Amid the changing climate in academia, at least seven states, including Texas, Florida and Ohio, have laws or university system policies requiring public colleges to make their syllabi public.
Several of these laws and policies came about soon after President Donald Trump issued a series of executive orders targeting diversity, equity, and inclusion, including one calling for potential investigations into universities with DEI programs.
Some higher education experts say these requirements create much-needed transparency. But others are concerned they will be used to fuel attacks on certain types of instruction that are increasingly under fire, such as teaching about gender identity and sexual orientation.
But do the states have legitimate interests behind the regulations?
“If you look across the nation, states are providing about $10,000 per student to public colleges. That’s a pretty substantial investment, and there needs to be some sort of oversight of what the colleges are doing with that money,” said Andrew Gillen, a research fellow at the Cato Institute, a libertarian think tank.
“To me, requiring publicly posted syllabi is just like a nutrition label requirement. It’s just the minimum level of transparency and accountability that you could ask for.”
However, one free speech expert views the uptick in state requirements with some suspicion.
“It is very targeted and appears to be politically motivated,” said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.
“The goal is to nitpick curricula,” he lamented. “That’s not a fair process. This undoubtedly will make professors think twice about what they put in their syllabus.”
Is there already a chilling effect?
The fear is that professors listing certain topics in their syllabus, such as gender identity, LGBTQ, and DEI, may be targeted by these requirements.
The University of North Carolina System is among those to recently implement such a requirement, and the American Association of University Professors quickly condemned the policy as “empowering censorship.”
In a January statement, the AAUP said, “This new directive is an effort to intimidate instructors whose research and teaching delves into subject matter that some politicians don’t want to see explored.”
Meanwhile, The New York Times recently reported that a University of North Florida education professor changed his syllabus after he was asked to remove the words “diversity,” “equity,” “inclusion,” and “culture” from it.
Paulson suggested this type of development shows a chilling effect of the First Amendment has already occurred. He noted, however, that professors are generally are very good at choosing their words carefully and will think of ways to avoid getting caught in the crosshairs of these policies.
He explained, for instance, that a lesson described as an “examination of racial justice” between 1890-1925 could be reframed as covering U.S. history during that period with a focus on “urban challenges and societal dynamics.”
“They’re just going to find a way that will prevent legislators from ever knowing what they’re actually teaching unless they sit in the classroom,” Paulson said, adding that this would not be an exercise in obfuscation but rather survival.
“It would be not leading with your chin. I wouldn’t call it ‘Woke Wednesday’ if I were teaching,” he said.
"This undoubtedly will make professors think twice about what they put in their syllabus."
Ken Paulson
Director, Free Speech Center at Middle Tennessee State University
But the Cato Institute’s Gillen maintained that these state law requirements will not necessarily expose professors to more danger or lead to less transparency.
“You really do need common words to indicate what the course is about and attract the students that would be interested in it,” Gillen said. “You can’t have each faculty member coming up with their own term for DEI that means the exact same thing but is totally different from what everybody else uses. It just breaks down as a coordination mechanism at that point.”
Are these laws ‘content neutral’?
Kevin Goldberg, vice president at the nonpartisan Freedom Forum, an association that defends First Amendment rights, has been critical of some efforts to stifle speech on college campuses. But he views public syllabus requirements as more defensible.
“I don’t think it’s asking too much for a professor who’s already handing out their syllabus to just post it online or at least make it available for the school to do that,” Goldberg said. “They are government employees. Professors can’t simply teach anything they want to teach. They do have curricular guidelines. There are various ways in which they can be limited in the course of their jobs as public university professors.”
A key factor with state public syllabus requirements, Goldberg added, will be that they are applied “across the board” to all professors regardless of what subject they may teach.
“If there is any selective enforcement, that will immediately raise big red flags,” Goldberg said. “If there is any evidence that this really was done for the purpose of rooting out DEI, that’s going to raise a concern.”
For his part, Paulson said a public university professor disciplined under one of these state laws, or who could not teach a course based on their syllabus, might have a tough time proving a First Amendment claim. He suggested it might require smoking-gun evidence, such as a university president boasting to the legislature “they’ve taken care of the problem” by reprimanding faculty.
“We’re going to enter a very funky area because the government cannot punish people for their points of view. But as public employees, it’s going to be up to the public university to assess whether that professor is doing a good job or whether they want them to teach that particular course,” said Paulson.
A major controversy over classroom instruction
Some professors may be thinking twice about what they include in a syllabus in the aftermath of a highly publicized case involving former Texas A&M University professor Melissa McCoul.
The university fired McCoul, an English literature professor, after a student secretly recorded her teaching about gender identity and sexual orientation during a summer children’s literature class. She is suing the university in federal court in Houston over her termination.
Although the firing did not relate to the Texas law on publicly posting a syllabus, McCoul has alleged that her notice of termination claimed that she refused to change the course content to align with the course description. McCoul has argued that her course did align with the course description and that she was fired instead over the content.
“If a professor is told you can’t teach gender identity under state law, then they may have a First Amendment claim,” the Freedom Forum’s Goldberg said generally, not speaking about that particular case.
While laws mandating professors to post their syllabi only apply to public colleges and universities, Gillen noted that higher education in general would benefit from much more transparency. And he views requiring public colleges to post syllabi as a positive step.
“If posting a syllabus influences what a professor is doing, to me that’s like a giant red flag of, ‘Hey, maybe you shouldn’t have been doing that in the first place,’” said Gillen. “If you’re so worried that exposing this to public scrutiny is going to look bad, maybe it’s bad.”
