In You Can’t Teach That!, Keith Whittington endorses the view that what is taught in the university classroom should be decided by the teacher, subject to the scholarly consensus and faculty discipline of that teacher’s professional peers. Whittington is the author of many books, including Speak Freely: Why Universities Must Defend Free Speech (2018); the founding chair of the Academic Freedom Alliance; and after more than 25 years teaching at Princeton, now the David Boies Professor of Law at Yale Law School. “I take for granted,” he writes, “the proposition that traditional notions of academic freedom are worth defending in the current moment.”

His eloquent but flawed book is especially concerned with Republican state legislators who have sought to halt what they regard as indoctrination contrary to America’s commitment to racial equality. One of Whittington’s particular targets, Florida’s 2022 “Stop WOKE” Act (whose enforcement is currently enjoined by order of a federal district judge), prohibits as unlawful discrimination “any other required activity that espouses, promotes, advances, inculcates, or compels [an] individual to believe” any of eight specified racist dogmas, including that “[a]n individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin” and that “such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist.” The Florida legislature did not bar these views from being heard in the classroom, only from being imposed.

Whittington’s concern is not whether we should all believe and practice the colorblind claims the Stop WOKE Act protects, but to what extent it is not merely unwise but unconstitutional to require by law that no indoctrination take place in public university classrooms. He argues that it is a professor’s First Amendment right to be free of this kind of legislative interference from the uncredentialed. But Whittington’s presentation of what the First Amendment requires is based not on the original intention of its framers and ratifiers but on the free-speech absolutism of 20th-century judges like Robert Jackson, Hugo Black, and William Brennan. He endorses Paul Horwitz’s claim that universities are “First Amendment institutions” due to “their central role in generating, investigating, and promulgating ideas.” “Suppressing ideas in a university context,” writes Whittington, “poses a particular threat to the values that the First Amendment enshrines.”

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He focuses on the public university classroom because, in his view, “private universities are largely beyond the control of the state governments…. There is relatively little politicians could do to gag professors at Princeton University or any other private university.” What’s more, there is little politicians can do to prevent Princeton from gagging its own professors or even firing them should they express unacceptable views relating to matters on or off campus. That, supposedly, is for the school’s trustees and administrators to handle, constrained only by shaming in the press or by outside academics.

Yet if we consider universities’ institutional privileges rather than their teachers’ rights, the bright line between public and private that Whittington would like to draw becomes unclear. Princeton and other elite private universities are highly privileged institutions, not only in the woke sense that they have tremendous physical campuses, astronomical endowments, and coteries of powerful alumni to call to their aid, but in the literal legal sense. Whittington doesn’t sufficiently address the fact that public and private universities benefit from various statutory privileges such as tax exemptions and accreditation of degrees, and therefore he doesn’t thoroughly weigh the extent that, to be justified, universities’ privileges need to be balanced by their obligations to state and society.

Unfortunately, academic freedom in America has often enough been entwined with academic racism, including in two infamous censorship cases Whittington deplores: pioneering Social Darwinist William Graham Sumner’s struggles to teach freely at Yale in the 1880s and Professor Edward A. Ross’s firing from Stanford in 1900 for championing the Chinese Exclusion Act against the interests and preferences of Jane Stanford, his employer’s patroness. We find it also in the woke racism the Florida legislature was trying to curb and in the privilege to discriminate against whites and Asian-Americans that Harvard and other elite schools claimed before the Supreme Court in order to remedy racial disparities, and which they, despite last year’s ruling in Students for Fair Admissions v. Harvard, undoubtedly still practice.

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Within the bounds of First Amendment law, Whittington’s argument fails to take account of the 1983 Bob Jones University v. United States decision, by which in an 8-1 ruling the Supreme Court permitted the IRS to deprive a racially discriminatory school of its tax-exempt status. Presumably the Florida legislature could threaten to remove the accreditation not merely of any Florida public university but of any public or private university in any state, such as South Carolina’s Bob Jones in its racist days. But Whittington doesn’t explain how the First Amendment would allow states or the federal government to supervise and, when indicated, reform universities’ privileges so as to return them to their appropriate ends.

For what, after all, are universities’ proper ends? Is “higher” education actually higher, that is to say, education for those who are closer in maturity to achieving the ends of man? Or has the whole notion of “ends” been overthrown by evolutionary science? As Whittington argues, a legislature that can ban racist indoctrination can also ban its scientific cousin, Darwinism, especially as applied to the human body and mind. This, he notes, is exactly what the Tennessee legislature tried to do in 1925, which led to the much-mocked Scopes Monkey Trial.

In its own way Florida’s Stop WOKE Act is as easy to make fun of as Tennessee’s earlier effort. But it would be wise to hold our laughter. Modern academic freedom was imported to Progressive-era Wilsonian America from unfree and undemocratic Wilhelmine Germany. Perhaps the federal government’s proper role isn’t to interfere with Florida’s efforts to legislate an antiracist university classroom, but instead to allow this and other experiments to succeed or fail politically. Keith Whittington is a justly esteemed authority on constitutional law and jurisprudence. It is regrettable that in this book he has chosen to assess the efforts of Florida and other like-minded states in light of mid-20th-century controversies rather than in originalist terms.