I. Abstract

The views and opinions expressed in this note are solely those of the author and do not necessarily reflect the views, policies, or positions of Northeastern University Adopted in 1791, the First Amendment provided a protection of citizens’ speech and rights of expression. The First Amendment served as a gateway to protecting individuality and freedom. Today, with political divisions surrounding topics such as race, gender identity, and sexual orientation, the First Amendment’s perceived power within academia is increasingly challenged, as professors face growing restrictions on both curriculum content and their research. However, the scope of this constitutional protection should not be regarded as absolute. Academic freedom has long been understood to grant faculty the autonomy to research, teach, and express ideas within their fields free from external interference. The growing tension between professorial independence and the authority of public institutions as state actors has created a legal grey zone in which academic freedom is inconsistently protected. Supreme Court decisions in Pickering v. Board of Education (1968), Connick, and Garcetti v. Ceballos have narrowed the scope of protected public-employee speech, generating uncertainty for professors whose expression is inseparable from their professional duties. By framing faculty speech as part of an employee’s official functions rather than as contributions to public discourse, these cases empower universities to restrict classroom instruction, discipline faculty remarks, and regulate scholarly output. Although the Supreme Court has avoided explicitly extending Garcetti to the academic context, lower courts have applied its rationale to public institutions, leaving academic freedom increasingly vulnerable and selectively recognized. This ambiguity demands urgent clarification to preserve universities as spaces for intellectual inquiry, debate, and the pursuit of truth—the very ideals that shaped the constitutional protections of free expression.

II. Introduction

Academic freedom is the freedom an instructor has to share his or her opinions on subjects of their fields. It is intended to be free from interference by administrators, trustees, political figures, donors, or other external actors.¹“Academic Freedom of Professors and Institutions.” AAUP, 2015, http://www.aaup.org/academic-freedom-professors-and-institutions. This freedom is founded on the First Amendment principle of free speech. However, academic freedom does not give instructors unlimited rights, and its boundaries have come under scrutiny as a result of recent shifts in education policy. In light of current events, many public universities have started to undermine professors’ speech rights, rapidly increasing regulations and effectively transforming professors from independent scholars into institutional employees bound by politically motivated limits on expression.

While many may assume the protection of professorial speech is evident, specifically through the First Amendment’s protection of speech and expression, the concept of academic freedom in the United States had not been fully articulated until the late 1800s. In the early years of higher education in the United States, universities were dependent on donors and trustee boards, which often imposed limitations on curricula or discouraged unpopular views.

A notable example was the firing of Edward Ross, an American economics professor at Stanford University. Ross strongly believed in eugenics and shared offensive thoughts on Asian immigrants with students on many occasions.²Viren, Sarah. “A Professor Was Fired for Her Politics. Is That the Future of Academia?” The New York Times, 6 June 2025, http://www.nytimes.com/2025/06/06/magazine/academic-freedom-politics.html. Therefore, his dismissal seemed justified and rightful, but ultimately posed the question of whether or not professors had freedom of speech within higher education institutions, and how this speech can be regulated without infringing on constitutional rights.

At the hands of donors and trustees along with the increasing polarity of the American political climate, academic research faced serious constraints. In 1915, the American Association of University Professors addressed this issue in their adoption of the 1915 Declaration of Principles on Academic Freedom and Academic Tenure. This act affirmed that professors’ research and speech are protected under their fundamental right to extramural expression as citizens. This decision served as a way to protect against the arbitrary and politically motivated dismissal of professors. However, giving professors complete independence can produce academic content that seems at odds with university or student values, complicating the very idea of academic freedom.¹

III. Legal Foundations in Public Institutions

The idea of a public institution’s ability to restrict professors’ speech in a classroom or research context raises a fundamental question about the scope of the First Amendment and whether its protections can be selectively applied. The First Amendment, loosely known as the Freedom of Speech Amendment, states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It safeguards these five fundamental freedoms and establishes two clauses concerning the protection of religion, the establishment clause and free exercise clause.³ The First Amendment protects from the infringement of citizens’ rights by the government, not private actors. This concept is outlined by the State Action Doctrine,⁴ a legal principle that subjects the US Constitution to the actions of government bodies, not private individuals or organizations. Public universities are defined as state actors under Statutory Reinforcement: 42 U.S.C. § 1983 stating that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State… subjects any citizen… to the deprivation of rights… secured by the Constitution… shall be liable…” and therefore are subject to the US Constitutions under their terms of employment.⁵

The State Action Doctrine originates from the Fourteenth Amendment, and was not applied to the interpretation of the First Amendment until then. It was first practiced in 1883 during civil rights cases, prohibiting state actors from contributing to discriminatory practices, but overlooking private institutions’ same actions. This doctrine set a critical precedent by distinguishing when the Constitution applies to public versus private institutions. As a result, academic freedom receives First Amendment protection at public institutions, while private institutions are generally not bound by those same constitutional constraints. This doctrine was adopted to protect private autonomy, distinguishing it from public power. This ensures that the courts cannot constitutionalize private disputes or their entity’s policies. As framed by multiple courts’ tests, such as the public function test, public universities are considered state actors as they are funded, created, or governed by the state. Faculty and administrators’ actions are therefore considered those of the state, and therefore legally bound to the US Constitution. Therefore, speech regulations and employment decisions under the scope of public institutions are subject to constitutional scrutiny.

While private institutions are not under the same scrutiny, and cannot violate the Constitution, as they are not legally state actors, they still can face repercussions for failing to uphold promised academic freedom protections. The repercussions, however, are not constitutional. They fall under the frame of contractual obligations in which free speech is granted or defined under the scope of the institution. Additionally, private institutions may still be bound to statutory protections under state laws. California, for example, applied First Amendment-like protections to students of private institutions under California’s Leonard Law. This law also provides whistleblower and anti-retaliation protections—protections that don’t benefit the institution, but protect the citizens entering contracts to be part of the university.⁶

Whether public or private, institutions are also bound to reputational and financial consequences for actions that appear to infringe on employees’ rights. Public backlash, donor withdrawal, decline in applications or faculty recruitment, and negative media scrutiny can exert significant pressure, even if these consequences carry no constitutional or legal force. In addition to these informal repercussions, private institutions still face statutory constraints, triggering federal oversight in compliance with Title VI or Title IX, or federal funding conditions tied to anti-discrimination regulations.⁷ These statutes may not impose the First Amendment onto these private institutions, but they create regulatory obligations enabling investigations and sanctions if they intersect with protected rights or federally governed conducts.⁸

In public institutions, the balance between academic freedom and institutional authority becomes even more complex. Public universities’ status as state actors places their policies and disciplinary actions under the purview of the First Amendment. Courts have often struggled to determine when a professor’s classroom speech represents protected academic expression versus when it constitutes institutional speech made on behalf of the university. Prior to analyzing the legal foundations that govern professorial expression in public institutions, it is necessary to note and interrogate the moral dimensions of professorial influence, particularly the distinction between a professor’s expression of their personal political beliefs and the presentation of those beliefs as empirical fact. This instance is exemplified by Edward Ross’ propagation of racist ideologies in his teaching.

IIIa. A Subsection for Demonstration

While schools ideally would provide professors with all of the resources for successful and novel research, they must consider the implications of their involvement in professorial speech. The University of Texas’s Rule 31004 exemplifies the balance between restricting and protecting academic freedom. The first section of this rule grants professors full freedom over research and publication, while the second section states that the university may restrict controversial speech, particularly when it falls outside a faculty member’s area of expertise. This enables the university to police professorial speech when they determine research or publications are “controversial”—a word left scarcely defined in the rule. It grants administrators substantial discretion to regulate classroom content under the guise of maintaining academic relevance. The institutional framework theoretically justifies Professor Edward Ross’ dismissal. However, in cases like Tim Bakken’s lawsuit against West Point, where the institution censored curricula and eliminated entire courses following political pressure, the failure of such protective policies in practice becomes evident. Despite Rule 31004’s assertion in Section 3 that faculty “should be free from institutional censorship or discipline” when speaking as citizens, the reality is that universities increasingly invoke these carefully worded exceptions to transform professors from independent scholars into institutional employees whose speech must align with administrative priorities.⁹

The idea of a public institution’s ability to restrict professors’ speech in a classroom or research context raises a fundamental question about the scope of the First Amendment and whether its protections can be selectively applied. The First Amendment, loosely known as the Freedom of Speech Amendment, states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It safeguards these five fundamental freedoms and establishes two clauses concerning the protection of religion, the establishment clause and free exercise clause.5 The First Amendment protects from the infringement of citizens’ rights by the government, not private actors. This concept is outlined by the State Action Doctrine,6 a legal principle that subjects the US Constitution to the actions of government bodies, not private individuals or organizations. Public universities are defined as state actors under Statutory Reinforcement: 42 U.S.C. § 1983 stating that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State… subjects any citizen… to the deprivation of rights… secured by the Constitution… shall be liable…” and therefore are subject to the US Constitutions under their terms of employment.7

The State Action Doctrine originates from the Fourteenth Amendment, and was not applied to the interpretation of the First Amendment until then. It was first practiced in 1883 during civil rights cases, prohibiting state actors from contributing to discriminatory practices, but overlooking private institutions’ same actions. This doctrine set a critical precedent by distinguishing when the Constitution applies to public versus private institutions. As a result, academic freedom receives First Amendment protection at public institutions, while private institutions are generally not bound by those same constitutional constraints. This doctrine was adopted to protect private autonomy, distinguishing it from public power. This ensures that the courts cannot constitutionalize private disputes or their entity’s policies. As framed by multiple courts’ tests, such as the public function test, public universities are considered state actors as they are funded, created, or governed by the state. Faculty and administrators’ actions are therefore considered those of the state, and therefore legally bound to the US Constitution. Therefore, speech regulations and employment decisions under the scope of public institutions are subject to constitutional scrutiny.

While private institutions are not under the same scrutiny, and cannot violate the Constitution, as they are not legally state actors, they still can face repercussions for failing to uphold promised academic freedom protections. The repercussions, however, are not constitutional. They fall under the frame of contractual obligations in which free speech is granted or defined under the scope of the institution. Additionally, private institutions may still

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