't we keep out really radical views about politics out of the classroom? And in the early part of the 20th century, mid-20th century, that was a really serious concern, because it was tied up both with genuine concerns about the rise of socialism in democratic societies

and the possibility of radical revolution in Europe, but also in the United States, but then ultimately gets tied up in the Cold War and worries about communism as such. And so you get sort of an intensification of really what had been sort of a longstanding concern in the mid-20th century with the development of loyalty oaths and other kinds of restrictions on who can be in the classrooms. New York was sort of a leader of that with the state legislature trying to design ways of restricting who could be not only in university classrooms but also K through 12

classrooms. And as those kinds of oversight and supervision of the political beliefs of teachers ramps up in places like New York, litigation starts forming and winds up going to the U.S. Supreme Court and asking the court to say, is there some kind of First Amendment limit on what legislatures can do in trying to drive out people with the wrong political views out of the classroom. And part of what that early wave of legislation was really focused on was not necessarily what were you teaching in the classroom as such, but rather what were your beliefs in general, what were your larger political commitments, what kinds of organizations were you a member of. There was an assumption that if you were a socialist or a communist or whatever, that that would filter into the classroom.

But it wasn't seen as necessary to sort of say, well, I've got evidence of what you were doing in a classroom. It was sufficient to say, well, I've got evidence about what you've been doing politically outside the classroom. And that's enough for us to think that you don't belong in a classroom where you might expose students to radical views, and so should we push you out. And the court eventually became very skeptical

that thought that this was raising real problems from a First Amendment perspective of restricting the range of ideas that people could be exposed to in society and could think seriously about in general. But the court, I think, struggled with how to articulate that, what the limits are, and never really did much of a good job of really explaining how any kind of right of academic freedom was rooted in the Constitution and what its scope is, because I think there is this fundamental challenge of

you're employed by the government indirectly in this K-12 setting or through a public university setting to do a certain job. And so how much freedom do you have within that job to teach whatever it is you think ought to be taught. So the court tells us there is some kind of academic freedom interest connected to the First Amendment, but then doesn't tell us a lot more than that. And this gets to the meat. Yeah.

The fun part that had my brain like rethinking some of this, this is the Pickering Connick Garcetti triumvirate of government employee speech cases. By the way, fun fact, and I think I've mentioned this on the podcast before, but Harry Connick Jr., the singer, his dad was the district attorney for the parish of New Orleans for 50 years or so.

He just died a few months ago at 97 years old. And so anytime you see Connick V in any case, and there's several, two at least that made it to the Supreme Court that I can think of just off the top of my head, that's Harry Connick Jr.'s dad. So that's a fun fact. So yes, the Connick of the picker and Connick Garcetti triumvirate there is Harry Connick Jr.'s dad. So these are three cases about government employees who say something in the course of their employment and they attempt to discipline them or fire them, etc. And the Supreme Court's going to try to lay out what it means to be a government employee. And as you note, Justice Kennedy specifically says that they are not dealing with academic freedom.

He says an academic freedom case might be different, quote, we need not. And for that reason, do not decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. But this is going to get really messy. And I do want you to run through those three cases and distinguish for us primary education, secondary education, higher education. And you set up your three pillars basically of germainness in the classroom. Is it germane to what they're teaching? Competence? Are they teaching something competently? There's a basically necessary but not sufficient level of teaching scholarship here. And then, of course, are they speaking as a private citizen, which is going to get closer to the Garcetti test? Because, and I'll just give away, I'll show you my cards right away. The

more I thought about this, the more there is no originalist or first principles distinction I think one can make between a 12th grade teacher and a freshman seminar teacher in college. And yet we're treating them radically differently under the law. And I think you're treating them pretty differently in your book, in your proposal. So, okay.

I'm so glad you asked that Sarah, because that was going to be one of my first follow-ups. Because I want to talk about the K through 12 context a little bit, but anyway, no, go ahead. This is the last, like, we need to introduce the book part. All right? We're getting to the fun, to the us arguing with you part. Right, so yeah, so let's just get the Garsety stuff

on the table, and then we can talk about, does any kind of regime make sense where we can make these distinctions. Because I think they're not easy at all. I think there's very different intuitions about this. If you ask most academics, who haven't necessarily thought about this very carefully, I think most professors would say, well, of course, presumably, there's some kind of first-person protection here that mirrors academic freedom,

and so there must be something that exists like that. I think you ask most normal people, their interest is probably the opposite. They go, well, this doesn't make any sense to imagine that a professor in a state university can just say whatever he wants in the classroom without restriction. Of course, that's not quite what academic freedom means, but it's challenging.

Then try, I think through what kind of framework would make sense. And part of the challenge is exposed by thinking about this line of government employee speech doctrine that emerges. So after the court had said, faced with these communism cases in the 50s and 60s, that there is some kind of First Amendment interest in academic freedom, then the court winds up developing these so-called government employees speech doctrines, which unlike the earlier doctrine that Holmes characterizes

in which the assumption is, well, government employees have no First Amendment interests. That once they have assumed a privilege of having a government job and the government as an employer can fire them for whatever they want, including bad speech, without infringing on their First Amendment rights, the First Amendment only restricts what you can do not as an employer, but what the government can do as a sovereign. They can't throw you in jail, but if you're an employee, they could fire you if they don't like your speech. Or what the court winds up saying starting in the late 1960s is, well, that's not quite true. There's got to be some circumstances in which even government employees have some first-member rights to engage in speech. And the case in which this really gets launched

is a case involving a high school teacher, Pickering, who is unhappy with some school board policy, writes a letter to the local paper, taking a position on a public referendum that's opposite of what the school board wants. The school board's not happy, and so fires him school board wants the school board's not happy and so fires him for obstructing their policy choices. He takes this to court and the Supreme Court winds up saying, look, even high school teachers have a right to engage in public debate as a citizen about school policy without getting fired by the school board for opposing what the school board wants to do. As long as it doesn't affect how the teacher is actually performing their jobs.

And so that becomes the crucial question later. In the subsequent cases, such as the Connick case and in particular Garcetti is, okay, well now we're talking about speech that involves job duties. So you're not writing a letter to the local paper in your off hours. Instead, now you're writing memos as part of your job responsibilities. Can you be disciplined or suffer negative work consequences as a consequence of what you write or communicate as part of your job responsibilities. And I think the court, not surprisingly, and eventually in Garcetti, says, well, yes, if what you're doing is performing your job responsibilities, and of course, your supervisor

can discipline you in various ways that they don't like content of what you're saying as part of your job responsibilities, this is what comes up in a Garcetti context, not in an educational context, instead it's coming up in a district attorney context. But the court recognizes that there may be some real serious implications for academic freedom. This logic extends to the context of universities in particular. And so Justice Kennedy says, well,

we're not talking about academic freedom. So we'll set that question aside. And most lower courts have interpreted that to mean that there is a academic freedom exception to the General Garcetti rule that when you are speaking as part of your job responsibilities, you have no particular First Amendment interests. And so the way in which Garcetti gets reconciled with the earlier Act of their Freedom cases

is to say that university professor is basically your special. And that when they engage in speech as part of their job responsibilities, they have some kind of First Amendment protection. But the court has provided very little guidance as to what that looks like. It's really sort of been left up to the lower courts to figure out what that means. And it raises all kinds of conceptual problems potentially once you've done that. Because now it raises questions about to what degree can supervisors of university professors

supervise their work in any kind of meaningful way, or is every workplace grievance going to become a First Amendment issue that you can litigate over? And the courts are very concerned with not having that be the case. It can't be the case that every tenured decision, for example, or every hiring decision, winds up becoming a federal lawsuit over, well, if you turn me down for tenure because you don't like the quality of my scholarship, now we

have a First Amendment problem and I need to appeal to the courts over that. So the question is, how do you navigate that so that you avoid that problem while still recognizing there's some genuine First Amendment interest there? So hopefully that sets the table and then we can say what the argument, what the concerns are. Own each step with Peloton. From their pop runs to walk and talks, you define what it means to be a runner. Whatever your level, embrace it. Journey starts when you say so. If you've got 5 minutes or 50, Peloton Tread has workouts you can work in. Or bring your classes with you for outdoor runs, walks, and hikes led by expert instructors on the

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Buy a stick in store at Costco, Walmart, Amazon, and other Canadian retailers. By the way, having practiced in this arena representing professors, it is one billion percent the case that federal district court judges do not want to be tenure review committees. Yeah. They don't want any piece of that. And so when you walk into the courtroom in that situation, you already have a huge, immense practical barrier that you got to lay some cards on the table that show, no, no, no, no, no, this isn't scholars debating

high-minded policy or rigor of scholarship, et cetera, et cetera. No, you have to show that this is just blunt, like political bigotry, not bigotry is the wrong word, blunt political animosity. Or they're just not gonna listen to you for exactly that same reason. One thing that is interesting as you recount that history

is, you know, I've quoted many times this language from Sweezy versus New Hampshire in 1957, where it says, scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding. Otherwise, our civilization will stagnate and die. And that's conventional wisdom, kind of like boilerplate academic freedom language now in 2024.

Yeah. But from your telling in 1957, that's planting a flag right there. Yeah. No, it's pretty radical stuff at the time. And really, in some ways, pretty radical stuff now, too. Right. Right. We in some ways sort of discount the significance of the conflicts. And yeah, you feel this when you're when you're teaching students, right, introducing them to these kinds of things. And students, I think, I have long found have some difficulty getting their heads around some of the communism cases and the First Amendment stakes because they

just don't find it's hard for them to feel the government's interest in a lot of those cases because they just don't take the threat very seriously. It's hard for them to feel the government's interest in a lot of those cases, because they just don't take the threat very seriously. But if you're in the 1950s and in a case like Sweezy, and Sweezy was a Marxist economist who was invited to give a guest lecture in a state classroom in the midst of the Cold War, and the state is engaged in anti-subversive, anti-communist investigations of Sweezy. And part of what they want to know is what was he telling those students in that classroom?

And Sweezy refuses to answer and says, I don't have to tell you what I told the student, the undergraduate students in the University of New Hampshire public university classroom. I don't have to tell the attorney general doing this investigation. And the court sort of skirts the issue and tries to deal with this partially on while the attorney general actually have adequate cause to do the investigation, etc. And so it doesn't have to land strictly on the First Amendment Act, the Act of Freedom claim. But the Douglas opinion does highlight this concern of saying, well, look, if the government can really be looking over the shoulder of everybody who's in a classroom

and what they're telling students, you can imagine a world in which there's a significant orthodoxy that's politically imposed not only on university professors, but through them on students and through that on public discourse more generally. And that seems inconsistent with the kinds of values the First Amendment's concerned with protecting in general. But what if I think everything that David just said is true, but that there's lots of things that are true and not constitutionally protected. Sure. And if, for instance, we believe that of course state legislatures can set the curriculum

for what's taught in fourth grade or in eleventh grade, why shouldn't they be able to do that in a public university? These are public schools. And of course, private schools can set whatever rules they want, freedom or no freedom. And what we've seen is that the private schools do adopt academic freedom because it's a way to attract the best professors. So why do we think that wouldn't work at the public school, public university level? If you're a public university that refuses to have any sort of academic freedom, you're not going to get very good professors, students aren't going to want to go there, and the market sort of of ideas is going to work. And the reverse is that it's sort of like union membership often protects the

underperformers. Academic freedom in the public university context where it's constitutionally or legally mandated, to me would seem to protect the low performers, the people whose academic freedom quote unquote doesn't hold a lot of value, or else the university would want to keep them anyway? Yeah, so it's an interesting question. So it's worth distinguishing a little bit, because that point about, are you keeping, is it like union protections,

or are you keeping around low performers kind of thing, has particular implications for thinking about tenure protections. And tenure protections arise at the same time as academic freedom protections. Tenure protections really are designed to give some teeth to academic freedom protections. It's one thing for a university to adopt a policy to say, we're not going to fire you. You are actually the, so the academic freedom policy as such tends to just say things like,

you're allowed to teach controversial things in the classroom. And then the question is, well, okay, now I actually teach something controversial and students are going haywire as a consequence, what's the university going to do? And what you frequently find is the university will fire you anyway. And then the question is, okay, well, how do you prevent them from caving in when you actually are in the middle of a controversy? Well, one thing tenure protections do is insulate the professor through that immediate controversy and try to make it more difficult for universities

to fire you under those circumstances. And one thing we find now even still is if you have untenured faculty who are in the midst of some kind of speech controversy, they often get fired. They often lose their job. And if you have tenured faculty who find themselves in the midst of some speech controversy, they sometimes lose their job. So these predictions are not perfect, but they frequently will survive these kinds of controversies. I don't see a lot of distinction between what's happening at public universities and

private universities in terms of tenure and academic freedom. And yet you're arguing that one should have constitutional level protections, even though it seems to be working just fine in the private universities that have no constitutional protection. So why not allow that same incentive structure that is clearly working pretty well at private universities? There are some without tenure, there's some without academic freedom, but there's most with. David wants to answer this one. No, I'm sorry. Or further complicated. Go ahead, Keith. But I have an answer. Go ahead.

Okay, well, I'm curious the way your answer is. So I think there's some pressure on public on private universities as well, I'm curious what your answer is. So I think there is some pressure on private universities as well, relative to these academic freedom protection. So places like Princeton and Yale and Harvard, they for sure care a lot about trying to attract the best possible faculty. And part of the deal about how you attract the best faculty is to offer them a great deal of freedom in their scholarship and their teaching. There's lots of other universities, I think, that are perfectly content to not worry about that so much.

And, yeah, I have over some high PhDs, and one feature of that economic reality is you don't have to offer them as much. So one thing that occurs as you develop these tenure protections and academic freedom protections in the early 20th century is universities are expanding faster than they're producing PhDs. And so there are not that many great scholars around. And so scholars have a lot of market leverage in the early 20th century in which they can go to universities and say, well, look, if you really want decent faculty, you got to

offer them some protections. And this is one of the things we want in order to come to your university. Well that changes in the latter part of the 20th century. Now we have an overproduction of PhDs. Universities are not expanding as much and so professors don't have that same kind of market freedom. So even in private university context, I don't think it's the support necessarily as well. But in a public university context, there is a further complication, which is, okay, if you leave it to the university officials themselves, to their own devices, take Florida, for example, since it's been the hotbed of these kinds of concerns and considerations.

University of Florida, for many years, has been trying to become a much better university and has been successful. They've recruited a lot of good faculty there. They have all the incentives to try to offer them protections for faculty and other kinds of goodies in order to attract good faculty and become better universities. But public universities have an additional complication that private universities don't have,

which is they have politicians who, if they get really agitated, could decide to get involved in university life. Polit politicians may care about the quality of the universities, but they might not. Or they may think there are other things that are even more important, or they may not understand the relationship between academic freedom and quality of university. Which is why they're public universities, and they're paid for by the state. And that's what the state has decided to do. And again, in this in a secondary and primary context, we seem to understand the state's role vis-a-vis teaching very, very differently. So it is true, right? I think it's right that the state could decide. And so I think that one way in which you have to think through the Act of Freedom issue in a public university context is to realize these artists to think of them as a

contingent feature of the kind of institutions we've constructed now. So we have designed a set of universities that are quasi insulated from public interference and under those circumstances it makes sense to think that they have a kind of First Amendment freedom in ways that K through 12 education does not. We have not created K through12 in a way that's quasi-insulated from public interference. Instead, we think they ought to be under very direct government supervision. As a consequence, we don't think teachers have much in the way of First Amendment protections when they're performing their job duties in a K-12 context. You can imagine public universities making, our states making the decision. That's

the kind of higher education we want as well. That we want our higher education to look like our K-12. We're going to have a state curriculum. We expect the professors to be hired to teach that curriculum and they're going to teach it the way we want. And if they don't teach it the way we want, we're going to fire them. And if that's the way you design your higher education system in a state, I think it would make sense as well to say that the First Amendment protections that might otherwise be associated with these roles fades away. That the First Amendment is a function of the nature of the institutions you've created and the kinds of role that they perform within

your society. You could choose to do it differently. But that's not the decision that we've made so far. So that's not a normal way that we think about the First Amendment or constitutional rights in general, that we think of them as contingent in relationship with these particular institutions. But in the particular context of government employee speech, it's actually not radically unusual. So for example, we talked a lot

about government employee speech doctrine. One feature of that is to say, okay, so and then we quickly transition to thinking about, okay, what's government employees speech doctrine within the context of performing your job responsibilities, but stick with the example of the original pickering situation of I'm engaged in public speech, I'm writing letters to the newspaper, I'm engaged in political activities, I'm posting on social

media, but I also have a government job. And then. And my government employer doesn't like the stuff I'm saying in public. So can they fire me? And the court says, well, and the court in Pickering says, well, if it's not interfering with your job duties, usually not then. And there's a whole framework about what the details are about what counts as interfering with your job duties, which I have problems with, and have an article about trying to say we should be thinking about this more

carefully in the university context. But we've already said even in that context, with that kind of pickering framework, you're very differently situated if you're a police officer, for example, than if you're a university professor. If you're a police officer saying things on social media, the courts are very skeptical of that, precisely because they think that your job

as a police officer will require a relationship to the public that makes certain kinds of political opinions you might express in public out of bounds in ways that we don't think is true if you're a university professor, for example. And we might think a K through 12 teacher is somewhere in between or a city bus driver is somewhere in between, right? So we already make in this context, we recognize that the scope of your First Amendment rights and how that balances against the functionality of the institution and functions you're performing in your government job

is contingent on the details of what you're doing. And I think that same kind of logic applies to thinking about universities in general. That if universities were constructed very differently, if Florida decides we want to tear down our universities and build them up in a very different, more politicized way, that's a choice that's available, I think, to the states. And we should not read the First Amendment to say,

you're just not allowed to do that. That somehow, universities, from a federal constitutional perspective, there may be state constitutional constraints there. In some states, there are some protections for state universities that insulate them a little bit. But from a federal constitutional perspective, I think states, if they really wanna make self-consciously that decision, I think they have to have the authority to do it. Can I give my answer? Yes.

Okay, so. He clears his throat. I'm ready. No, it's really pretty brief. But I think you raised really good points, Sarah, about that at least at some major private universities, you have a lot of academic freedom, academic freedom that looks an awful lot like the First Amendment environment at public universities. You have a lot of academic freedom, academic freedom that looks an awful lot

like the First Amendment environment at public universities. And if that's working in the private space, why do we need all these doctrines for the public space? Well, I would say we have the doctrines in the private space because of the doctrines in the public space. In other words, when 81% of your students in college go to public universities. And there are legal mandates and there are legal rights

given to both students and professors in what really is the dominant market position. Then if you're a major research university, because remember, a lot of private universities do not protect academic freedom, especially a lot of private religious universities. There was this really interesting piece in Newsweek that over the weekend about how cancel culture is coming to private Christian universities. So there's a lot of private

universities that do not have this academic freedom. But if you are in the pool that is competing for top scholars, a very important element of that is going to be, do I have the freedom to teach and research and publish in a way that is coterminous with the First Amendment? And I would say it would take a lot of name and money to draw somebody away from an atmosphere of freedom into an atmosphere where there is a university president hovering over your shoulder, when I can call University of Michigan, I can call Berkeley, I can call any number of prestigious public institutions

and have much more liberty and much more freedom. So I think it's a, the First Amendment is what is shaping the culture of the private university. And so you remove the First Amendment from that, and I don't think the private university. And so you remove the First Amendment from that. And I don't think the private university says free. Ooh, I don't think, I think you're describing a university life that I like,

but not one that you have convinced me is constitutionally mandated. So, professor, here's a question for you. Yeah. Do you agree that a state university could require certain classes be taught or not be taught. Like the high level, we offer these majors by statute and there's no First Amendment right for a professor to offer his own major or, you know, class, his own class. Yeah. So one of the tricky features of

academic freedom in general is a distinction that's sometimes made between institutional academic freedom and individual academic freedom. And especially once you start constitutionalizing these things, that distinction could become quite important and troublesome in various ways as to how it works. So one feature of what we think of as institutional academic freedom, for example, is does the institution get to make its own decisions about admission policy? What kind of students does it admit to the university? Does it get to make its own decisions about curriculum?

What kinds of academic curriculum does it offer, etc. One thing that courts have said in thinking about various kinds of academic freedom contexts, both in the K through 12 context, but also the university context, is they're kind of skeptical of the idea that individual professors can freelance on the curriculum. And so if I'm supposed to be teaching a particular class with a particular subject matter,

I can't just ignore the content I'm supposed to be teaching and decide I'm going to teach something completely different and go off on my own and teach something radically different. The university officials can quite reasonably step in and say, that's not part of your academic freedom to ignore the content of the class you're supposed to be teaching and teach something else distinct and separate from it. But then there's a question about, okay, well, beyond can the individual professor then ignore the curriculum? Who gets to decide what that curriculum is in the first place and does it have to be professors? So most American universities have designed a process by which the faculty

themselves make decisions about what the curriculum looks like. And at some level, detail or not, right? And so it may be very specific, it may be kind of broad, but nonetheless, what kind of courses we're going to offer, what courses count for what degrees, blah, blah, blah. Then the question is, well, can trustees come in and change that? And in a public university context, can state legislatures come in and change that? So, generally speaking, state legislatures have traditionally been pretty hands-off on what the curriculum looks like. The great state of Texas has a requirement that college university students and public universities take a class in American and Texas government and take a class in American

and Texas history. But they don't specify anything else beyond that. Other states are beginning to also think about what kind of requirements we ought to put in place. Florida has recently decided we don't want sociology to be part of the Gen Ed requirements in our state universities because we don't like sociology. We think there's the higher, because we don't like sociology.

We think there's the higher, better things students could be learning. North Carolina has adopted a new civics requirement that students in the state universities have to learn. And unlike the Texas requirement, which is quite broad and just says you have to learn something about American government, the North Carolina requirement says, and here's some specific things

you have to learn in that class. You have to include the Constitution, you have to include the Gettysburg Address, and some specific content. What it doesn't do, unlike, say, the Stop Woke Act in Florida, is it doesn't specify what perspective you have to teach it. And so if I'm teaching one of these North Carolina classes where I'm required to talk about the Constitution, I don't have to say nice things about the Constitution. I just have to talk about the Constitution and educate students about the Constitution. And I think that's probably fine

from a First Amendment perspective. It's certainly a departure from traditional academic freedom concerns. And so from a pure academic freedom perspective, professors are not gonna be happy about the idea that either trustees or legislatures, again, start telling you, here's the classes you have to have in the curriculum and here's the stuff you have to assign in the curriculum. But I think from a First Amendment perspective in particular, simply saying, you have to

have a civics class that includes the Constitution is pretty different than saying, you have to have a civics class that includes the Constitution. And here are the things you have to say About the Constitution you have to say the Constitution means What? Justice Gorsuch thinks the Constitution means you're not allowed to teach the Constitution and tell or even tell students What Justice Sotomayor thinks the Constitution looks for example? You know, there is a concept of institutional academic freedom. Yeah

That so, you know when I was president of FIRE, I remember we had a giant fight with, now this is moving beyond the First Amendment arena, moving into private universities. But again, they kind of inform each other. But when I was at FIRE, we had this tremendous fight over this documentary at Columbia University called Columbia Unbecoming.

And I don't know if you guys remember this controversy, it was like 04, 05. And guess what, guess what? They had exposed a ton of antisemitism at Columbia University. Who knew? Who could imagine that that could happen? Fortunately, Columbia has solved that problem.

Yes, Columbia's totally solved it. It's all good now. So going back to 04, 05, and to this day, this is the only time I've ever had to give a speech at a university walking through metal detectors was Columbia 2004, I believe, Columbia Unbecoming. And there was this tremendous fight about did students possess anything

that looked like academic freedom? Again, this was at a private school. But what we ended up doing was having this fight over the three layers. Is there an institutional academic freedom? And what does that say to the individual, professor's academic freedom? And then where's the role of the student here?

And I thought actually as an interesting sort of matter of intellectual and public debate, it really helps sort of sharpen these things. And the balance that was ultimately, that we argued for was exactly what you talked about. That, yeah, an institution can set sort of curricular priorities, but then to come in and say, and then now you're going to essentially be our classroom marionetteette where you just say exactly what we tell you and further into the curriculum. No.

And then at the same time, you can't tell students while students you can tell them to learn and absorb the material, you cannot tell them not to critique the material. And so there is a multi-layer approach to this that does make sense and can make sense. But often when we're having these fights, people forget that there are three layers here and one of them is institutional. The institution is going to have a degree of its own academic freedom. It is. And I think there's, so professors got very upset when Governor DeSantis said at one point that if you want to study women's studies,

go off to California and you can learn stuff like that over there. We're going to do some serious stuff here in Florida and do real majors that people actually care about. Professors don't like that, of course. From a policy perspective, you might think it's a terrible idea for governors to be making that decision about, or state legislatures to be making that decision about what kind of majors are we going to have, what kind of disciplines

are we going to study. But I think certainly there's no real First Amendment constraint on that. And I don't think it makes sense that you could imagine that there could be a serious constraint on that in terms of what kinds of priorities does a state legislature want to have about its institutions? And we recognize those priorities get made all the time by government officials about the nature of higher education. So how many law schools

you're going to have and which campus gets to have one. And so if you tell a campus, you don't get to have a law school because we already have too many or we already have one over here and we decide to centralize it over here and not over here. That's a fundamental decision about what curriculum a particular campus or particular university is going to offer. And ultimately, that's a political decision. And so for us as professors, we think women's studies is really important. Partially, we have to persuade the public that that's true, and we have to persuade legislatures

they're worth funding. There's reasons why we have these majors. There's reasons why we have these disciplines. And they ought to continue to support them. But we can't pretend like we're going to be fully insulated from any political accountability for the kinds of things we do on the university campus. But as you say, that's different than saying it's okay, though, for legislatures not only

to make that kind of high-level strategic decision about what kinds of things we're going to invest in and also to say, and by the way, when you're in the classroom, you're going to be the marionette and you have to toe the party line about what you're allowed to say and what you're not allowed to say. And if we get a new administration and office, now you have to change your syllabus and change your lectures and deliver a different lecture because now there's a different political message that we want you to convey in your classes. Not only is that a terrible policy, it will make for lousy universities, but I think it has First Amendment consequences as well.

So your proposal is basically this three-part test, the first one of which I just like, I obviously agree with. If it's a professor, like you happen to have a job as a university professor, but you're speaking in your capacity as Keith, not as Professor Whittington, obviously you have a First Amendment right to have your own opinions, and that includes your own opinions in the faculty lounge over lunch, right? Just because you're on university property also is not going to transform private speech into public speech just because of your job or because of where you're located on the earth.

But then you're going to get into the competence question. I think that's a lot trickier than perhaps it would seem on its face. This idea that if you're falling below a level of competence in teaching your subject, that then you can be subject to discipline because for a lot of folks, they would argue that, saying that evolution was the correct

theory is not competent. It's so outrageous. Look at the Bible. That is obviously contradicting the theory of evolution. Therefore, by teaching evolution, you are falling below that level of competence. Your third pillar is germanness, right? To your point, if the state can say, we must have a survey course on American history, and you're the professor for that course, you don't get to hijack it and make it on what's going on in Gaza for a semester. Students signed up for American history,

and you don't have an academic freedom in that sense on that sort of curriculum setting that we were talking about. So those are the three pillars that you've laid out. And again, like I think those as a policy matter are great, but I don't totally understand the constitutionalizing aspect when a 12th grade teacher teaching American history. I think we would say there are different pillars involved there. Obviously, the private speech thing is still exactly the same. If you're in the teacher's lunch room and going off on who you're voting for or whatever

else, obviously, that's still protected, regardless of the fact that you're on public school property. But I think we can tell you that you must teach in your government class about originalism. And perhaps, I'd be curious what you think. Would the state be allowed to tell a 12th grade teacher they're not allowed to teach Sotomayor's version of constitutional interpretation in 12th grade? How does the Constitution speak to flipping that then when you get to freshman seminar? Yeah. So I think it's a function of the kinds of institutions that we've constructed.

And so one way of thinking about this is to shift to a different area of First Amendment doctrine, which is government speech doctrine. So government speech doctrine is concerned with saying that when the government itself is speaking, the court has said there are no first-members constraints. The government can make its own decisions about what message he wants to convey,

and it can denigrate other messages. And if it wants to, it doesn't have to convey every message. It gets to make choices about what kinds of messages it conveys. And part of what government speech doctor is concerned with is how do we distinguish circumstances in which the government is actually speaking in its own voice and when is the government instead hijacking some other speaker and big footing in its government message instead of the private speaker's message in this context.

So one way of thinking about K-12 education is it's all government speech. That what happens in the classroom in a K-12 context is it's all government speech. That what happens in the classroom in a K-12 context is speech that the government wants to have occur in that classroom. The government creates a detailed curriculum and lesson plan for teachers to follow. It supervises how that curriculum is delivered in a fairly micromanaged way. And if teachers are off the reservation about that, the government steps in and restricts what happens in that classroom. And there's all kinds of reasons why we think that's the appropriate way of setting up K-12, not least of which is because we're talking about minor children who are entrusted by parents to

the government. And one thing the court has said in the context of thinking about K-12 education is we have political control over what individual teachers are doing in that classroom because the community ought to determine how minors are being treated. You can't have individual teachers just deciding, I think your kid, of your five-year-old kid, ought to hear all about the sex education as I think about it. Instead, we say, no, no, there's got to be political control over what that looks like, and we've got to restrict. Higher education, we had thought of as being different. Those universities as institutions function differently,

they perform a different purpose. The kinds of students they're dealing with are not children anymore, they're now they're adults. And so they can hear a range of things. And then the question is, okay, what kind of political interventions ought to occur in that context to micromanage what gets delivered in the classroom so that those adults can hear what they potentially want to hear. And I think, though, that as you say, there's a, and it's partially just the nature of drawing lines and making institutions the way they are, right?

We have in fact created a situation in which there's very sharp distinctions between what happens in 12th grade and what happens in freshman year in a public university, despite the fact that there's not a lot of difference in the students. There may not even be a lot of difference in the nature of the classes they're teaching.

I think you can imagine a world in which we construct that pretty differently. And there were times in the early 20th century when some professors and academic freedom advocates even thought about the idea. We ought to have a kind of junior college that really looks like an extended high school because all you're doing at that level is just conveying rote material that's familiar and conventional. And as a consequence, perhaps then you need

a lot less academic freedom about how you teach that. But the question is, what are you doing with the more advanced levels of universities where you are closer to the edge of knowledge, where the purpose of the university is to explore completely new ideas and push the boundaries of knowledge in general. What happens, we've created institutions in which freshman year of college is in the same place as senior year in college, which is in the same place as PhD classes. And so we have created a system in which all those things are going to be governed by the kinds of rules that you need at the most advanced level.

But you could imagine doing freshman year differently. It could be like 13th year of high school instead, and maybe the government actually wants to micromanage that. Maybe you're still dealing with minors, for example, mostly taking it. I think you could reorganize universities in a way where that could make sense and be compatible with First Amendment concerns and even from a policy perspective not necessarily do damage to universities. On the other hand, if you're going to treat universities

as if they were public high schools, you for sure are going to damage the educational product even if you're thinking it serves some political purposes by doing that. What a great place to leave this, but I do have one lightning round question. You quote Justice Alito as a circuit judge, a public university professor does not have a First Amendment right to decide what will be taught in the classroom. So here's my lightning round question to you. The StopWoke Act makes it to the Supreme Court. What's the vote?

I am cautiously optimistic that the court will strike down the Stop Woke Act. But I think you have to get the germane-ness thing as being relevant here. It is true that professors can set their own curriculum, but having set the curriculum, can you teach critical race theory? Can you teach so-called divisive concepts when they're germane to the course matter or subject? And I think there the answer is yes. And so I think Justice Alio should be persuaded that striking the unspoken guide is compatible with what he and actually is the natural extension of what he said as a circuit court judge. Professor Keith Whittington, author of You Can't Teach That.

We didn't even get to the compelled speech aspects of this. There's so much more for you all to dive into when you read this book. I think you'll really, really enjoy it. Thank you so much for sharing it with us. Thanks for having me. Appreciate it.