academic freedom

Liberty to teach, pursue, and discuss knowledge without restriction or interference, as by school or public officials.

American professors had fought for academic freedom since the nineteenth century, but the term did not appear in a United States Supreme Court decision until 1952. Justice William O. Douglas invoked it then, dissenting in Adler v. Board of Education. The majority, laboring in the shadow of the Cold War and McCarthyism (see Communism and Cold War) had upheld a New York law that prohibited employment of teachers in public schools if they belonged to “subversive organizations.”

Constitutional recognition of academic freedom was foreshadowed by Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In Meyer, the Court invalidated a state law that prohibited teaching foreign languages to students before the ninth grade. In Pierce, the Court struck down an Oregon statute that required parents to send their children aged eight through sixteen to public schools. Both cases rested upon the substantive due process rights of private schools, as well as upon parents' right to control the sort of education their children receive.

Since Adler, the Court has invoked academic freedom in two distinct ways. As Justice David Souter said, concurring in Board of Regents of the University of Wisconsin v. Southworth (2000), “Our understanding of academic freedom has included not merely liberty from restraints on thought, expression, and association in the academy, but also the idea that universities and schools should have the freedom to make decisions about how and what to teach” (p. 237). These two principles may at times be inconsistent, as when a university regulates the conduct of professors or students and argues that the institutional independence aspect of academic freedom prevents a court from interfering in its decisions.

Academic Freedom for Professors and Students

The premise of Adler has now been rejected. Public employees, including teachers, have at least the same rights of expression as others (Keyishian v. Board of Regents, 1967). The Court said that “[A]cademic freedom … is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom” (p. 603).

In Sweezy v. New Hampshire (1957), the Court upheld a Marxist professor's refusal to answer questions about his teaching and political views. Chief Justice Warren identified freedom of thought and expression as essential to an academic institution. Justice Frankfurter, concurring, spoke both of the need to protect the “ardor and fearlessness of scholars” and of the even more venerable tradition of universities' institutional independence (pp. 262–263). The Warren and Frankfurter views have dominated the Court's academic freedom discussions ever since.

In Barenblatt v. United States, the Court by a 5–4 margin refused to insulate academics from congressional inquiry into their political beliefs and associations. But in later cases invalidating teacher loyalty oaths, it decried the chilling effect of coerced political conformity on teachers. In the oath cases, the Court clearly united free expression and procedural fairness values in creating a zone of autonomy for scholars and their activities.

Teachers were the first beneficiaries of the Court's expanding conception of academic freedom. In Epperson v. Arkansas (1968), the Court struck down a criminal statute that forbade teachers from teaching the theory of evolution, holding that the state's undoubted power to shape the curriculum is nevertheless controlled by the First Amendment.

The scope of protected speech may, however, be narrower when the teacher criticizes school officials. In Pickering v. Board of Education (1968), the Court held that the First Amendment prohibited firing a teacher who had publicly questioned school board policies. Although the Court invoked academic freedom, it made clear that a teacher is also an employee, and that disruptive speech, even on a matter of public concern, could be the basis for termination. Mt. Healthy City School District Board of Education v. Doyle (1977) reaffirmed school authorities' power by permitting termination of a teacher whose speech dealt with public issues, if the employer could show independent grounds for discharge.

In Board of Regents v. Roth (1972), the Court held that the Due Process Clause does not require a university to state reasons and provide a hearing when it does not renew a nontenured teacher's contract. The teacher can claim a hearing only if she makes a credible showing that nonrenewal would stigmatize her in searching for new employment.

The Court has been more hesitant to recognize student claims to academic freedom. In Tinker v. Des Moines School District (1969), the Court invalidated a school district's suspension of high school students who had worn black armbands in protest against the Vietnam War. However, in Healy v. James (1972), the Court held that a public university may enforce reasonable rules governing the time, place, and manner of public expression. It may deny campus access to provably disruptive groups. But it may not base its actions on the content of the views students wish to express, even if those views are “abhorrent” (p. 188).

In Hazelwood School District v. Kuhlmeier (1988), the Court upheld a high school principal's censorship of the student newspaper. It found that because students in a journalism class wrote the paper, it was not a public forum and therefore not entitled to full First Amendment protection.

Academic Freedom As Institutional Autonomy

Justice Frankfurter, concurring in Sweezy, had stressed the independence of universities from governmental control. The Court has followed Justice Frankfurter's lead in more recent cases. There is an obvious tension here, for judicial reluctance to intervene in school or university decisions can mean judicial abdication in the face of student or teacher demands for fairness and self‐expression. In Minnesota State Board for Community Colleges v. Knight (1984), the Court rejected any first amendment basis for professors' participation in academic governance.

The tension between professor rights and university autonomy was clear in University of Pennsylvania v. Equal Employment Opportunity Commission (1990). The commission sought peer review records relating to the university's decision to deny tenure to a faculty member who claimed that the denial was motivated by racial and sexual discrimination. The Court rejected the university's claim that such records were protected by an “academic freedom” privilege.

In Board of Education v. Pico (1982), the Court recognized a school board's discretionary power over curriculum and book selection, but held that the board could not bow to community pressure to remove “objectionable” books from school library shelves. Pico reaffirmed institutional autonomy, but only if the institution functions free from improper pressure to censor.

Institutional autonomy has been a central theme in the Court's decisions on affirmative action in university admissions. In Regents of the University of California v. Bakke (1978), the Court invoked institutional academic freedom to permit a state medical school to take race into account in its admissions policy. In Grutter v. Bollinger (2003), a 5–4 decision, the Court upheld a state law school's race‐conscious admissions policy, again relying on the institution's academic freedom to foster diversity in its student body.

The Court's opinions will no doubt continue to waver between individual‐oriented and institutional‐oriented theories of academic freedom. The Court seems destined to confront the Bakke/Grutter issues in a variety of contexts, and to revisit the issue of professor and student freedom of expression.

See also Education; First Amendment.

Bibliography

• Richard H. Hiers, Institutional Academic Freedom vs. Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy, Journal of College & University Law 29 (2002): 35.
• Academic Freedom, symposium in Texas Law Review 66 (1988): 1247–1659

— Michael E. Tigar

Academic Freedom describes a group of rights claimed by teachers—the right to study, to communicate ideas, and to publish the results of reflection and research without external restraints—in short, to assert the truth as they perceive it. Academic freedom developed in the universities of western Europe in the seventeenth and eighteenth centuries. It emerged in a period of growing tolerance nurtured by the spread of scientific inquiry, reaction to the fiercely destructive religious conflicts that had for so long plagued Europe, the growth of commerce, and the evolution of the liberal state with its general bias toward liberty. Academic freedom is now recognized in most countries.

The principal justification of academic freedom is that through the unhampered interplay of ideas, the world's stock of usable knowledge is enlarged. Thus, while academic freedom directly benefits the teacher or institution, in a larger and much more significant sense, it serves vital public interests. American professors have fought for academic freedom since the nineteenth century, but the U.S. Supreme Court did not endorse the concept until the mid-twentieth century. The first case in which a majority of the Court's justices ruled that academic freedom is protected by the Constitution was Sweezy v. New Hampshire (1957). Today, the concept of academic freedom is well established in Supreme Court jurisprudence. In most countries, academic freedom refers to the autonomy of the institution and its independence from external restraints; in the United States, in accordance with the individualistic bent of its constitutional law, the claim to academic freedom is usually associated with an individual teacher's freedom from interference with the free play of the intellect.

Academic freedom is invariably tied to the concept of tenure (status granted after a trial period, protecting a teacher from summary dismissal), since without security of employment, teachers cannot safely exercise their intellectual freedom. Tenure does not mean, however, that teachers can never be dismissed. Rather, it means they can be dismissed only for adequate cause, established according to the exacting requirements of due process, and including at some stage a judgment by professional peers. Academic freedom does not protect teachers from dismissal for causes not related to the exercise of their intellectual rights.

There are many associations throughout the world that are concerned with the defense of academic freedom and tenure; one of the most vigorous defenders in the United States is the American Association of University Professors (AAUP). Such defense is needed because academic freedom is often under great pressure from a wide variety of sources: political parties, politicians, economic interests, religious and racial groups, alumni, donors, and members of governing boards. When the Supreme Court decided Sweezy, professors were under attack by politicians trying to ferret out communists. Today, critics of academia accuse professors of politically indoctrinating students, of presenting only a single point of view, of irrelevant discussions, and occasionally of deliberately misrepresenting course content in course catalog descriptions. The increased involvement of professors in off-campus business and government affairs has also generated scrutiny of academic research. Topics of concern include limits on research as a result of industrial-academic collaboration; influence by companies that employ researchers as consultants, thereby creating a conflict of interest; money rather than scientific inquiry being the propellant for research; and limits of academic disclosure dictated by corporate sponsors.

Bibliography

De George, Richard T. Academic Freedom and Tenure: Ethical Issues. Lanham, Md: Rowman and Littlefield, 1997.

Hofstadter, Richard, and Walter P. Metzger. The Development of Academic Freedom in the United States. New York: Columbia University Press, 1955.

Kahn, Sharon E., and Dennis Pavlich. Academic Freedom and the Inclusive University. Vancouver: University of British Columbia Press, 2000.

Sowell, Thomas. Inside American Education: The Decline, the Deception, the Dogmas. New York: Free Press, 1993.

—David Fellman

The right to teach as one sees fit, but not necessarily the right to teach evil. The term encompasses much more than teaching-related speech rights of teachers.

Educational institutions are communities unto themselves with rules of their own, and when conflicts arise, the most common and compelling arguments involve freedom. As a result, the academic community is famous for blazing new trails of freedom in society, and it is often forced to confront its own concepts of freedom in the process.

Academic freedom was first introduced as a judicial term of art (a term with a specific legal meaning) by Supreme Court Justice William O. Douglas. In Adler v. Board of Education, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952), the Supreme Court upheld a New York law (N.Y. Civ. Service Law § 12-a) that prohibited employment of teachers in public institutions if they were members of "subversive organizations." In a scathing dissent joined by Justice Hugo L. Black, Douglas argued that such legislation created a police state and ran contrary to the First Amendment guarantee of free speech.

Justice Douglas equated academic freedom with the pursuit of truth. If academic freedom is the pursuit of truth and is protected by the First Amendment, reasoned Douglas, then the New York law should be struck down because it produced standardized thought. According to Douglas's dissent, the New York law created an academic atmosphere concerned not with intellectual stimulation but with such questions as "Why was the history teacher so openly hostile to Franco's Spain? Who heard overtones of revolution in the English teacher's discussion of The Grapes of Wrath? and What was behind the praise of Soviet progress in metallurgy in the chemistry class?" Douglas conceded that the public school systems need not become "cells for Communist activities," but he reminded the court that the Framers of the Constitution "knew the strength that comes when the mind is free."

Shortly after the Adler decision, a similar case began to take shape in New Hampshire that would receive very different treatment by the Supreme Court. On January 5, 1954, Paul M. Sweezy was summoned to appear before New Hampshire attorney general Louis C. Wyman for inquiries into Sweezy's political associations. Under a 1951 New Hampshire statute, the state attorney general was authorized to investigate "subversive activities" and determine whether "subversive persons" were located within the state (Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 [1957]). Wyman was especially interested in information on members of the Progressive party, an organization many politicians suspected of nurturing Communism in the United States.

Sweezy said he was unaware of any violations of the statute. He further stated that he would not answer any questions impertinent to the inquiry under the legislation, and he would not answer questions that seemed to infringe on his freedom of speech. Sweezy did answer numerous questions about himself, his views, and his activities, but he refused to answer questions about other people. In a later inquiry by the attorney general, Sweezy refused to comment about an article he had written and about a lecture he had delivered to a humanities class.

When Sweezy persisted in his refusal to talk about others and about his lecture, he was held in contempt of court and sent to the Merrimack County jail. The Supreme Court of New Hampshire affirmed the conviction, and Sweezy appealed.

The U.S. Supreme Court reversed. The basis for the reversal was the New Hampshire statute's improper grant of broad interrogation powers to the attorney general and its failure to afford sufficient criminal protections to an accused. The Court commented strongly upon the threat such a statute posed to academic freedom.

The principal opinion, written by Chief Justice Earl Warren, questioned the wisdom of Wyman's legislative inquiry. With regard to the questions on Sweezy's lecture to the humanities class, the Chief Justice stated that "[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation."

Justice Felix Frankfurter wrote a separate concurring opinion. To Frankfurter, the call of the Court was to decide the case by balancing the right of the state to self-protection against the right of a citizen to academic freedom and political privacy. Frankfurter concluded that Wyman's reasons for questioning Sweezy on academics were "grossly inadequate" given "the grave harm resulting from governmental intrusion into the intellectual life of a university."

Neither of the plurality opinions in Sweezy would have found all congressional inquiries into academia to be unconstitutional. However, both opinions helped free educators in later cases by recognizing and emphasizing the danger of restricting academic thought. In Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 629 (1967), the Supreme Court finally awarded to teachers and professors the full complement of free speech and political privacy rights afforded other citizens. Political "loyalty oaths" required of New York State employees (including educators) under state civil service laws were declared void, and New York education laws against "treasonable or seditious speech" were found to violate the First Amendment right to free speech. According to the Keyishian decision, "[A]cademic freedom … is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."

The tension between academic oversight and academic freedom did not end with the Keyishian case. The Supreme Court later decided several cases that identified more precisely how much control school authorities may exercise over education. The Court held in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), that a school board can control curriculum and book selection, but it may not remove "objectionable" books from public school libraries solely in response to community pressure. Among the books that the Island Trees Union Free School District No. 26 in New York had banned in the mid-1970s were Slaughterhouse Five, by Kurt Vonnegut, Jr., Black Boy, by Richard Wright, Naked Ape, by Desmond Morris, and The Fixer, by Bernard Malamud.

School boards and state legislatures generally control public school curriculums, but their control is not complete. A state statute will be struck down if it requires public schools to teach creationism when they present evolution, and vice versa. According to the Court in Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573, 96 L. Ed. 2d 510 (1987), such a law undermines a comprehensive scientific education and impermissibly endorses religion by advancing the religious belief that a supernatural power created human beings. The Supreme Court has also held that if school authorities can show additional independent grounds for discharge, they may terminate a teacher for disruptive speech even if a substantial motivation for the termination was speech on issues of public concern (Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 [1968]; Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 [1977]). This precedent seemed to give school authorities ample means to elude liability for unconstitutional terminations. However, neither of the principles helped City University of New York (CUNY) when it was sued by the chair of its black studies department.

Professor Leonard Jeffries specialized in black studies and the history of Africa, and his teaching style at CUNY was controversial. Some students felt that Jeffries discouraged classroom debate, whereas others applauded him for verbalizing the frustrations of many African Americans. Jeffries referred to Europeans as "ice people" and as "egotistic, individualistic, and exploitative." Africans, on the other hand, were "sun people" who had "humanistic, spiritualistic value system[s]."

On July 20, 1991, Jeffries spoke at the Empire State Black Arts and Cultural Festival, in Albany, New York. In his speech, he assailed perceived Jewish power, asserting that Jews controlled CUNY and Hollywood and had financed the American slave trade. The speech attracted national attention and placed CUNY on the horns of a dilemma: it could punish Jeffries and risk running afoul of the First Amendment and of academic freedom principles, or it could do nothing and risk losing expected income from offended school benefactors. For several months, the university wrestled with the problem. Then, in October, the board of trustees voted, without explanation, to limit Jeffries's current appointment as chair to one year instead of the customary three.

At the end of October, Jeffries wrote to Jeffrey Rosen, dean of social sciences, that he was declaring "war" on the faculty. In November, Jeffries scolded President Bernard Harleston as Harleston was leaving the administration building. By December, continuing performance reviews of Jeffries had become increasingly negative. On March 23, 1992, the CUNY Board of Trustees appointed Professor Edmund Gordon to the position of black studies chair. Jeffries filed suit in federal court against the CUNY trustees, Harleston, and Chancellor W. Ann Reynolds, on June 5, 1992.

Jeffries argued that the defendants violated his First Amendment free speech rights and his Fourteenth Amendment due process rights when they denied him a full three-year term as chair of black studies. The jury agreed with Jeffries that a substantial motivating factor in his dismissal was his speech in Albany. The jury also found that CUNY had not shown that Jeffries would have lost the chair had Jeffries not delivered the Albany speech. The jury further found that Jeffries had not disrupted the operation of the black studies department, the college, or the university. The jury did find, however, that CUNY had reasonably expected the speech to have a detrimental effect on the school. Despite this seemingly justifiable excuse for the school's action, the jury finally found that CUNY had deprived Jeffries of property (the position of chair) without due process of law.

The district court judge held that Jeffries's First Amendment rights had been violated. On the issue of liability, the jury awarded Jeffries $400,000 in punitive damages: $30,000 against President Harleston, $50,000 against Chancellor Reynolds, and $80,000 against each of CUNY's four trustees. After the verdict, Harleston, Reynolds, and each of the trustees moved to overturn the award. They argued that the verdict was inconsistent with the jury's findings and not supported by the evidence. The defendants also maintained that they were immune from individual liability as state officials acting in their official capacity. Jeffries filed a motion requesting a court order reinstating him as chair of CUNY's black studies department.

On August 4, 1993, the district court judge reduced Jeffries's recovery in damages by $40,000, but awarded him the black studies chair. According to the judge, it was reasonable for the jury to find that CUNY had terminated Jeffries solely because of the views he expressed in the Albany speech, without constitutional grounds. The school apparently had ample opportunity to gather and present evidence that Jeffries's speech had disrupted the efficient and effective operation of the university, but instead chose to argue that Jeffries had been terminated for tardiness, sending grades to the school by mail, and brutish behavior. The lack of evidence to buttress CUNY's defenses supported Jeffries's arguments that his free speech rights had been violated and that he deserved to be reinstated to the position of black studies chair.

Though the concept of academic freedom has traditionally been applied only to teachers, it has begun to creep into lower-court opinions involving the rights of students. Several Supreme Court cases are cited as creating a basis for such rights. In Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972), the Supreme Court held that a public university may deny campus access to provably disruptive groups, but it may not deny access based on the views the students wish to express. The Supreme Court ruled in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), that a public school may censor the content of a student newspaper if the newspaper is not an entirely public forum and the reason for censure is related to a legitimate educational concern. In Board of Education v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 (1990), the Court approved the establishment of a Christian student group in a public school. The Court also held in Mergens that a school's refusal to permit a religious student group to meet at school and use its facilities violates the federal Equal Access Act (Education for Economic Security Act § 802, 20 U.S.C.A. § 4071 et seq. [1984]) if the school provides such access to other noncurriculum student groups.

See: Censorship; Colleges and Universities; First Amendment; Freedom of Speech; Religion; Schools and School Districts.

The right of teachers and students to express their ideas in the classroom or in writing, free from political, religious, or institutional restrictions, even if these ideas are unpopular.

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