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COPYRIGHT 2001 Stanford Law School
INTRODUCTION
When "the most active and inquiring intellects find it advisable to keep the general principles and grounds of their convictions within their own breasts," John Stuart Mill once wrote, "the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind."(1) Mill insisted that only by protecting full freedom of thought and discussion does a society move closer towards truth. One century later, the Supreme Court echoed the philosopher's sentiments in Sweezy v. New Hampshire, and, for the first time, formally recognized a legal concept individuals would subsequently abbreviate as "academic freedom": "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes."(2) Protecting the right of a professor to refuse to disclose his political affiliations, the Sweezy plurality referred to the "vital role" higher education played in a democracy and warned against imposing "any strait jacket upon the intellectual leaders in our colleges and universities."(3) In only one paragraph, the Court elevated academic freedom to the status of a legal theory and reaffirmed the principles philosophers like Mill uttered long ago. But what the Court seemed to fail to realize then and in academic freedom cases since Sweezy was that judicial opinions differ fundamentally from philosophical writing in one very important aspect: Not written for the mere provocation of thought, they must provide clear binding precedent as guidance for lower courts.
The Supreme Court has spoken in grand terms about the importance of preserving academic freedom yet has failed to translate its poetic rhetoric into concrete doctrinal guidance as to what academic freedom truly is, where the limits of such a liberty lie, and how it should be guarded by lower courts. The ambiguous command of the high court to protect a freedom it has not fully defined forces lower courts today to cling to the familiar public employee speech rules found in Picketing v. Board of Education(4) and Connick v. Myers(5) for lack of a better test to use when public universities attempt to penalize professors for instances of speech. Despite superficial allusions these lower courts may make to academic freedom, their knee-jerk embrace of Connick is troublesome because mechanically applying general public employee speech rules to academic contexts causes the judiciary to disregard the unique considerations that distinguish academic freedom cases from generic employee speech disputes. The Connick test provides an inadequate method for approaching First Amendment cases within universities because substantive academic freedom analysis occupies no distinct place within the test and because undiscriminating adherence to its rules has and will continue to produce awkward, inconsistent results in academic settings.
To develop these arguments, I will provide in Part I a brief overview of Supreme Court jurisprudence thus far regarding the constitutional "theory" of academic freedom, followed by a short summary of general public-employee speech rules in Part II. I will then highlight in Part III the questions the Court leaves unanswered in its vague discussions of academic freedom. To elaborate upon the judicial ambiguity which I argue has compelled lower courts to over-rely on the Pickering/Connick test, I will explain the tension between constitutional and professional definitions of academic freedom. I will particularly focus on the divergent views of academic freedom as both an institutional and individual right and the different types of expression constitutional and professional definitions of academic freedom profess to protect.
In Part IV, I will explain why the general public-employee speech test used in Pickering and Connick does not adequately recognize the unique factors associated with academic freedom cases. First, it is questionable whether professors are "employees" of the university in the traditional sense. Second, it is unclear how the institutional academic freedom of the university is to be "balanced" against the individual academic freedom of the professor within the confines of the Connick test. Third, requiring the disputed employee speech to be of "public concern" before it merits First Amendment protection imposes an especially odd burden when professors speak on university premises.
Finally, in Part V, I will offer alternative standards lower courts might use instead of the Pickering/Connick test when adjudicating cases that involve speech disputes between individual professors and their universities, a standard which hopefully will place more emphasis on academic freedom considerations. In this final section, I will focus on three main types of expression by professors: individual choices of what to teach, in-class remarks made during lectures, and critical speech aimed either at the university administration or colleagues (what I will call "intramural speech"). I will also briefly discuss two recent cases in which appellate courts tried to engage either in a Connick inquiry or in slightly misguided academic freedom analysis.
Throughout this note, I will be referring solely to the scenario in which a university tries to sanction a professor for an instance of expression. This emphasis excludes examination of situations in which state legislatures attempt to directly regulate university or professorial speech. Focusing on internal, rather than external, controls on academic speech allows better exploration of the potential conflicts between institutional and individual notions of academic freedom.
I. THE CONSTITUTIONAL "THEORY" OF ACADEMIC FREEDOM
The term "academic freedom" is often used by courts to describe the freedom of a teacher to investigate questions within her discipline and openly communicate the results free from external control by the government or internal control by the academic institution employing her.(6) Descended from the German idea of Lehrfreiheit (freedom of the teacher), academic freedom evolved as a professional ideal within American universities long before the judiciary first recognized the right as one worthy of constitutional protection.(7) In its 1915 Declaration of Principles, the American Association of University Professors ("AAUP") identified three essential elements of academic freedom: "freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action."(8) Not until the 1950s did the Supreme Court formally give academic freedom legal attention. Since then, there has been a meager quantity of Supreme Court cases explaining constitutionally protected academic freedom.
Although not granted the type of independent constitutional status as was awarded privacy in Griswold v. Connecticut,(9) the Supreme Court has referred to academic freedom as a constitutionally distinct concept, one that merits vigilant albeit vague protection by the courts. With very general yet emphatic language, the Court first insisted upon guarding this special freedom in a series of decisions limiting the reach of state laws requiring loyalty oaths and authorizing investigations into subversive activities by public employees. In these opinions, the justices painted the battles over academic freedom as struggles between state governments and universities as institutions. Although exalting the importance of freedom of thought and discussion within academic communities in higher education, these decisions provided much elegant dicta yet few specific standards by which to govern any right to academic freedom. The decisions that use academic freedom as a tool of argument never focus on its meaning; in fact, most of the cases that appeal to the concept are ultimately decided upon separate doctrines such as political expression rights, due process and the privilege against self-incrimination.
A. Academic Freedom Within Higher Education
In 1952, Justice Frankfurter first referred to the purpose of academic freedom in his concurring opinion in Wieman v. Updegraff.(10) The majority held that the interpretation given by the Oklahoma Supreme Court to a state statute requiring that state officers and employees take an oath denying past and present affiliation with certain "subversive" groups violated the appellants' right to due process.(11) Justice Frankfurter warned against the "unwarranted inhibition upon the free spirit of teachers" and its ability "to chill that free play of the spirit which all teachers ought especially to cultivate and practice."(12) Such intrusion, he stated, would create "caution and timidity."(13) Five years later, the Court in Sweezy v. New Hampshire picked up where Justice Frankfurter's concurring opinion in Wieman had left off, articulating the fullest discussion of constitutional academic freedom to date.(14) In Sweezy, the Court held that convicting a college professor for contempt because of his refusal to answer the state government's questions concerning the content of his lectures and his knowledge of the Communist party abridged the professor's right to free speech and academic freedom without due process of law. Emphasizing how crucial freedom in higher education is to a democracy, the Court stated:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.... Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers 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.(15)
Perhaps the most memorable aspect of the Sweezy decision, however, was another concurring opinion by Justice Frankfurter in which he maintained that "governmental intrusion into the intellectual life of a university" creates a "grave harm."(16) In a developed discussion of the purpose of a university, Frankfurter borrowed from a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand in South Africa what was to become a famous, oft-repeated passage:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the 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.(17)
These four essential freedoms to which Justice Frankfurter referred appeared to mean that a university possessed expansive institutional freedom in faculty appointment and tenure, curriculum, pedagogy and student admissions.(18)
Three years later the Court drew upon the principles expressed in Sweezy when it struck down an Arkansas statute compelling teachers to list, as a condition of their employment, every organization to which they had belonged in the last five years.(19) The Court's decision in Shelton v. Tucker reiterated the judiciary's willingness to protect academic freedom: "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."(20)
Finally, the most recent prominent Supreme Court opinion linking loyalty laws to encroachment upon academic freedom was Keyishian v. Board of Regents of the University of the State of New York, in which the Court voided New York public employee loyalty laws for their vagueness and overbreadth.(21) Justice Brennan delivered the opinion of the Court, specifying for the first time that academic freedom was a "special concern of the First Amendment."(22) He stated: "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom ... does not tolerate laws that cast a pall of orthodoxy over the classroom."(23) The classroom, the Court emphasized, could only thrive upon diversity of thought: "The classroom is peculiarly 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.'"(24) The Keyishian decision emphasized yet again that battles over academic freedom were institutional battles, fought between state governments and universities. J. Peter Byrne explains:
The [Keyishian] Court's rhetoric praises academic freedom as an institutional right to be free from orthodoxy prescribed by the government at large.... This focus on the protection of the system from government interference can easily be missed because the term academic freedom had always signified an individual right against any interference by laypersons.(25)
Since the loyalty oath cases, the Supreme Court has referred to academic freedom only occasionally, without elaborating upon the still hazy articulation of the constitutional theory. In Healy v. James, the Court ordered Central Connecticut State College to officially recognize a student political organization called Students for a Democratic Society, despite the fact that the organization's philosophies were "antithetical" to the school's policies.(26) This decision maintained that the academic freedom of students entitled them to unfettered exposure to diversity of thought: "The college classroom with its surrounding environs is peculiarly the `marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom."(27) The Healy decision did imply that academic freedom may be limited if it produced consequences that were disruptive to the academic community and learning process: "Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education."(28)
In dicta Justice Powell reinforced the Court's support of institutional academic freedom for universities in Regents of the University of California v. Bakke.(29) After declaring that "attainment of a diverse student body" is "clearly a constitutionally permissible goal for an institution of higher education," Powell described academic freedom as including the right of a university to enact admissions policies for itself.(30) He wrote: "Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body."(31) Two subsequent decisions, Regents of the University of Michigan v. Ewing(32) and University of Pennsylvania v. Equal Employment Opportunity Commission,(33) emphasized the deference courts must give to internal academic decisions made by a university. In Ewing, the Court held that the faculty's decision to deny a student's request to retake a written examination was constitutional: "[Judges] should show great respect for the faculty's professional judgment [and] may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment."(34) By maintaining its "reluctance to trench on the prerogatives of state and local educational institutions," the Court was fulfilling its "responsibility to safeguard their academic freedom, `a special concern of the First Amendment.'"(35) However, the majority in University of Pennsylvania v. EEOC, while holding that the EEOC could investigate confidential peer review materials during a discrimination suit, did point out that only "legitimate academic decisionmaking" was entitled to judicial deference.(36) Yet the Court never specified what "legitimate" academic decisionmaking entails.
In sum, piecing together the Supreme Court's references to educational liberties yields a general constitutional theory of academic freedom that aims to preserve the free spirit of education and the unrestricted "marketplace of ideas" that characterizes the ideal classroom. The unfettered search for truth within institutions of learning, a necessity for a modern democracy, is one protected by the First Amendment. Constitutional interpretations of academic freedom suggest that it is primarily a right retained by universities to decide tenure policies, curriculum, pedagogical methods and admissions standards. However, the Court suggests that this freedom might be limited by certain standards that separate legitimate from illegitimate academic decisions.
B. Academic Freedom Within Secondary Education
The Supreme Court has not limited constitutional protection of academic freedom to the university level. Traces of the Court's willingness to protect the rights of teachers and schools to teach as they please at the secondary education level exist as well, though to a lesser degree. As early as 1923, the Supreme Court declared a state law prohibiting the teaching of foreign languages in public schools unconstitutional because no legitimate state interest justified the regulation.(37) An Arkansas statute forbidding any teacher to teach evolution was struck down as violating the Establishment Clause in Epperson v. Arkansas because it had no purpose other than to serve the interests of the dominant religious faith.(38) The Court followed a similar analysis in Edwards v. Aguillard, striking down a Louisiana statute that required the teaching of creationism if evolution constituted an element of the curriculum.(39)
Student expression rights have also been protected within secondary schools. The majority in Tinker v. Des Moines Independent Community School District declared that a ban on black armbands worn on school premises during school hours in protest against the Vietnam War was an unconstitutional restraint on the expressive rights of students.(40) The Tinker Court asserted: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."(41) The Court also intervened when a school board tried to remove certain books from a school's library shelves merely because the board found particular ideas in the books to be "anti-American, anti-Christian, anti-Semitic, and just plain filthy."(42) Justice Brennan explained: "A school library, no less than any other public library, is a `place dedicated to quiet, to knowledge, and to beauty.'"(43) Even though the state government possessed "significant discretion to determine the content of [its] school libraries," such discretion to remove books could not be exercised "in a narrowly partisan or political manner."(44)
However, while the Court supported the importance of freedom of thought and expression in secondary schools, it also acknowledged the greater degree of control state governments could wield over younger students still maturing intellectually and emotionally. In 1986, the Court allowed a public high school assistant principal to discipline a student for sexually oriented comments in a speech to a student election assembly because the school had a "basic educational mission" that might be undermined.(45) The Court in Bethel School District No. 403 v. Fraser stated:
The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.(46)
Likewise, the Court granted a high school principal the right to censor portions of the school newspaper in Hazelwood School District v. Kuhlmeier, recognizing the greater need for regulation of expression when the speaker is of a more delicate age: "[A] school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics...."(47)
Critical thinking and the ability to discriminate between varying viewpoints have been regarded by the Court to be abilities acquired only through guidance during the early years. In contrast, courts tend to assume that members of a university community possess the requisite skills to navigate selectively through wide exposure to information and opinions. This recognition of the different levels of emotional and intellectual maturity among secondary school and university students serves as the primary reason academic freedom guarantees for teachers are much stronger at the higher education stage. A teacher in a public high school is expected to indoctrinate to some extent, inculcating particular values and ideas thought indispensable to the young, developing mind. The latitude given such teaching is necessarily more constrained. The university professor, in contrast, is entrusted to maintain an open learning environment in which questioning minds can express differing views. Mark Yudof explains:
University professors ... are expected to engage in critical examination of the dominant paradigms in their fields.... Conversely, ... elementary and secondary school teachers are rarely engaged in advanced research, in publishing research results, or in testing and sharing their hard-won insights with their students.... They are expected to be role models and authority figures, commanding the respect and deference of their charges.... Thus ... the protection of their pedagogical and intellectual autonomy is unlikely to advance the same goals as are identified with higher education.(48)
This contrast between the duties of university professors and high school teachers only further emphasizes the special importance academic freedom holds in higher education, and the need to maintain protection of the liberty through specific judicial efforts. By forcing this "special concern of the First Amendment" into a standard public-employee speech formula, courts will be tempted to treat academic freedom as an ordinary, undifferentiated free speech right. The rules in Pickering and Connick, which I detail below, provide minimal opportunity for a tailored analysis of academic freedom concerns.
II. A BRIEF REVIEW OF PUBLIC EMPLOYEE SPEECH DOCTRINE
Because the loyalty oath and subversion cases, which contain the most significant discussions of academic freedom by the Supreme Court, involved direct attempts at control by state legislatures, the constitutional theory of academic freedom primarily focuses on the academic freedom of universities from government influence, rather than of professors from university actions. Lower courts therefore have to improvise when confronted with the latter type of situation. Presently, when a speech dispute arises between a professor and the public university where she is employed, the lower courts' tendency is to automatically apply the general principles of public-employee speech doctrine found in two major cases: Pickering v. Board of Education(49) and Connick v. Myers.(50)
Today, public employers can only limit employee speech pertaining to matters of "public concern" when the employer's interest in "efficiency" outweighs the employee's interest in free speech.(51) The decision in Waters v. Churchill clarified the "efficiency" concern to mean expectation of "disruption," permitting a government employer to fire an employee for speaking on a matter of public concern if (1) the employer's prediction of disruption is reasonable,(52) (2) the potential disruptiveness is enough to outweigh the value of the speech,(53) and (3) the employer took action against the employee based on this potential disruption and not in retaliation for the speech.(54) The government has a legitimate interest in "promot[ing] efficiency and integrity in the discharge of official duties, and [maintaining] proper discipline in the public service."(55)
Rules governing public employee speech rest on the assumption that the government, as an employer, can impose reasonable regulations on the speech of its employees that cannot be...
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