The past year has exposed deep-rooted problems on American college campuses, revealing just how political pressure distorts academic ideals. After Hamas’s brutal massacre of civilians and Israel’s forceful response, waves of pro-Palestine protests erupted, soon transforming into encampments that in some cases menaced Jewish students. Certain radical professors openly advocated for what they framed as the Palestinian cause, blurring the line between teaching and propaganda. University presidents, caught in the crossfire, often invoked the doctrines of free speech and academic freedom to justify the protests—and even the classroom polemics.

As we seek to understand the correct application of these principles to campus life, we are fortunate that David Rabban has just written Academic Freedom: From Professional Norm to Free Speech. It is the most thoughtful legal discussion of academic freedom ever published. Rabban provides a comprehensive review of both the American history of academic freedom and the relevant case law in both the Supreme Court and the lower courts, and even offers his own subtle and wide-ranging theory of purpose and scope of the concept. It will be the book with which all subsequent writers on the subject will first have to reckon.

Professor Rabban’s work begins by distinguishing the concepts of academic freedom and free speech. While free speech protects individual expression broadly and is available to all citizens, academic freedom focuses on the professional rights of scholars within the university, particularly in research and teaching.

More controversially, Rabban argues that academic freedom should be recognized as a distinct First Amendment right for faculty at public universities. If treated like other public employees, professors would have only severely limited free speech rights while conducting job-related duties. In Rabban’s view, academic freedom should enjoy a broader constitutional protection because professors at universities serve a unique public function: the advancement of knowledge. Rabban emphasizes that this role requires different safeguards than those provided to other government employees, whose speech in the workplace may be more legitimately controlled by the government just as it is by private employers in the private workplace.

Rabban also distinguishes academic freedom from the broader free speech rights enjoyed by all citizens, grounding his argument in the unique role of professors in generating knowledge. Academic freedom, in his view, is not a blanket protection for all speech by professors. Instead, it covers only areas where their professional expertise is relevant. Outside of these domains, professors are left to rely on the free speech rights available to every citizen. Universities, too, are constrained in this way, with no special protections outside their academic mandates. Moreover, academic freedom is circumscribed by peer review, which serves as a gatekeeper of scholarly legitimacy. If an idea is rejected as lacking academic merit through peer review, it receives no First Amendment shelter. Thus, academic freedom is not an absolute right but a conditional one, tethered to both expertise and institutional standards.

The distinction between academic freedom and free speech becomes constitutionally relevant only for public universities. Private universities, however, often claim to follow the same norms of academic freedom to shield faculty from internal discipline. These institutions are regulated not by constitutional law but by the norms established by the Association of American University Professors (AAUP), which Rabban once served as general counsel. Like the AAUP, Rabban argues that private universities should, as a matter of best practice, uphold the same dual protections of academic freedom and free speech observed in public universities. While not constitutionally obligated to do so, private institutions would benefit from adopting these norms, as they would foster a more robust and principled environment for both scholarship and debate.

Rabban’s ideal distinction between academic freedom and free speech is fundamentally sound. Universities are a special kind of institution, and their ideal structure of freedom is suited not to the raucous public square but to a forum for the production of knowledge. In the former, we permit completely unreasoned and ad hominem uses of speech rights, but in the latter, the university and its professors should be dedicated to reason.

Whether this distinction works well in practice is a more difficult question. One of the difficulties of the modern university is that the administrations are rarely politically neutral. As Samuel Abrams has shown, university bureaucracies are even farther left than the already very left-leaning faculty. Thus, it is not at all clear that universities would neutrally administer exceptions, like banning hate speech, that academic freedom permits but the First Amendment prohibits.

Moreover, peer review may well be politically biased on any scholarly debate that has political resonance, because almost no peers inhabit one side of the political spectrum. It is hard to imagine any critical race scholar being disciplined for hosting speakers or providing videos of speakers, no matter how outrageous. Yet these are some of the charges that controversial law professor Amy Wax faces at the University of Pennsylvania. Race is the third rail of the American academy, and academic freedom does not offer much protection to some forms of sharp dissent on the issue from the right.

Under these circumstances, adopting a free speech approach rather than academic freedom paradigm to all campus expression may be the superior alternative. Moreover, as my colleagues Max Schanzenbach and Kim Yuracko have suggested, universities may be at risk of liability under Title IX if they discriminate in differentially applying hate speech and other exceptions to free speech principles to different groups. Universities, public and private, may prudently recognize that their own lack of neutrality may be costly if they do not tie themselves to the Supreme Court’s libertarian free speech jurisprudence.

While his approach to academic freedom generally can help us conceptualize these issues, I disagree with Rabban’s argument that academic freedom has its own special First Amendment protection. That is not because I love academic freedom less, but because I love formal constitutional analysis more. Rabban is right that academic freedom promotes the production of knowledge and that this production is enormously beneficial to society. But focusing on the beneficial consequences of a particular form of expression is not a justification for giving it a special form of First Amendment protection generally unavailable to others. It would be no doubt beneficial to have experts in the bureaucracy not fired by political appointees because of their expert advice, however politically inconvenient it may be, but the First Amendment nevertheless does not encompass a separate expert bureaucratic freedom the way Rabban tries to claim it protects a right to academic freedom.

The problem is that public university professors are government employees. The Supreme Court has stated that such employees do not have substantial free speech rights insofar as they are speaking pursuant to their employment. That is essentially speech by the government, and thus not protected by the First Amendment. To be sure, employees have substantial speech rights if they are speaking as private citizens at least if the matters are of public concern. But that kind of right would protect only what Rabban and others term “extramural speech”—speech outside the workplace—not the research and teaching for which professors are paid.

Whatever the Supreme Court’s comments in dicta about a special right of academic freedom, sharply distinguishing between employee speech which the government pays for and that which it does not is the right constitutional analysis. The First Amendment does not prevent the government from subsidizing certain speech and declining to subsidize other speech according to the criteria that it thinks best. To be sure, its decisions may tend to a political orthodoxy; but the Establishment Clause—which is also part of the First Amendment—shows that government subsidies are only prohibited as a matter of that provision insofar as they relate to religion, not politics. Free speech doctrine should prevent the government from conditioning employment on employees’ giving up their rights to speak as citizens on issues of public concern. That would be an unconditional condition working a deprivation of general liberty. Public university professors should enjoy those same constitutional rights too, just not special rights of speech for their duties as employees.

Moreover, it is anomalous to grant special First Amendment rights to academic freedom that other government employees do not enjoy. The Supreme Court has declined to grant substantial differential First Amendment rights to the media, even though the First Amendment singles out the press in its text. Even the judiciary should not be given the authority to determine who gets special First Amendment rights when the First Amendment is supposed to get the government out of the business of deciding who can speak.

And this right of academic freedom would also be extraordinary in that it would delegate to private citizens—other professors—to decide its scope in individual cases through the exercise of peer review. Does any other right exist only at the sufferance of private citizens? Not to mention, it is practically troubling for reasons already discussed: the modern university is so dominated by the left that in many disciplines conservatives will not get a fair shake if their colleagues determine the contours of academic freedom. The veto of peer review in a biased profession can be as silencing as that of a heckler. And it is in some ways more insidious than the action of government, which is transparent and accountable to voters. Academics act behind closed doors and are accountable only themselves.

But none of this means that I am an opponent of academic freedom as an ideal. Recent state laws that forbid professors from teaching certain perspectives, like critical race theory, are very foolish. The better idea is for states to establish centers like those on civic or classical education that have been created at Arizona State and Ohio State Universities. These centers can offer salutary competition to the establishment by bringing more conservatives and libertarians professors to teach a distinctive curriculum. Most importantly, they directly address the campus orthodoxy that radically reduces the vibrant debate that academic freedom is meant to protect. Preventing professors from teaching some subject from left leaning perspectives still leaves them dominating the university.

Ultimately, fostering a culture of genuine epistemic openness on our campuses is more vital than perfecting the legal contours of academic freedom. Laws alone cannot compel the intellectual courage necessary to challenge entrenched orthodoxies, nor can they shield scholars from the subtle pressures of groupthink. Without a shared commitment to intellectual risk-taking, academics will hesitate to pursue lines of inquiry that might unsettle the prevailing assumptions of their peers. True academic freedom is not merely a legal right but a collective disposition—a state of mind grounded in mutual respect, patience, and a willingness to engage with uncomfortable truths. In his work, David Rabban exemplifies this ideal, serving as a reminder of what our academic communities should aspire to be.