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What Speech Rights Do Public-University Professors Have?

Two recent district-court decisions provide notably different answers.

Feb 27, 2026 James R. Rogers

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When professors in public universities teach their classes, are they engaged in government speech pursuant to their job duties, with First Amendment rights equal only to those of other government employees, or does “academic freedom” provide public-university professors with protections that are broader than those shared by other government employees?

Two federal district courts in the Eleventh Circuit (which includes the states of Alabama, Florida, and Georgia) recently came to opposite conclusions on this question.

Federal judges have disagreed about whether classroom teaching by professors in public universities constitutes government speech.Federal judges in Pernell v. Florida Board of Governors of the State University System (2022) and in Simon v. Ivey (2025) disagreed whether classroom teaching by professors in public universities constitutes government speech. Both decisions responded to requests for preliminary injunctions against state laws that prohibited professors at public universities from teaching DEI-related concepts in ways that “compel” students to assent to what the states’ laws define as “discriminat[ory]” or “divisive” concepts.

This reflected the judges’ different assessments of the implications of a non-binding “dictum” in a recent Supreme Court decision.The judge in Pernell granted the request for a preliminary injunction against Florida’s “Stop W.O.K.E. Act” (HB 7). The judge in Simon v. Ivey denied the request for a preliminary injunction against Alabama Senate Bill 129.

The two federal judges disagreed whether the job-related classroom activities of faculty at public universities are protected by a constitutional guarantee of academic freedom that extends beyond the First Amendment rights shared by other government employees when speaking as government employees. This in turn reflected the judges’ different assessments of the implications of a non-binding “dictum” in a recent Supreme Court decision on the free-speech rights of government employees.

The Supreme Court case around which the judges’ conclusions pivoted is Garcetti v. Ceballos (2005). The case considered the First Amendment claims of a deputy district attorney in Los Angeles who was disciplined for criticizing the basis of a search warrant in verbal and written communications with his superiors.

In denying that Ceballos’s job-related communications enjoyed First Amendment protection, Justice Kennedy wrote for the Court:

We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

[…]

Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.

In response to concerns Justice Souter asserted in dissent regarding implications the Court’s decision might hold for “the teaching of a public university professor,” the Court added this dictum:

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

The two Eleventh Circuit federal judges split over what the Court’s dictum implies regarding academic freedom and the classroom activities of professors teaching at state universities.

In issuing a preliminary injunction against Florida’s law, federal judge Mark E. Walker read the Court’s dictum in Garcetti to mean the holding announced in Garcetti does not apply to in-class instruction by professors at public universities. So Walker refused to do so, as well.

If the official classroom activities of faculty at public universities is government speech, then governments can constitutionally set parameters.In contrast, the federal judge in the Alabama case, R. David Proctor, took the Court’s language in Garcetti to mean only that the Court left the question open for consideration and determination in a subsequent case. So Proctor analyzed the implications of Garcetti for Alabama’s law and faculty.

On the one hand, according to Proctor, if the official classroom activities of faculty at public universities is government speech, then, as with the job-related speech of other government employees, governments can constitutionally set parameters on what professors say in pursuance of their job duties in the classroom. The state can constitutionally engage in viewpoint discrimination, as is permissible with the job-related speech of non-university government employees.

If public-university faculty enjoy unique free-speech rights, then the state cannot direct their in-class speech.On the other hand, according to Walker, if faculty at public universities enjoy unique free-speech rights beyond those shared by other government employees, then the state cannot direct the in-class speech of faculty in a way that discriminates against the viewpoint a professor may seek to advocate in the classroom.

Yet even Walker’s decision presented a tempered view of academic freedom as a constitutional right, particularly for faculty in state-sponsored colleges and universities.

In his decision enjoining enforcement of the Florida law, Walker nonetheless observed not only that “the Supreme Court has never definitively proclaimed that ‘academic freedom’ is a stand-alone right protected by the First Amendment” but that “the Eleventh Circuit has explicitly rejected the argument that ‘academic freedom’ is an independent constitutional right.”

Nonetheless, Walker underscored that while the Eleventh Circuit does not recognize academic freedom as guaranteeing additional rights beyond those everyone holds, the circuit court “still recognized that academic freedom remains an important interest to consider when analyzing university professors’ First Amendment claims.”

Still, Walker noted that state governments can constitutionally “prescribe the content of its universities’ curriculum.” Quoting the Supreme Court, Walker wrote that “universities may generally make content-based decisions ‘as to how best to allocate scarce resources or 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.’”

Walker drew a constitutional line, however, between states determining the content of the classroom speech of faculty in state-run universities, which is constitutional, and states seeking to prevent faculty from “expressing viewpoints with which [the state] disagrees” (emphasis added), which Walker concluded is unconstitutional.

The distinction between constitutionally permissible content regulation and constitutionally impermissible viewpoint regulation might seem to get us into constitutional arcana. But the distinction is easy enough to understand. Consider an example from a less rarefied category of speech: While government can constitutionally suppress “obscenity” as an entire class or category—that is constitutionally permissible content regulation—it could not constitutionally suppress only obscenity that, say, criticized the current state governor. The latter is impermissible viewpoint regulation.

Walker concluded that Florida’s law conflated its “right to make content-based choices … with unfettered discretion in limiting a professor’s ability to express certain viewpoints about the content of the curriculum once it has been set.” So Walker enjoined enforcement of Florida’s law.

In contrast, Judge Proctor read the cases differently and refused to enjoin Alabama’s law. (I should note that the Alabama law is not identical to the Florida law, and that may partly account for the different outcomes in the cases. Nonetheless, the two judges did reach dramatically different conclusions regarding the pertinence of academic freedom as an asserted legal right in the two cases.)

Proctor began his analysis by noting the different contexts in which questions of academic freedom can arise, with different implications depending on the context. Proctor observed that among the issues the Alabama case did not implicate were the following:

[T]his case does not concern questions about any limitations on private colleges or universities.

[…]

[T]his case does not involve questions about what limits public university professors face with respect to their job duties or other activities outside the classroom.

[…]

[This case] does not prohibit the discussion of any divisive concept in the classroom.

The different contexts in which a professor at a public university speaks determines which different First Amendment protection that speech receives. Proctor first summarized “three buckets” in current constitutional jurisprudence in which the speech of government employees can fall:

First, the employee speaks as a private citizen on a matter of public concern. This is protected First Amendment speech.

Second, the employee speaks as an employee/private citizen on a matter of personal interest. This is not protected First Amendment speech.

Third, the employee speaks as an employee and as part of her official duties on a matter of public concern. […] In those situations, if Garcetti applies, the employee’s speech receives no First Amendment Protection.

For Proctor, given that in-class instruction by faculty at public universities is “part of their official duties,” the “real question” in the case is whether professors at public universities “should be treated differently than other government employees who speak as part of their duties but whose speech is not protected under Garcetti.”

Reducing a student’s grade for asserting the viewpoint that 2 + 2 = 5 rather than 4 is viewpoint discrimination.Proctor underscored two points in concluding preliminarily that the Alabama law at issue in the case did not impose on the First Amendment rights of faculty. First, the interest that Alabama asserts as the reason for enacting its law is to protect students from inappropriate viewpoint discrimination imposed by faculty.

Secondly, and relatedly, Proctor determined that, whatever control a state can constitutionally assert over government speech by faculty in the classroom, it extends at least as far as intervening to prevent faculty from coercively imposing impermissible forms of viewpoint discrimination on students in classrooms.

The decisions rehearse arguments that will undoubtedly be heard again and vetted on appeal.The thing is, faculty and universities necessarily engage in viewpoint discrimination in the classroom. Reducing a student’s grade for asserting the viewpoint that 2 + 2 = 5 rather than 4 is viewpoint discrimination. The insistence, in graded activity, that a “right answer” exists necessarily engages in viewpoint discrimination against those who assert “wrong” answers.

Of course, we normally want faculty to engage in this sort of viewpoint discrimination. We call it education.

Alabama asserted, however, that some faculty in their colleges and universities routinely went beyond education-promoting viewpoint discrimination in their classrooms. The state asserted that some faculty “coerce their students into assenting” to beliefs that, contrary to current constitutional jurisprudence and public policy, are “invidiously discriminatory.” These are the “divisive concepts” that Alabama prohibited faculty from advocating and coercing students to assent to in classroom instruction.

Proctor wrote that the Alabama law does not in fact prohibit discussion of these ideas in the classroom. And faculty remain free to advocate these positions as citizens—that is, outside of the domain of their job duties. What Alabama claimed to do through its law is to rein in faculty attempts to suppress student viewpoints that are entirely consistent with current constitutional jurisprudence and public policy. This claim was assumed to be true for the matter of deciding a preliminary injunction. It would be subject to evidentiary demonstration at a trial.

Secondly, Proctor argued that the fact that professors at public universities are government employees means that faculty engage in government speech when teaching in classrooms. That means states have constitutional authority to require faculty to avoid coercing students to assent to viewpoints that endorse invidious discrimination as defined by current jurisprudence and public policy.

Thus, Proctor concluded that Alabama sought to protect the academic freedom of both the students and the institution with their law, interests that are at least constitutionally permissible.

It bears emphasis that the decisions in both cases were preliminary injunctions. Both cases have yet to proceed to trial with the requisite introduction of, and argument over, evidence of the different claims. The decisions, however, rehearse arguments that will undoubtedly be heard again and vetted on appeal.

James R. Rogers, J.D., Ph.D., is associate professor of political science at the Bush School of Government and Public Service at Texas A&M University.