Academic Freedom Amid Curricular Regulation and Research Restrictions

U.S. Law and Race Initiative Author

05/14/2025 Added

3 Plays

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Join our Rights & Wrongs in American Legal History class for a discussion with guest speaker Professor Eric Berger of Nebraska Law about academic freedom amid curricular regulation and research restrictions, moderated by Dr. Katrina Jagodinsky.

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[00:00:02.500]Thank you for joining us today for the first U.S. Law and
[00:00:06.120]Race Initiative webinar in our spring 2025 series. My name is Emily
[00:00:10.840]Binder and I'm a first year PhD student in History at the
[00:00:14.000]University of Nebraska studying U.S. immigration
[00:00:16.660]and the creation of new national
[00:00:19.020]identities. Launched with support in January of 2023, the
[00:00:22.580]U.S. Law and Race Initiative explores new approaches to
[00:00:25.720]research, teaching, and public engagement with the history of
[00:00:29.000]law, race, and racialization in the United States.
[00:00:32.420]Funded by the Mellon Foundation, the initiative brings together
[00:00:35.720]large university teaching programs, immersive
[00:00:38.040]new forms of digital media content, and community partnership
[00:00:41.920]storytelling to connect Americans to their history in ways that
[00:00:45.200]repair the fractures in our national understanding
[00:00:47.380]of race and racialization. Dr. Will Thomas, Dr. Jeannette Eileen Jones,
[00:00:52.340]and Dr. Katrina Jagodinsky, and Dr. Donna Anderson are the
[00:00:56.120]faculty leads on the U.S. Law and Race Initiative, along with
[00:01:00.240]an array of expert partners in the College of Arts and Sciences
[00:01:03.280]and College of Law at UNL. We are hosting a series
[00:01:06.460]of webinars deepening the national conversation
[00:01:08.740]about the legal history of race.
[00:01:10.840]Today, we are excited to host a discussion about academic
[00:01:14.380]freedom amid curricular regulation and research restrictions. We're
[00:01:18.820]honored to have with us today, Professor Eric
[00:01:21.560]Berger. Eric Berger is the Earl Dunlap Distinguished Professor of Law
[00:01:25.360]at the University of Nebraska-Lincoln.
[00:01:27.260]He received his JD from Columbia Law School
[00:01:30.560]in 2003. After law school, Professor Berger clerked
[00:01:35.060]for the Honorable Merrick B. Garland on the United
[00:01:37.540]States Court of Appeals for the District of Columbia Circuit.
[00:01:41.080]He then practiced in Jenner & Block's Washington, D.C., office, where
[00:01:45.300]he worked on litigation in several state and federal trial and
[00:01:48.640]appellate courts, including the United States Supreme Court.
[00:01:51.840]There, Professor Berger worked on cases involving
[00:01:55.360]lethal injection, same sex marriage, the detention
[00:01:58.160]of foreign nationals at Guantanamo Bay, and internet
[00:02:01.240]obscenity. His current scholarship focuses on constitutional law.
[00:02:05.840]Finally, Dr. Katrina Jagodinsky is an associate
[00:02:08.440]professor of history at the University of Nebraska.
[00:02:12.540]She is a legal historian, examining marginalized people's
[00:02:16.560]engagement with 19th century legal regimes and competing
[00:02:19.840]jurisdictions throughout the North American West.
[00:02:22.940]Her current project with the Digital Legal Research Lab
[00:02:25.640]entitled Petitioning for Freedom: Habeas Corpus in the American West
[00:02:28.980]examines more than 8,000 habeas corpus petitions from Black,
[00:02:32.740]Indigenous, immigrant, institutionalized, independent petitioners
[00:02:36.000]over the long 19th century.
[00:02:38.500]So with that, let's get started.
[00:02:44.060]Thanks, Emily. And I'll just remind everybody that
[00:02:47.080]we do have time built in this morning for discussion and questions
[00:02:51.240]from the audience. You're welcome to use the chat function for that.
[00:02:56.620]And Emily and I will moderate the chat for those
[00:03:00.000]questions for Professor Berger.
[00:03:02.880]I do want to thank Professor Berger for joining
[00:03:05.500]us throughout this webinar series. As many of you know,
[00:03:08.780]we get to invite talent from throughout the United States
[00:03:12.920]and other institutions to share their scholarly expertise with us.
[00:03:16.980]And every once in a while, we also get to draw
[00:03:19.120]on our local talent and reach out to colleagues across the
[00:03:23.020]University of Nebraska. So thanks to Professor Berger and to other
[00:03:26.900]scholars in the audience who have joined us in previous webinars.
[00:03:30.420]As all of you know, we are in an unprecedented moment in terms of
[00:03:34.920]regulation and restrictions on education.
[00:03:38.500]Though universities and K-12 schools have been the site of
[00:03:41.780]legal disputes over curriculum, religion, political speech, student speech, and
[00:03:47.420]conduct, state and federal Supreme Courts have consistently upheld academic
[00:03:52.120]freedom and free speech on campuses since the mid 20th century.
[00:03:55.940]Since the Cold War era, courts have also
[00:03:59.020]consistently upheld immigrant rights to due process, even as
[00:04:03.340]federal deportation authority has consistently expanded.
[00:04:07.580]Our focus today is primarily on academic freedom, which includes
[00:04:11.620]curriculum, conduct, and research.
[00:04:13.500]Those deeply invested in higher education are concerned because
[00:04:17.920]of the wave of activity we have seen in this
[00:04:20.779]administration's first 100 days, which includes more than a
[00:04:24.840]dozen executive orders shaping educational policy, according to United Educators.
[00:04:30.520]The Chronicle of Higher Education reports that more than 329 institutions in
[00:04:37.020]40 states have shifted their policies regarding curriculum and policy to scale
[00:04:43.440]back DEI, diversity, equity and inclusion, in accordance with federal guidelines and
[00:04:49.740]the implementation of these policies and shifts vary at the state level.
[00:04:54.200]According to Education Week, there are currently 36
[00:04:58.480]separate lawsuits challenging administrative educational policies
[00:05:02.980]or broader policies from the administration
[00:05:05.840]that affect education.
[00:05:07.800]Here at UNL, as at other institutions, researchers have
[00:05:12.800]lost grants funded by the USDA, Department of Ed,
[00:05:16.720]NEH, NSF and NIH, and although they have been
[00:05:20.280]reinstated, three international students had
[00:05:22.900]their visas revoked last month.
[00:05:25.000]We aim to host this discussion today in search of clarity regarding
[00:05:29.740]the academic freedoms university communities enjoy so we
[00:05:34.140]can all move forward to serve our students
[00:05:36.560]and our scholarly disciplines.
[00:05:39.300]I have a series of questions prepared for Professor
[00:05:42.000]Berger, but again, we'd love to hear from the audience
[00:05:44.860]in the time that we have today.
[00:05:47.780]Professor Berger, can you please get us started by summarizing some of
[00:05:52.560]the major First Amendment principles that are relevant to colleges and universities?
[00:05:58.980]Sure, and thanks very much for the invitation. I'm really
[00:06:01.640]excited to talk with you all about these important issues.
[00:06:05.420]So I think, I guess, you know, obviously there's not time
[00:06:08.280]to sort of teach a whole First Amendment class, but I'll
[00:06:11.440]make sort of three preliminary points and then emphasize two First
[00:06:15.800]Amendment principles that I think are especially helpful in thinking about
[00:06:19.020]First Amendment as applied to colleges and universities. The
[00:06:24.200]first preliminary point that probably most of you know,
[00:06:27.460]but is important, is that the First Amendment applies to
[00:06:31.320]all state actors, including a public university like ours. So
[00:06:34.980]anytime the federal government interferes with campus speech, certainly at
[00:06:39.920]a public campus, the First Amendment is going to be implicated.
[00:06:44.440]That doesn't necessarily mean the speaker is always going
[00:06:47.340]to win, but there's going to be a First Amendment issue. And since
[00:06:51.140]the First Amendment usually protects speech quite robustly, the speaker
[00:06:55.200]is often going to win.
[00:06:57.960]The second preliminary point is that the Supreme
[00:07:01.060]Court hasn't really weighed in on whether and how
[00:07:05.840]the First Amendment might apply differently in the
[00:07:09.160]university context than it does in society more generally.
[00:07:12.580]There's some related cases, but it hasn't sort of created a whole
[00:07:18.520]sort of separate speech and university doctrine. And in a way that's
[00:07:23.460]a little odd because in a variety of other contexts, the court
[00:07:26.720]has said that the First Amendment applies differently in
[00:07:30.060]certain kinds of institutions.
[00:07:31.980]So perhaps most relevantly for thinking about
[00:07:34.540]universities, the normal rules of free speech
[00:07:38.060]doctrine apply a bit differently in K-12 public schools than they
[00:07:42.160]do in society generally.
[00:07:45.120]I think there are good reasons to think that those rules
[00:07:47.920]that apply in K-12 schools ought not apply to colleges and
[00:07:52.340]universities. The rules in K-12 schools tend to be less protective
[00:07:56.780]of speech than just sort of ordinary citizens out in the world.
[00:08:01.700]But again, the court has not entirely clarified what,
[00:08:07.620]if any, sort of unique university speech rules there are.
[00:08:12.680]And then the third preliminary point is that
[00:08:15.480]context matters. And one of the reasons why it's
[00:08:19.660]difficult to speak with great certainty about how a
[00:08:23.440]particular case might come out is that context matters.
[00:08:26.900]So the law, you know, we're talking about speech
[00:08:30.040]on college campuses, but the law might not necessarily treat
[00:08:33.080]the same way. For instance, professors teaching and research speech,
[00:08:38.600]student speech in the classroom, student protests on college grounds,
[00:08:44.520]university programming like DEI programming, for instance. In
[00:08:48.560]other words, the rules and the way in which
[00:08:51.400]First Amendment freedom of speech would apply to
[00:08:53.800]each of those would depend on the particular context.
[00:08:57.640]I think broadly speaking, one might think of college campuses
[00:09:00.740]as having two different planes of speech zones. So first there's
[00:09:04.700]what we might call the sort of formal professional educational
[00:09:07.660]zone where professors and students are expected to follow certain norms.
[00:09:13.060]So for example, in the classroom, universities can
[00:09:15.940]require professors to teach the subject they were
[00:09:18.420]hired to teach, and professors can require students not to disrupt
[00:09:22.460]class. And that ties into academic freedom, which I
[00:09:26.040]think Professor Jagodinsky and I will turn to soon.
[00:09:32.140]By contrast, so that's the sort of professional formal zone.
[00:09:36.980]By contrast, I think there's also a broader free speech
[00:09:39.540]zone where both students and instructors are permitted to speak
[00:09:43.320]more freely just as they are in society at large.
[00:09:46.220]So for instance, imagine students and faculty members are gathering
[00:09:50.400]peacefully on this campus green to engage in a peaceful
[00:09:56.300]protest about some issue or other. They typically will have
[00:10:00.980]more speech rights there than they would in a classroom.
[00:10:05.260]Now, of course, those speech rights only apply
[00:10:07.460]to speech. It wouldn't apply to conduct like vandalism,
[00:10:12.920]but they would have broad freedom to peacefully protest
[00:10:16.940]even in ways that many people might find offensive.
[00:10:21.480]Okay, so those are the three preliminary points. Now,
[00:10:23.820]just really briefly, two First Amendment principles
[00:10:26.380]that I think are helpful, especially in
[00:10:29.240]understanding the current situation.
[00:10:30.800]The first First Amendment principle is that First
[00:10:34.980]Amendment strongly disfavors content discrimination and
[00:10:39.380]viewpoint discrimination.
[00:10:41.640]So in other words, when the government punishes
[00:10:44.160]or regulates speech because of the content of the
[00:10:47.880]speaker or the viewpoint of the speaker, courts
[00:10:50.740]are almost always going to strike those regulations down.
[00:10:54.020]And I think that's especially relevant today
[00:10:56.880]because as Professor Jagodinsky mentioned, many of the
[00:11:00.360]administration's recent interference with campuses seems to
[00:11:04.560]be like, seems to function as viewpoint discrimination.
[00:11:10.580]I think there's a strong sentiment in conservative
[00:11:13.260]circles that U.S. universities are not ideologically diverse enough.
[00:11:17.700]That actually might be correct, but even if it
[00:11:21.300]is, that doesn't mean that the government can dictate new
[00:11:25.260]viewpoints within the university because that itself would be
[00:11:28.780]a form of viewpoint discrimination, which the First Amendment forbids.
[00:11:33.240]So that's the first First Amendment principle.
[00:11:36.380]The second one that doesn't come up as often, but I
[00:11:39.900]think it's really relevant to a lot of things that's going on
[00:11:42.500]right now, particularly involving universities,
[00:11:45.160]is the unconstitutional conditions doctrine, which
[00:11:49.540]says that even if you don't have a right to a particular
[00:11:53.800]governmental benefit, say, you know, governmental
[00:11:56.740]funding for your scientific lab, the government cannot condition
[00:12:01.720]that benefit on you giving up your free speech rights.
[00:12:05.860]So a university might not have a right to, say,
[00:12:09.440]research science funding, but under the unconstitutional conditions
[00:12:13.820]doctrine, it's probably unconstitutional for the government to
[00:12:17.680]withhold scientific research funding at a university because the government doesn't
[00:12:22.260]like the speech at that university.
[00:12:25.740]So those are, I think, important First Amendment
[00:12:28.820]principles and thinking about what's going on these days.
[00:12:33.480]Thank you for that sort of baseline orientation on some of
[00:12:40.120]those principles and also in helping to clarify
[00:12:44.240]the multiple arenas where free speech may apply
[00:12:50.720]across universities and campuses.
[00:12:53.700]I'm sure for our audience, a lot of light bulbs are kind of going off in terms
[00:12:58.300]of what we're seeing happening today and some
[00:13:02.900]of these really nuanced aspects of First Amendment interpretation.
[00:13:09.520]Can you kind of help us transition from the
[00:13:13.500]First Amendment to academic freedom and explain academic freedom and
[00:13:20.180]its applications to students, staff, or faculty?
[00:13:23.620]Yeah, yeah. So the First Amendment freedom of speech and academic freedom are
[00:13:29.160]clearly related concepts, but they're also analytically distinct, as
[00:13:34.400]Professor Jagodinsky's question indicates.
[00:13:38.880]So the First Amendment freedom of speech protects
[00:13:41.780]free speech for all persons in the United States.
[00:13:45.200]So this means that usually the Constitution protects your free
[00:13:50.000]speech in all contexts, especially when you criticize the government.
[00:13:56.260]And that right attaches both within universities
[00:13:59.460]and out in society more generally. And that's a right that all persons in
[00:14:03.380]the United States, citizens and non-citizens alike, enjoy.
[00:14:07.360]Academic freedom, by contrast, is in ways narrower.
[00:14:13.360]It's not about the personal freedom of professors to
[00:14:17.160]say whatever they want about any topic, but
[00:14:22.440]rather the freedom of the academic profession to determine,
[00:14:26.760]according to disciplinary standards, what counts as knowledge,
[00:14:32.640]and then for professors acting within those disciplines
[00:14:36.620]to research and teach as they see fit, again within the parameters
[00:14:43.560]set by those disciplinary standards.
[00:14:45.940]So notice that academic freedom is not merely individual, it's
[00:14:53.120]institutional, it's professional, it protects
[00:14:56.620]the university's ability to produce and transmit knowledge, and I
[00:15:00.640]think along with it, the university instructor
[00:15:03.860]and researchers' ability to produce and transmit knowledge.
[00:15:07.620]But notice that it's grounded in the principles
[00:15:11.320]of disciplinary expertise and really peer review, meaning
[00:15:16.260]that scholars, what they say in their academic
[00:15:21.740]capacity, should adhere to the standards of their fields.
[00:15:26.880]So it differs from general free speech rights and that academic freedom
[00:15:31.320]also involves responsibilities and is shaped
[00:15:34.900]by scholarly norms within the field.
[00:15:37.860]But as I said, it's also generally understood to me that
[00:15:40.500]when professors are engaging in research or teaching within their own
[00:15:44.480]area of expertise, they have wide latitude, again,
[00:15:49.500]assuming that they're operating within the norms of their
[00:15:52.280]discipline, sort of very broadly understood.
[00:15:55.700]So freedom of speech and academic freedom are not
[00:15:58.260]the same, though sometimes courts do link them together.
[00:16:02.020]I think perhaps the most important Supreme Court
[00:16:04.300]statement on this came in a 1967 case called
[00:16:07.800]Keishion v. Board of Regents, which importantly seems
[00:16:12.500]to root academic freedom partially in the First Amendment.
[00:16:16.320]The court wrote in that case, and I've pulled up, so I'll just quote it,
[00:16:22.460]Our nation is deeply committed to safeguarding academic freedom, which is of
[00:16:27.800]transcended value to all of us and not merely to the teachers concerned.
[00:16:32.600]That freedom is therefore a special concern of the First Amendment, which
[00:16:36.960]does not tolerate laws that cast a pall of orthodoxy over the classroom.
[00:16:42.400]The vigilant protection of constitutional freedoms is nowhere
[00:16:45.800]more vital than in the community of American schools.
[00:16:48.920]The classroom is peculiarly the marketplace of ideas.
[00:16:53.440]The nation's future depends upon leaders trained through
[00:16:56.720]wide exposure to that robust exchange of ideas,
[00:17:00.060]which discovers truth out of multitudes of tongues
[00:17:03.200]rather than through any kind of authoritative selection.
[00:17:07.859]So that Supreme Court passage is obviously very helpful
[00:17:11.720]for academic freedom and for instructors' freedom to teach
[00:17:14.560]in the way they best see fit, and that case has not been
[00:17:17.640]overruled. It's still good law.
[00:17:20.740]I do think it's important for university instructors, though,
[00:17:24.520]to be aware of a caveat, and that's a separate
[00:17:28.079]line of cases involving public employee speech.
[00:17:31.960]In a case called Garcetti v. Ceballos in 2006, the courts
[00:17:37.260]said that speech by a public official, in other words, by a
[00:17:41.380]governmental employee, is only protected if
[00:17:44.900]it's engaged in as a private citizen, not if it's expressed as
[00:17:49.800]part of the official's public duties.
[00:17:52.140]So that means that the government can fire an employee for
[00:17:57.000]speech that the employee engages in part of the official's public duties.
[00:18:01.340]So, for instance, if I work for the city of Lincoln
[00:18:04.360]Parks and, you know, if in my free time I write an
[00:18:08.120]op-ed criticizing the president of the United States, well, I cannot be
[00:18:11.700]fired for that because that's my free speech as a private citizen.
[00:18:15.060]But if in the course of my job I start bad mouthing my boss at the
[00:18:19.600]city office and say he's made dumb decisions about what trees
[00:18:23.080]to plant, well, then the city could fire me because that speech
[00:18:27.040]is part of my governmental duties.
[00:18:30.300]Notice that if that rule applied to professors
[00:18:34.140]speaking in the classroom or engaged in research
[00:18:37.160]pursuant to their job, that would seem to cut back severely or
[00:18:42.200]even entirely on academic freedom.
[00:18:45.140]The court in the Garcetti case explicitly reserved the
[00:18:48.760]question of whether that reasoning applied to
[00:18:51.200]university professors, but it didn't say that it did not apply.
[00:18:56.100]I wish the Supreme Court had more clearly stated that the Garcetti
[00:19:00.980]rule does not apply to professors because it seems that that principle
[00:19:06.260]is in pretty sharp conflict with the principles of academic freedom that
[00:19:10.460]I articulated and that the Supreme Court also articulated
[00:19:13.600]in the Kishion case.
[00:19:17.800]Importantly, though, lower federal courts have, I think, almost always
[00:19:22.780]interpreted Garcetti in a way that exempts academic speech from
[00:19:27.380]its rule. So in other words, lower federal courts have
[00:19:30.360]said that the Garcetti rule does not apply to university professors.
[00:19:34.040]So that's very encouraging insofar as it suggests
[00:19:37.400]that federal courts generally still recognize broad academic freedom
[00:19:41.940]for university instructors. But again, because the Supreme
[00:19:46.060]Court didn't say that itself, it's a little uncertain.
[00:19:50.520]Thank you for that. I think you're making a lot of
[00:19:53.780]important points that I know the US Law and Race Initiative faculty
[00:20:00.020]try to introduce in their classes as well, which is that there's
[00:20:06.520]a distinction between free speech as a right in the public domain
[00:20:17.440]in contrast to free speech under an employment contract or through
[00:20:23.380]your role acting in an official capacity, which
[00:20:28.180]may have consequences, even if those consequences don't
[00:20:32.200]include, for instance, arrest.
[00:20:35.160]And so I think that's helpful to hear you kind of elaborate
[00:20:40.140]that there are those important distinctions.
[00:20:43.320]And we've covered some of those in both semesters of
[00:20:48.120]our undergraduate classes, particularly as they
[00:20:50.900]pertain to students and employees, seeing our students as on
[00:20:59.420]their way to becoming early career employees.
[00:21:02.240]Another point that I wanted to highlight that
[00:21:05.420]you're making is the importance of academic professional
[00:21:10.620]organizations and helping to engage this discussion of
[00:21:15.260]academic freedom on the basis of disciplinary standards.
[00:21:18.520]And as you said, understanding that each of our disciplines uses not
[00:21:23.980]just research, but also the classroom as this marketplace of ideas that
[00:21:27.480]you pointed out. And so I know, at least in the social
[00:21:31.620]sciences and humanities, that the American Historical Association, the
[00:21:36.500]American Political Science Association,
[00:21:38.560]Modern Languages Association, ACLS, others have come together to
[00:21:44.920]sort of offer support and guidance for their disciplinary members
[00:21:50.180]to kind of demonstrate the breadth of ideas and
[00:21:56.720]practices that are highly regarded in each of those subfields.
[00:22:02.120]And there's also the Law and Society Association, which really hits the mark of
[00:22:07.020]a lot of the work that we do in the initiative and with our
[00:22:09.720]collaborators. And they also have been firm
[00:22:13.920]advocates to the sense that maintaining disciplinary
[00:22:19.740]rigor is important, as well as a real breadth of questions
[00:22:27.800]and theories and applications.
[00:22:29.620]And I think something that's come through in
[00:22:31.680]a couple of other conversations I've been part
[00:22:33.680]of is that we tend in academic freedom conversations to focus on
[00:22:38.280]the rights of scholars.
[00:22:40.780]But there's also an important aspect, which
[00:22:43.020]is the right of students to pursue rigorous training in
[00:22:48.160]a variety of disciplines throughout their university
[00:22:51.560]or higher ed experience.
[00:22:53.840]And so, you know, they have a sampling of courses that they can pursue.
[00:22:59.360]They have a choice of majors and minors that they can be trained in.
[00:23:05.040]And it's important for them to have access to that
[00:23:08.140]marketplace of ideas, as you said, so that they can, in
[00:23:11.320]fact, be fully trained and well-rounded as they then select
[00:23:15.640]their own career fields and apply the methods and theories that
[00:23:19.660]are most applicable to the work that they're doing.
[00:23:23.740]So thanks for kind of highlighting all of those pieces.
[00:23:29.180]We're turning to a little bit more specific current events question.
[00:23:35.620]Many of our audience today, I'm sure, have seen or read the
[00:23:42.060]Department of Ed's Dear Colleague letter from Valentine's Day
[00:23:46.340]of this year, which suggested some rather strict restrictions
[00:23:53.380]on academic curriculum and speech.
[00:23:56.260]Our students in our class read and discussed
[00:23:59.660]that letter. Can you sort of give us a sense of what
[00:24:04.800]the constitutional issues are that are raised in
[00:24:07.840]that Dear Colleague letter?
[00:24:10.040]Yeah, yeah, I'm glad you brought that up. So as
[00:24:14.300]Professor Jagodinsky mentioned, the Office of Civil
[00:24:17.140]Rights within the Department of Education sent a letter to American
[00:24:22.440]universities, or at least many, many of them, on February 14 of this year,
[00:24:28.040]basically telling them how the administration plans
[00:24:32.060]to enforce civil rights laws against universities.
[00:24:35.100]The letter was pretty vaguely and precisely worded, so
[00:24:40.800]it's not entirely clear what it's saying or what university
[00:24:46.900]activity the administration plans to go after.
[00:24:50.540]But it was a pretty threatening tone signaling that
[00:24:55.240]the administration is going to try to sort of crack
[00:25:01.540]down on universities and play a much stronger role
[00:25:07.320]in deciding what can and cannot happen on university campuses.
[00:25:13.200]It's a little hard to, because the letter is
[00:25:16.180]hard to read, it's hard to know exactly what
[00:25:17.760]it's getting at. It's hard to speak precisely about
[00:25:20.320]exactly how the legal case issues would come out.
[00:25:23.260]It depends on how you can choose certain parts
[00:25:25.740]of the letter, but I guess what I'll do is I'll offer certain
[00:25:30.780]interpretations of the letter and discuss a little bit
[00:25:35.460]what constitutional issues they raise.
[00:25:37.540]So some of the letter emphasizes
[00:25:39.880]that universities, colleges and universities cannot engage
[00:25:43.640]in affirmative action and admissions.
[00:25:46.240]And to the extent that's one of the things the letter does. It's
[00:25:50.480]not a big deal, because the Supreme Court already
[00:25:54.320]said the same thing in the 2023 decision, students
[00:25:59.680]for fair admissions be harbored.
[00:26:01.640]So to that extent, the letter isn't really changing
[00:26:06.600]anything. But then the letter can also be read as
[00:26:10.740]doing many other things like questioning the legality of DEI
[00:26:15.240]programs, or even suggesting how certain curricular should be taught.
[00:26:21.820]And to that extent, the letter seems to be a much broader assault on
[00:26:25.780]academic freedom, on academic freedom, at colleges and universities, though
[00:26:30.040]again, because the letter is pretty vague, it's hard to
[00:26:32.860]know exactly what it means.
[00:26:36.680]With regards to, you know, Professor Jagodinsky asked
[00:26:39.180]about the legal and constitutional questions. One point to
[00:26:42.660]start with is that a Dear Colleague letter does not by itself have the force of law.
[00:26:47.940]So in other words, a Dear Colleague letter is a letter written by a
[00:26:52.540]federal agency. In this case, the Civil Rights Department within
[00:26:57.220]the Department of Education.
[00:26:59.820]It doesn't have the force of law. It's really just expressing the
[00:27:03.340]executive branch's views on a particular issue. Nevertheless,
[00:27:09.020]of course, a letter like this can impose
[00:27:10.780]great costs on a university.
[00:27:13.080]The administration signaled that it could investigate universities
[00:27:16.840]if it doesn't think they're complying, and that can
[00:27:19.900]trigger very high litigation costs, even if the university
[00:27:23.040]ultimately wins. It's very expensive to litigate these cases.
[00:27:27.880]And in this case, the administration is also taking the
[00:27:33.380]really unprecedented step of withholding or threatening to withhold really
[00:27:38.400]large amounts of federal funding and there've been lots of
[00:27:41.960]universities in the news in recent weeks and months about that.
[00:27:45.760]So the administration announced it was canceling $400 million in federal
[00:27:50.940]funds to Columbia. It ordered more than $2 billion withheld from Harvard.
[00:27:57.540]So I think for those reasons, some universities
[00:28:00.140]have felt pressure to relent and do what the
[00:28:03.280]government wants them to do. We can talk a little bit more
[00:28:07.600]about that later on, maybe.
[00:28:09.560]With regards to the legality of the letter, as I mentioned a moment ago,
[00:28:13.180]I think it depends on what the letter means and what it applies to.
[00:28:18.080]And again, because the letter doesn't define the behavior it's
[00:28:22.000]targeting with any precision, it's hard to know what it means.
[00:28:26.700]And that in and of itself might be a constitutional
[00:28:29.680]problem because the letter is so vague that universities don't know
[00:28:33.920]what they need to do to comply.
[00:28:35.860]I think especially in the free speech context,
[00:28:38.940]courts often strike down laws that restrict speech
[00:28:41.840]if they're so vague that people don't know what speech is permitted
[00:28:45.700]and what speech is not.
[00:28:47.620]So it could be that the vagueness within the letter
[00:28:50.940]is itself constitutionally problematic.
[00:28:56.260]Putting that vagueness issue aside, I think it's
[00:28:58.900]a serious issue, but putting that aside, the other
[00:29:02.340]constitutional legal questions will depend on, well, what exactly
[00:29:05.960]does the letter mean and what is it targeting?
[00:29:09.940]To the extent the letter says, and I think I said this a moment
[00:29:13.900]ago, to the letter, the letter says universities can't use
[00:29:17.400]race and admissions decisions.
[00:29:20.360]Well, to that extent, it's constitutional. To that extent, the letter is just
[00:29:24.980]merely restating the Supreme Court's position and
[00:29:28.440]a presidential administration is allowed to say,
[00:29:31.500]hey, there's the Supreme Court case on the books, we're
[00:29:33.660]worried that colleges aren't complying, so we're going to take a
[00:29:36.180]closer look to make sure they do.
[00:29:38.620]So to that extent, I think the letter is on solid
[00:29:41.060]legal ground. The problem, though, is the letter seems to go much,
[00:29:45.260]much further than that in lots of ways.
[00:29:47.700]So for example, the letter also seems to indicate
[00:29:50.780]that schools cannot rely on students' personal essays about
[00:29:55.660]their race and admissions decisions, and that seems to
[00:29:58.880]contradict language in the Supreme Court's students'
[00:30:02.120]preferred admission decision.
[00:30:03.460]Now, I think the context does matter and the particulars do
[00:30:07.360]matter. So if a university, for instance, were using student essays to
[00:30:12.240]kind of reverse engineer the same kind of racial demographics they
[00:30:15.620]had before the Supreme Court decision, that would probably
[00:30:18.560]be constitutionally problematic.
[00:30:20.820]But if a university admissions team reads a student essay and the student writes
[00:30:25.240]powerfully and eloquently about that student's racial
[00:30:29.260]identity and how it shaped her life,
[00:30:31.440]I think from the Supreme Court's own decision, it indicates
[00:30:35.260]that the university can take that into account. So to
[00:30:38.680]the extent the dear colleague letter might suggest otherwise, I
[00:30:43.760]think it would be in conflict with the
[00:30:45.240]Supreme Court's decision.
[00:30:47.740]Of course, the letter also seems to have implications beyond the admissions
[00:30:51.480]context, and I think many of those implications are
[00:30:55.640]also legally problematic.
[00:30:57.660]So for example, to the extent the letter arguably
[00:31:01.760]could be read as suggesting that universities can't do
[00:31:05.020]things like teach classes about racial history or racial
[00:31:09.100]oppression in the United States, well,
[00:31:11.380]that's blatantly unconstitutional.
[00:31:13.480]Again, I think because the letter is so vague, it's hard to know if that, in fact,
[00:31:17.780]is what it's doing. But if that's what it's
[00:31:19.780]doing, that clearly violates academic freedom and First Amendment.
[00:31:25.260]To the extent the letter seems to try to target DEI programs, once again, I
[00:31:31.460]think it depends on what the letter means and the letter is just not clear.
[00:31:36.020]You know, if the letter means something like universities
[00:31:39.820]can't have programs that assist, say, first generation students
[00:31:44.840]of one race while refusing to extend similar resources
[00:31:48.740]to assisting a first generation student of a different race,
[00:31:52.480]you know, that could be a close constitutional case because
[00:31:56.540]on the one hand, universities historically have had broad discretion in
[00:32:01.220]how they spend their resources and governmental efforts to try to
[00:32:04.940]dictate how universities spend their resources seem to
[00:32:07.980]implicate academic freedom.
[00:32:09.760]But on the other hand, if there's evidence that
[00:32:12.100]a university is making opportunities available only to members of
[00:32:15.600]one race and not another race, you know, then the administration may be
[00:32:19.720]able to put together, you know, a case of racial discrimination that could
[00:32:24.540]be struck down on equal protection grounds.
[00:32:29.280]So again, I think it depends on what the letter means, how it's applied in
[00:32:33.880]the context of a particular university setting.
[00:32:36.980]But again, to the extent the letter can be read as forcing universities or trying
[00:32:45.780]to pressure universities to change their curriculum with
[00:32:49.160]regards to their teaching on matters involving things
[00:32:53.160]like race and history, that's pretty clearly unconstitutional.
[00:32:59.170]Thank you for that really helpful sort of breakdown of the multiple
[00:33:03.510]elements of that letter because I think that's what sort of took
[00:33:07.930]people aback at first was that it was so broad sweeping and
[00:33:14.190]was sort of difficult to parse the individual elements
[00:33:18.550]and applications of that.
[00:33:20.310]And I'll just add, since a lot of our audience
[00:33:24.370]are affiliated with the University of Nebraska-Lincoln, that in
[00:33:30.090]Nebraska, affirmative action had been barred much earlier than the
[00:33:36.470]Supreme Court ruling affirmative action in higher ed and elsewhere.
[00:33:40.410]I believe since 2008. And so in that sense,
[00:33:44.370]as you point out, the letter doesn't really introduce
[00:33:47.170]new regulation for some universities that that may have
[00:33:53.230]been the case host the students for fair admissions case.
[00:33:58.270]But here at UNL that was something that had
[00:34:00.910]already defined our admissions and recruitment and enrollment practice.
[00:34:07.010]I think to this, the, that sort of bedrock principle
[00:34:12.290]of inclusive opportunity is a big part of, I know how
[00:34:18.350]University Nebraska treats its first generation student opportunities
[00:34:22.969]that those are not extended on the basis
[00:34:27.929]of race or sex or origin.
[00:34:31.470]And so they are open to all first generation applicants.
[00:34:37.510]And so I just want to clarify a few of those points with the
[00:34:40.250]University of Nebraska in particular.
[00:34:43.030]And then finally, a lot of our audience to have had questions about
[00:34:50.969]how this affects the classroom and so I'll speak for a lot of them
[00:34:55.489]and say we appreciate you pointing out the firm.
[00:34:59.190]Academic freedom protections about histories of race and
[00:35:04.690]gender and other disciplines that address those those areas.
[00:35:11.230]I think you did mention the costs of litigation, so that even
[00:35:17.150]in instances where there are constitutional
[00:35:20.430]grounds to challenge curricular restrictions and regulations.
[00:35:26.930]It still requires litigation in order to insist
[00:35:30.030]on those rights. I wondered, as I mentioned
[00:35:32.850]in the intro, there are more than 36 active lawsuits regarding recent
[00:35:39.430]administrative regulations and restrictions.
[00:35:43.150]I'm wondering, from your perspective, have you seen
[00:35:47.590]a particularly, I won't say effective, but maybe could
[00:35:54.450]you sort of describe the range of legal responses that are represented
[00:36:01.130]in some of these lawsuits.
[00:36:03.870]Or, you know, what, what strategies do you see universities using to
[00:36:10.050]assert academic freedom. Some of our questions in the chat are getting to
[00:36:15.810]that question and so maybe your response will answer those but if
[00:36:19.810]not I can also bring them up in our discussion that's coming up.
[00:36:24.210]Yeah, it's a great question. I think maybe the easiest way to think about it is to
[00:36:29.290]contrast two very different approaches, which is the Harvard
[00:36:32.790]approach, which is sort of fighting back and litigating.
[00:36:36.630]And the Columbia approach, which is trying to cut a deal with the administration to
[00:36:42.110]appease it and I think it's pretty clear that the Harvard approach
[00:36:45.330]is the right approach.
[00:36:47.770]And the Columbia approach is the wrong approach
[00:36:51.690]and Columbia is my alma mater actually, but
[00:36:54.570]I think it was making a huge mistake in trying to cut
[00:36:57.170]a deal with the administration. I think the reason is that what Columbia
[00:37:01.670]learned when it tried to make a deal, you know, it tried to make a deal
[00:37:06.470]because it thought it couldn't lose that $400 million.
[00:37:10.530]And what happened was while the administration tried
[00:37:14.210]to cut a deal. The administration is still withholding
[00:37:17.870]the money and the administration is adding still more
[00:37:21.790]demand so Columbia didn't get anything out of it.
[00:37:25.950]And I think more generally, and this might depend a little bit
[00:37:29.290]university to university, but I think in general, the demands the university,
[00:37:34.370]excuse me, the demands that the administration is making
[00:37:37.170]on universities is just too vast for the universities
[00:37:43.470]to play ball and cut a deal.
[00:37:47.130]So in other words, if all the administration
[00:37:50.310]was saying was what you need to comply with the students for
[00:37:53.870]fair admissions decision and make sure you stop
[00:37:56.990]using race and admissions.
[00:37:58.830]If that's all the administration was doing well
[00:38:00.910]that wouldn't be that big a deal, because it
[00:38:03.430]would be just trying to force compliance with what
[00:38:06.870]the Supreme Court has already said the Constitution requires.
[00:38:10.090]And as Professor Jagodinsky pointed out, in some states
[00:38:13.550]like Nebraska, affirmative action wasn't permitted to begin with. So
[00:38:19.390]that wouldn't be that big a deal.
[00:38:21.810]But, you know, as I mentioned the administration is
[00:38:25.170]meddling in university affairs and lots of other ways
[00:38:28.010]it's attacking what can be taught.
[00:38:29.750]It's attacking programs that are designed to try to help students
[00:38:33.850]succeed. It's revoking scientific research funding
[00:38:37.410]medical research funding and so on.
[00:38:40.650]And it appears that it's doing all these things to retaliate against
[00:38:45.450]universities because it doesn't like the viewpoint and content of their speech.
[00:38:51.050]You know, now, I think I said this before it could be
[00:38:54.270]that that critique of universities is not ideologically diverse
[00:38:57.650]enough has some merit.
[00:39:00.550]You know the university department I know best is obvious the law school
[00:39:05.050]and I don't think that's true of our law school I think we
[00:39:07.510]have a lot of ideological diversity, but they're conservative
[00:39:11.670]thinkers in the country who've been arguing for a while
[00:39:14.470]that the whole U.S. university should be
[00:39:17.450]able to do a better job of being ideologically diverse.
[00:39:21.730]And, you know, maybe there's some truth to this, but, but
[00:39:28.010]notice that even if that's true to try to impose
[00:39:35.050]particular ideological diversity or different
[00:39:39.330]or ideological views on a university
[00:39:41.750]is itself a kind of viewpoint discrimination, which
[00:39:45.910]violates the First Amendment. So, you know, even
[00:39:49.610]if the critique of that university should have more voices within
[00:39:54.590]them is fair to for the government to try to impose
[00:39:59.950]on universities or requirement that they
[00:40:03.310]incorporate certain viewpoints is itself a violation of freedom
[00:40:07.810]of speech because itself is a kind of viewpoint discrimination
[00:40:11.630]and it's trying to control university curriculum.
[00:40:17.090]So, that's one First Amendment problem I think, which
[00:40:20.070]is the viewpoint discrimination.
[00:40:23.210]Another First Amendment problem which ties also into
[00:40:26.310]something I said earlier is the
[00:40:27.550]unconstitutional conditions doctrine.
[00:40:30.550]It appears in a lot of these cases that the government is saying,
[00:40:34.890]if you don't change your curriculum, we're going to take away this funding.
[00:40:39.810]But remember under the unconstitutional conditions
[00:40:42.790]doctrine, even if you don't have a right
[00:40:44.970]to a particular governmental benefit, such as research funding,
[00:40:49.470]the government cannot withhold that benefit on your giving up
[00:40:53.490]your right to free speech.
[00:40:56.550]There's yet another potential legal problem with this,
[00:41:00.250]which is by withholding the money that has been
[00:41:02.870]appropriated for university research, the administration is impounding
[00:41:07.170]money that has been appropriated for
[00:41:09.190]particular research purposes.
[00:41:10.930]And that's contrary to the Impoundment Control
[00:41:13.870]Act, a 1974 statute that Congress passed to say basically that the president cannot
[00:41:19.850]refuse to spend money that Congress is appropriated.
[00:41:23.870]And even independent of the Impoundment Control Act to
[00:41:26.770]it very well might be unconstitutional because Congress gives
[00:41:30.490]excuse because the Constitution gives Congress rather than the
[00:41:34.090]president, the spending power, the power of the purse.
[00:41:37.430]Now, this is a little complicated because the details of each
[00:41:41.390]appropriation can be different.
[00:41:44.050]And in the case of a lot of this university funding, it comes
[00:41:47.870]from lots of different places. In other words, lots of
[00:41:50.130]different statutes appropriate money.
[00:41:52.610]And some of those appropriation statutes do give the
[00:41:55.690]president some discretion on how to spend that money.
[00:41:58.830]So where Congress has given the president some discretion, the president
[00:42:03.350]might have that discretion.
[00:42:05.310]But in a lot of appropriation statutes,
[00:42:07.910]there's no discretion. In other words, Congress appropriates
[00:42:10.470]money and says we want this.
[00:42:12.170]We want this money to be spent for X purpose. And in that
[00:42:16.850]situation, the president cannot just say no,
[00:42:19.430]we're not going to spend that money.
[00:42:20.790]So to the extent that their statutes saying we're
[00:42:25.790]appropriating this money for, say, scientific research, assuming that
[00:42:29.870]it doesn't give discretion to the president, the president
[00:42:33.410]cannot just say no, we're not going to do that.
[00:42:36.410]So notice already two constitutional problems with
[00:42:40.670]going after university funding. It violates academic freedom.
[00:42:46.310]Three, I guess it violates academic freedom. It's an unconstitutional
[00:42:49.630]condition, and it's an illegal empowerment of
[00:42:53.110]congressionally appropriated funds.
[00:42:55.050]A final point is that, at least as far as I've seen the administration so
[00:43:01.250]far has not complied with the federal statute that provides the
[00:43:07.790]procedures for how the government is supposed to take money away
[00:43:12.990]from federally funded entities like universities.
[00:43:18.050]And I think that's worth digging into a little bit, because it's
[00:43:21.350]actually a civil rights law.
[00:43:22.830]So the administration's pretext for taking away this money in many
[00:43:27.450]cases is that it's trying to protect against
[00:43:30.490]anti-Semitism on campuses.
[00:43:33.130]So the administration is saying, well, we can
[00:43:35.270]take this money away because we're enforcing civil
[00:43:37.710]rights laws, because the universities aren't doing enough
[00:43:41.090]to protect Jewish students from harassment on those campuses.
[00:43:44.550]And I think the law isn't on the administration
[00:43:49.870]side here either. Again, this is somewhat fact dependent because
[00:43:55.070]the facts of each university are different.
[00:43:57.810]But let's take the example of Columbia again, because that's been
[00:44:01.050]one of the examples that's been in the news the most.
[00:44:03.730]So, you know, I do think it is true that there
[00:44:07.610]were some Jewish students who are harassed or even threatened on
[00:44:12.530]Columbia's campus. And that, of course, is reprehensible.
[00:44:16.890]But one of the things the administration said is,
[00:44:19.650]well, the university hasn't done anything to protect those students,
[00:44:23.170]and therefore we can withhold this funding.
[00:44:26.850]I think that's wrong, as a matter of fact. Columbia actually
[00:44:31.410]did call the New York Police Department to help protect those students.
[00:44:34.810]So it's probably not accurate to say Columbia hasn't done anything
[00:44:39.170]to protect Jewish students.
[00:44:41.790]But even if Columbia should have done more to protect Jewish
[00:44:45.770]students, there's still good reasons to think the administration's
[00:44:49.510]response is illegal.
[00:44:52.650]The relevant federal statute requires a program by
[00:44:57.070]program evaluation of elect civil rights violations by universities.
[00:45:01.910]It requires that the funding recipient that's threatened
[00:45:05.030]with a cutoff be given an opportunity with a
[00:45:07.330]hearing. It also limits the funding cutoff to
[00:45:11.230]the particular program that has not been in compliance.
[00:45:15.410]So in other words, the government can't cut off funding to
[00:45:18.650]the medical school if the alleged harassment happens somewhere
[00:45:22.430]else on campus.
[00:45:24.130]But the government is cutting off funding to the medical school and
[00:45:27.990]in other departments that have nothing to do with the alleged violations.
[00:45:33.610]The administration also didn't provide a hearing
[00:45:36.090]to the university, which the statute requires, and
[00:45:39.430]the statute also requires that whatever agency, in
[00:45:43.190]this case it's the Department of Education, but
[00:45:45.530]whatever agency is cutting off the funds to issue a report, explain in Congress why
[00:45:50.850]it's cutting off the funds and then delay the funding cutoff for at least 30 days.
[00:45:57.070]So in other words, though federal civil rights laws
[00:46:02.270]allow the administration to cut off funding in particular contexts,
[00:46:09.850]it's A, not clear that any of those factual prerequisites are met, and
[00:46:15.310]B, even if it were, it's pretty clear that the Trump administration is
[00:46:20.690]not following any of those statutory requirements.
[00:46:24.330]Again, it might differ campus to campus, but I think the bottom
[00:46:29.250]line is that the administration's withdrawal
[00:46:32.490]of university funding is legally problematic,
[00:46:38.830]embedded viewpoint discrimination, unconstitutional
[00:46:41.030]conditions, illegal impoundment, and it fails to comply
[00:46:45.570]with the statutory steps required when the government withdraws
[00:46:49.790]funding from a federally funded entity because of
[00:46:53.390]an alleged civil rights violation.
[00:46:54.730]So I think all of that is legally encouraging
[00:46:58.530]for the universities. I think most of what the
[00:47:01.090]administration is doing here is probably illegal.
[00:47:05.750]But notice, remember that the wheels of justice turn slowly, and as I mentioned
[00:47:12.530]before, a lot of these are context specific cases where
[00:47:17.150]each individual university is going to need to litigate on their
[00:47:21.330]own depending on the facts of what happened on their campus and exactly what
[00:47:25.770]the administration is doing to that campus.
[00:47:28.550]And notice that in the meantime, the damage to those universities can be
[00:47:35.050]massive and profound. So I think even though the law for the most
[00:47:41.050]part is on the side of the universities, that
[00:47:44.130]doesn't necessarily mean that the universities are not going to
[00:47:47.870]be terrifically damaged by the administration's actions.
[00:47:53.470]Thank you for that survey of the sort of legal justifications that
[00:48:01.010]may be part of these various lawsuits that
[00:48:04.190]are in place to defend institutions and against
[00:48:09.130]some of these administrative challenges.
[00:48:13.930]I think you're also, in addition to articulating each of those
[00:48:19.210]constitutional questions in a really elegant
[00:48:23.230]way, by the way, thank you.
[00:48:25.050]Thank you.
[00:48:43.750]I think there's a lot of people on the other hand, who have to
[00:48:45.410]agree to comply with the law. And when they don't, it
[00:48:49.050]requires actors to push back. And so, in some ways, the
[00:48:53.450]law can be robust, but it can also be dormant, it depends on, you
[00:48:57.330]know how the societal and individual actors engage.
[00:49:01.730]And even as you point out, when a party has the right of law on
[00:49:06.990]their side, they can still incur tremendous
[00:49:09.970]damage on the way to pursuing those rights.
[00:49:13.390]I do want to turn to some of the audience questions,
[00:49:15.830]even though we had other questions prepared between
[00:49:18.850]Professor Berger and myself, just because I want
[00:49:22.250]to respect everyone's time.
[00:49:23.810]As a reminder, we're scheduled through 10:30 for the webinar,
[00:49:27.890]but my class goes until 10:45. So I'm going to
[00:49:31.170]prioritize questions that are coming from audiences outside of my
[00:49:36.150]students, just for those who need to log off at 10:30.
[00:49:40.290]And there are two questions I want to combine.
[00:49:43.590]One question is pretty particular, asking whether university and
[00:49:50.190]K-12 staff also have protections of academic
[00:49:54.610]freedom, in addition to those of faculty and students.
[00:49:58.350]So the question is sort of, are staff another entity, or do they fold into the
[00:50:05.550]rest of the academic freedom protections on campus?
[00:50:08.790]And then somewhat related to this is another question.
[00:50:11.690]If an institution is unwilling to push back
[00:50:17.630]against the federal government on any of these violations
[00:50:20.430]of law and policy, is there any individual legal recourse on the
[00:50:26.170]part of faculty and students?
[00:50:28.430]And then in relation to the first question, I
[00:50:30.790]would add staff to that. So sort of twofold.
[00:50:33.950]Where do you think that fits? And then also, are
[00:50:36.650]there individual paths if an institution has not taken action?
[00:50:41.750]Thank you. I scribble those down because I don't
[00:50:44.490]know if I'm capable of keeping two questions in
[00:50:46.550]my head at the same time. So with regards to the first question,
[00:50:50.950]do staff have academic freedom?
[00:50:53.390]I suppose it depends on what the staff's role is, but assuming that the staff plays
[00:51:02.250]neither a teaching nor a research role, the
[00:51:07.110]answer is almost certainly no, because academic freedom is...
[00:51:22.910]a mission of teaching and research and to the expertise of the
[00:51:27.810]instructor or the researcher.
[00:51:32.170]But a couple of caveats that I think are important. So
[00:51:35.690]one is all staff members, though, clearly would have First Amendment rights.
[00:51:42.970]Now, as I mentioned before, because of the Garcetti case, I
[00:51:48.050]do think staff have to be careful while in the capacity
[00:51:53.310]as a public employee, not to realize that what they say
[00:52:01.870]in the course of their job duties is subject to Garcetti.
[00:52:07.510]And a staff member probably could be fired for saying something in
[00:52:11.710]their job capacity that conflicts with the university's mission
[00:52:17.410]or something like that.
[00:52:19.110]And that's because of the Garcetti case. But of course, staff in their personal
[00:52:25.310]capacities on the weekends have full First Amendment rights, just
[00:52:29.390]as everyone else does.
[00:52:30.350]So if they want to go to a protest or write an
[00:52:33.790]op-ed or do whatever it is they want to say, whatever they want to
[00:52:36.710]say, that is fully protected by the First Amendment.
[00:52:41.810]So again, my instinct would be staff usually don't have
[00:52:45.290]academic freedom, but they do a First Amendment. The reason
[00:52:48.270]I want to qualify it a little bit, and I honestly haven't
[00:52:52.230]researched this particular question, so I'm honestly not sure.
[00:52:55.270]You know, I think one thing that is not entirely clear is to what
[00:53:02.350]extent does the university have academic freedom
[00:53:10.190]sort of independent of the instructors and researchers.
[00:53:15.190]There's one school of thought that says they do, that part of academic freedom is
[00:53:19.870]protecting the university's mission and what the
[00:53:23.030]university sees as its mission from outside influence.
[00:53:28.370]There's another school of thought that says especially, and this
[00:53:31.470]would apply less in the federal context, but especially in the
[00:53:34.830]context of like a state university where the state resources
[00:53:39.870]are limited, the state government might have some ability to say,
[00:53:43.750]you know, we want to fund this program and not
[00:53:45.630]fund another program. I think there would be an argument that
[00:53:49.950]a staff member doing something like running a DEI office
[00:53:55.990]would have academic freedom, but I don't think it's 100% clear.
[00:54:05.540]I think given the size of most higher ed institutions, there probably are
[00:54:11.720]staff who fall under just a wide range of
[00:54:14.780]categories, some of which include research support and some
[00:54:20.800]of which include instructional support.
[00:54:23.560]And so it's likely that some staff, like I know in the chat,
[00:54:30.940]there are some staff positions that have a contracted
[00:54:34.860]apportionment for research time.
[00:54:37.160]Well, I think in that case, so if it is a staff member with
[00:54:41.500]research and or teaching responsibilities.
[00:54:44.560]And again, I have not researched this particular question, but my own
[00:54:48.680]view would be that a staff member with research
[00:54:53.020]or teaching responsibilities would have the same academic freedom
[00:54:57.380]protections as, you know, professors would,
[00:55:01.940]again, provided that they are operating within the broad
[00:55:05.200]confines of that discipline.
[00:55:09.040]I'm not 100% sure because I haven't researched it, but
[00:55:12.500]that would be my instinct. But of course, that academic freedom
[00:55:18.180]that would probably not attach to the other parts of
[00:55:22.140]the position that are not within the teaching or research fields.
[00:55:27.680]Again, I'm not sure, but that's how I tend to think about that question.
[00:55:31.840]And in terms of an individual actor within an
[00:55:36.240]institution, would they have any legal claims to make
[00:55:40.460]if their institutions are choosing not to pursue the
[00:55:45.340]legal rights in challenging federal restrictions
[00:55:50.520]or state restrictions?
[00:55:53.620]That's sort of a question of the individual as a
[00:55:56.420]legal act in contrast to the institution as a legal actor.
[00:56:00.340]So, I mean, again, I think the bottom line is I'm not sure. The somewhat
[00:56:05.940]longer answer is, you know, I think it depends on a few things. So, for
[00:56:12.560]instance, if an outside actor went after a particular professor, say,
[00:56:20.720]because of the way they taught a class or because of
[00:56:23.060]a book they published or something like that.
[00:56:26.720]You know, one would hope that the university
[00:56:29.620]would defend that professor's academic freedom. And I
[00:56:32.220]think most universities are going to do that,
[00:56:34.180]are going to do a good job of that.
[00:56:36.140]But if a particular university failed to do that, then I
[00:56:41.860]think that instructor or that professor would clearly have the right
[00:56:45.840]to defend themselves on academic freedom and or first amendment grounds,
[00:56:50.560]even though the employer of the university was failing to do that.
[00:56:55.060]I think that's pretty clear. You know, I think what could be
[00:56:59.720]more problematic is staff or faculty at a university sort of banding
[00:57:09.160]together and purporting to speak for the university.
[00:57:12.260]I think we did see that a bit at Columbia, where a
[00:57:16.440]bunch of Columbia professors who were dismayed that
[00:57:21.680]the university, frankly, caved to the administration and
[00:57:24.980]they filed their own lawsuit.
[00:57:27.160]I think at a public university that could be more
[00:57:31.060]dangerous, again, because of Garcetti, because they, you know, could be
[00:57:37.020]seen as acting within their employee role and would be
[00:57:40.600]doing so contrary to the wishes of their employer, the university.
[00:57:45.760]So I think it's context dependent. But again, depending
[00:57:50.880]on the context, I would be a little careful.
[00:57:55.120]Thanks for that. I think there had been multiple folks in the
[00:57:59.680]chat who had curiosity around those two points. So thanks for addressing that.
[00:58:03.540]It is coming on 10:30, so I want to thank everybody who joined
[00:58:08.800]us and who are active followers of the U.S. Law and Race Initiative.
[00:58:15.420]We always share recordings of our webinars on the
[00:58:19.340]website uslawandrace.unl.edu and so you're welcome to use these webinars for
[00:58:26.280]your own development and also for teaching.
[00:58:29.460]And so this one will be up in a few weeks. I
[00:58:32.660]think if I can just beg a few more minutes of your
[00:58:35.220]time, Professor Berger, I wanted a question that picks up on this
[00:58:38.480]last point you made about the difference between public
[00:58:41.260]and private institutions.
[00:58:43.400]So you were sort of hinting that there may be
[00:58:47.300]different approaches among communities who are at a public institution in
[00:58:54.420]contrast to those at a private institution.
[00:58:56.600]One of our students asked, do private universities
[00:59:02.420]have to comply with something like the Dear
[00:59:04.780]Colleague letter? Are there ways in which private
[00:59:08.040]universities are isolated from some of these issues?
[00:59:14.160]And what would you say about that distinction between public
[00:59:18.020]and private? And I think we'll just close with that question.
[00:59:20.860]Sure. So in a lot of contexts, it's not going to make
[00:59:24.800]a difference. And the reason is that both public
[00:59:36.880]and private universities get a lot of federal
[00:59:40.500]funding, particularly federal research funding.
[00:59:43.280]So to the extent the administration is threatening to
[00:59:47.860]remove that money or is in fact removing that
[00:59:50.100]money, it's targeting both private and public universities and
[00:59:54.580]they're going to be making the same kinds of arguments.
[00:59:57.780]And because it is the federal government that at
[01:00:00.940]least arguably is punishing those universities, whether
[01:00:04.460]public or private, for their speech, the
[01:00:07.160]First Amendment is triggered.
[01:00:09.500]So to the extent we're in a situation where the federal
[01:00:13.860]government appears to be targeting universities, the First
[01:00:17.960]Amendment would protect both public and private universities
[01:00:21.980]in the same way.
[01:00:25.680]I guess two other points quickly. One is, so for something like the
[01:00:29.960]affirmative action decision, which is about the
[01:00:31.920]equal protection clause as a technical matter.
[01:00:34.780]You know, when the court said affirmative action violates equal protection
[01:00:37.900]as a technical matter that would only apply
[01:00:41.320]to public universities because the equal protection clause
[01:00:44.500]only reaches state actors.
[01:00:46.960]But the Supreme Court has long interpreted federal
[01:00:50.840]civil rights laws as incorporating the same standard
[01:00:54.800]of the equal protection clause to also apply
[01:00:57.920]to private universities through federal civil rights laws.
[01:01:02.240]So even though technically they're treated differently and functionally
[01:01:07.520]they're treated the same.
[01:01:09.500]The instances where the difference between a public and
[01:01:12.300]private university could make a difference would be something
[01:01:15.640]like if the university, you know, say the university
[01:01:19.080]fired a professor because it didn't like that professor's speech.
[01:01:23.180]Say the university, take academic freedom out of it for a moment. Say
[01:01:27.340]the professor published an op-ed on their free time, the
[01:01:32.540]university fired that professor.
[01:01:36.240]In a public university, that professor clearly has
[01:01:40.520]freedom or has freedom of speech and the university going after the
[01:01:44.200]professor would violate freedom of speech because it's
[01:01:47.660]a public state actor.
[01:01:51.080]If that happened in a private university, if a faculty
[01:01:54.340]member on their free time published an op-ed and the private
[01:01:58.160]university fired them, it's less clear that freedom of speech would
[01:02:02.540]apply there because the private university is not a state actor.
[01:02:06.760]Now, in reality, the vast majority of private universities
[01:02:10.040]also follow the First Amendment because they
[01:02:12.760]realize that freedom of speech is central to their missions.
[01:02:15.560]So usually you're going to see public and private universities
[01:02:18.900]operate in the same way. But as a legal matter,
[01:02:22.580]the First Amendment would do much more to protect the
[01:02:26.220]faculty member at the public university than the private university.
[01:02:33.860]I'm not sure that that's what everyone in the audience
[01:02:36.600]would anticipate. So thank you for clarifying that important point.
[01:02:42.120]I know I'll speak for myself and say that I just really learned a
[01:02:45.560]lot quickly from you this morning. So thank you for
[01:02:49.180]starting off our day this way and for contributing to
[01:02:54.220]this conversation with our audience.
[01:02:56.740]Thank you for clarifying all these really complicated
[01:03:01.740]concepts. And also thanks to our audience and to
[01:03:05.280]the other members of the U.S. Law and Race team that are
[01:03:08.560]on with us this morning.
[01:03:11.160]We really appreciate you, Professor Berger.
[01:03:13.480]Thank you very much for the invitation. It's
[01:03:15.160]great, as always, to speak with you. So thanks.

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Academic Freedom Amid Curricular Regulation and Research Restrictions

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