In nineteenth-century America, organized religion frequently exercised its considerable influence to inhibit freedom of speech in higher education. The publication in 1859 of Charles Darwin’s theory of evolution, for example, sparked clashes between supporters of the biblical creation story and college professors who sought to teach or write about evolution.
Since then, however, government entities and officials have been responsible for most efforts to control academic speech. Government entities include, for example, federal, state, or local legislative bodies; various nonacademic executive agencies; and public educational institutions themselves, speaking through their governing boards, top administrators, or faculty policy-making bodies. Government officials include, for example, police officers assigned to campus, and public school administrators or faculty members. In the twentieth and twentieth-first centuries, measures to control academic speech have frequently been motivated by desires to ensure loyalty to the government, to protect national security or support the military in times of international conflict, to protect members of the academic community from hate speech, and to promote an intellectual ideology supported by a majority of members of an academic unit.
Acting as constraints on efforts to control campus speech are several countervailing authoritative or persuasive forces. They include judicial enforcement of statutory or constitutional protections of speech, contractual obligations to protect speech, external pressures from organizations such as the American Association of University Professors (AAUP), and internal pressures stemming from an educational institution’s desire to maintain sound educational policies and its reputation as a center of critical inquiry.
Principles of academic freedom warrant discussion as a threshold matter, because the scope of constitutional protection arguably is influenced by widely accepted values of academic freedom and because those values may be embraced by private institutions that are not subject to constitutional mandates. Broadly defined, academic freedom encompasses (1) the freedom of academic institutions to define their educational missions; to decide who will teach, what will be taught, and who will be admitted to the student body; and to otherwise control their internal affairs; (2) the freedom of faculty to engage in scholarly inquiry and publish the fruits of their research, to control the content of their courses and lectures, and to express their views in other forums; and (3) the freedom of students to determine the course of their studies and to express their views on the topics of study. To some extent, these components of academic freedom constrain one another. For example, acting through its administration or its collective faculty, an institution can designate required courses for a degree program and can define the general content of such courses, partially constraining the freedom of individual faculty to define course content and the freedom of students to define their course of study. Moreover, a classroom instructor can designate the relevant issue for class discussion, thus partially constraining student freedom of expression in the classroom.
American universities imported European traditions of academic freedom in the decades after the Civil War, focusing on faculty freedoms. The AAUP maintained this focus on faculty freedoms when it issued its 1915 Declaration of Principles and when it later joined with the Association of American Colleges and Universities (AACU) to issue the 1940 Statements of Principles on Academic Freedom and Tenure. The publication and promotion of these general principles of academic freedom by the AAUP and the AACU did not transform the principles into binding law. Instead, the AAUP has sought to promote application of the principles through its power of persuasion and the threat of public censure for violations of academic freedom. Partly as a result of these efforts, principles of academic freedom have gained wide acceptance among academic institutions as an element of sound educational policy and sometimes as binding obligations assumed by educational institutions in employment contracts with faculty or tuition contracts with students.
The First and Fourteenth Amendments to the United States Constitution prohibit governmental interference with freedoms of speech, of the press, and of assembly. These constitutional provisions operate only against government action, such as state or federal legislation, policies issued by public schools, or the coercive actions of individual government officials on campus. Thus, these constitutional provisions do not restrict the power of private colleges or universities to regulate speech on their campuses. Accordingly, some private institutions of higher education, particularly those with religious affiliations, have exhibited a desire to provide educational environments that protect their students from expression that is highly offensive or contrary to the religious tenets that help define the educational mission of the school. By regulating campus speech to a significantly greater extent than would be permissible in a public university, however, a private school risks its very identity as a center of critical inquiry and academic debate. Moreover, a legislature has the power to extend the equivalent of constitutional guarantees of freedom of speech to private campuses. For example, the California Legislature extended the equivalent of constitutional protection to student speech on private campuses by enacting California Education Code } 94367 in 1992.
Where it applies, the constitutional protection of speech is impressive but not absolute. For example, speakers are not constitutionally privileged to convey obscenity, to issue a credible threat of harm to another, or to incite an imminent and unlawful breach of the peace. So long as government regulates such categories of speech with precision and without selectively regulating a subset of such speech based on its political, religious, or other ideological content or viewpoint, the regulation should meet constitutional requirements. Beyond such categories of unprotected speech, the scope of freedom of speech on campus is a function partly of the context within which the speech takes place.
Student Speech For example, student speech in public schools may be regulated, consistent with the Constitution, to the extent necessary to avoid disruption of the educational program or interference with the rights of other students. In class discussion, an instructor can require students to address a particular topic relevant to the lesson plan of the moment, rather than a different topic that is intensely important to the student but disruptive of the instructor’s pedagogic goals. Indeed, the instructor may teach a mode of discourse that is intellectual in tone and civil in nature and accordingly can interrupt a student who violates the discourse rules of the class with personal insults or profane language.
Moreover, so long as a public school acts neutrally, without regard to the social, political, religious, or other ideological content of speech, it can issue and enforce policies that impose reasonable restrictions on the time, place, and manner of speech on campus. For example, a school could force the relocation of demonstrations that would obstruct pedestrian traffic at a congested intersection on a university campus, and it could ban noisy speech forced on unwilling listeners who seek to study in the library or to rest in their college dormitory rooms.
Greater restrictions on student speech would be permissible in primary and secondary schools, particularly in the lower grades. Courts recognize that schools shoulder the burden of inculcating fundamental social values at those levels, and that the youngest students are not yet prepared to critically evaluate and debate diverse perspectives on provocative topics.
College-level students, however, are sufficiently mature to enter the marketplace of ideas, or at least to learn to do so with proper guidance. Moreover, many locations on a college campus may possess the attributes of traditional public forums in which a free exchange of ideas receives full constitutional protection, subject only to the kinds of restrictions on speech mentioned previously. For example, so long as they do not obstruct traffic or disturb others who are working or learning in offices, classrooms, or libraries, a group of students would enjoy the constitutional right to assemble at an appropriate place on a public campus, such as a square or lawn, and voice their views on a controversial topic without fear of censorship or disciplinary action. Their message would be available to all persons passing by who care to pause and listen rather than avert their eyes and move on.
Although obscenity is not constitutionally protected, the scope of protected speech in such a campus forum is sufficiently broad to encompass speech that is uncivil and offensive to others, such as the expression of views that others might deem to be profane, unpatriotic, sacrilegious, sexist, racist, heterosexist, or harassing. For example, when campus policies restricting hateful speech became popular in the late 1980s and in the1990s, courts struck down the policies of several public schools on grounds that the policies permitted administrators to regulate speech that was merely offensive or permitted them to disfavor some speech on the basis of its ideological content or viewpoint. In some ways, the breadth of this conception of freedom of expression is unique to the United States and reached its full fruition only in the latter half of the twentieth century.
Even when speech in an academic forum of a public school, such as student or faculty research or classroom utterances, is constitutionally protected from immediate censorship or discipline, it nevertheless may be subject to academic evaluation. A professor of history, for example, may have a constitutional right to publish his arguments that previous literature has exaggerated the magnitude of the Holocaust; however, this protection from censorship and immediate discipline does not shield the author from critical evaluation of the author’s research and analysis. Acting through faculty review committees and academic administrative officers, for example, the educational institution may ultimately deny the author tenure or promotion after finding that the research or analysis fails to meet the standards of excellence of the academic unit. Similarly, a student may be protected from censorship or discipline for expressing a controversial but relevant statement in class or in a research paper, but the student is not entitled to a top grade simply because the speech is protected; the instructor may apply politically neutral standards to award the student a low grade for inadequate research or faulty analysis.
Of course, a student or faculty member would be constitutionally protected from adverse government action if critical evaluations were motivated by the evaluators’ ideological opposition to the viewpoint of the student or faculty member, without regard to an objective assessment of the quality of the student or faculty work. A public school’s denial of tenure to a faculty member, for example, would violate principles of free speech if it were based on the political unpopularity of the tenure candidate’s published findings about gender-based differences in athletic capabilities, particularly if the school’s evaluators conceded that the publication was a model of excellence in research, analysis, and expression. Differentiating between good-faith critiques of the quality of student or faculty work, on the one hand, and discrimination against the work on the basis of its ideological viewpoint, on the other, is often a difficult task. In close cases, however, courts are likely to defer to the professional judgment of academic evaluators if apparently exercised in good faith.
In addition to limitations on freedom of academic speech outlined previously, much of the speech of instructors, administrators, and other employees of a school is subject to their employer’s managerial control. A public employer has greater constitutional license to control the speech of governmentemployeeswhilemanaging its workplace than to suppress the speech of others while acting outside of a managerial role. Thus, the FirstAmendment permits a public school to control the speech of its employees to a greater extent that it permits a police officer to suppress the speech of a nonemployee protestor in a city park.
An employer, of course, can and should prohibit its supervisory employees from using speech or conduct to violate antidiscrimination statutes. A faculty member, for example, has no constitutional privilege to repeatedly subject his secretary to egregious verbal sexual harassment or to instruct African-American students to sit in the back of the classroom.
Those examples of unprotected discriminatory speech, however, are easy cases, because regulation of the speech can be based not so much on the ideological content or viewpoint of the speech as on the speaker’s selectively targeting others for adverse treatment because of their membership in a protected class. More deserving of a measure of constitutional protection, and a better test of the constitutional limits of a public employer’s managerial control of speech, is public employee speech directed to the general public on a political issue.
The U.S. Supreme Court has defined the degree of protection afforded to public employee speech in a balancing test developed in its 1968 decision on Pickering v. Board of Education and further delineated as a two-part test in its1983 decision, Connick v. Meyers, and its progeny. Under Pickering/Connick, public employee speech is constitutionally protected only if (1) the employee is addressing a matter of public concern in the employee’s role as a citizen of the community, and (2) the employee’s speech interests outweigh the employer’s managerial interests in efficiently carrying out its mission. Thus, for example, a public employer can discipline an employee for the employee’s circulating speech relating to a workplace grievance that is personal to the employee, for the employee’s complaining – as part of his employment duties – to a supervisor about misrepresentations in an affidavit or even for the employee’s engaging in speech as a citizen on a political topic of public concern if the employee’s interests in speaking on the matter of public concern are outweighed by legitimate managerial concerns that the speech would impede the accomplishment of the employer’s mission. If the employer issued a policy banning future speech by employees, thus erecting a prior restraint on speech, a wider array of interests of employees and potential audiences would be weighed against the employer’s managerial interests.
The dawning of the twenty-first century has witnessed a division of opinion among different courts and scholarly commentators over the extent to which academic speech by faculty in public schools receives special constitutional protection beyond that provided by the Pickering/Connick balancing test. Some passages in twentieth-century Supreme Court opinions seem to support the argument that freedomof thought, inquiry, and expression is more centrally important in the university setting than in other government employment contexts and that principles of academic freedom enjoy elevated status within the First Amendment. Accordingly, several scholarly commentators have argued that faculty comments in the college classroom, for example, should be constitutionally protected if relevant to the course and if conveyed in good faith as part of a pedagogic strategy, without limiting protection to that of the Pickering/Connick test.
Other courts or commentators have argued that the statements by Supreme Court justices most strongly supporting special constitutional protection for faculty academic freedoms have appeared in dictum or in dissenting, concurring, or plurality opinions. These courts and commentators have opined that elevated constitutional protection for academic freedom, if any, is limited to special protection for institutional academic freedom. Under this approach, adopted in cases such as Urofksy v. Gilmore, the Pickering/Connick test would determine the legitimacy of a public school’s restrictions on the academic speech of faculty or other employees, and courts would respect institutional academic freedom by deferring in close cases to the judgments of educational institutions regarding the need to administratively regulate faculty speech. Such deference would be particularly great in primary and secondary schools, allowing school boards to closely control curriculum and to inculcate fundamental community values.
In 2006 the Supreme Court expressly left open the question whether its Pickering/Connick test would apply to teaching and scholarship in the same way it applies to other student government. One would not be reckless in predicting, however, that the Supreme Court will develop a standard that recognizes the importance of freedom of faculty thought, inquiry, and expression in academic contexts, at least at the university level. Even if the test of Pickering/Connick is destined to apply to faculty speech, it likely will be applied with sensitivity to these values, giving special weight to a faculty member’s interests in academic speech.
Moreover, constitutional doctrine defines the minimum protection for academic speech in public schools. To promote intellectual inquiry and the exchange of ideas, educational institutions are free, of course, to adopt policies and even to assume contract obligations that protect academic speech to a greater degree than is required by the First Amendment.
The First Amendment is generally not offended if a public educational institution limits the participation of others in the institution’s own speech. If a public school conveys its mission and values, for example, in its own newsletter, website, or office bulletin board, the institution may control the message that it conveys, and it thus may exclude the proposed contributions of students or faculty that are inconsistent with the institution’s desired message.
Similarly, even when the First Amendment precludes a public school from suppressing controversial speech on campus, the school remains free to voice its own policies and values on the matter in controversy. For example, a university could not discipline a student for appearing in an appropriate forum to express disagreement with the university’s affirmative action programs, but university administrators could respond with their own speech, conveying the university’s arguments supporting affirmative action. Moreover, a public university would be free to use its verbal powers of persuasion to encourage members of its community to debate the issues of the day in a civil manner befitting a place of intellectual inquiry, even though the university could not force student protesters in a public forum on campus to adopt its recommendations.
In extreme cases, an administrator’s expression of institutional values might be sufficiently coercive in tone and substance to implicate First Amendment principles or at least to offend broader principles of academic freedom and sound educational policy. For example, if the Provost and President of a university not only expressed the institution’s support for diversity in its student body but also announced that ‘‘arguments against affirmative action are analytically bankrupt,’’ their speech might influence tenure committees to discount the analytic merit of a tenure candidate’s publication critiquing affirmative action programs, and it thus might create a chilling effect on academic inquiry. In general, however, an institution’s expression of its own policies and values will not interfere with the free speech rights of other members of the campus community.
CHARLES R. CALLEROS
References and Further Reading
Cases and Statutes Cited
See also Campus Hate Speech Codes; Categorical Approach to Free Speech; Content-Based Regulation of Speech; Content-Neutral Regulation of Speech; Public Forum Doctrines; Public/Nonpublic Forums Distinction; Public Officials; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); State Action Doctrine; Teacher Speech in Public Schools; Time, Place, and Manner Rule; Universities and Public Forums; Viewpoint Discrimination in Free Speech Cases