Shadows of McCarthyism: The New Era of Government Intervention in Higher Education and Its Legal Implications for Academic Freedom on Campus

Abstract In recent years, higher education administrators and professors have come under intense pressure to ban certain disfavored initiatives on their campuses (e.g., DEI) and censor their speech inside and outside of the classroom to avoid certain subjects related to race, gender, anti-LGBTQ+, and other controversial subjects. The enactment of laws and other measures in more 30 states seeks to reduce alleged liberal bias on college and university campuses and promote more “alternative” viewpoints by contracting free speech rather than expanding it. These efforts to censor and punish those in the academy for their teaching, scholarship or speech on so-called “divisive issues” have caused many administrators and professors to resign or retreat into silence. Moreover, the movement has triggered a wave of investigations and lawsuits over free speech on a scale unparalleled since the era of McCarthyism during the 1950s. This article explores the legal implications of the recent political crackdown in higher education and its meaning for academic freedom under the law. By tracing the legal history of how U.S. courts have treated the concept of academic freedom from the McCarthy era to the present, this article seeks to shed light on the current state of the law, the ambiguities created by a split in federal circuits over time, and how the courts are treating this new wave of discriminatory, censorship restrictions thus far. For example, an important federal appellate court case, Pernell v. Lamb, examining the constitutionality of Florida's law banning “divisive concepts” in the classroom, is expected to impact the political and legal landscape of similar laws nationwide. This article delves into this case and others to provide a glimpse of where the courts may be headed concerning the limits of government intrusion in higher education.