6 The Attack on Critical Race Theory and Higher Education: A Legal Analysis of the Impact of State Action on Faculty Free Speech

In this article, the authors review proposed and passed state legislation that aim to ban Critical Race Theory and other social justice content from public higher education institutions. Using the law as the theoretical framework and legal analysis as the methodology, the authors examine these state actions, focusing on implications for higher education faculty speech and academic freedom. The authors discuss the history and current state of the law in the areas of free speech and academic freedom, including U.S. Supreme Court and other federal courts of appeal cases on how free speech in scholarship and teaching have been viewed. They also briefly discuss the legislation that states have proposed or passed which ban Critical Race Theory in higher education institutions, and end by discussing the implications such bans have on faculty free speech in scholarship and teaching. Overall, the authors detail the ways that these laws have a chilling and limiting effect on faculty speech, which in turn, have important consequences for students, institutions, and society as well.