Professors’ Speech in Class Has Not Been Regulated; It Has Been Hired

Yesterday’s Seventh Circuit opinion in McDonald v. Trustees of Indiana Univ. held that public university professors lacked standing to challenge a state law that called for faculty members to be evaluated based in part on whether they were

(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;

(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member’s academic discipline; or

(3) likely, while performing teaching duties within the scope of the faculty member’s employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member’s academic discipline or assigned course of instruction….

Because the professors lacked standing, the court didn’t consider their substantive First Amendment challenges to that law. (For more on the law, and the standing issues, see this post.) But Judge Frank Easterbrook also added a concurrence that opined on the underlying First Amendment issue; I’ve emphasized the key passages:

I do not see how the plaintiffs have advanced a plausible argument under the First Amendment. Plaintiffs suppose that professors hold rights against universities about what shall be taught. Yet academic freedom belongs to the university. “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

A university has the right to insist that professors provide the sort of education that the school promises to students but can deliver only through agents. Contra, Pernell v. Florida State University System (11th Cir. 2026). (Obviously, I agree with the dissent in Pernell and need not repeat what Judge Lagoa explains at length.)

Indiana University is not complaining—nor could it. The University is a part of the State of Indiana, which like other governments has a right to convey its own message. To enjoy this right the University must have teachers who will present the course of instruction it specifies. Professors’ speech in class has not been regulated; it has been hired.

Many students want to receive educations in which professors “foster a culture of free inquiry, free expression, and intellectual diversity” and “refrain[] from subjecting students to views and opinions concerning matters not related to the faculty member’s academic discipline or assigned course of instruction.” But, if plaintiffs are right, colleges that make such promises to students (and their paying parents) are powerless to deliver on them. Faculty may choose to provide tendentious screeds instead, denying their institutions the ability to provide students with a particular kind of educational experience.

Government need not specify all details in order to be a speaker. Whether to teach ethnomusicology at all, and if so how, is a question for a state university to answer, rather than for judges and juries to prescribe in the name of the First Amendment. Likewise with whether a person hired to teach economics must offer that subject rather than musicology.

Indiana has chosen to specify, through [the law being challenged], only a segment of the University’s educational approach, but this restraint does not prevent the University from standing on its prerogative to decide what to teach. Indiana could not compel a private university to follow the approach laid out in this statute, but Indiana may choose to offer it for itself and see how it fares in the marketplace of ideas.