The Creighton Memoranda: Political Control of the Curriculum Comes to Texas Tech, by Angela Valenzuela, Ph.D., July 16, 2026

The Creighton Memoranda: Political Control of the Curriculum Comes to Texas Tech

by

Angela Valenzuela, Ph.D.

July 16, 2026

What is happening within the Texas Tech University System is not an ordinary curriculum review. It is an extraordinary transfer of authority over teaching from faculty members and established academic bodies to a chancellor and politically appointed board of regents.

The “Creighton Memoranda” refer to two directives issued by Texas Tech University System Chancellor Brandon Creighton—one on December 1, 2025, and another on April 9, 2026. The first established a systemwide process requiring professors to disclose course materials involving race, sex, sexual orientation, or gender identity and to withhold flagged material while it underwent administrative and regental review. 

The second went further, ordering the phaseout of academic programs “centered on” sexual orientation or gender identity, restricting such content in core and lower-level undergraduate courses, and requiring alternative materials in many instances. These directives apply across the five-institution Texas Tech system, including its universities and health sciences centers.

The consequences are neither abstract nor confined to a handful of controversial courses. 

According to a federal complaint filed against Creighton and the Texas Tech Board of Regents, faculty members have been prevented or discouraged from teaching Plato’s Republic, Ta-Nehisi Coates’s Between the World and Me, the racial history of Dred Scott v. Sandford, and the persecution of gay and bisexual people during the Holocaust. Professors have reportedly been asked to remove words such as “systemic” and “disparity” from course materials. 

Medical educators allege that restrictions have also interfered with teaching students how to understand health disparities and provide competent care to transgender patients and other historically underserved populations.

This is the harm produced when vague political directives replace disciplinary expertise. Faculty members do not know with confidence what they may teach, what language they may use, or whether material approved in one department will be rejected in another. 

Because noncompliance can carry the threat of discipline or even termination, the predictable result is over-compliance and self-censorship. 

Professors remove more than the policy may technically require simply to protect their employment. Students, in turn, receive an incomplete education—one filtered not by the standards of history, medicine, law, literature, or philosophy, but by the ideological preferences of those presently holding institutional power.

On July 8, 2026, the American Association of University Professors and its Texas affiliate, Texas AAUP-AFT, filed suit in federal court seeking to stop the memoranda’s enforcement. 

The lawsuit advances three central constitutional claims: 

First, that the policies discriminate against disfavored viewpoints in violation of the First Amendment; 

Second, that their confusing and inconsistent language denies faculty due process under the Fourteenth Amendment; and 

Third, that their design and implementation intentionally discriminate against Black faculty by disproportionately suppressing scholarship about Black history, racism, racial inequality, and efforts to remedy it. The plaintiffs are asking the court to declare the memoranda unconstitutional and permanently prevent Texas Tech officials from enforcing them or similar restrictions (Priest, 2026).

Texas Tech officials deny the lawsuit’s allegations and maintain that the directives protect academic integrity, comply with the law, and permit the teaching of historical events and incidental references to sexual orientation or gender identity. But those assurances do not resolve the fundamental problem documented in the complaint: faculty members are already changing courses, removing scholarship, and withholding instruction because they cannot reliably determine what those in power will permit (Priest, 2026).

This case therefore reaches far beyond Texas Tech. At stake is whether public universities will remain places where qualified scholars pursue evidence, confront difficult histories, and prepare students for the world as it exists—or whether university teaching will become a compliance exercise in which political officials decide which facts, identities, books, and bodies of knowledge may enter the classroom.

References

American Association of University Professors. (2026, July 8). AAUP, Texas AAUP-AFT sue Texas Tech over restrictive course content policies. https://www.aaup.org/news/aaup-texas-aaup-aft-sue-texas-tech-over-restrictive-course-content-policies

Priest, J. (2026, July 8). Faculty groups sue to block Texas Tech rules limiting instruction on race, gender, sexual orientation. The Texas Tribune. https://www.texastribune.org/2026/07/08/texas-tech-lawsuit-creighton-race-gender-instruction/

Texas American Association of University Professors–American Federation of Teachers v. Creighton, No. 3:26-cv-01845 (W.D. Tex. July 8, 2026) (complaint).

Invited Testimony of Dr. Angela Valenzuela Texas House Democratic Caucus Special Hearing on Free Speech, December 9, 2025

Friends,

Yesterday I had the honor of testifying before the Texas House Democratic Caucus Special Hearing on Free Speech. Because of time constraints, I delivered a much shorter version of my remarks. What follows is the full testimony I had prepared—one that more completely traces the constitutional, historical, and political stakes of this moment.

I should add that Attorney Richard Martinez, who, among others, litigated the Gonzalez v. Douglas case mentioned below, reviewed my testimony and gave it a thumbs up. 😊

I’m grateful to share it with you here, and I invite you to listen to the entire hearing at this link. The testimonies were outstanding.

-Angela Valenzuela

Invited Testimony of Dr. Angela Valenzuela

Texas House Democratic Caucus Special Hearing on Free Speech
Testimony by Angela Valenzuela, Ph.D.
December 9, 2025

Chair, Vice Chair, and Members of the Committee:

Thank you for the opportunity to speak today. My name is Angela Valenzuela, Professor of Educational Leadership and Policy at the University of Texas at Austin and Director of the Texas Center for Education Policy and a member of the National Academy of Education. 

I speak today as an educator, a scholar of public schooling and higher education, and as someone who has spent decades studying educational barriers facing minoritized youth.

In my remarks, I want to focus specifically on the prohibitions on the teaching of race and gender found in Senate Bill 37—and also embedded, in different form, in the Trump Administration’s Compact for Higher Education. 

I will first frame the moment we are living through, and then turn to the precedent-setting Gonzalez v. Douglas case in Arizona, which challenged the dismantling of the Mexican American Studies program in the Tucson Unified School District. That case, I would argue, has direct bearing on the constitutionality of SB 37 and similar prohibitions in higher education, particularly where there is evidence of discriminatory intent or viewpoint-based discrimination or censorship.

We are living through a coordinated backlash against DEI, Ethnic Studies, Women and Gender Studies, and public education itself. This moment is not about “protecting students” or “ending indoctrination,” as proponents claim. It is about enforcing ignorance and preserving racial and gender hierarchies. At the highest level, it is about erasure and control, controlling the narrative and imposing limits to community self-awareness and empowerment.

That erasure extends beyond policy. It echoes across our shared cultural memory—shaping what is preserved, what is honored, and what is pushed into oblivion. The attacks on Ethnic Studies, the banning of books, the silencing of educators who dare to speak truth—all reflect a calculated project to reorder memory itself. 

The troubling intent is not simply to stifle dissent, but to render entire histories incomprehensible to generations yet to come. In this context, ignorance is not an accident; it is carefully manufactured, fortified, and deployed to uphold the existing order—not least by preserving the incumbencies of those in power, as the recent fight over mid-decade redistricting makes clear.

The constitutional lessons from Arizona are not abstract. They map directly onto the policies Texas has now enacted.

In Texas, Senate Bill 17 prohibits DEI offices and programming in public universities. Senate Bill 37 eviscerates faculty governance across the entire higher education system, replacing longstanding traditions of faculty oversight with politically appointed boards and administrators beholden to partisan interests. Together with earlier laws like Senate Bill 3, Texas’s anti–Critical Race Theory bill that constrains the teaching of race and history in K–12 schools, these laws form an interlocking architecture of repression (see Intercultural Development Research Association, 2021).

The effects are concrete. UT Austin alone suffered at least $47 million in cuts to research due to federal funding rollbacks—cuts that have damaged work across race, gender, immigration, public health, and mental health. Projects like Dr. Danielle Clealand’s research on Black Cuban immigrant histories are being erased (Valenzuela, 2025). 

This is epistemic violence pure and simple. It is a purge of inconvenient truths. And yet, even in this landscape of "organized forgetting"—or what I term in my own work, either "subtractive schooling," or the "politics of erasure," we still have the U.S. Constitution.

I want to turn now to an important precursor to our current moment: Arizona’s ARS § 15-112, the law used to dismantle Tucson’s Mexican American Studies program. That law prohibited courses that “promote resentment,” “are designed primarily for pupils of a particular ethnic group,” or “advocate ethnic solidarity.” These vague, ideologically charged provisions became the blueprint for today’s curriculum wars.

We now see unmistakable echoes of ARS § 15-112 in Texas.

Texas Senate Bill 3 uses nearly identical language in its ban on teaching concepts that might cause students to “feel discomfort, guilt, or psychological distress” because of race or sex—an interpretation so broad that it suppresses discussions of racism, structural inequity, and collective historical experience. Senate Bill 17 bans identity-based programs and affinity centers in higher education, mirroring Arizona’s prohibition on courses “designed primarily for pupils of a particular ethnic group.” And Senate Bill 37 continues this trajectory by restricting what can be taught in college classrooms about race, gender, and social identity—precisely the kinds of restrictions that were struck down in Gonzalez v. Douglas.

In other words, Texas has not adopted Arizona’s Ethnic Studies ban in one statute. It has adopted it in pieces, across multiple laws. The through-line from ARS § 15-112 to Texas policy is unmistakable: constrain what can be taught, surveil the curriculum for “divisive concepts,” eliminate identity-affirming programs, silence collective narratives, and enforce an atomized, decontextualized vision of the individual student. That is exactly the logic Arizona used, and it is exactly the logic Texas has now replicated.

Gonzalez v. Douglas

I had the honor of testifying in the Arce v. Douglas case—now formally known as Gonzalez v. Douglas. Teachers and students sued the Arizona Superintendent of Public Instruction and members of the Arizona State Board of Education after the elimination of the successful Mexican American Studies program in Tucson. The argument of "viewpoint diversity" was central to the case, but not in the distorted sense we hear today from conservatives who allege—without evidence—that their perspectives are excluded from the college curriculum.

Teachers and students argued that the state targeted their curriculum precisely because it foregrounded Mexican American perspectives, histories, and intellectual traditions (Cabrera et al., 2014). The entire effort was motivated by racial animus and a political agenda to "organize forgetting."

The federal court agreed, holding that Arizona had engaged in unconstitutional viewpoint discrimination motivated by hostility toward Mexican Americans (Gonzalez v. Douglas, 2017).

The court ruled that teachers have a right to teach, and students have a right to learn, a curriculum that reflects their experiences and intellectual traditions. Gonzalez v. Douglas stands as a precedent-setting case underscoring this point. 

While a state may legislate restrictions on teaching and research, the mere passage of a law does not guarantee its constitutional survival. As Gonzalez demonstrated, when a state suppresses particular perspectives or academic fields—especially those tied to the histories and identities of marginalized communities—it invites serious First Amendment scrutiny and is unlikely to prevail.

In summary, Senate Bill 37, like Arizona’s ARS § 15-112, is vulnerable to a First Amendment challenge because it targets specific viewpoints and identities for suppression.

Some day, Ethnic Studies courses will simply be called “a good education.”

Thank you for your time.

References

Cabrera, N. L., Milem, J. F., Jaquette, O., & Marx, R. W. (2014). Missing the (Student Achievement) Forest for All the (Political) Trees: Empiricism and the Mexican American Studies Controversy in Tucson: Empiricism and the Mexican American Studies Controversy in Tucson. American Educational Research Journal, 51(6), 1084-1118. https://doi.org/10.3102/0002831214553705

Gonzalez v. Douglas, 269 F. Supp. 3d 948 (D. Ariz. 2017). https://www.thefire.org/sites/default/files/2018/01/22133613/Gonzalez-v.-Douglas-Memorandum-of-Decision.pdf

Intercultural Development Research Association. (2021). What Texas’ classroom censorship law means for students & schools. IDRA. https://www.idra.org/wp-content/uploads/2022/02/What-Texas-Classroom-Censorship-Law-Means-for-Students-and-Schools-IDRA-2022.pdf

Valenzuela, A. (2025, May). UT loses $47M in research grants under Trump Administration; more than 60 projects cut: The ideological purge of public research [Blog post]. Educational Equity, Politics & Policy in Texas.  https://texasedequity.blogspot.com/2025/05/ut-loses-47m-in-research-grants-under.html

© 2025 Angela Valenzuela. All rights reserved.
This blog post may not be reproduced, distributed, or transmitted in any form or by any means without the prior written permission of the author, except for brief quotations in academic, journalistic, or critical reviews with proper attribution.

Federal judge issues temporary injunction on new law that limits expression on campuses, by Kelsey Leffingwell, Spectrum News

Students, Friends, and Colleagues:

Great news! The moral of the story is that some laws shouldn’t be laws to begin with—especially when they collide with the U.S. Constitution. Judge David Ezra’s injunction against Texas’ SB 2972 is a reminder that free speech isn’t a privilege granted by administrators or legislators; it’s a right protected by the First Amendment. When lawmakers overreach in the name of “order,” they risk silencing the very democratic expression universities exist to nurture. The courts, in this case, have drawn an important line in defense of both students and democracy itself.

A big thanks to the Foundation for Individual Rights and Expression for intervening.

The injunction is temporary right now. Hope it becomes permanent.

-Angela Valenzuela


Federal judge issues temporary injunction on new law that limits expression on campuses
BY Kelsey Leffingwell Austin
PUBLISHED 11:41 AM CT Oct. 15, 2025

In this Sept. 27, 2012, file photo, students walk through the University of
Texas at  Austin campus near the school's iconic tower in Austin, Texas.
 (AP Photo/Eric Gay, File)

AUSTIN, Texas — On Oct. 14, U.S. District Judge David A. Ezra issued a temporary injunction against parts of Texas’ new law that limits expression on campuses.

The University of Texas System’s restrictions on expression, including overnight activities, speakers, sounds and drums, during the semester’s last two weeks will be suspended by the injunction.

In the lawsuit, Ezra argues that the law goes against students’ First Amendment rights.

“Plaintiffs allege that the Overnght Expression Ban and End-of-Term Bans threaten their protected expression,” Ezra wrote.

A lawsuit was filed on Sept. 3 by The Foundation for Individual Rights and Expression (FIRE) “on behalf of student musicians, journalists, political organizers, and religious students.” The lawsuit aimed to prevent the enforcement of Senate Bill 2972.

SB 2972, which imposes a ban on “expressive activities” at public universities, went into effect on Sept. 1. The bill bans the activities between the hours of 10 p.m. and 8 a.m.

The new law, according to FIRE, will grant universities the right to penalize students at night for activities such as wearing political hats, writing an op-ed, attending candlelight vigils and more.

“This law gives campus administrators a blank check to punish speech, and that authority will inevitably be used to target unpopular speech,” said FIRE attorney Adam Steinbaugh. “Administrators have plenty of ways to prevent disruptive conduct that do not involve such a broad censorship mandate.”

SB 2972, passed in the regular session this year, reversed a 2019 Texas law about free speech on campuses.

The full injunction can be found below.

The Danger of a Mephistopheles Bargain: Why the “Compact for Excellence” Is a Threat to Democracy and the University, by Angela Valenzuela, Ph.D.

The Danger of a Mephistopheles Bargain: Why the “Compact for Excellence” Is a Threat to Democracy and the University

by

Angela Valenzuela, Ph.D.

The Trump administration’s proposed Compact for Excellence in Higher Education (2025) is being sold as a plan to improve universities, but at its core, it’s an unconstitutional attempt to control what is taught, said, and believed on college campuses. The Compact threatens to withhold federal funding unless universities agree to adopt reforms that mirror the administration’s political agenda.

At first glance, this may sound like standard government oversight—after all, federal funding is often described as a “privilege, not a right.” That’s half-true. The government doesn’t have to fund higher education at all. But once it chooses to provide that funding, it cannot use it as a weapon to coerce universities into surrendering their constitutional freedoms. 

As Genevieve Lakier carefully explains in her essay “The Unconstitutional Conditions Doctrine and the Compact for Excellence” (The Divided Argument, Substack, October 3, 2025 [see below]), once the government establishes a funding program, it cannot condition access to that funding on the waiver of rights protected by the First Amendment. 

That principle lies at the heart of the Unconstitutional Conditions Doctrine, which holds that the government may not make public benefits contingent on giving up constitutional protections.

The Compact’s provisions go well beyond policy oversight and straight into the realm of compelled speech and thought. It insists that universities maintain “ideological balance” on campus, ensuring that no single worldview is dominant. In theory, that might sound like a defense of free expression, but in practice it gives the federal government the power to dictate what kinds of ideas can and must appear within the university. It also calls on institutions to punish or silence certain forms of political expression—particularly those the administration deems “divisive” or “anti-American,” including strong criticism of U.S. allies or government policy.

The Compact further demands “institutional neutrality,” effectively ordering universities to remain silent on matters of public concern. This would muzzle higher education institutions precisely when their voices—on issues like democracy, racial justice, and environmental crisis—are most needed. To make matters worse, the Compact insists that admissions decisions exclude any consideration of race, gender, or identity and rely solely on standardized test scores. Presented as a move toward “objectivity,” this erases the educational mission of diversity and inclusion that has long defined American higher education.

Each of these provisions strikes at the heart of academic freedom and free expression. The First Amendment forbids the government from dictating what ideas a university must entertain, silence, or promote. And while actual incitement to violence is already illegal, political speech—even when it is sharp, unsettling, or controversial—is exactly the kind that our Constitution protects most fiercely. 

What must be fully understood is that this protection applies across the political spectrum—it safeguards the right to conservative as well as progressive expression, the unpopular as well as the mainstream.

As Lakier reminds us, when the government says, “You can keep your funding only if you adopt our preferred message,” it is not regulating education—it is coercing speech. That’s unconstitutional, plain and simple.

I strongly encourage all to also read this scathing opinion by University of California Berkeley Dean Erwin Chemerinsky published in the New York Times titled, Trump’s ‘Compact’ With Universities Is Just Extortion. His analysis aligns with Lakier's but underscores the role of legality, coercion, and the structural separation of powers, arguing that no university should accept the Compact because it forces institutions to relinquish First Amendment rights—namely, freedom of speech and academic autonomy—in exchange for financial incentives (also see Fishkin, 2025).

Beyond the legal problems lies something deeper—a moral and cultural one. People in power would do well to dust off their old humanities texts and recall the dangerous Mephistopheles bargain that Johann Wolfgang von Goethe described in Faust (1808): the temptation to trade one’s soul for power, comfort, or control. 

The Compact is that kind of bargain. It tempts universities to exchange their intellectual and moral independence for the illusion of stability and funding security.

But the true purpose of higher education is not to serve political masters; it is to nurture truth, critical inquiry, and the public good. When government power is used to dictate what can and cannot be said, taught, or debated, we lose not only academic freedom but a piece of democracy itself.

Universities may feel cornered—fearing the loss of vital federal funds—but capitulation would come at a much higher cost. As Lakier notes, the Compact’s unconstitutionality may not stop it from being effective if universities choose silence over resistance. That’s why this moment demands courage: the courage to defend the First Amendment, to protect the autonomy of our institutions, and to resist the siren call of convenience that would erode the very freedoms education was meant to sustain.

In short, the Compact isn’t about “excellence.” It’s about control—and about reshaping the university into an instrument of ideology rather than inquiry. The path forward requires that we, as educators and citizens, refuse the bargain.

References

Chemerinsky, E. (2025, October 2). Trump’s higher education compact is extortion, plain and simple. The New York Times. https://www.nytimes.com/2025/10/02/opinion/trump-compact-universities-constitution.html?unlocked_article_code=1.qk8.WpAf.-76EsaipOkj4&smid=url-share

Compact for academic excellence in higher education. (2025, October 1). https://www.washingtonexaminer.com/wp-content/uploads/2025/10/Compact-for-Academic-Excellence-in-Higher-Education-10.1.pdf

Fishkin, J. (2025). The art of replacing the law with the deal, Balkinization Blog. https://balkin.blogspot.com/2025/10/the-art-of-replacing-law-with-deal.html

Goethe, J. W. von. (1808). Faust: A tragedy (B. Taylor, Trans.). G. Reclam Verlag.Lakier, G. (2025, Oct. 3). The Unconstitutional Conditions Doctrine and the Compact for Excellence. Substack. https://blog.dividedargument.com/p/the-unconstitutional-conditions-doctrine

The Unconstitutional Conditions Doctrine and the Compact for Excellence

GENEVIEVE LAKIER

 The Divided Argument | Substack | Oct 03, 2025

Members of the Trump administration love to say that federal funding is a privilege not a right and therefore something that can be granted or withheld based on changing administrative priorities. This is correct, up to a point. Of course, the government does not have to fund education. But there are important constraints on the government’s ability to withhold funding it has provided or to condition access to a funding program, once established. Chief among them is the unconstitutional conditions doctrine, which holds that the government may not condition access to government benefits on the recipient’s agreement to waive their constitutional rights, including the rights protected by the First Amendment.

The Administration’s so-called Compact for Excellence in Higher Education flagrantly disregards this constraint. The Compact is, its own terms, an effort to maximize the mutually beneficial relationship that has existed for decades now between the federal government and American higher education by threatening to cutoff federal dollars to prompt universities to adopt what the administration clearly believes to be needed reforms. Whatever one thinks about the merits of these reforms, it is a basic fact of American constitutional law that government actors are not permitted to leverage their spending power in this manner. The administration is conditioning federal benefits (either the benefit of funding itself, or, as one spokesman suggested, the benefit of priority access to funding—and presumably, therefore, more funding) on an agreement to make changes that, under the First Amendment, the government has no right to compel.

The First Amendment rights that the Compact asks universities to forego are almost too numerous to mention, but they are many and they are blatant. Consider for example the requirement that universities maintain “an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant.” Although this demand may appear to further the same values the First Amendment does (who doesn’t love viewpoint diversity?), in fact under the First Amendment, the government has no right to dictate to universities the range of viewpoints that are present on campus. This is because it is a matter of political judgment what constitutes an open and undistorted, as opposed to a closed and distorted, marketplace of ideas—and therefore, the kind of judgment that members of the democratic political community must make for themselves. Hence, as Justice Kagan noted recently, no matter how “imperfect the marketplace of ideas may be,” the First Amendment categorically denies the government the power to “forc[e] a private speaker to present views it wished to spurn in order to rejigger the expressive realm.” This means that the government may not demand, and also may not coerce via the stick of federal funding, that universities create the “governance structure... necessary to create [an open intellectual] environment” including by “transforming or abolishing institutional units that … punish, belittle, and … spark violence against conservative ideas” or by actively “seeking out… a broad spectrum of viewpoints … within every field, department, school, and teaching unit.” It is instead the university’s responsibility to decide what spectrum of views is necessary to advance the research and teaching ends of its various departments, schools, and teaching units.

Similar problems plague many of the other provisions in the Compact. Consider for example the demand that schools “adopt policies prohibiting incitement to violence, including calls for murder or genocide or support for entities designated by the U.S. government as terrorist organizations.” To be clear, most universities—certainly my own—already prohibit unlawful speech on campus, so to the extent incitement to violence violates federal or state law, the Compact likely makes little difference, except perhaps in incentivizing schools to enforce these policies more aggressively than they otherwise might. But the government has no right to require universities to enforce laws that it fails to enforce itself. Nor does it have any right to do what it is clearly the main thrust of this provision to achieve: namely, to pressure universities into prohibiting speech that does not fall into the very narrow category of incitement that can be criminalized after Brandenburg v. Ohio but instead is classified for First Amendment purposes as high-value political speech, like the strong anti-Israel political rhetoric that played a big role in the student protests on campuses around the country last year. The administration clearly abhors this kind of speech. But it is the kind of “provocative and challenging” speech that the First Amendment squarely protects; more to the point, it is the kind of speech that universities cannot be coerced into prohibiting. Indeed, even speech that expresses support for entities designated by the U.S. government as terrorist organizations is, for the most part, constitutionally protected expression under existing law. This is because while speech that provides material support to designated foreign terrorist organizations can be banned, this is the case only with respect to speech that is uttered in coordination with those terrorist organizations, and only with respect to foreign terrorist groups. Speech that merely expresses support for foreign or domestic terrorist organizations remains high-value speech, meaning that universities possess a full First Amendment right to permit or prohibit it as they choose.

The government also has no right to compel schools to adopt policies of institutional neutrality that in effect prohibit them from speaking in their corporate capacity. These policies may be good or bad, from an institutional perspective. Reasonable minds disagree. But the choice about whether to speak or to be silent is one that, the modern First Amendment cases make clear, belongs to the speaker alone. This is because unlike, for example, the decision to racially discriminate, the decision to refrain from “actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university” is a protected expressive act, even if a silent one. In other words, it is a decision that First Amendment law leaves to the university to make, not the federal government.

There are even First Amendment problems with proposals that on their face do not appear speech-related. Consider for example the first reform listed in the Compact—the requirement that universities exclude any consideration of “sex, ethnicity, race, nationality, political views, sexual orientation, gender identity, religious associations” or their “proxies” from decisions about undergraduate and graduate student admissions, and financial support, and instead rely solely on objective criteria like the SAT to make these kinds of decisions. On the face of it, this requirement appears to have little to do with the First Amendment. Admissions decisions are not, after all, ordinarily considered expressive acts. And certainly, universities have no right to racially discriminate, or discriminate on the basis of gender, when it comes to admissions. What universities do possess, however—like all other expressive associations—is the right to decide for themselves what viewpoints they do or do not wish to advocate for, either privately or publicly. As cases like Boy Scouts v. Dale make clear, this means that universities not only have the right to decide what political views they want on campus, but also likely have the right to decide whether or not they wish to consider sexual orientation, or gender identity, or religious belief, when deciding who shall become a member of their institution when these decisions reflect, in a meaningful way, the organization’s own moral and political values. And there is a good argument that universities have an even stronger right than other expressive organizations to decide what students they admit as members of their community. This is because, since Justice Frankfurter’s influential concurrence in Sweezy v. New Hampshire, the right to decide “who they teach” has been recognized as one of the four fundamental “Freedoms” that the First Amendment protects. The Compact’s demand that universities alter not only the criteria they employ to make admissions decisions but the processes by which they do so is thus no small ask vis a vis the First Amendment: it is, in effect, a demand that universities waive one of the core autonomy rights they possess as educational institutions.

The fact that so many of its provisions infringe on the protected First Amendment rights of the universities it targets makes the Compact almost certainly unconstitutional. It does not matter that both the funding it threatens to limit, and the conditions it seeks to impose, relate to education. This sort of germaneness inquiry is irrelevant to the First Amendment question. In some of its unconstitutional conditions cases, the Court has suggested that the government imposes an unconstitutional condition only when it uses spending conditions “to regulate speech outside the contours of the program” that the spending funds. 

Read one way, this could be construed to mean that funding conditions that are relevant to the purposes for which the funding is allocated do not count as an unconstitutional condition but simply define the contours of the program.

But in fact, the Court has explicitly rejected the argument that unconstitutional conditions doctrine only applies to spending conditions that are unrelated to the activity the government funds. Instead, it has made clear that the government regulates speech within the contours of the program when it imposes conditions on how speakers use its funding to communicate a government approved message, but that it regulates speech outside the contours of the program when it seeks to control the views that private speakers advance. This makes sense: when a private speaker communicates a governmental message, she lacks any First Amendment rights that can be unconstitutionally conditioned. But this is not true when a private person speaks in her own voice, even when she uses government money to do so. In such cases, the private person has a right to express her own viewpoint on matters of public concern, even if she does not necessarily possess a right to speak on whatever topic she desires (it depends on the kind of forum in which she speaks). For this reason, as Chief Justice Roberts explained in USAID v Open Society, when the government “demand[s] that funding recipients adopt—as their own—the Government’s view on an issue of public concern,” that demand, “by its very nature,affects protected conduct outside the scope of the federally funded program.” It constitutes, in other words, a per se violation of the doctrine of unconstitutional conditions, even if the demand is in some sense (as it was in Open Society) “related” to the purposes for which the funding was allocated in the first place.

It does not matter, therefore, to the constitutionality of the Compact, that it conditions educational funding on educational reforms. The Compact clearly demands that “funding recipients adopt—as their own—the Government’s view on a matter of public concern”: namely, the pressing public question of how to regulate speech on campus, and more broadly, how to structure their expressive associations. There is simply no argument that universities that receive federal money do so in order to transmit a government-approved message, rather than to foster a “diversity of views.” The Compact represents, as such, a rather blatantly unconstitutional attempt by the Trump administration to leverage its power of the purpose to control what is supposed to be private speech.

The challenge is, of course, that the Compact’s unconstitutionality does not mean that it will be unsuccessful or ineffective as an instrument of control. Universities may hesitate to challenge the Compact because they fear something worse than an unconstitutional condition: namely, the total cessation of all government education funding writ large. As I have argued elsewhere, our constitutional guardrails may not work very well in an economic system in which the federal government possesses so much financial power. But nonetheless they exist. And universities that are considering signing the compact should recognize that by even considering signing, they would be giving in to the kind of leveraging of speech power that the cases recognize poses a serious threat to the (democratic and truth-seeking) values that the First Amendment protects, and that universities are supposed to be dedicated to as well.

Organizing Works: The Reinstatement of Dr. Thomas Alter at Texas State University

Friends,

Good news is always worth celebrating. Texas State University has officially agreed to reinstate Dr. Thomas Alter after a judge issued a temporary restraining order in his favor. Alter, a tenured associate history professor, was dismissed on September 10, 2025, after remarks he made at a socialist conference went viral. The university claimed his words “incited violence,” but Alter’s lawsuit contends that the termination violated his First and Fourteenth Amendment rights and breached contract protections for tenured faculty (Webner, 2025; Whitford, 2025; KSAT, 2025; also see Campus Speech Incident Database, 2025).

His reinstatement is not merely a judicial win—it is a triumph of organizing and public pressure. Students, faculty, unions, and civil liberties groups in Texas and nationally mobilized rapidly. Demonstrations were held outside the Hays County Courthouse, petitions circulated, and national groups like the American Historical Association decried the firing as a violation of academic freedom (AHA, 2025). The collective outcry made it politically and legally hard for the university to maintain its stance.

Alter’s case now moves into its next phase: a full hearing on due process, claims for back pay, and formal vindication of his rights. But the message is already clear: when communities band together, they can push back against institutional attempts to silence dissent. Organizing matters.

-Angela Valenzuela

References

American Historical Association. (2025). Letter objecting to the firing of Professor Thomas Alter without due process (AHA).

Campus Speech Incident Database. (2025). Alter v. Texas State University.

KSAT (2025, Sept. 26). Texas State professor reinstated with pay, will not teach amid lawsuit over political comments

Webner, R. (2025, September 26). Texas State to reinstate fired professor after judge issues temporary restraining order. San Antonio Express-News.

Whitford, E. (2025, September 23). Texas State professor sues, claiming free speech, contract violations, Inside Higher Ed.

Friends:

Attorney General Paxton’s claim distorts both history and constitutional principle. While the Ten Commandments in the Bible are part of the religious heritage of many, America’s legal and civic foundation rests not on a single faith tradition but on Enlightenment ideas, English common law, and a deliberate commitment to religious liberty.

Many of the framers themselves descended from those who fled religious persecution in Europe. From this history, they understood that a republic could only survive if it safeguarded freedom of conscience against state-imposed faith—an understanding that was ultimately enshrined in the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In drafting the Constitution, the framers explicitly rejected the establishment of any religion as the basis for government, ensuring that all faiths—and those with none—could belong equally. To insist, as Paxton does, that the Ten Commandments are the cornerstone of American law is to erase the pluralism that has defined this country from the start and to undermine the very protections of the First Amendment. It is, in effect, a rewriting of history that asks the public to ignore the evidence before their very eyes.

This is why the third lawsuit filed against the Ten Commandments classroom display law is so significant. As Austin American-Statesman education reporter Keri Heath documents, fifteen families representing a variety of faith backgrounds—including Christian, Jewish, Lutheran, and nonreligious—have joined together to challenge Senate Bill 10 in federal court. Their action underscores that Paxton’s directive is not only constitutionally dubious but also deeply out of step with the diverse religious and civic traditions that make up Texas and the nation.

-Angela Valenzuela

Third lawsuit filed against display of Ten Commandments in schools

By Keri Heath, Staff Writer

A third lawsuit has been filed against school districts over a new state law requiring the placement of the Ten Commandments in school classrooms. / Jay Janner/Austin American-Statesman

A group of families on Monday filed a third lawsuit against a batch of school districts over a law requiring the placement of the Ten Commandments in Texas classrooms. The 14 school districts, which include Georgetown and Comal, are among several dozen that have been sued over the law since Gov. Greg Abbott signed it in June.

The lawsuit also comes about a month after Attorney General Ken Paxton sent a memo to superintendents reinforcing that districts should display posters depicting the 10 Commandments, despite a federal judge temporarily blocking the law for a handful of districts.

The lawsuit also includes the Conroe, Flour Bluff, Fort Worth, Arlington, McKinney, Frisco, Northwest, Azle, Rockwall, Lovejoy, Mansfield and McAllen school districts. All of the districts listed in the lawsuit either received or already posted donated posters depicting the Ten Commandments, according to the lawsuit. 

The new lawsuit was filed in the U.S. Western District Court of Texas by 15 families of students in the named districts. The families are of a variety of faith backgrounds, including Christian, Jewish, Lutheran and nonreligious, according to the lawsuit.

“I address questions about God and faith with great care, and I emphatically reject the notion that the state would do this for me,” said Rev. Kristin Klade, a Lutheran pastor who lives in Fort Worth.

Authored by Sen. Phil King, R-Weatherford, Senate Bill 10 requires that school districts post any donated copies of a specific version of the Ten Commandments in public school classrooms.

The lawsuit filed Monday is the third sparked by SB 10. In June, parents brought a lawsuit against three districts and the Texas Education Agency. In July, additional families brought a lawsuit against 11 other districts. 

A federal judge temporarily blocked the law for the 11 districts last month, prompting Paxton to issue instructions directing every other district in the state to abide by SB 10.

“From the beginning, the Ten Commandments have been irrevocably intertwined with America’s legal, moral, and historical heritage,” Paxton said in a statement when he issued the directive.

That July lawsuit included the Lake Travis and Dripping Springs districts. The Austin school district was eventually dismissed from the case as long as it adhered to any injunction the court placed.

Sep 22, 2025

Keri Heath

K-12 EDUCATION REPORTER