Although in practice the distinction can be far from clear, the Supreme Court has adhered to two principles concerning government funding and the First Amendment. On the one hand, the government may not deny a benefit on grounds that infringe on the freedom of speech of the recipient by discriminating on the basis of the viewpoint or compelling private speech. On the other hand, the government may impose limitations on the use of funds to achieve a particular intended purpose or to express the government’s own speech or as a selection criterion. Of particular relevance in applying those principles is whether the limitation affects only the funded program or extends to other speech of the recipient of the funds.

The Court has not had occasion to address the question of whether the government may regulate speech by imposing conditions on federal funding in connection with research or teaching at a university. Until now, the government has not imposed conditions on such funding that infringed on free speech. Its grants have generally been for specific research defined by subject matter or for programs that seek to train students in particular fields. All such funding has involved what is, in effect, subsidies for private speech; none has involved payments to universities to promote a government message, much less to restrict the free speech rights of the recipients outside of the confines of the particular research project or educational program being funded.

If the government were to impose conditions on federal funding that are not limited to the particular program being funded and that infringe on the free speech rights of the recipient, they would fail for the same reason applicable in other contexts. A closer question is raised if the conditions govern only the particular university program being funded. For example, consider a federal grant that contains a condition that the funded programs or research may not promote ‘wokeness,’ critical race theory, or DEI, or that they must reflect a balance of perspectives. Such a condition might be characterized as merely a selection criterion and would appear to be limited to the speech funded by the government, leaving other speech unaffected. Thus, it might seem to pass constitutional muster. However, there is reason to hope that the Court would apply a stricter standard in judging such conditions in the university context because of its longstanding, if uncertain, recognition of the First Amendment protection afforded to academic freedom.

Among the core principles of academic freedom is the freedom of faculty to determine, on academic grounds, the contents of their research and teaching. This principle derives from the earliest and most authoritative statements on academic freedom and has received recognition from the Supreme Court as part of its more general recognition of academic freedom as a special concern of the First Amendment. The concern for academic freedom is magnified where the conditions not only discriminate on the basis of viewpoint, but present a significant problem of vagueness. Terms such as ‘wokeness,’ ‘critical race theory,’ ‘DEI,’ and ‘balance of perspectives’ have no clear definition and leave colleges and universities in the dark as to how to comply. This makes them vulnerable to selective enforcement, which, in turn, may tend to create a chilling effect on what colleges and universities teach as they seek to avoid controversial issues. These are, of course, the types of harm that the First Amendment vagueness doctrine is intended to prevent.

Although none of the cases in which the Court has considered the issue of funding conditions arose in the context of university research or teaching, there is language in Rust v. Sullivan suggesting a different analysis would be appropriate in such a case. The Court there cautioned that its holding was not intended “to suggest that funding by the Government, even when coupled with the freedom of the fund-recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression.” In discussing contexts in which its holding would not apply, the Court specifically mentioned public forums and universities. With respect to the latter, the Court stated that “the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.” That language suggests a willingness to take a harder look at the vagueness issue raised by a statute involving grants to universities than the Court subsequently did in National Endowment for the Arts v. Finley with regard to grants to artists.

Indeed, the above-quoted language in Rust cites to Keyishian v. Board of Regents, where the Supreme Court struck down a New York statute and implementing regulations that prevented state employment of “subversive persons,” including as faculty members at a state university, on the ground that they violated the First Amendment. The Court’s reasoning with respect to the vagueness of the law rested in part on a well-established line of cases concerning the chilling effect of vague laws on the exercise of First Amendment rights in general. However, before reaching that conclusion, the opinion boldly affirmed the connection of the First Amendment to academic freedom:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

Thus, Keyishian supports the proposition that vague laws are a particular problem in the university context because of their chilling effect on the exercise of academic freedom. In citing Keyishian, the Court in Rust recognized that proposition even where the law in question involves government funding.

Apart from the issue of vagueness, Rust would seem to support the conclusion that the government may not use universities as vehicles for government speech. It is significant that the Court in Rust paired public forums and universities as two contexts that are exceptions to its holding that government funding, taken together with the freedom of fund recipients to speak outside the scope of the funded project, would justify government control of the content of expression. What public forums and universities have in common is that both are recognized zones in which it is especially important for their occupants to be free to exercise their First Amendment rights without governmental discrimination as to viewpoint—regardless of their ability to do so in other venues not owned by the government or in connection with other activities not funded by the government. In short, whatever the government might be empowered to do in other contexts, it may not impose funding conditions on colleges and universities so as to make them mouthpieces of the state.

Such is the hopeful argument. However, the Supreme Court has not discussed the constitutional status of academic freedom in nearly 20 years, and only three currently sitting justices were on the Court the last time it did so. Popular attitudes toward institutions of higher education, particularly among those on the right of the political spectrum, have turned dramatically negative since then. It would hardly be surprising if those attitudes are not shared by some justices who may now question whether academic freedom should continue to be a special concern of the First Amendment. If they comprise a majority of the Court, universities are in for an even rougher ride than they have had so far.