A Bad Idea, Yes, But Unconstitutional Also?

I read with interest John’s post about the Arizona bill that would profoundly restrict university professors’ free speech rights in the classroom. I agree with John (and with David Horowitz that the bill is a bad idea. Since it isn’t going to get much support at all from conservatives — and since the university community will rightly be united against it, I doubt that it has any real chance of passing.

But what if it did? Would it be unconstitutional? Public university professors often forget that they don’t have “free speech rights” that are remotely comparable to the rights of their students. University professors are public employees, and when speaking in their official capacities (such as during class time), they are speaking not as private citizens but as representatives of the state government. In the last year alone, a series of court decisions (beginning with the Supreme Court’s decision (PDF) in Garcetti v. Ceballos have made it clear that the free speech rights of public employees are shrinking, not expanding. A recent Seventh Circuit decision (discussed here) gives us a clue about the extent (and limits) of university professors’ free speech rights in the classroom:

. . . the First Amendment protects the right of faculty members to engage in academic debates, pursuits, and inquiries and to discuss ideas. The idea of some kind of government-sponsored orthodoxy in the classroom is repugnant to our values. On the other hand, we have also recognized that a university’s “ability to set a curriculum is as much an element of academic freedom as any scholar’s right to express a point of view.” We added, in Webb, that “[u]niversities are entitled to insist that members of the faculty (and their administrative aides) devote their energies to promoting goals such as research and teaching.” No college or university is required to allow a chemistry professor to devote extensive classroom time to the teaching of James Joyce’s demanding novel Ulysses, nor must it permit a professor of mathematics to fill her class hours with instruction on the law of torts. Classroom or instructional speech, in short, is inevitably speech that is part of the instructor’s official duties, even though at the same time the instructor’s freedom to express her views on the assigned course is protected.

In other words, the university itself has the academic freedom to order its professors to stick to their subjects (i.e. the university can prevent professors from taking time out from English Literature for a discussion of the Iraq War), but it cannot interfere with the “instructor’s freedom to express her views on the assigned course.” In other contexts, the ability of the state to limit the explicit, on-the-job political activity of its employees is unquestioned.

For many years, university professors have enjoyed a measure of academic freedom that is actually greater in scope than the rights guaranteed by the First Amendment. Persistent and arrogant abuse of that freedom is going to invariably lead legislatures and universities themselves to begin to roll back professors’ expressive autonomy. Sadly, the university establishment seems oblivious to the fact that their own abuses are leading them down the road of regulation, and they seem blissfully unaware that their employers have far more power over their expression than they dare to think.