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 are 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.”