What’s a university to do when students, professors, and the institution itself assert their right to academic freedom? A hypothetical case explores the legal issues involved.
By Gary Pavela
Many faculty members think that constitutionally protected academic freedom is a special prerogative of professors. Most judges, however, don’t share that perspective. To the extent that academic freedom exists at all, the law sees it as shared by universities, professors, and students. A "shared" right can, of course, lead to conflict. When disputes about academic freedom end up in court, judges usually draw on public policy interpretations of the nature and aims of higher education in order to balance the competing interests in a case.
One of the most frequently cited definitions of academic freedom is Justice Felix Frankfurter’s 1957 concurring opinion in Sweezy v. New Hampshire (in which the U.S. Supreme Court overturned the contempt conviction of a lecturer who refused to answer questions concerning the content of his talks). Justice Frankfurter quoted with approval a statement from a conference of senior scholars from the University of Cape Town referring to "four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." This defense of academic freedom, of course, is a defense of academic freedom for universities. It conflicts with most conceptions of academic freedom articulated by professors.
Perhaps the strongest judicial statement in defense of academic freedom for professors came in the Supreme Court’s 1967 decision in Keyishian v. Board of Regents (striking down a New York State loyalty oath). Justice William J. Brennan wrote the majority opinion, stating that academic freedom is "a special concern of the First Amendment," grounded on the principle that "[t]he classroom is peculiarly the ‘marketplace of ideas.’"
The idea that the classroom—and the university as a whole—is a "marketplace of ideas" implies that students as well as faculty members can assert academic freedom claims, at least as encompassed by the First Amendment. Any ambiguity in that regard was resolved in 1995 by the Supreme Court in Rosenberger v. Rector and Visitors of the University of Virginia. In Rosenberger, the Court held that the University of Virginia could not exclude a student publication from access to indirect subsidies generated from student fees based solely on the publication’s religious perspective.
Justice Anthony Kennedy wrote the majority opinion, and observed that
[v]ital First Amendment speech principles are at stake here. . . . [The] danger is especially real in the University setting, where the State acts against a . . . tradition of thought . . . that is at the center of our intellectual and philosophic tradition. . . . In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. . . . The quality and creative power of student intellectual life to this day remain a vital measure of a school’s influence and attainment. For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.
Rosenberger, in short, suggests students also have a claim on academic freedom—perhaps even more so than professors. Recent rulings by lower federal courts—especially the 2000 decision by the U.S. Court of Appeals for the Fourth Circuit in Urofsky v. Gilmore, which upheld a Virginia law restricting public employees from viewing sexually explicit material on state computers—have called the very concept of academic freedom into question. Historically, however, courts have usually recognized competing academic freedom claims, and sought to balance them. The hypothetical (and fictional) case study that follows is designed to highlight some of the most prominent legal controversies and related case outcomes.
Andrea Angell, a tenured professor in the women’s studies department at Placid State University, was known for forceful advocacy of a clearly stated mission: to teach her students about the extent of sexist oppression in America, and to promote their active involvement in challenging what she regarded as patriarchal forces of reaction, resistance, and backlash.
Angell attracted dedicated admirers—and persistent critics. Complaints against her eventually came in the form of a letter to the dean of the faculty, signed by three of the eighteen stu dents in her "Theories of Feminism" seminar, accompanied by a supporting statement from Rusty Becket, a professor in the history department.
The student complainants and Becket demanded that Angell be subject to disciplinary action because she (a) assigned class readings that ridiculed the Catholic Church for its position on abortion; (b) refused to award a student a letter grade until the student apologized in writing for her "relentless, self-hating, and self-destructive support for male supremacy"; (c) gave an off-campus speech suggesting that the frequency of rape on college campuses required a curfew for all males, including male faculty members; (d) stated, during the course of one seminar, that Becket’s latest book (questioning feminist theory) was "overtly sexist" and had been "plagiarized from the most misogynist essays written by the least intelligent sophomores" in Becket’s introductory classes; (e) repeatedly referred to the classroom comments of one of her student critics as "more bullshit from the resistance"; and (f) refused to allow students (mainly her critics) who had earned a grade of C or below on accumulated weekly quizzes to complete class evaluations—on the theory that those with low grades could not give intelligent or objective opinions.
Upon receipt of the letter, the dean solicited a written response from Angell. The dean received a prompt reply from her lawyer, stating that all of the allegations pertained to matters involving academic freedom, protected by the First Amendment, and Angell’s status as a tenured professor.
The best initial response of the administration in this hypothetical case study is to confer with legal counsel. Administrators must address the complicated legal issues involved in accordance with procedures and policy statements set forth in the faculty handbook or the employment contract. Even if the Constitution doesn’t explicitly protect academic freedom, it can be defined by established institutional policies and enforced by an express or implied contract.
Some of the allegations against Angell raise legitimate academic freedom issues, and some do not. The first allegation, pertaining to assigned readings that ridiculed the Catholic Church for its position on abortion, should not result in any disciplinary inquiry or action, unless there is reason to believe Angell violated her employment contract by teaching topics or assigning materials not relevant to the course.
A pertinent case is DiBona v. Matthews, in which a California appellate court held in 1990 that administrators at San Diego Community College were not justified in canceling a drama class that was to have performed a controversial play. The court observed that "the First Amendment does not transfer control of a public school curriculum from school administrators to individual teachers and students." Nonetheless, the court wrote:
The facts of this case present a classic illustration of "undifferentiated fear" of disturbance on the part of school administrators. DiBona [the course instructor] was given the authority to select curriculum materials. The administration became interested in the subject matter of the class only after "community" opposition [to the proposed play] was first manifest. When they reacted to this pressure by canceling the class, there were no facts known to [the administrators] indicating a "clear and present danger" of any evil, let alone a "serious substantive one." Nor was there any suggestion that the production of the play would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." . . . Rather, school officials were merely concerned with "avoid[ing] the discomfort and unpleasantness that always accompany" an unpopular or unorthodox point of view.
Unsupported speculation about the potentially "disruptive" nature of Angell’s assigned readings would be especially dangerous. For example, in Burnham v. Ianni, the U.S. Court of Appeals for the Eighth Circuit held in 1997 that the chancellor of the University of Minnesota at Duluth violated the First Amendment when he removed photographs of two professors posing with weapons from a campus exhibit. The court wrote that
We recognize that the government, as an employer, has broader powers in suppressing free speech than the government as a sovereign. Indeed, we have given some deference to an employer’s predictions of workplace disruption. . . . However, we have never granted any deference to a government supervisor’s bald assertions of harm based on conclusory hearsay and rank speculation. . . . There is simply no evidence that establishes a nexus between the two photographs and an exacerbated climate of fear on the campus or, more importantly, that establishes a relationship between the photographs and a decrease in the efficiency and effectiveness of UMD’s educational mission.
DiBona and Burnham are important precedents, likely to be applied when campus officials seek to silence expression solely because it is "provocative" or "offensive." Nonetheless, both cases have to be weighed against other opinions that give considerable deference to school and college officials to shape the curriculum and to prevent foreseeable disruptions of the campus environment. For example, in Edwards v. California University of Pennsylvania, the U.S. Court of Appeals for the Third Circuit held in 1998 that a professor "[did] not have a constitutional right to choose curriculum materials in contravention of [a] [u]niversity’s dictates." Likewise, in Jeffries v. Harleston the second circuit ruled in 1995 that the City College of New York did not violate the rights of a department chair who was demoted for making inflammatory remarks about Jews in an off-campus speech.
On the issue of the disputed student grade, Angell should be advised that if she believes a student has disrupted her class, she should initiate disciplinary action in accordance with estab-lished procedures. What she must not do, however, is use her grading authority as a means of ideological coercion. Whether protected by the First Amendment at public institutions or as a matter of good policy at private colleges and universities, students as well as faculty members have at least some right to freedom of expression in the classroom. A pertinent Supreme Court case is Tinker v. Des Moines (1969), which held that students could not be punished for nondisruptive classroom expression (that is, for wearing armbands as a form of silent protest).
While Angell probably could not be compelled by the college to give a particular grade to a student, any grade she does award must reflect an honest, professional assessment of the student’s work. Although it rarely happens, a professor’s grade could be challenged on the ground that it was arbitrary and capricious or reflected bad faith.
In any event, final authority over grading policies rests with the university, not Angell. That point was made clear in Lovelace v. Southeastern Massachusetts University—a 1986 decision by the U.S. Court of Appeals for the First Circuit. In Lovelace, the court held that matters such as "course con-tent, homework load, and grading policy are core university concerns" subject to "policy decisions" by university administrators. Similarly, in Brown v. Armenti, the third circuit held in 2001 that a public university professor had no "First Amendment right to expression via the school’s grade assignment procedures." And in Parate v. Isibor the sixth circuit ruled in 1989 that a state university could not require a professor to award a particular grade, but it affirmed that administrators can decide what grades ultimately appear on student transcripts—perhaps to remedy quid pro quo sexual harassment, or instances of arbitrary and capricious grading.
Regarding Angell’s provocative off-campus speech, her comments concerning campus sexual assaults address a matter of "public concern" and should not be a motivating factor in subjecting her to discipline. Discipline might be justified, however, if Placid State tenure policies permit it under the circumstances, and if the university can "make a substantial showing" that any disciplinary action was based upon "a reasonable prediction" that Angell’s speech "would disrupt university operations."
This standard—which many professors will see as a dangerous intrusion upon academic freedom—was drawn from the Supreme Court’s 1994 decision in Waters v. Churchill, a plurality opinion holding that an administrator at a government agency can take disciplinary action against an employee for what the employee "supposedly" said, even on a matter of public concern, if the administrator made factual determinations in a reasonable manner, and reasonably predicted that the employee’s expression would be disruptive. Waters was subsequently applied by the Supreme Court to the Jeffries case, but commentators remain divided over whether the holding is limited to discipline of academic administrators (Jeffries was a department chair) and thus inapplicable to classroom teachers.
Angell, like most faculty members, evaluates students on the quality of their expression. She also needs to understand that her expression is subject to review by her employer and can result in adverse action, especially when the expression is defamatory or otherwise poisons the work environment. Publicly accusing a colleague of plagiarism is an especially serious matter. Such an accusation, if false, could result in civil liability.
It may also justify disciplinary action by an employer, including a college or university. In Feldman v. Bahn, for example, the U.S. Court of Appeals for the Seventh Circuit observed in 1993 that "an unsupported charge of plagiarism reflects poorly on the accuser; the First Amendment does not ensure that a faculty member whose assessment of a colleague’s work reveals bad judgment will escape the consequences of that revelation."
Likewise, on the issue of her derogatory references to student comments in class, Angell needs to understand that the full range of provocative expression that would be permitted at a political rally or an artistic performance cannot be used in the classroom. Political activists can be good (indeed, sometimes great) classroom teachers, but they must have the capacity to distinguish between teaching and proselytizing.
Teachers must also remember that they work for employers who can expect them to serve as role models for civil discourse, especially when students in their classes are something akin to a "captive audience." The seventh circuit affirmed that perspective in Clark v. Holmes in 1972, when it wrote that "we do not conceive academic freedom [for teachers] to be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution."
The fact that Angell has tenure does not excuse her from failing to meet accepted standards of professional competency, or permit her to engage in acts that might reflect moral turpitude. Tenure, for example, did not protect a teacher in Omaha from losing his job for using racial epithets in the classroom. Such expression, the Nebraska Supreme Court concluded in 1983 in Clarke v. Board of Education of the School District of Omaha, constituted "immorality" and justified his dismissal.
Finally, academic administrators can expect minimal standards of faculty performance, assessed—in part—by student evaluations. Angell may be free to criticize the evaluation requirement, or seek to modify it. But her unilateral action in refusing to allow students with grades below C to evaluate her performance is not protected by academic freedom. In 1990 in Wirsing v. Board of Regents of the University of Colorado, a Colorado federal court held that "[t]eacher evaluation is part of the University’s own right to academic freedom" and that the university could sanction a professor who tried to block distribution of teacher evaluation forms in her classroom.
Constitutionally protected academic freedom is a fragile concept. It’s not clear that courts will continue to see it as a "special concern" of the First Amendment. To the extent that academic freedom is entitled to constitutional protection, three constituencies have legal standing to invoke it: universities, professors, and students. When conflicts among those constituencies inevitably arise, judges will evaluate and balance competing interests from public policy perspectives. A balance of competing interests means that academic freedom for professors is more likely to be recognized and protected in some contexts (publication by a faculty member of a controversial article on a matter of public concern) than in others (extraneous classroom comments by a teacher, not pertinent to the subject matter of the course). Now more than ever, professors’ claims to academic freedom can’t be based on blanket assertions of unquestioned "rights" or prerogatives; they must be grounded instead on carefully crafted, widely respected, and consistently practiced professional and ethical standards.