The American Association of University Professors filed two separate lawsuits against Texas universities this summer, challenging institutional policies that restrict classroom discussion of certain topics. Texas A&M’s policy, enacted last November, requires presidential preapproval for any class discussion of “race or gender ideology,” while Texas Tech’s chancellor issued memos preventing faculty from teaching content related to sexual orientation and gender identity. Both policies prompted campus-wide course reviews, course cancellations, and faculty self-censorship as instructors grew uncertain about what material might violate the vaguely defined restrictions and expose them to discipline or termination.
Education law experts view the twin suits as strategically timed to capitalize on a recent appellate victory. Just before the Texas Tech lawsuit was filed in July, the U.S. Court of Appeals for the 11th Circuit struck down portions of Florida’s Stop WOKE Act, ruling that states cannot dictate what professors teach in classrooms. The appellate panel stated that “puppeteering every university professor” violates the First Amendment and that “forcing an official government line—in a college classroom of all places—is exactly the ‘pall of orthodoxy’ that the First Amendment will not tolerate.” The AAUP plaintiffs are expected to rely heavily on this 11th Circuit precedent in their arguments.
However, the cases face an uncertain path through the Fifth Circuit Court of Appeals, which will likely hear the appeals. The Fifth Circuit, known for unpredictability and conservative leanings, has not previously ruled on government control over university faculty speech. Legal experts note the appellate court is not bound by the 11th Circuit’s decision and could distinguish the Texas policies from Florida’s legislation or embrace dissenting arguments that state universities can direct faculty speech as employer speech. A Fifth Circuit ruling favoring Texas institutions could create a significant circuit split and potentially invite Supreme Court review.
The underlying legal arguments also raise broader implications. Texas Tech’s defense claims that faculty teaching speech constitutes employer speech subject to state control, a position legal scholars warn could undermine free speech protections for all professors regardless of political ideology. Experts argue such a precedent would struggle to withstand constitutional scrutiny, as no court could credibly apply different standards based on whether faculty express left-wing or right-wing viewpoints.
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