Legal Vigilantism in Higher Education

In Alabama, a professor faced scrutiny from university officials after a student complained about her “alleged ‘liberal’ viewpoint expressed through her assigned course materials.” ?The Louisiana governor called for the discipline of a law professor after a student recorded his comments in class referencing the 2024 election. In Indiana, students filed complaints against a professor for violating the new state law requiring intellectual diversity during a panel presentation on political voices. A Texas professor was censured for criticizing the state’s lieutenant governor.

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These are not isolated incidents.

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Through statutes and governing board policies, states have invited students to join an army of private warriors mobilized to prosecute a war on “woke” ideology. These laws empower individuals within the campus community and the general public to effectuate newly enacted legislation intended to reclaim colleges and universities from, what President Trump describes as, the “Marxist, maniacs, and lunatics.” ?A professor alleged to have violated the laws that prohibit “divisive concepts,” or other taboo topics is subject to investigation and the threat of private and professional penalties. Welcome to the new era of legal vigilantism.

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Legal vigilantism isn’t new. In Vigilante Nation, John Michael and David Noll describe its use in the Antebellum and Jim Crow eras when federal and state laws authorized private individuals to enforce racial hierarchies. They point to the Fugitive Slave Act as a prime example of incentivizing private actors to “reclaim” individuals identified as slaves and allowing those who owned slaves to sue anyone who aided their escape. During Jim Crow, Texas sidestepped constitutional questions about voting rights by providing private entities, such as local political parties, the right to determine who was a qualified voter.

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The framework used to enforce slavery and Jim Crow has been revived to once again reinforce hierarchies of race, gender, and religion. Texas anti-abortion law allows private citizens to file civil lawsuits against anyone who knowingly aids or abets an abortion. Other states and municipalities have added so-called bounty laws to curb behavior deemed aberrant. The City of Odessa passed a law with a financial incentive to report anyone who uses a public bathroom that doesn’t align with their biological sex.

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States have encouraged private actors to monitor libraries and librarians and police K-12 teachers and classrooms. Idaho created a private cause of action against libraries if they failed to remove a book harmful to minors. In Missouri, a librarian can face fines and imprisonment for allowing sexually explicit materials in the library. Idaho created a “book bounty” that allows private citizens to recover money if a library fails to remove books “harmful to minors.” ?Arizona, Indiana, and Virginia created tiplines for parents to report objectional curricula and inappropriate teaching. It takes just one person to trigger an investigation and give rise to penalties.

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Now, these same tactics are being used on university and college campuses. ?In Florida, students can bring a discrimination claim against a professor who “espouses, promotes, advances, inculcates, or compels” them to believe certain concepts. The Utah legislature directed the Board to create a process for reporting violations of its anti-DEI law. In Indiana, students and employees may file complaints if a faculty member fails to “foster a culture of free inquiry, free expression, and intellectual diversity within the institution.” ?Although not required by law, the University of Alabama System created a “hotline” for members of the university community or third parties to report violations of the state’s anti-DEI law.

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These are not idle threats. The Foundation for Individual Rights and Expression (FIRE) studied attempts to sanction scholars. ?It found that almost two-thirds of the attempts resulted in sanctions, including 225 terminations. One year, an increase in sanction attempts was attributed to one entity—Turning Point USA—"calling on parents and students to contact the institutions of 61 professors featured on their Professor Watchlist website.” The study also found that sanctions initiated by government officials “rose exponentially” between 2019-2022.

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Not surprisingly, these threats have led to self-censorship. In a recent study, more than half of all faculty expressed concern about asserting what they believe to be accurate statements about a subject. A third are concerned that expressing a political opinion in class may lead to sanctions, and over half have refrained from expressing an opinion or participating in activities that could draw negative attention. A review of current lawsuits challenging these laws confirms the study’s findings—professors report that laws are affecting what and how they teach.

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On paper, professors shouldn’t feel the need to self-censor, especially in the classroom. Most state laws explicitly declare that the law cannot be construed to violate academic freedom or the First Amendment.? Even if the law is silent, governing board policies, collective bargaining agreements, and faculty handbooks are supposed to protect academic freedom. Indeed, some governing boards and universities have reaffirmed these rights in statements after the new laws were passed.

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But actions speak louder than words. ?Boards of Trustees, university administrators and their lawyers have not acted to preserve academic freedom. ?On the contrary, they have interpreted the law so broadly as to undermine the core tenets of that freedom—teaching and research. The University of Northern Texas (UNT) cautioned instructors about “classroom lessons on DEI topics” even though the law explicitly exempted academic instruction. Iowa State University also interpreted the new law regarding “divisive concepts” to prohibit certain content in required courses even though the law explicitly exempts course work. In a presentation to faculty, the General Counsel acknowledged that the law had a chilling effect but countered that “nobody wants to find themselves attacked online for their course content…and we know people are watching.”

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State attorneys in Indiana and Florida took it a step further, arguing that public university professors lacked any free speech rights in the classroom. In Garcetti v. Caballos, the Supreme Court held that speech by public employees is not protected when made pursuant to their official duties. The Court explicitly left open the question of whether it applied to public higher education. A question, for better or worse, that the Court will likely be asked to answer soon.

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Faculty members have stepped into the void left by boards and university administrators.? There are currently lawsuits in Alabama, Florida, Indiana, New Hampshire, and Oklahoma. Each lawsuit asks the court to affirm that the academic mission of free inquiry is alive and well in the U.S. higher education system.

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Until the Supreme Court addresses the issues left open in Garcetti, professors will be subject to the threat of sanctions for speech protected by academic freedom and the First Amendment. Opaque legislation combined with invitations to report alleged violations is a recipe for self-censorship; which, in the end, is the goal of legal vigilantism, the threat of reporting is enough to coerce compliance with imposed norms.