Origins of Academic Freedom
Academic Freedom is a concept that encompasses notions of philosophy and contracts as well as civil liberties. In the United States the concept of Academic Freedom has developed primarily (although not exclusively) in the context of higher education. General U.S. understanding of Academic Freedom can be traced to two important documents published by the American Association of University Professors (AAUP). The first of these documents is the 1915 General Report of the Committee on Academic Freedom and Academic Tenure. The 1915 declaration was a manifesto on Academic Freedom in which the AAUP argued that Academic Freedom consisted of three components: the freedom of faculty to teach, to do research, and to talk and write on matters outside their disciplines. The AAUP argued that Academic Freedom could only be fostered in an environment of institutional neutrality.
In the second important document—the 1940 Statement of Principles on Academic Freedom and Tenure—the AAUP attempted to reduce the concept of Academic Freedom to a series of rule-like propositions that could guide university governance and serve as a basis for enforcing norms of Academic Freedom. Like the 1915 declaration, the statement of principles contains three core provisions that generally correspond with this three-part vision of research, teaching, and service responsibilities of most university professors:
Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of Academic Freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
These provisions of the statement of principles are based on the explicit assumptions of the drafters that ‘‘institutions of higher education exist not for themselves but for the ‘common good’; that Academic Freedom is ‘essential’ to that purpose; that academic tenure is ‘essential’ to Academic Freedom no less than to academic job security; and that ‘Academic Freedom carries with it duties correlative with rights.’’’
These core values of Academic Freedom have been secured primarily though individual and institutional commitment to them. Statements regarding Academic Freedom are incorporated in the handbooks and/or procedures of most American universities. Commitments regarding Academic Freedom are also often incorporated in contracts between university faculty and administrations. Most American schools and colleges have adopted tenure for teachers as one of the mechanisms for ensuring Academic Freedom.
Academic Freedom and the First Amendment
American courts have found a nexus between Academic Freedom and rights of free speech protected in the First Amendment. The U.S. Supreme Court, in Keyishian v. Board of Regents, 385 U.S. 589 (1967), has referred to Academic Freedom as ‘‘a special concern of the First Amendment.’’ Yet, the scope of First Amendment protection afforded academic speech is ambiguous at best.
The first two U.S. Supreme Court cases explicitly to link Academic Freedom and the First Amendment were Adler v. Board of Education, 342 U.S. 485 (1952), and Wieman v. Updegraff, 344 U.S. 183 (1952). Decided during the Court’s 1952 term, both cases dealt with state regulations arising from the opposition to COMMUNISM AND THE COLD WAR. Adler involved a New York statute that required that any person espousing the use of violence or altering the form of U.S. government or belonging to a ‘‘subversive organization’’ that espoused such views be removed from public employment. Although the majority of the Court upheld the state law, Justice William O. Douglas dissented, reasoning that the law unreasonably infringed on the Academic Freedom of public school teachers by intimidating any teacher who had ever been associated with a ‘‘subversive organization’’ from going into teaching or voicing his or her thoughts on the topics of the day.
Wieman involved the constitutionality of a state statute requiring that state employees take a loyalty oath disclaiming affiliation with any subversive organization as a condition of state employment. In contrast to Adler, the majority of the Court struck down the statute. In a separate concurring opinion, Justice Felix Frankfurter reasoned that in addition to the infringement on freedom of association of state employees, the disclaimer oath would have a pernicious effect on the Academic Freedom of teachers.
These early cases set the stage for a series of Supreme Court decisions during the 1950s and 1960s that define the scope of First Amendment protection for teachers based on notions of Academic Freedom. In Sweezy v. New Hampshire, 354 U.S. 234 (1957), the Court addressed the question of Academic Freedom and the First Amendment in yet another case challenging the constitutionality of government action undertaken as part of the cold war.
In Sweezy a University of New Hampshire professor was charged with contempt when he refused to provide details of his lectures and political associations in answer to questions by the state attorney general as part of a state antisubversive investigation. In his concurring opinion, Justice Frankfurter said that requiring Sweezy to produce his notes violated his Academic Freedom rights ensured by the First Amendment. Frankfurter wrote, ‘‘[w]hen weighed against the grave harm [to Academic Freedom] resulting from governmental intrusion into the intellectual life of a university, [ordinary justifications] for compelling a witness to discuss the contents of his lecture [appear] grossly inadequate.’’ Frankfurter’s reasoning was based, in part, on his view that the examination of Sweezy’s notes would have a chilling effect on the continued free exchange of ideas within the university.
Despite the fact that the Academic Freedom argument in Sweezy was made by an individual professor, Justice Frankfurter’s analysis was rooted significantly in the government’s intrusion into the university as an institution; he characterized the government’s action as an intrusion into the ‘‘intellectual life of a university,’’ not as an intrusion into the free speech and association rights of an individual professor. Frankfurter’s grand but unspecific conclusion was that a free society depends on free universities and that ‘‘this means the exclusion of governmental intervention in the intellectual life of a university.’’
In Shelton v. Tucker, 364 U.S. 479 (1960), the Court struck down an Arkansas statute requiring teachers, as a condition of employment, to submit an annual affidavit listing every organization to which they had belonged or regularly contributed for the past five years. The Court held that this requirement violated the free association rights of teachers. Although it did not base its reasoning expressly on ‘‘Academic Freedom’’ grounds, the Court quoted Weiman and Sweezy, reasoning that ‘‘[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.’’
The Supreme Court’s majority relied on the link between free speech and Academic Freedom for the first time in 1967 in Keyishian v. Board of Regents. There the Court struck down the provisions of New York’s Feinberg law that had been previously upheld in Adler. Writing for the majority, Justice William Brennan reasoned:
[A]cademic freedom . . . is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom . . . . The classroom is particularly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.
The Keyeshian Court relied on the reasoning of Sweezy in its analysis and, as in Frankfurter’s opinion in Sweezy, employed sweeping generalizations and avoided specific analysis. While Justice Douglas characterized Academic Freedom as a ‘‘transcendent value,’’ his opinion does not shed additional light on the relationship between Academic Freedom and the First Amendment.
The year after Keyishian, Justice Douglas, writing for the majority in Whitehill v. Elkins, 389 U.S. 54 (1967), struck down an oath similar to that in Wieman on express Academic Freedom grounds. Continuing the sweeping, general invocation of Academic Freedom without specific analysis, the Court concluded ‘‘[t]he continuing surveillance which this type of law places on teachers is hostile to Academic Freedom . . . . The restraints on conscientious teachers are obvious.’’
Individual Academic Freedom and the Public Employee Doctrine
The potentially broad reach of the First Amendment/ Academic Freedom cases may be limited by the cases dealing with free speech of public employees. These cases define the scope of free speech rights of public employees including, arguably, teachers and faculty members at public institutions. In Pickering v. Board of Education, 391 U.S. 563 (1968), the Supreme Court recognized that the free speech rights of public employees may be limited when the speech interferes with the efficient operation of the government employer.
Pickering involved a teacher who was fired because he wrote a letter to a newspaper criticizing the conduct of the local board of education regarding tax increases for education. The Court held that in the absence of proof that the teacher knowingly or recklessly made false statements, he could not be fired for exercising his First Amendment rights. The Pickering Court did not rely on notions of Academic Freedom for its conclusion that the teacher’s free speech rights were infringed by the school district. In fact, the Court cited Keyishian and Whitehill only for the narrower proposition that public employees do not shed the free speech rights enjoyed by all citizens simply because they are in the public’s employ.
While the Pickering Court concluded that the teacher’s free speech rights had been impermissibly invaded, the decision established a framework in which public employees’ speech is subject to scrutiny when it is related to their employment or negatively affects their employer. The test adopted by the Court balances the government’s interest in the efficient operation of public services and in not having those services disrupted against the speech of public employees. If the potential disruptiveness of a public employee’s speech outweighs the value of that speech, the public employer may take appropriate disciplinary action against the employee.
The public employee cases—Pickering in particular— raise questions about the extent of First Amendment protection for individual Academic Freedom. While the cases certainly recognize that the speech of public employees is protected by the First Amendment, they nonetheless appear to treat the speech of teachers no differently from the speech of other public employees. It may be that Pickering does not reach to the speech of college and university teachers or that it only applies to the speech of teachers outside the areas of the classroom and scholarly pursuits. While the latter limitation would be inconsistent with the AAUP’s conception of Academic Freedom, it would leave intact the reasoning of Sweezy, Shelton, Keyishian, and Whitehill.
Institutional Academic Freedom
Within this basic context, the Supreme Court has slowly articulated a limited theory of institutional Academic Freedom. The core principle of this theory is that public institutions involved in academic endeavors should be accorded deference in core academic decision-making, even when the decision may arguably infringe the rights of institutional participants such as students, faculty, library patrons, and researchers. Thus, for example, in Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court recognized that a medical student had a constitutionally protected property right in continued enrollment free from arbitrary actions of the university. Nonetheless, the Court declined to second guess the decision of a university to disqualify a medical student after he did not pass required medical boards even though most other students were given the opportunity to retake the exam. The Ewing Court reasoned that ‘‘[w]hen judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment.’’
Deference to the decision-making of educational institutions on academic questions has played a role in other decisions. For example, in Grutter v. Bollinger, 539 U.S. 306 (2003), in upholding the University of Michigan’s admissions policy regarding Affirmative Action in law school admissions, Justice Sandra Day O’Connor cited Keyishian and Ewing, noting that ‘‘[o]ur holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.’’ Justice O’Connor’s consideration of Academic Freedom in university admissions paralleled Justice Lewis F. Powell’s similar deference twenty-five years earlier in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Likewise, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court held that educators could exercise ‘‘editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.’’ Although the Court did not rely on a specific Academic Freedom rationale, its reasoning is consistent with the developing theory of institutional Academic Freedom on matters of core academic concern.
Academic Freedom in the Lower Federal Courts
The lower courts struggled to make sense of the Supreme Court’s approach in cases involving claims to individual Academic Freedom by faculty and students. While the cases rely on a number of different rationales, they consistently recognize the principle of deference to the academic decisions of educational institutions. Recently, for example, in Brown v. Li, 308 F. 3d 939 (9th Cir. 2002), the Ninth Circuit refused to question the University of California’s decision to require excisions from a master’s thesis, stating ‘‘under the Supreme Court’s precedents, the curriculum of a public education institution is one means by which the institution itself expresses its policy, a policy with which others do not have a constitutional right to interfere.’’ In Axson–Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2003), the Tenth Circuit similarly held that deference was due to university decision-making on curricular speech that was ‘‘reasonably related to legitimate pedagogical goals.’’
While a limited theory of institutional Academic Freedom has developed, most courts have declined to recognize an independent, constitutionally based theory of Academic Freedom extending to faculty or to students, particularly when the protection of faculty and/or student Academic Freedom interests would conflict with the policies of the academic institution. Brown and Axson–Flynn, for example, each involved claims that the First Amendment protected academic speech by students that were overridden by the Court’s deference to institutional decision-making on matters of core academic concern.
In Urofsky v. Gillmore, 216 F. 3d 401 (4th Cir. 2001), the en banc panel of the Fourth Circuit expressly rejected the idea that individual faculty possess a constitutionally protected right of Academic Freedom separate and apart from institutional Academic Freedom. Urofsky involved a Virginia statute that prohibited state employees from accessing sexually explicit materials on state-provided computers. A number of university professors argued that the statute infringed on the free speech rights of all state employees and that, alternatively, the statute infringed on the Academic Freedom rights of state-employed teachers.
Applying Pickering, the Fourth Circuit found that the state did not infringe on the rights of state employees generally because states can regulate the speech of their employees undertaken in the course of the performance of their employment duties. The court also rejected the Academic Freedom argument stating: ‘‘[t]aking all of the cases together, the best that can be said for Appellees’ claim that the Constitution protects the Academic Freedom of an individual professor is that teachers were the first public employees to be afforded the now-universal protection against dismissal for the exercise of First Amendment rights. Nothing in Supreme Court jurisprudence suggests that the ‘right’ claimed by Appellees extends any further.’’
Other decisions, such as Bonnell v. Lorenzo, 241 F. 3d 800 (6th Cir. 2001), have followed the approach of Urofsky, applying Pickering and not broader principles of Academic Freedom to claims advanced by individual faculty.
Academic Freedom has played a role in a number of civil liberties debates arising in academic settings. In the debate about hate speech on college campuses, for example, opponents of civility and Campus Hate Speech Codes have argued that such codes violate Academic Freedom because they attempt to deter and sanitize protected academic speech that may be offensive. Academic Freedom has also been part of the analysis of First Amendment defenses to sexual harassment claims based on a hostile educational environment. Nonetheless, cases in the hate speech and sexual harassment areas have not directly turned on the courts’ analysis of Academic Freedom.
Despite the broad language in early Supreme Court opinions regarding Academic Freedom and the First Amendment, constitutional protection of Academic Freedom is very narrow. Courts have deferred to academic institutions on matters involving core academic decision-making. At the same time, the lower federal courts have declined to recognize an independent, constitutionally protected right of Academic Freedom for faculty and students, especially when the recognition of such a right would require the court to intervene in institutional academic decision-making.
ELIZABETH B. BRANDT
References and Further Reading
- Byrne, J. Peter, Academic Freedom: A ‘‘Special Concern of the First Amendment,’’ Yale Law Review 99 (1989): 251–340
- Menand, Louis, ed. The Future of Academic Tenure. Chicago: University of Chicago Press, 1996
- Metzger, Walter P., Profession and Constitution: Two Definitions of Academic Freedom in America, Texas Law Review 66 (1988): 1265–1322
- Rabban, David M., Functional Analysis of ‘Individual’ and ‘Institutional’ Academic Freedom Under the First Amendment. Law and Contemporary Problems 53 (1990):227–301
- Van Alstyne, William W., Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review. Law and Contemporary Problems 53 (1990):79–154
- ———, ed. Freedom and Tenure in the Academy. Durham, NC: Duke University Press, 1993
Cases and Statutes Cited
- Adler v. Board of Education, 342 U.S. 485 (1952)
- Axson–Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2003)
- Bonnell v. Lorenzo, 241 F. 3d 800 (6th Cir. 2001)
- Brown v. Li, 308 F. 3d 939 (9th Cir. 2002)
- Grutter v. Bollinger, 539 U.S. 306 (2003)
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
- Keyishian v. Board of Regents, 385 U.S. 589 (1967)
- Pickering v. Board of Education, 391 U.S. 563 (1968)
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
- Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985)
- Shelton v. Tucker, 364 U.S. 479 (1960)
- Sweezy v. New Hampshire, 354 U.S. 234 (1957)
- Urofsky v. Gillmore, 216 F. 3d 401 (4th Cir. 2001)
- Whitehill v. Elkins, 389 U.S. 54 (1967)
- Wieman v. Updegraff, 344 U.S. 183 (1952)
See also Campus Hate Speech Codes; Freedom of Speech and Press: Nineteenth Century; Freedom of Speech: Modern Period (1917–Present); Student Speech in Public Schools; Teacher Speech in Public Schools; Universities and Public Forums