University of Chicago Law Review

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In recent years, public universities have promulgated pronoun policies designed to encourage professors and students to respect the pronouns that others use to identify themselves. A professor who does not follow the pronoun policy and instead misgenders a student—or uses gendered words or pronouns that do not match that student’s gender identity—may be disciplined by their university for violating the pronoun policy.

This Comment argues that professorial speech misgendering students in the classroom should not be protected by a professor’s First Amendment right to academic freedom, which traditionally covers teaching and scholarship. The First Amendment protects some exercises of academic freedom by public-university professors and public universities, but the bounds of these protections are not well defined. When a professor violates an official university pronoun policy by purposefully misgendering a student as part of a classroom-management device, a conflict arises between the professor’s individual academic freedom and the university’s institutional academic freedom. This Comment first seeks to situate this type of conflict within the history of academic freedom and the judicial principles that the Supreme Court and lower courts have used to discuss academic freedom. The Comment then argues that courts evaluating a conflict between individual and institutional academic freedoms should rule in favor of whichever exercise of academic freedom ensures that students can fully access the content of the lecture. In the case of misgendering as classroom management, the professor’s exercise of academic freedom harms the misgendered student and makes it difficult for that student to fully engage with the lecture, while the university’s exercise of academic freedom to promulgate a pronoun policy furthers a pedagogical environment in which all students can equally access educational content. Thus, the university’s exercise of academic freedom should override the professor’s in this conflict.

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