Prominent Jurist Issues Resounding Statement Supporting University Self-Determination Over Academic and Pedagogical Affairs

Judge Easterbrook of the Seventh Circuit, one of the most prominent jurists in the country, recently issued a resounding endorsement of universities’ right to determine their own academic affairs. His opinion will have its most immediate impact in First Amendment retaliation cases brought by professors at public universities, but it is also likely to shape the broader debate about universities’ independence from judicial interventions.

The opinion arose from a claim of First Amendment retaliation brought by a professor at a public law school. The professor gave his students a final exam which included a hypothetical where a female employee quit her job after managers called her “n-----” and “b----.” The use of those terms in the hypothetical drew student complaints and a university investigation. The investigation further revealed the professor had referred to “lynching” in class discussions, and used a purported African-American accent while repeating rap lyrics in class (to describe a pretextual stop by law enforcement). The university determined the professor violated its nondiscrimination policy and imposed disciplinary sanctions.

The professor sued for First Amendment violations, and the District Court dismissed his claims. A three-judge panel of the Seventh Circuit, however, reversed. It held that classroom speech by public school professors is entitled to First Amendment protections, and permitted the case to go forward.

The university then petitioned for review by the full Seventh Circuit. The circuit denied the petition, but Judge Easterbrook issued a remarkable statement in conjunction with the denial. His statement hearkened back to Sweezy v. New Hampshire, the landmark Supreme Court decision that first acknowledged the “four essential freedoms of a university – 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.” For Judge Easterbrook, a university’s academic freedom meant it “is entitled to freedom from outside control, even if a faculty member seeks to enlist the aid of non-academic governmental actors.” This reference to “non-academic governmental actors” applies most obviously to judges overseeing cases questioning university decisions. But it can also be read as a nod to the current political climate, in which the executive branch has attempted to exert control over the internal affairs of many of the countries’ most notable universities.

Judge Easterbrook then clarified that these essential freedoms are freedoms of the university, not of individual professors. While it is not uncommon for professors to claim that academic freedom affords them sweeping protections, it is the university that is entitled to self-determination in academic affairs:

[The university] can decide for itself that Economics 101 should emphasize John Maynard Keynes rather than Adam Smith, Milton Friedman, or Karl Marx, no matter what the professor prefers. A required Great Books course may feature Pride and Prejudice and Oblomov but not Ulysses, and the university may sack someone who instead teaches Dune and The Postman Always Rings Twice, without asking a jury to decide which books would do students the most good.

Moreover, the university has every right to impose rules and restrictions on how professors teach their courses. Some institutions may give professors wide leeway (such as those that adhere to the Chicago Principles), and others may exercise greater control over classroom instruction. But that is a choice for the institution to make for itself. It is not a question for jurors, judges, or other governmental actors:

A university may require professors to avoid cuss words and other derogatory language in class or on exams. But a university could decide not to protect students, in or out of class, from words and ideas that they might find offensive. See University of Chicago, Report of the Committee on Freedom of Expression (2015) (the “Chicago Principles”). The [University] evidently does not follow the Chicago Principles, and I do not think that a jury should be allowed to determine (by “balancing interests”) that it must. Universities need to experiment and compete on this dimension, as on many others, to find for themselves the best mix of policies— and students must be allowed to choose the educational setting that best matches their needs, something made impossible if the Constitution requires all educational institutions to follow identical paths.

Judge Easterbrook went on to distinguish between disputes internal and external to a university. While a faculty member could invoke the First Amendment “to protect him or his university from meddling by actors outside the academy,” Judge Easterbrook did not believe a faculty member had any First Amendment right to ask external actors (i.e., judges or juries) “to override a university’s judgment about how to conduct classes and set examinations” because “protecting a university’s right to decide independently is the goal of academic freedom.” For internal disputes, “when a professor and a university are at loggerheads about what constitutes effective teaching and scholarship, the university has to win. Otherwise the Judicial Branch and the populace at large (through juries) displace academic freedom.”

Judge Easterbrook’s opinion will be most immediately cited in First Amendment retaliation cases brought by professors at public universities. Such a powerful endorsement of university’s self-determination over teaching and scholarship will give District Courts further reason to be skeptical of such claims.

But the opinion also contributes to the broader debate about judicial interventions in universities’ affairs. While Sweezy remains good law, more recent cases have expressed less willingness to defer to certain university judgments. Consider Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181, 217 (2023) (while “[t]he universities’ main response to these criticisms is, essentially, ‘trust us,” . . . “deference does not imply abandonment or abdication of judicial review”). Judge Easterbrook’s resounding statement adds a critical voice to this debate, and identifies several areas—matters of academic freedom, teaching, and scholarship—in which the need for university independence is especially profound.

The opinion is Kilborn v. Amiridis, Case No. 23-3196, 2025 WL 1276034 (7th Cir. May 2, 2025). If you have additional questions related to this judicial opinion reach out to your Quarles attorney or:

• Jeff Michalowski: (619) 243-0895 / jeff.michalowski@quarles.com
• Matt Burris: (619) 243-0892 / matt.burris@quarles.com