By Amy Gajda, a former journalist and the Jeffrey D. Forchelli Professor of Law at Brooklyn Law School. Among other publications, she is the author of Seek and Hide: The Tangled History of the Right to Privacy (Viking 2022), a book named by The New York Times as one of the year’s 100 Most Notable. She came to Brooklyn after teaching for more than a decade at Tulane University Law School in New Orleans, and, before that, she held a joint appointment on the journalism and law faculties at the University of Illinois. While there, she won seven Associated Press awards for her legal commentary.
Back when I was a professor in New Orleans, I taught Higher Education Law, and I created a mock college admissions simulation as a part of the course: I gave the law students multiple fake college application files; the students formed a mock college admissions committee to discuss the files; and the students thereafter admitted an entering class. Each of the mock files brought something different to the table and included applicants with strong grades and test scores, but also applicants with better recommendations or with different experiences relating to their socioeconomic level or race or political belief or religion or geography or upbringing.
We always ended up with a mock entering class containing a blend of students. I remember wonderful discussions during the simulation about how much the law students — including the more politically conservative students — said that they had learned from others with different life experiences, and how they worried that an admissions committee that valued strong academic credentials alone would make the classroom experience pretty bland. And, to be clear, I did my best to stay out of the decision-making; students came to these conclusions themselves.
They used the word “diversity” frequently in their discussions.
So imagine my surprise earlier this semester when the Interim U.S. Attorney for the District of Columbia, Edward R. Martin Jr., sent a letter to William M. Treanor, dean of Georgetown University Law Center. “It has come to my attention reliably,” the letter read, “that Georgetown Law School continues to teach and promote DEI. This is unacceptable.” The letter required that “all DEI,” evidently meaning anything relating to diversity, equity and inclusion, be eliminated from the school, its curriculum, and its teaching. U.S. Attorney Martin then warned that, until he was certain that such changes had been made, no Georgetown Law applicant would be considered for any job with his office. In fact, his warning included all offending law schools: “no applicant . . . who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.”
I suppose that he could say no more mock admissions simulations for me in Higher Ed Law.
I’ll cite to Supreme Court precedent here in response: For the government to suggest that a law school or any place of higher education cannot discuss diversity, equity, and inclusion — however broadly or narrowly that phrase might be interpreted — is a clear violation of the First Amendment.
Back in the 1950s, another government attorney, New Hampshire’s Attorney General Louis C. Wyman, with the agenda of shaping classroom discussion by weeding out campus socialists and communists, called a university lecturer in to ask him questions about his teaching as part of an ‘investigation of subversive activities.’ “What was the subject of your lecture?” Wyman asked about one incident in particular. “Didn’t you tell the class at the University of New Hampshire on Monday, March 22, 1954, that Socialism was inevitable in this country?”
The Justices of the Supreme Court rejected such a line of inquiry, explaining in 1957 in Sweezy v. New Hampshire that “freedom of communications of ideas, particularly in the academic community” was a part of constitutional liberty. Then they waxed poetic about the college classroom, so poetic that paraphrasing the Justices’ language would ruin it:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
Put another way, the Justices warned that democracy — “our civilization” — would crumble if we didn’t let teachers discuss even provocative ideas in college classrooms. In doing so, the Justices used the phrase “academic freedom” for the first time as a full Court: “We believe,” they wrote, “that there unquestionably was an invasion of [the lecturer’s] liberties in the areas of academic freedom and political expression—areas in which government should be extremely reticent to tread.” Note too that, at the height of the Cold War, the Justices chose that phrase “our civilization,” surely to contrast the autocratic nature of classroom discussion in the Soviet Empire with the democratic and American values of freedom of expression and open exchange.
I’m not highlighting this language from Sweezy solely as a professorial back-pat. Note that the Court additionally mentioned students as those protected under the umbrella of academic freedom, that they too “must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding” or civilization and democracy will crumble all the same. There’s another academic freedom player identified in the Sweezy opinion too and that’s the university itself: “[T]he four essential freedoms” of a university are “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
A decade after Sweezy, in 1967, the Justices added to the poetic protections for such players. “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us,” the Justices wrote in Keyishian v. Board of Regents. “That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” The Justices suggested that campus classrooms are uniquely marketplaces of ideas, gatherings that train the next generation of leaders “through wide exposure to that robust exchange of ideas which discovers truth” without “any kind of authoritative selection” by the government.
So, no. Under the First Amendment and that strong line of Supreme Court precedent, Interim U.S. Attorney Edward Martin can’t tell Georgetown Law Center professors to stop talking about diversity or equity or inclusion in classrooms. Simply put, with certain limitations, academic freedom gives faculty members the First Amendment right to teach classes in a way that they think students will best learn; it gives students the First Amendment right to listen and learn; and it gives the university the First Amendment right to decide how it all happens. The limitations on such rights in the classroom are an interplay between them: The professor can’t talk about the beauty of a nude body in a class focused on higher education law because the students won’t learn about the course’s focus from that; a student’s belief that a mock admissions simulation isn’t valuable to learning won’t trump the professor’s belief that it is; and the university can’t fire a tenured professor like me for writing an opinion piece like this one about academic freedom even though administrators might not like it.
You might think of such an interplay as a First Amendment-driven series of checks and balances between faculty, students, and the university, similar to the checks and balances between the executive branch, Congress, and the judiciary. Obviously, that’s something that the Trump Administration needs schooling in too.
But back to the conflict between Interim U.S. Attorney Martin and Georgetown Law Center Dean Treanor. Given the law I’ve discussed, the dispute continued: Georgetown’s law dean alluded to Sweezy and Keyishian in his response letter. “Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it,” he wrote, “the constitutional violation behind this threat is clear,” adding a second First Amendment-related jab, “as is the attack on the University’s mission as a Jesuit and Catholic institution.” The dean wrote that he looked forward to confirmation from Martin that Georgetown job candidates would be given full and fair consideration.
That’s one sample volley across the First Amendment bow — anti-DEI demands answered with principles of academic freedom — with many more to come. After all, earlier this month, the Trump Administration wrote to Harvard about “broad, non-exhaustive areas of reform that the government views as necessary for Harvard to implement to remain a responsible recipient of federal taxpayer dollars,” including efforts to shutter all DEI programs, the letter said, that “teach students, faculty, staff, and leadership to make snap judgments about each other based on crude race and identity stereotypes.”
Hopefully this war on higher education will end the way the Supreme Court Justices in Sweezy would have wanted it to. “Our civilization” is how they described American democracy and “the essentiality of freedom” is how they described campus scholarly exchanges. They might well have added that only an autocratic administration would meddle in a college classroom, the place they said that the government should be “extremely reticent to tread.”
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