There is an important lawsuit being litigated in the Southern District of New York over the limits of free speech and academic freedom for faculty at the United States Military Academy at West Point. Professor Tim Bakken, West Point’s longest-serving civilian law professor, is challenging new Trump Administration regulations that allegedly constitute unconstitutional prior restraints on academic publications and limit academic freedom and free speech.
Professor Bakken has been a public critic of West Point’s leadership in public writing, including a report concerning alleged wrongdoing by senior West Point military officers. He is also the author of a book entitled The Cost of Loyalty: Dishonesty, Hubris, and Failure in the U.S. Military.
The class action was filed on behalf of more than 100 civilian faculty members against West Point and several academy leaders, specifically challenging two policies issued in 2025. The first requires faculty to obtain prior approval before speaking publicly or publishing papers in their official capacity. The second bars professors from sharing personal opinions in the classroom.
The case presents a novel context for free speech and academic freedom claims. West Point is part of the military system and subject to military regulations and policies. In accepting employment, Professor Bakken recognized that all West Point faculty are subject to those regulations.
On January 27, 2025, President Donald Trump issued Executive Order No. 14,185, Restoring America’s Fighting Force, 90 Fed. Reg. 8763 (Jan. 27, 2025) (“EO 14185” or “the Executive Order”). The Order prohibits the Academy and other military academic institutions from “promoting, advancing, or otherwise inculcating” certain “un-American, divisive, discriminatory, radical, extremist, and irrational theories,” including “that America’s founding documents are racist or sexist.”
The Order was part of an effort to address the lack of ideological balance and the imposition of DEI agendas in higher education. While I have opposed some of these policies as too vague or intrusive, I agree with the Administration and others that higher education has become an echo chamber for the left. It is worth noting that many of the critics of the policy (or supporters of the Bakken case) have said nothing about the purging of conservative or libertarian faculty from higher education.
For years, faculty have refused to hire conservatives on the very same basis that their viewpoints are unacceptable or unsupportable. While suddenly defenders of academic freedom in covering these recent cases, the media has written little about the enforced intolerance and orthodoxy in higher education for decades.
However, the hypocrisy of many in higher education is no excuse to ignore excessive measures that threaten free speech. While West Point is a military installation, it is also a leading institution of higher education. Indeed, West Point can take considerable pride in remaining a highly competitive and rigorous academic institution. Professor Bakken is correct that some of these restrictions are fundamentally at odds with core values in higher education and could constitute a form of prior restraint.
I am not entirely convinced that all of these restrictions violate the Constitution. For example, Bakken balked at a superior asking for the title of a paper after he had asked for funding to travel to a conference to present it. Universities retain discretion on such funding priorities and I am not sure that such a request (including a request to read the paper) would be viewed as a clear violation.
However, the regulations are themselves vague and dangerously subjective. The policies are undermined by poor drafting and tailoring of the language. What constitutes “unAmerican,” “radical,” or “irrational” theories is left undefined and can create a chilling effect on teaching. Moreover, the bar on sharing personal views in the classroom is not just ill-defined but inimical to academic freedom. Again, I agree that there is a problem in such opinionated lectures or discussions. There are clearly abuses of the privilege by many faculty today who harangue opposing views, particularly conservative views, in their classes. However, honest faculty will flag when they are expressing their own viewpoint on a case or a theory. It is difficult to teach subjects without ever expressing or indicating your own view of the merits. Most importantly, it is difficult to see how this policy would be policed without being highly subjective and arbitrary.
The complaint alleges that, after Bakken objected to the policies at a faculty meeting, Col. Julia Coxen, a departmental head and Vice Chair of the Faculty Council told him that this was an effort by senior military officers at the Academy to “show to the new administration ‘radical compliance’ as a way to protect their positions.”
Bakken alleges that four of his colleagues are facing discipline for failing to obtain prior approval for outside speeches. He claims that he has tailored his statements to avoid violating the policies, but that this conformity has limited his ability to write or speak. This includes a new book that he alleges would be adversely impacted by the policies. (Notably, Bakken states that “under his contract with the publisher, Plaintiff has agreed to purchase in advance 1,000 copies, costing approximately $10,000 to $12,000.” That would likely make him the single greatest purchaser of his own book).
U.S. District Judge Cathy Seibel recently issued the preliminary injunction (below) to block West Point from enforcing both policies against any of its civilian faculty.
The opinion navigates some tricky questions under the Civil Service Reform Act of 1978 (“CSRA”) about whether the court can hear the case or whether these disputes are required to go through the Merit Systems Protection Board (“MSPB”) for federal employees with the potential of an appeal to the Federal Circuit. That procedural question could derail the litigation.
However, the free speech concerns raised by Professor Bakken are real and, regardless of the proper forum, warrant judicial review.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Here is the preliminary injunction order: Bakken v. United States Military Academy
Here is the relevant portion of the Executive Order:
“Sec. 6. Protecting American Values. (a) The Department of Defense and the Armed Forces, including any educational institution operated or controlled thereby, are prohibited from promoting, advancing, or otherwise inculcating the following un-American, divisive, discriminatory, radical, extremist, and irrational theories:
(i) “divisive concepts,” as defined in section 3(c) of this order, and “race or sex stereotyping,” or “race or sex scapegoating” as both terms are defined in section 2 of Executive Order 13950, as amended;
(ii) that America’s founding documents are racist or sexist; and
(iii) “gender ideology,” as defined in section 3(b) of this order.”
A larger problem at West Point is that a cadet can cheat and not be dismissed. “Honor remediation” is a process by which those in authority can identify and promote individuals that will be willing to do their bidding without regard for honor, integrity or legality.
I’ll have to read his book. Google isn’t providing any of Bakken’s criticism of military leadership.
Perhaps he has some genuine concerns.
Some of the most greedy dishonorable people I know are ring bangers.
What struck me right away was the phrase “… in official capacity.” If the professor wants to represent his statements as those on behalf of the Academy, it is not unreasonable to require the Academy’s approval. If he wants to say something contrary to the Academy, do it on his own dime & own time.
Secondly the EO doesn’t keep him from teaching on racist etc. elements from our past, just teaching them in a way that supports or promotes them.
Agree that this prof’s employer’s status as a military institution, subject to military regulations, is a threshold issue here.
Is his lawyer saying, my guy wasn’t properly noticed that he was employed by the military and was subject to military regulations?
Is his lawyer saying, yeah, my guy knew he was working for the military but military academies need to change their rules, because their rules stop me from bloviating. (A loser legal theory, IMO. The academies are to train soldiers.They are dedicated chips. Platforming bloviators is not the mission.)
Is his lawyer saying, my guy was making those statements in his capacity as a civilian, a free American (whose students might have to go fight and die for this bloviator’s right to foment anti-Americanism like almost every other professor)? But his guy asked West Point to pay for his travel to present his paper to a conference. Sounds like a work trip. This legal theory is not adding up for me.
Even at the service academies, however, I don’t get the feasibility, let alone the constitutionality, of a rule saying a professor can’t share ANY personal opinions in class. Every professor I ever had shared personal opinions about the material s/he had studied closely and wished to convey to his/her students. On the other hand, what does West Point do if it turns out they’ve hired Tokyo Rose? Is there an articulable standard, laying out when a prof has crossed the line into propaganda?
This is messy.
Relatively simple solution. A new policy at ALL Academies. The contracts of civilian instructors will not be renewed when they expire. They will be replaced by commissioned officers.
My husband, USMA Class of 1955, seconds that solution.
The Executive Order is MAGA. MAGA is not “conservative”, and one goal of this piece is to try to elevate or equate MAGA with conservatism. True conservatives aren’t having it, whch is why the Lincoln Project and the Bulwark were formed and why people like Rick Wilson, George Conway and Bill Kristol speak out against Trump and MAGA. The Executive Order is part of Project 2025 that the majority of Americans oppose, so Trump lied about knowing anything about it and then proceeded to sign 180 Executive Orders drafted by the authors of Project 2025 without even reading them. An aim of Projecft 2025 is to impose White Supremacy ideals, which requires eliminating diversity, equity and inclusion and erasing the history of things like slavery and Jim Crow and the inequality of blacks who were brought to this country in bondage. This includes honoring Confederate generals, taking down plaques at historical sites related to slavery and now, trying to control the speech of civilian professors at West Point. It’s wrong, and Turley knows it. At minimum, it violates the First Amendment. Requiring pre-approval of speeches is a prior restraint on the First Amendment right of freedom of speech and is unconstitutional, and Turley knows it.
gigi, I hope you are PRETENDING you are a lawyer, because if you actually are, you are really defaming the profession.
At this point, there are several unresolved issues, the least of which is jurisdiction. Then the pleadings need to resolve things such as whether Bakken acts as a citizen or as an employee while conducting his lectures or speaks of his books during classes. Another issue (and i only name a few) is whether the U.S. Military Academy holds special status as far as restrictions placed on employees. Next, the employee contract itself. After that, there is the issue of……..
I am sure your cohort, X/George will try to copycat the issues I raise, and likely you will join X, while we dismiss your novice comments.
“. . . there are several . . .”
Well done.
Einstein was asked how he would tackle a problem, if he had one hour. He replied that he’d spend 55 minutes understanding the issues and questions.
The Left, by contrast, offers “solutions” based on complete ignorance of the issues and questions.
Hello Sam:
Thanks for reading my comment to gigi @ 1:49, appearing as anonymous because I often hit “send” before signing in.
Not that it matters, but I wanted to say that your yesterday’s comment about former CDC Walensky were well-founded and I wanted to add this but I was in a hurry.
“CDC reverses statement by director that vaccinated people are no longer contagious”
https://thehill.com/changing-america/well-being/546234-cdc-reverses-statement-by-director-that-vaccinated-people-are-no/
“Not that it matters . . .”
Quite the contrary. You’re one of the very few who do matter.
Thanks for the Walensky add.
Did you notice that some of us defended your “R/O” quip? Which, to repeat, was very, very clever.
Yeah, “Trump lied…”. And, “Owange Man Baaaaad”.
“The Executive Order is MAGA.”
So what ?
“MAGA is not “conservative”, and one goal of this piece is to try to elevate or equate MAGA with conservatism. ”
Just as all democrats are not DSA all republicans are not MAGA.
You are correct that MAGA is not the same as conservative – but the overlap is large.
Regardless no one gets a president that exactly reflects their values
We all have to choose which candidate is closest to our values.
“True conservatives aren’t having it, whch is why the Lincoln Project and the Bulwark were formed and why people like Rick Wilson, George Conway and Bill Kristol speak out against Trump and MAGA. ”
None of these people/groups are anymore true conservatives than MAGA is.
Regardless AGAIN – MAGA is not Exactly conservative – Nor is Bill Krystal exactly conservative.
Yes there are republican groups that are speaking out – just a many democrats are speaking out about the DSA.
At the same time – MAGA today is by far the largest portion of republican voters.
“The Executive Order is part of Project 2025”
It is part of Agenda 47 – which most people support – THEY VOTED FOR IT.
Most people – including you do not know what project 2025 is. No most americans do not oppose some label that have little understanding of.
That is an absurdly stupid claim.
Yes MAGA and BTW the majority of americans WANT what is in theses EOs.
They want illegal aliense deported – starting with the criminals.
They want men out of womens sports and womens lockerooms.
They want an end to reverse discrimination.
They want an end to teaching our children – particularly the white ones that they are evil opressors and that this country is vile repugnant and irredeemable. This nation is imperfect. Its heros from Washington through Martin Luther King are flawed men.
The sane among us reject the leftwing idiocy that the teaching of our history should ignore the greatness and fixate on the imperfections – often lying about them.
Those of you on the left are free to expound on whatever you want on your own time. Teaching US history in anyway that does not result in a net favorable impression of the country is unpopular and factually inaccurate.
Every single one of them should be fired. The military academies in the military in general is not a political place in Boot Camp it is drilled into them and have professors at an academy, engaging in this kind of ridiculous stupidity fire him now.
Suggest you consider using some punctuation. Punctuation is how we make our writing actually comprehensible, as opposed to simply an unintelligible string of run-together verbiage.
The two objections identified above are interesting. “The first requires faculty to obtain prior approval before speaking publicly or publishing papers in their official capacity.” I would venture to guess based on my experience that every major corporation in the US subjects its employees to this rule. There is absolutely nothing wrong here. Historically, President Truman fired Gen MacArthur with the public rationale of the general’s statements conflicting with the intent of the president. “Full and vigorous debate on matters of national policy is a vital element in the constitutional system of our free democracy. It is fundamental, however, that military commanders must be governed by the policies and directives issued to them in the manner provided by our laws and Constitution.”
It is the second one that I find most troubling because of its extraordinary breadth. “The second bars professors from sharing personal opinions in the classroom.” We live in a world of which we cannot entirely characterize objectively. There has to be some subjectivity – that is opinions, theories, explanations, etc. Opinions can be useful in framing and understanding the motivations and actions of key historical personages. It is the job of the professor to provide insight and understanding. That cannot happen if one is limited to the facts. The facts just don’t always speak for themselves. I suspect that West Point really means to restrict opinions about a very limited set of subjects and opinions.
When you’re on the battle field you don’t get to say but Sarge I think we should do it this way. If your decision is to be a conscientious objector then you should expect to be expelled from the military with a dishonorable discharge or you can wait until you get out before you speak your piece. The holier than thou give the same pledge as any enlisted soldier. It’s plain to see that the pledges of these so called educators aren’t worth the paper they’re written on. Promises mean nothing to those indoctrinated by the left in the halls of the education with Ivy growing on the walls. Trump said we should be very conscious of those who would destroy the U.S. from within. Oh my bad. It was John F. Kennedy who said it first.
The first statement that caught my eye included the sentence: “He is also the author of a book entitled The Cost of Loyalty: Dishonesty, Hubris, and Failure in the U.S. Military.” To even mention dishonesty and hubris in the same breath as the remembrance of dudes in female military attire while serving under obama/autopen guy is either blatant hypocrisy or willful ignorance on that profs part.
Turley states: “West Point is part of the military system and subject to military regulations and policies. In accepting employment, Professor Bakken recognized that all West Point faculty are subject to those regulations.” I would suggest this hubristic prof find employment elsewhere since he should be realizing that his stale, hate-filled and erroneous ideology is not longer de rigueur at military installations.
The “Uniformed Code of Military Justice” circumscribes Articles I, II, III and especially Article VI of the U.S. Constitution.
Reminder to all service members:
the U.S. Constitution is a “wartime” governing charter, designed to be followed during wartime with emergency wartime clauses already designed into the charter (ie: 3rd Amendment, temporary suspension of Habeas corpus, etc).
Every member of the military, DoD, NSA, CIA, DHS, DOJ and FBI swear a supreme loyalty oath (oath of office) to follow this wartime charter during wartime and peace time.
Since West Point is a government entity, the faculty is not allowed to censor legal First Amendment activity – especially speech that circumscribes America’s wartime charter and wartime loyalty oath – supporting the U.S. Constitution.
West Point faculty should mandate that retired General Mark Milley’s retirement speech (which accurately explains the American oath of office be mandatory education for all West Point students.
The American Oath of Office is the primary distinction between an American national security/intelligence apparatus versus a 20th Century Stasi or Gestapo. West Point shouldn’t censor the American model.
Are you purposefully ignoring the conditions of employment that these prog profs signed or do you want to offer up only this red herring as to the “wartime” nature of our constitution? You can’t have it both ways.
Proof is in the pudding? What a fine US we now have raging with theft, robbery, murder, vandalism and every other crime unimaginable. Words such as racist and sexist are racist and sexist and the concepts don’t actually exist excepting the delusional mind. Pushing these delusional false concepts in colleges is anathema.
Carpe diem
Republicans must wake up and meet violence with violence.
A military is a killing machine. That is it’s nature. It is disciplined and orderly because of its nature. Any command not followed could result in the loss of lives or the loss of the war itself.
IT’S NOT A TIME TO PLAY DRESS UP OR FUN GAMES. If any teacher doesn’t understand the nature of a military, resign asap. If any teacher cannot follow command, resign asap. Take the argument elsewhere freely.
These people are deranged.
Is this viewpoint or content? His opinion can be discussed but not as his opinion. A classroom is not a personal
soapbox.
Dear Mr. Turley, I am so thankful for the President pointing these things out and trying to rectify them. Even if the President is unsuccessful, at least parents will be aware of this when considering higher education for their children. The President is working very hard to pull us back from the edge of complete collapse by exposing the various frauds in our very generous support system and exposing the “worse than Hitler” Dr. Fauchi. Dr. Brix is in the mix with him as well since she has admitted lying to the country. We need to be reminded how precious our country is. It is the greatest country ever…By the people…for the people.
Professor Turley is correct in observing that 1A free speech protections for educators must cut both ways. However, there is a related issue about whether an educational institution should be allowed to hire and retain only those teachers and professors who support its core mission (however that is defined). For that latitude to have any real-world meaning, it must extend to works published by those employees that will inevitably be read by his or her students, whether or not those materials are formally included in the class curriculum. My answer to the question is affirmative, whether the institution is private or public. The United States Military Academy at West Point has had a well-defined mission that has remained substantially unchanged since it was founded in 1802. As a conservative-leaning libertarian, I am generally opposed to government-run colleges and universities, but an institution that is conceptually part of the US military would need to be an exception to that rule. West Point should be allowed to select educators who support its mission in their academic work, and to dismiss those who fail to meet that standard.
‘There are clearly abuses of the privilege by many faculty today who harangue opposing views, particularly conservative views, in their classes.’
No, that was years ago. Today we have a seemingly irreversibly hostile and toxic environment that has stopped short of murdering dissenting voices. Why does it take liberals so long to wale up to what are now well established mentalities on the left? The dems aren’t ‘being’ infiltrated – that too, was long ago. What the dems are now is ‘captured’.
And more broadly it has been by globalist design, not some random accident or evolution. Scoff all you like, but Kamala’s recent ideas for a platform are the same old dem boosheet (particularly 2020-24. Funny how thise dates keep popping up) indistinguishable from the dsa, and are basically an out in the open playbook for permanent consolidation of power, not policy.
Guess we should be glad so much is exposed these days in that regard, but dang, liberals: wake up. This is not the dnc of even the Clinton era, let alone JFK, anymore, and many of you have been asleep at the wheel for decades of a steady, corrosive, drip that has become an ocean.
EO is likely too vague, but there are jurisdiction issues as noted. The class may have filed too soon in USDC; that is, they failed to exhaust any and all administrative remedies. I should be surprised that the USDC did not dismiss for that reason
Far left fascists? You really are either terminally confused or a political idiot. Contradiction in terms. Yes, Mussolini started off on the left, but where the Fascists ended up was not the left. You would be on safer ground with the National Socialist German Workers Party…
Surely a disclaimer: “My own opinion, and not the opinion of West Point, the.US Army, the Pentagon, or the United States of America ” should be enough.
Bah haha – so Professor Strangelove imagines himself as a Gladiator in the ring with the lions and putting on the Great Performance in front of the Unwashed and the Emperor!!! Going to be fun watching this Paegniarius (look it up if curious) get his head handed to him in spite of silly tenure! Even better maybe the Emperor will give the THUMBS DOWN to complete the defeat! Haha……..
If you are speaking in an official capacity, then whoever you are speaking for gets to control what you say.
If you want to talk in your personal capacity and make it clear that it is your opinion, not shared by any organization that you may be a part of, that’s something different.
But if you are going to a conference and are going to be presenting yourself as a representative of West Point (or Joe’s hot dog stand), the West Point (or Joe) gets some control over what you say or publish, I have published tech articles where my employer wanted to approve what I wrote before publication (even though it had nothing at all to do with my work responsibilities), that is normal.
David Lang
One of my teachers at Northwestern, assoc. professor Arthur Butz, had written “The Hoax of the Twentieth Century,” in which he refutes the thesis that Hitler tried to exterminate Europe’s Jews.
A very difficult problem in academic freedom, but Butz kept his job. But, had he been a history prof instead of EECS, probably not.
Far left Fascists now want to control our military academies, because 99.99% of other colleges and universities isn’t enough for them.
Ah ha! The daily stupid comemnt.
Stupid? It is you who is stupid since you can’t spell the word “comment” correctly. Then again, it’s your daily dish at others on this blog.
Huh? “It is you who IS stupid”? Try you who ARE stupid, if your credibility means anything to you. English much?
I’m fine. Just can’t understand why you post jabs and insults on any topic provided by other members of Turley’s posts. Maybe some mental health counseling would be a good for you.