The 11th Circuit Court of Appeals last week ruled to strike down part of Florida’s Stop WOKE Act, which applied to professors at public institutions. I knew a lot of people would talk to lawyers (with good reason!), but I also wanted to hear from a historian about this important event. So I emailed Tim Cain, an academic libertarian and professor of higher education at the University of Georgia.
This discussion has been edited and condensed for clarity.
Question: What is academic freedom? Why is there so much confusion about what actions fall under this term?
A: Academic freedom is a professional condition that allows higher education to do the work society asks and needs it to do. In the US, we think of it as having four main components: freedom to teach, to research and disseminate the results, to make speech outside of teaching, and to make speech inside. The first two are obvious on their face, but the last two are equally important—free speech rights allow academics to speak freely about matters unrelated to their academic work, including social media in this day and age. These are often referred to as “full rights of citizenship,” although they are equally necessary for non-citizens, who are currently at greater risk.
Internal freedom of speech allows faculty to learn about issues related to their institution. Internal speech rights not only allow shared administration to exist, but, when protected, also allow a faculty member to, for example, criticize a college’s curriculum on a website (since it is the subject, not the place, that makes it within teaching).
Within higher education, I think the confusion is because we haven’t done a good job of talking about, explaining and working to understand academic freedom. Most of the faculty themselves do not understand it well because it is not part of the formal or informal arrangements that the majority go through. Also, if faculty do not have a well-developed understanding, they are not positioned to help future faculty understand it. I have been a faculty member for 20 years and studied academic freedom since graduate school, but most of the time, most of the faculty I spoke to were not interested in academic freedom, as they thought it was protected. Many also thought it gave them more protection than it actually did.
We also know that external actors have worked to undermine academic freedom and higher education in general. Part of the larger project of labeling intellectuals as radicals and “the enemy” involves selling a distorted version of academic freedom and arguing that it needs to be strengthened.
Q: Despite all this confusion, when I heard about the Stop WOKE law, I immediately thought that it violated the legal precedent of academic freedom. Was this act, and its subsequent legal cases, important to scholars of academic freedom?
A: The issues raised by the Stop WOKE legislation are incredibly important, as they represent a state government, in this case Florida, inserting itself into the college curriculum for partisan purposes. This practice violates the main principle—that academic professionals should control the curriculum. No governor knows more about sociology or should teach in a sociology course than the field of sociology. The same can be said about history, chemistry and all other fields. So this intrusion into the normal operation of higher education has harmed both the independence of the institution and academic freedom. And, because it did, it threatened students’ ability to learn what they should be able to learn in college.
The decision is promising, although I expect the legal battle to continue. What I found most encouraging in this decision was the rejection of Florida’s claim that paying teachers’ salaries gives the state the right to regulate their classroom speech. A contrary decision would have fundamentally changed public higher education.
Q: Are we just witnessing a repeat of previous attempts to curtail academic freedom, such as during the Red Scares?
A: The excesses of state governments that we are seeing in the 2020s are not without precedent. In the 1920s, more than 20 states considered legislation that would ban the doctrine of evolution, but only three passed (one of them by referendum). Meanwhile, scientists and college presidents led resistance to the law.
We could use more college presidents to do that today. We remember the Scopes trial because The Legacy of the Spiritbut after the verdict was thrown out due to a wrongful conviction, the ACLU continued to seek a five-year test case, hoping to have the anti-evolution law ruled unconstitutional. It eventually gave up because the law in three states had little effect.
In the late 1930s and even more so in the late 1940s and 1950s, higher education experienced a Red Scare that was truly devastating but in many ways different from what we are experiencing now. Those attacks often involve intelligence being called before a federal or state judicial committee to be investigated about their past or present membership in the Communist Party. However, what was really damaging was the way institutions and higher education as a whole reacted—institutions often fired faculty members they didn’t need to fire. They overachieve. That’s probably the most similar thing to the McCarthy era—the excessive compliance of institutions—even though we see it 1784024173 it is more widespread and, in some ways, more dangerous.
Indeed, the mid-century attack was broader than anti-communism and included efforts like the Johns Committee to purge LGBTQ+ faculty in Florida and the expulsion of Black faculty and others involved in the civil rights movement in the south. This too has echoes today, as institutions destroy diversity, equity and inclusive systems; the federal government cancels grants dealing with related issues; and districts are trying to reshape the college curriculum to deny the existence of structural racism and gender and gender diversity.
Q: As you have seen, the politicians who introduced, passed and fought for Florida’s Stop WOKE law argued that the speech of university employees was government speech simply because they worked for public universities. The 11th Circuit disagreed. Why do you think that was the case? How does this relate to or differ from what we know historically about academic freedom and the first amendment?
A: As I said, this is the part of the decision that inspires me the most. Academic freedom has an interesting relationship with the First Amendment; they come very close when we discuss extracurricular speech, but even then, academic freedom traditionally does not protect everything that the First Amendment protects. A 1964 statement by the American Association of University Professors includes: “The governing principle is that a faculty member’s civil speech cannot be grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve.”
But, when we come to a lecture in the classroom, for example, some connections are more difficult. So, for example, arguing that the Earth is flat is constitutionally protected, but it might disqualify a geologist. It is the same as denying the Holocaust of a modern European history teacher. The bottom line here is that such decisions of ineligibility should be made by other intelligence professionals, not the grantor or an elected official.
So academic freedom and the protection of the First Amendment are different, and the First has never meant “whatever happens.” David Rabban, in an excellent book titled 2024 Academic Freedom: From Professionalism to the First Amendment Rightproposes a legal theory that would recognize academic freedom as a special First Amendment right but also distinguish it from broader First Amendment rights that apply to all people, including intellectuals in their private lives. It will do this because of the importance of “making and disseminating knowledge” and will protect teaching, research and internal discourse (related to academic matters). In Rabban’s approach, post-lecture speech would be covered by existing First Amendment protections.
Q: What is the biggest higher education policy issue on your mind right now?
A: I don’t really know where to start. The past few years have seen many, many state-level efforts to regulate curriculum and reduce or eliminate tenure; completion of Grad PLUS; the politicization of grant funding; the Supreme Court’s decision in Trump v. Slaughter, which may have ended Gwynne Wilcox’s efforts to reinstate her position on the National Labor Relations Board, with potentially devastating consequences for graduate student unionization; many more.
But today, I think a lot about the continuous reshaping of authorization that weakens institutional autonomy and breaks the regulatory triangle.
