Academic freedom, individual or institutional?

Most federal courts agree that academic freedom is a First Amendment right. But whose right is it?

Can a legislature require professors at state universities to obtain permission from an administrator before using a university computer to search for teaching materials or scholarship "having sexually explicit content"? Can a public university compel a professor to change a student grade, cover prescribed material, or limit potentially offensive classroom or artistic expression that the faculty member defends on professional grounds? Federal courts have addressed such questions at an increasing rate in recent years. Their answers have brought attention to the relationship and potential tension between the academic freedom of an individual professor and the academic freedom of the university as an institution, an issue that had been lurking in legal decisions ever since the U.S. Supreme Court originally identified academic freedom as a form of speech that the First Amendment protects against abridgment by the state.

Judicial Origins of Academic Freedom

Government investigations into the loyalty of professors during the McCarthy period of the 1950s prompted the cases in which the Supreme Court first recognized academic freedom as a distinctive First Amendment liberty. The professors who were the litigants in those cases did not differentiate between individual and institutional academic freedom. Rather, as the AAUP maintained in 1959 when it filed its initial Supreme Court brief on the subject of academic freedom, they perceived university autonomy from the state as a necessary condition for the academic freedom of professors.

In its two most important decisions defining academic freedom, the Supreme Court focused on individual professors. The Court first incorporated academic freedom into the First Amendment in a 1957 case initiated when Paul Sweezy, a lecturer at the University of New Hampshire, refused to answer questions from the state attorney general about the content of his lectures. In Sweezy v. New Hampshire, Chief Justice Earl Warren's plurality opinion maintained that this government inquiry "unquestionably was an invasion" of Sweezy's First Amendment "liberties in the areas of academic freedom and political expression-areas in which the government should be extremely reluctant to tread." In this passage, Warren attached the liberties of academic freedom and political expression to Sweezy as an individual.

Keyishian v. Board of Regents, decided in 1967, was the Supreme Court's next significant discussion of the protection afforded academic freedom under the First Amendment. The majority in Keyishian relied on Sweezy while declaring unconstitutional a complex system of New York statutes and regulations designed "to prevent the appointment or retention of 'subversive' persons in state employment." After quoting from Warren's opinion in Sweezy, the majority emphasized that academic freedom is "a special concern of the First Amendment." In Keyishian, as in Sweezy, the Court focused on the academic freedom of the individual professors who challenged the unconstitutional state action.

While recognizing academic freedom as a First Amendment liberty of professors in Sweezy and Keyishian, the Court also observed the importance of preserving what ChiefJustice Warren called "the essentiality of freedom in the community of American universities." It agreed with the AAUP that the academic freedom of professors depends to a substantial extent on the independence of the university from the state. Justice Felix Frankfurter, who had been a professor and an active member of the AAUP at Harvard Law School before his appointment to the Court, wrote a concurring opinion in Sweezy that emphasized the close connection between university autonomy and academic freedom. "Any government intrusion into the intellectual life of a university," he warned, would jeopardize the essential functions of professors. To support his analysis of academic freedom, Frankfurter quoted at length from a South African statement that defined a university as "characterized by a spirit of free inquiry," whose "business" is "to provide that atmosphere which is most conducive to speculation, experiment and creation." The statement identified "`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."

An Institutional Right

The two most important early Supreme Court decisions on academic freedom, therefore, identified it as an individual liberty of professors. Although the Court recognized that academic freedom requires insulating the intellectual life of the university from state interference, it did not develop a distinctive concept of institutional academic freedom. Beginning in the late 1970s, however, the Supreme Court and the lower federal courts began to attach the constitutional protection for academic freedom to the university as an institutional entity, often while relying on the language of Frankfurter's concurring opinion in Sweezy.

These cases arose in contexts very different from that of the earlier litigation dating from the McCarthy era, in which professors were litigants who understandably viewed the autonomy of the university from the state as a means to protect their own academic freedom against external attacks. In some of the subsequent cases, by contrast, individual professors were not litigants. Rather, the university defended various institutional decisions from state intrusion. In more troubling recent cases, professors as individuals and universities as institutions asserted conflicting claims of academic freedom against each other.

The judicial application of academic freedom to the university as an institution began in 1978, when Justice Lewis Powell provided the pivotal fifth vote for the majority in the landmark affirmative action case, Regents of the University of California v. Bakke. Powell invoked the academic freedom of the university in defending his position that race can be a constitutionally legitimate factor in selecting a university's student body. "Academic freedom," Powell wrote, "though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." He maintained that the four essential freedoms of a university, identified in the South African statement quoted by Frankfurter in his concurring opinion in Sweezy, "constitute academic freedom." For Powell, the fourth of those freedoms, to determine "who may be admitted to study," provided First Amendment grounds for a university to use race as a factor in student admissions.

Three years after Bakke, the Supreme Court again quoted these four essential freedoms of a university while deciding Widmar v. Vincent, a case upholding the right of a student organization of evangelical Christians to meet on a public university campus. In his concurring opinion, Justice John Paul Stevens referred to "the academic freedom of public universities." Citing Sweezy and Bakke, Stevens stressed that educational decisions based on the content of speech "should be made by academicians, not by federal judges."

Conflicting Claims

Bakke and Widmar, the first Supreme Court cases that recognized a distinctive category of institutional academic freedom under the First Amendment, did not involve conflicts between universities and individual professors who asserted their own right to academic freedom. In fact, no Supreme Court case to date has presented such conflicts. The closest the Court has come to analyzing the tension between individual and institutional academic freedom is a footnote by Justice Stevens in Regents of University of Michigan v. Ewing, a 1985 case brought by a medical student challenging a faculty decision to dismiss the student on academic grounds. "Academic freedom," Justice Stevens noted, "thrives not only on the independent and uninhibited exchange of ideas among teachers and students, . . . but also, and somewhat inconsistently, on autonomous decision-- making by the academy itself"

Various lower courts, however, have addressed the tension between institutional and individual academic freedom while adjudicating disputes between faculty members and universities. In a 1979 decision, Cooper v. Ross, a federal district court ordered the reinstatement of a Marxist professor while acknowledging "a fundamental tension between the academic freedom of the individual teacher to be free of restraints from the university administration, and the academic freedom of the university to be free of government, including judicial, interference."

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, formerly a law professor at the University of Chicago, used similar language in his 1985 decision, Piarowski v. Illinois Community College District. He observed the "equivocal" meaning of First Amendment academic freedom: "It is used to denote both the freedom of the academy to pursue its ends without interference from the government ... and the freedom of the individual teacher (or in some versions-- indeed in most cases-the student) to pursue his ends without interference from the academy; and these two freedoms are in conflict, as in this case."

Albert Piarowski was the chair of the art department at Prairie State College in Illinois. As part of an exhibit featuring work of the department's faculty, Piarowski contributed eight stained-glass windows. Five were abstract, but three depicted "naked brown women" in various sexually explicit poses. In response to complaints from students, cleaning women, and black clergymen, the college president and other administrators ordered Piarowski to remove the windows from the exhibit on the main floor of the college's principal building.

Judge Posner acknowledged the administration's concern that the content of some of these windows would offend potential applicants and thus make it harder to recruit students, particularly black and female students. Judicial interference with the administration's attempt to protect the institution's image, he observed, would "limit the freedom of the academy to manage its affairs as it chooses." On the other hand, he assumed that Piarowski's own academic freedom precluded the university from denying him the right to display his windows in a less conspicuous place on campus. Balancing the competing academic freedom claims of the college and the professor, Posner upheld the removal of Piarowski's windows from their original location while indicating that they could be exhibited in another gallery in the same building.

Several recent legal decisions by federal circuit courts of appeals exacerbate concerns about the relationship between individual and institutional academic freedom under the First Amendment. In a 1998 case, Edwards v. California University of Pennsylvania, a panel of the U.S. Court of Appeals for the Third Circuit concluded that the First Amendment gives the university as an institution, rather than the professor as an individual, academic freedom to decide "what will be taught in the classroom." In a 2001 case involving the same institution, Brown v. Armenti, a different panel of the third circuit similarly concluded that the university, not the professor, has the academic freedom to assign a grade.

Of greatest concern, a divided decision by the entire fourth circuit in 2000, Urofsky v. Gilmore, claimed more broadly that the First Amendment right of academic freedom extends only to universities. The majority stated that the principles of individual academic freedom in the 1940 Statement of Principles on Academic Freedom and Tenure, issued jointly by the AAUP and the Association of American Colleges and Universities, reflect widely shared professional norms within the academic community, but are not part of the academic freedom protected by the First Amendment.

The Urofsky Case

The professors who were the plaintiffs in the Urofsky case challenged a recent Virginia statute providing that no state employee could use computers owned or leased by the state to access information "having sexually explicit content" unless an "agency head" gave prior approval in writing. Melvin Urofsky, the lead plaintiff, alleged that this act prevented him from assigning students online research assignments regarding federal indecency law. Other plaintiffs alleged that the statute restricted their scholarship and teaching by prohibiting online research on topics such as sexually explicit themes in Victorian poetry, aspects of Freud's theories of sexuality, and the ways in which contemporary pornography shapes gender roles and sexual identity.

Although the federal district court overturned the statute as an unconstitutional abridgment of the professors' First Amendment rights, a panel of the fourth circuit reversed. The entire fourth circuit then voted to review the case and, in a divided vote accompanied by unusually heated opinions, upheld the panel's conclusion that the statute did not violate the First Amendment.

After rejecting the assertion that the statute infringed the First Amendment rights of all affected state employees, the majority opinion also denied the more specific claim that it violated "the First Amendment academic freedom rights of professors at state colleges and universities, and thus is invalid as to them." The majority concluded that "to the extent the Constitution recognizes any right of `academic freedom' above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors." Following a lengthy (and largely inaccurate) summary of the history of litigation about academic freedom beginning with Sweezy, the majority asserted: "[T]he best that can be said for [the professors'] 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 Firs Amendment rights." Any asserted right of individual academic freedom, the majority maintained, extends only as far as the general First Amendment rights of all public employees. The majority added that since providing First Amendment protection to all public employees, the Supreme Court "has focused its discussions of academic freedom solely on issues of institutional autonomy."

Immediately after concluding that a distinctive right of First Amendment academic freedom does not extend to individual professors, the majority observed in a footnote that constitutional issues could arise if university administrators used their statutory authority to deny professors access to the Internet. According to the footnote, "[hile a denial of an application under the Act based upon a refusal to approve a particular research project might raise genuine questions-perhaps even constitutional ones-concerning the extent of the authority of a university to control the work of its faculty, such questions are not presented here." Presumably, such questions were not raised in Urofsky because no state university in Virginia had actually denied a professor permission to use computers owned or leased by the state. But by conceding that the denial of a request could raise constitutional questions, the majority seemed to be asserting that professors retain general First Amendment rights, if not the specific First Amendment right of academic freedom, against universities.

This footnote did not satisfy other judges on the fourth circuit. Four of the fourteen judges who decided the case dissented on general First Amendment grounds without discussing the constitutional meaning of academic freedom. These four dissenters were not reassured by the discretionary authority of state agencies to allow employees access to the Internet. They observed that such discretion could be withheld arbitrarily. They also emphasized that the very existence of unfettered administrative discretion, even if not used, tends to intimidate people into self-censorship. By censoring themselves, all kinds of public employees with professional training-- psychologists, social workers, doctors, librarians, and museum workers as well as professors-would deprive the public of the benefit of their expertise.

In a separate opinion, Chief Judge J. Harvie Wilkinson, formerly a law professor at the University of Virginia, concurred in the majority's judgment while disagreeing with its reasoning. Apparently not crediting the majority's footnote, he claimed that its opinion did not afford state employees any First Amendment protection at all. Yet he focused on the academic freedom of the individual professors. Citing Keyishian, he stressed the social benefits of the exercise of academic freedom by individual professors. Unlike many other state employees, he emphasized, professors at state universities "are hired for the very purpose of inquiring into, reflecting upon, and speaking out on matters of public concern." These professors, he added "work in the context of considerable academic independence. The statute limits professors' ability to research and to write. But in their research and writing university professors are not state mouthpieces-they speak mainly for themselves." A professor's right of academic inquiry, he asserted, "cannot be divorced from access to one means (the Internet) by which that inquiry is carried out."

Wilkinson nevertheless concurred in upholding the statute. He recognized legitimate state interests in guarding against improper use of the Internet to examine sexually explicit material that bears no relationship to any legitimate academic purpose. Unlike the dissenters, he was also reassured by the statutory provisions that granted university administrators discretion as "agency heads" to allow professors access to sexually explicit material that does relate to serious scholarly inquiry. Wilkinson cited the Supreme Court's prior recognition of tension between individual and institutional academic freedom and conceded that decisions by university administrators could abridge the individual academic freedom of faculty members. Yet he also cited the Supreme Court's frequently stated reluctance to "second guess" the academic judgments made within universities.

The record of the case, he observed, revealed that several professors had received waivers from administrators and that no evidence existed of such a request ever having been denied. On this basis, Wilkinson expressed confidence that the traditional governance structure in higher education would uphold the academic freedom of individual professors. In contrast to the professors who challenged the statute, he did not believe "that a free academic institution will invade the freedoms of its own constituent members."

Implications for the Future

Despite the disappointing decision by the fourth circuit majority in the Urofsky case, it seems unlikely, though not inconceivable, that other courts will follow its bad example of denying First Amendment protection to individual academic freedom. The fourth circuit, many believe, is the most conservative in the United States. Even on this conservative circuit, four judges dissented in Urofsky, and the chief judge, though concurring with the majority's conclusion that the law was valid, wrote separately to disagree with its rejection of the special First Amendment protection for individual academic freedom.

Five other federal circuit courts, consistent with Supreme Court precedents such as Sweezy and Keyishian, have recognized that the First Amendment safeguards the academic speech of professors, and no other court has denied this otherwise universal conclusion. For example, in contrast to the third circuit's decision that individual academic freedom does not extend to grading, the sixth circuit, in a 1989 case, Parate v. Isibor, concluded that a professor's First Amendment right to academic freedom precluded the university administration from ordering him to change a grade. Such an order, the court reasoned, "unconstitutionally compelled" the professor's speech "and precluded him from communicating his personal evaluation" to the student. Yet the court conceded that the administration could change the grade on its own initiative without violating the academic freedom of the professor.

In Hardy v. Jefferson Community College, a case decided as recently as August 2001, another panel of the sixth circuit relied on Sweezy, Keyishian, and earlier cases within its own circuit to recognize the academic freedom of a professor to discuss offensive words in class for valid pedagogical purposes. During a lecture on language and social constructivism in a course entitled "Introduction to Interpersonal Communication," Kenneth Hardy, an adjunct instructor, asked his class to suggest words that have been used to serve the interests of the dominant culture while marginalizing oppressed groups. Students suggested words such as "nigger" and "bitch," which prompted complaints from a black female student.

The student contacted a local civil rights leader, a minister who told the college president that he would discourage students from attending the college unless corrective action were taken. When Hardy was not reappointed for the following semester, he sued the university. While allowing the college to prove in further proceedings that Hardy's contract was not renewed for academically permissible reasons, the court found that his rights to free speech and academic freedom outweighed any interest of the college in limiting the discussion of pedagogically justified offensive language in his class.

Courts, moreover, have limited university claims to institutional academic freedom. In a 1990 case, EEOC v. University of Pennsylvania, the Supreme Court rejected the university's claim that its institutional academic freedom to determine "who may teach" protected it from disclosing its confidential tenure files to the Equal Employment Opportunity Commission during an investigation of a claim of sex discrimination in a tenure case. In a sex-discrimination case a decade earlier, Powell v. Syracuse University, the second circuit observed that the academic freedom of a university does not embrace "the freedom to discriminate." And in its 2000 decision recognizing the right of graduate assistants to bargain under the protection of federal labor law, the National Labor Relations Board rejected New York University's assertion that such bargaining would interfere with its institutional academic freedom.

Although it is unlikely that the weight of judicial authority will follow the majority in the Urofsky case and deny First Amendment protection to the academic freedom of individual professors, the tension between individual and institutional claims to academic freedom will almost certainly persist. Refining the meaning of individual and institutional academic freedom under the First Amendment and defining the relationship between them will remain a major challenge for the courts and for the AAUP. Future cases are likely to elaborate indications in prior decisions that college professors have more academic freedom as individuals than do teachers in primary and secondary schools and that institutional academic freedom may have greater scope in private than in public universities. Probably in the future, as in the past, the institutional academic freedom of the university will often reinforce the individual academic freedom of professors or otherwise support values to which many faculty are committed. But when claims of academic freedom by university administrators and trustees threaten the academic freedom of individual professors, the AAUP must stress in the courts what its founders emphasized in the 1915 Declaration of Principles: the proper functioning of universities depends on the academic freedom of independent teachers and scholars. el

David Rabban is Dahr Jamail, Randall Hage Jamail and Randall Lee Jamail Regents Chair in Law at the University of Texas and general counsel of the AAUP.

Copyright American Association of University Professors Nov/Dec 2001
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