Academic Freedom in the USA

Copyright 1999, 2000 by Ronald B. Standler


Table of Contents

Introduction
History of academic freedom
Two kinds of academic freedom
Judicial recognition of academic freedom
Criticism of legal basis for academic freedom in First Amendment
        Is the First Amendment a proper basis for Academic Freedom?
        special privileges in egalitarian democracy
No protection for wayward professor
Academic freedom does not apply to ...
Legal Barriers
Is Academic Freedom different in different disciplines?
Conclusion
Short bibliography

Introduction

The conventional wisdom, including statements by the U.S. Supreme Court, has academic freedom as a legal right, derived from the First Amendment to the U.S. Constitution. I believe that this conventional wisdom is wrong.

I am not the only attorney holding this unconventional view. One scholarly article on academic freedom in the USA, written by a professor at the Georgetown University Law Center, began:
  The First Amendment protects academic freedom. This simple proposition stands explicit or implicit in numerous judicial opinions, often proclaimed in fervid rhetoric. Attempts to understand the scope and foundation of a constitutional guarantee of academic freedom, however, generally result in paradox or confusion. The cases, shorn of panegyrics, are inconclusive, the promise of rhetoric reproached by the ambiguous realities of academic life.

  The problems are fundamental: There has been no adequate analysis of what academic freedom the Constitution protects or of why it protects it. Lacking definition or guiding principle, the doctrine floats in law, picking up decisions as a hull does barnacles.
J. Peter Byrne, "Academic Freedom", 99 Yale Law Journal 251, 252-253 (1989).

Academic freedom is an amorphous quasi-legal concept that is neither precisely defined nor convincingly justified from legal principles. These two defects make the law of academic freedom difficult to understand. I have no doubt that academic freedom is important and desirable. My concern is that professors in the USA may believe that academic freedom is a valid legal doctrine with power and vitality, when – in fact – it is often only empty rhetoric by professors and judges.

In practice, the notion of academic freedom is invoked to justify statements by faculty that offend politicians, religious leaders, corporate executives, parents of students, and citizens. Such offense is easy to understand, given that professors are often intellectual risk-takers, ahead of their time, and loyal to Truth – wherever it may lead and whoever it may offend – instead of loyal to money, political or corporate power, and dogma.

History of academic freedom

In medieval Europe, universities were self-governing enclaves that were outside the civil law. Some of this isolation survives today in poorly articulated views that universities are somehow immune from law. Perhaps the fact that large universities have their own police department gives some support to the notion of independence. Regardless of whatever myths may circulate in academic communities, the same law applies to colleges and universities in the USA that applies to people in other settings in the USA. See Healy v. James, 408 U.S. 169, 180 (1972)("At the outset we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment.")

The legal concept of academic freedom originated in Germany around 1850, so it is not an ancient concept. The Prussian Constitution of 1850 declared that "science and its teaching shall be free." In Germany, academic freedom is known as Lehrfreiheit – the right of faculty to teach on any subject. There are two related concepts in Germany: (1) Freiheit der Wissenschaft, freedom of scientific research, and (2) Lernfreiheit, the right of students to attend any lectures, and the absence of class roll calls. This kind of academic freedom has never been a major issue in the USA, owing to differences between the two countries:
Americans during the 1800's who desired a doctoral degree typically went to Europe and studied at a university in England, France, or Germany. In 1876, Johns Hopkins University in Baltimore was founded along the design of German universities at Göttingen and Berlin, which emphasized scholarly research by professors. Other universities in the USA were soon founded along the same lines: for example, the University of Chicago in 1890 and the California Institute of Technology in 1891.

During this time, older American institutions of higher education (e.g., Harvard, Princeton) evolved to include the German idea of a university as a place for scholarly research, as well as teaching of undergraduates. In 1915, the newly formed American Association of University Professors issued their first report on academic freedom.

Two kinds of academic freedom

There are two distinctly different kinds of academic freedom, which should have distinct names:
  1. Individual academic freedom protects an individual professor.

  2. Institutional academic freedom protects universities from interference by government, a right that applies to the community of scholars, not to individual faculty.

The following people have commented on the problem of using "academic freedom" to mean two different concepts.
  1. Judge Posner, writing for the unanimous panel of three judges in Piarowski v. Illinois Community College, 759 F.2d 625, 629 (1985), cert. denied, 474 U.S. 1007.
  2. Prof. Walter P. Metzger, 66 Texas Law Review 1265, 1266-67, 1314 (1988).
  3. Prof. J. Peter Byrne, 99 Yale Law Journal 251, 255, 257 (1989).

Individual Academic Freedom

A general expression of individual academic freedom is included in the "1940 Statement of Principles on Academic Freedom and Tenure" by the American Association of University Professors (AAUP). This Statement by the AAUP has no legal effect, but the AAUP publicly censures colleges and universities that they believe have violated academic freedom. However, all major colleges and universities have adopted this Statement, or a variation of this Statement, which is contained in the faculty policy manual of each college or university, and is incorporated by reference in the employment contract between the university and each individual faculty member.

In many cases, individual academic freedom is simply part of academic tradition – the routine way that faculty committees, department chairmen, and deans operate when they make judgments about who to hire, who to promote, who gets tenure, who gets larger salary increases, and who gets their employment terminated.
ASIDE: In my ten years as a professor, the most egregious violations of academic freedom that I saw were committed by department chairmen who had spent all of their previous professional career as an employee of either industry or a government laboratory: these chairmen had neither understanding nor respect for academic freedom, they saw professors as mere employees who they rigidly managed.
Individual academic freedom is a relationship between professors and the university administration.

terse remarks about tenure

I note in passing that the AAUP mixes the concepts of academic freedom and tenure. While this essay is not about tenure, I should briefly explain the legal effect of tenure. When a professor receives tenure, the professor is converted from an "at-will employee" (i.e., an employee whose contract can be easily ended, without the need for the employer to give a reason) to a "for cause" employee whose employment can be ended only for good reason(s) shown at an hearing before a committee of other professors at the same institution, followed by review by the administration. The effect of tenure is to make it very difficult for university administration to end the employment of a tenured professor, thus insulating tenured professors from criticism. The benefits of tenure are contract rights, granted by the university administration.

The AAUP and university policy manuals plainly say concepts of academic freedom apply equally to all professors, both tenured and untenured. Given the probationary status of tenure-track faculty, it is obvious that it is only an ideal that tenure-track professors have the same academic freedom as tenured professors.

While tenure for professors may appear as an extraordinarily good deal, it is essentially the same as permanent employment in the federal civil service or the lifetime tenure of judges in federal courts.

internal university operation

A significant part of individual academic freedom is not a legal concept, but dependent on the internal culture among faculty and management (e.g., Department Chairmen, Deans, the Chancellor, and their administrative staff) at a university. Tersely stated, the management of a university gives minimal supervision to teaching and research by faculty, except when problems occur, or when a faculty member is being evaluated for promotion, tenure, or salary increases. The faculty are trusted to do their job competently and professionally. In return, the creative intellectuals on the faculty flourish in this atmosphere of minimal supervision. Freedom from detailed supervision is not a license to relax. Each professor is responsible for meeting his/her classes (or arranging for a substitute), teaching competently, and producing a substantial series of scholarly publications. In departments of science, engineering, and medicine, professors are also expected to write research proposals that attract external funding for their research, including equipment and supplies, half-time salary support during the academic year and full-time salary support during the summer "vacation", financial support for their graduate students, and overhead that pays for the university's operation (e.g., libraries and maintenance of buildings). Far from being a relaxed environment, it is truly a sink or swim environment.

Faculty choose their own textbooks. The syllabus for required courses is set by a departmental curriculum committee, composed only of professors. It is considered highly inappropriate for a professor or administrator to tell a faculty member what grade to assign to a student. The sense of independence is so strong among faculty, that it is often difficult to discuss teaching methods, because no faculty member wants to be accused of criticizing another.

Faculty are active participants in setting all academic rules and regulations, as well as in selecting new faculty members, granting tenure, etc. The use of faculty committees to make the first-level decision means nearly all decisions by university administration have the support of the majority of affected faculty. This is distinct from industrial practice in the USA, where policy is made by managers and major decisions generally come down the chain of command. The university is a community of scholars who value freedom of inquiry and individual choice, not a profit-making corporation that demands adherence to policy made by professional managers.

The academic ideal is that there is tolerance, if not genuine respect, by both the administration and faculty for differences of opinion, methods, style, and personality among the faculty. To some extent, this tolerance of unconventional views and personality is the natural result of an enlightened community: tolerating eccentric personalities of other people means that one's own mannerisms will also be tolerated. Further, professors tend to work as individuals, not in industrial-style teams, so it does not matter if professors are compatible with each other.

As in other areas of life, more management and control means less freedom. It is the same in the university. Surprisingly, scholarly articles on "academic freedom" rarely mention freedom from management as an important feature of academic freedom.

The U.S. Supreme Court used this collegial working environment to hold that professors at Yeshiva University in New York City were managerial, not employees within the meaning of the National Labor Relations Act, and hence the University was not required to bargain with a labor union that represented the professors. NLRB v. Yeshiva Univ., 582 F.2d 686 (1978), aff'd 444 U.S. 672 (1980). "Budget requests prepared by the senior professor in each subject area receive the 'perfunctory' approval of the Dean '99 percent' of the time and have never been rejected by the central administration." Id. note 3 at 676. "... the faculty at each school effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules." Id. at 676, see also at 686. The Court noted that professors "make recommendations to the Dean or Director in every case of faculty hiring, tenure, sabbaticals, termination and promotion." "One Dean estimated that 98% of faculty hiring recommendations were ultimately given effect." Id. at 677, see also note 23 at 686. The Court accepted the view that "the faculty is the school". Id. note 4 at 676 and note 10 at 681.

Institutional Academic Freedom

Institutional academic freedom reserves to the university itself selection of faculty and students, as well as issues in curriculum, such as the content of the syllabus in each class. Institutional academic freedom does not protect individual professors with unorthodox views from dismissal by the university administration, although institutional academic freedom does protect professors from dismissal by legislators or politicians.

The clearest definition of institutional academic freedom in the USA appears in a U.S. Supreme Court opinion, where it is said that academic freedom means that the university can "determine for itself on academic grounds:
  1. who may teach
  2. what may be taught
  3. how it shall be taught, and
  4. who may be admitted to study."
Regents of the Univ. of California v. Bakke, 438 U.S. 265, 312 (1978). Quoted with approval in Widmar v. Vincent, 454 U.S. 263, 276 (1981).
This statement first appeared in a concurring opinion, which is not law, by Justice Frankfurter in a 1957 U.S. Supreme Court case, Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957). Amazingly, Justice Frankfurter quoted this definition from a statement of academics in South Africa, which shows that academic freedom was literally a foreign concept to judges in the USA as late as 1957.

In 1957, some professors were ambivalent about legal protection for academic freedom, because these professors trusted neither judges nor politicians to determine (or to review) academic decisions. J. Peter Byrne, "Academic Freedom", 99 Yale Law Journal 251, 291 (1989); Robert K. Carr, "Academic Freedom, the American Association of University Professors, and the United States Supreme Court", 45 AAUP Bulletin 5, 6, 19-20 (1959).

conflict between the two kinds of freedom

As one would expect when there are two independent concepts, they sometimes conflict with each other:
We may assume, however, that public colleges do not have carte blanche to regulate the expression of ideas by faculty members in the parts of the college that are not public forums. We state this as an assumption rather than a conclusion because, though many decisions describe "academic freedom" as an aspect of the freedom of speech that is protected against governmental abridgment by the First Amendment, the term is equivocal. 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 ... to pursue his ends without interference from the academy; and these two freedoms are in conflict, as in this case.
Piarowski v. Illinois Community College, 759 F.2d 625, 629 (1985)[many citations omitted], cert. denied, 474 U.S. 1007.

Judicial recognition of academic freedom

The first reported judicial opinion in the USA to mention "academic freedom" was a horrible decision of a New York State court. The City College of New York had appointed the distinguished philosopher, Bertrand Russell, to its faculty. A grieved taxpayer filed suit, because of Prof. Russell's allegedly immoral views, and, despite her having no standing to present this case to the court, the court heard her. Even worse, during a hearing on a summary judgment motion by the College, the judge received evidence and, two days later, made a decision on the merits of the case. The judge announced that
It is contended that Bertrand Russell is extraordinary. That makes him the more dangerous. The philosophy of Mr. Russell and his conduct in the past is in direct conflict and in violation of the Penal Law of the State of New York. When we consider how susceptible the human mind is to the ideas and philosophy of teaching professors, it is apparent that the Board of Higher Education either disregarded the probable consequences of their acts or were more concerned with advocating a cause that appeared to them to present a challenge to so-called 'academic freedom' without according suitable consideration of the other aspects of the problem before them. While this court would not interfere with any action of the board in so far as a pure question of 'valid' academic freedom is concerned, it will not tolerate academic freedom being used as a cloak to promote the popularization in the minds of adolescents of acts forbidden by the Penal Law. This appointment affects the public health, safety and morals of the community and it is the duty of the court to act. Academic freedom does not mean academic license. It is the freedom to do good and not to teach evil.
Kay v. Board of Education, 18 N.Y.S.2d 821, 829 (1940).
The judge then revoked the appointment of Prof. Russell to the faculty. Despite the two outrageous errors of civil procedure, as well as the ridiculousness of the reasoning on the merits of the case, the appellate courts denied the Board of Education a hearing. Kay v. Board of Education, 29 N.E.2d 657 (N.Y. 1940).

This case is notable for demonstrating why judges should not interfere with academic decisions. Not surprisingly, this case spawned critical articles in law reviews:
Hamilton, "Trial by Ordeal, New Style," 50 Yale Law Journal 778 (1941); Note, 53 Harvard Law Review 1192 (1940).

The first use of the phrase "academic freedom" in an opinion of the U.S. Supreme Court was only in 1952, and then only in a dissenting opinion by Justice Douglas, which is not law. Douglas anticipated that the Supreme Court would consider academic freedom to arise out of the First Amendment. Adler v. Board of Education, 342 U.S. 485, 508 (1952).

There is a concurring opinion in a U.S. Supreme Court case that demonstrates clearly the kind of hysterical hyperbole that judges in the USA have used about educators:
  To regard teachers – in our entire educational system, from the primary grades to the university – as the priests of our democracy is therefore not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by national or State government.
Wieman v. Updegraff, 344 U.S. 183, 196-197 (1952)(Frankfurter, J., concurring).

When I first read this concurring opinion, I made a sarcastic remark that not only are teachers "priests of our democracy", but we respect teachers so highly that we make them, like priests, take a vow of poverty.
ASIDE: It is common to see professors of science or engineering with an annual income only 1/2 to 2/3 of what less qualified scientists or engineers earn as industrial employees. Worse, the equipment in university laboratories is old and generally obsolete, unlike equipment in industrial and government laboratories. Professors of law or medicine are paid an even smaller fraction of what they could earn in private practice. The low salaries of professors may be the result of public perception that professors lead an easy, idyllic life. The reality is that professors at publish-or-perish universities often work 60 hours/week on frustratingly difficult research problems that few people in the world could solve.
Despite what Justice Frankfurter says, his statement is hyperbole.

The first majority opinion of the U.S. Supreme Court to mention academic freedom involved a Marxist journalist (not a professor) who gave one guest lecture at the University of New Hampshire, then was interrogated by the Attorney General of the State of New Hampshire about those lectures, among other topics. Sweezy v. New Hampshire, 354 U.S. 234 (1957). The following words from the majority opinion by Chief Justice Warren are often quoted:
We believe that there unquestionably was an invasion of petitioner's liberties in the areas of academic freedom and political expression – areas in which government should be extremely reticent to tread.

  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. 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. 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.
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society.
Id. at 251.

Sweezy was not a professor, but only a guest lecturer for one day. Wyman v. Sweezy, 121 A.2d 783, 786, 788 (NH 1956). The U.S. Supreme Court completely ignored this fact. This is a critical point, because a professor is hired only after a detailed examination of credentials by a faculty committee, department chairman, and dean, while a guest lecturer is invited by a single professor without any review or approval by the college. Thus Justice Warren's rhetoric is not relevant to the issue before the Court, since Sweezy was not an academic, so this case is not about academic freedom, and any remarks about academic freedom are, at best, only obiter dicta. See the insightful analysis by Prof. Katheryn Katz in her article, "The First Amendment's Protection of Expressive Activity in the University Classroom: A Constitutional Myth," 16 Univ. Calif. Davis Law Review 857, 902-905 (1983).

Nonetheless, eight years after Sweezy, Justice Douglas – writing for the majority in Griswold v. Connecticut, 381 U.S. 479, 482 (1965) – wrote that Wieman v. Updegraff enunciated the principle of "freedom of inquiry, freedom of thought, and freedom to teach" and that Sweezy and two other cases stood for "the freedom of the entire university community." Douglas' assertion is simply wrong about both Wieman and Sweezy. Wieman was a case about a loyalty oath that all employees of the Oklahoma state government were required to take. The only mention of "freedom of inquiry" in Wieman occurs in an concurring opinion by Justice Frankfurter, which is not law. The phrase "freedom to teach" appears nowhere either in the majority opinion or in the concurring opinions in Wieman. Douglas' incorrect assertions about the holdings in Wieman and Sweezy are not just bad scholarship, but are essentially deceptive. I strongly believe that the Court reached the correct result in the Wieman, Sweezy, and Griswold cases, but law is about more than getting the "right result" in individual cases. Law is also about having a clear expression of a principle or reason for whatever result is obtained. The principle or reason is what guides judges and attorneys in the future as they work with cases that involve slightly different facts from the precedents.

The most quoted legal statement of academic freedom in the USA was written in 1967 by Justice Brennan:
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 is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
Quoted with approval in Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 197 (1990);
Board of Education v. Pico, 457 U.S. 853, 870 (1982);
Regents of the Univ. of California v. Bakke, 438 U.S. 265, 312 (1978);
Epperson v. Arkansas, 393 U.S. 97, 105 (1968).

Prof. Metzger suggests that Brennan's rhetoric compared dismissal of allegedly subversive people from schools and universities in the USA with policies of the Nazi and Soviet governments. Walter P. Metzger, "Profession and Constitution: Two Definitions of Academic Freedom in America", 66 Texas Law Review 1265, 1293 (1988). Hence, phrases like "pall of orthodoxy" are rhetoric, not a statement of law. A Court of Appeals apparently agreed, when it said
Keyishian dealt with that brand of regulation most offensive to a free society: loyalty oaths. The [U.S. Supreme] Court's pronouncements about academic freedom in that context, however, cannot be extrapolated to deny schools command of their own courses.
Bishop v. Aronov, 926 F.2d 1066, 1075 (11thCir. 1991).

Criticism of legal basis for academic freedom

really about First Amendment

But when the fancy prose is peeled away, most of the so-called "academic freedom" cases are really about either:
  1. the government's suppression of political speech (e.g., publicly criticizing school administration), for example:
    Pickering v. Board of Education, 391 U.S. 563 (1968). (Another of my essays discusses the Pickering case in detail.)

  2. the government's interference with freedom of association, (e.g., loyalty oaths, membership in "subversive organizations" such as the Communist Party), for example:
    Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967);
    Shelton v. Tucker, 364 U.S. 479 (1960);
    Sweezy v. New Hampshire, 354 U.S. 234 (1957);
    Slochower v. Board of Higher Education, 350 U.S. 551 (1956);
    Wieman v. Updegraff, 344 U.S. 183 (1952).

  3. the government's endorsement of religion (e.g., directing that schools teach the Biblical theory of creation), for example:
    Edwards v. Aguillard, 482 U.S. 578 (1987);
    Epperson v. Arkansas, 393 U.S. 97 (1968).

In other words, these "academic freedom" cases are about the government's violation of the rights that apply to all people in the USA, rights that are stated in the First Amendment of the U.S. Constitution. For example, see:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
Given these rights are protected for everyone in the USA, not just professors, it is not necessary for a judge to invoke the doctrine of academic freedom.

Only a few reported opinions of courts in the USA explicitly recognize that the doctrine of academic freedom is unnecessary. The following cases are noteworthy for their candor:

Is the First Amendment a proper basis for Academic Freedom?

Justice Brennan, writing for the majority, said that academic freedom is "a special concern of the First Amendment". Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). While this bald assertion is the law in the USA, since it comes from the highest court in the USA and has not been overturned, it is not a reasonable statement.

Prof. Katz has argued the U.S. Supreme Court's flamboyant rhetoric about academic freedom being part of freedom of speech is wrong:
... utterances are almost always relevant to a professor's worth. .... These sweeping statements [of the Supreme Court] are not consistent with the whole of the Court's first amendment jurisprudence and are nonsense in an academic setting.
Katheryn Katz, "The First Amendment's Protection of Expressive Activity in the University Classroom: A Constitutional Myth," 16 Univ. Calif. Davis Law Review 857, 926 (1983).

Prof. Byrne has argued that academic freedom is not properly derived from the First Amendment, because First Amendment law developed by the U.S. Supreme Court was intended to apply to political speech, in which the government and courts refuse to consider truth or falsity. As Byrne says, "Such an approach mechanically imports norms from political society into the academic context." However, as Prof. Byrne observes, it is a fundamental part of academic life to criticize professors for the content of their speech: "It is of the essence that worthy ideas be distinguished from dull."
J. Peter Byrne, "Academic Freedom", 99 Yale Law Journal 251, 309-310 (1989).

Consider for a moment what the U.S. Supreme Court means by freedom of speech. A famous passage from a U.S. Supreme Court opinion declares that
  We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.   ....

The First Amendment requires that we protect some falsehood in order to protect speech that matters.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-341 (1974);
quoted with approval in Waters v. Churchill, 511 U.S. 661, 672 (1994);
Hustler Magazine v. Falwell, 485 U.S. 46, 51 (1988);
Bose Corp. v. Consumers Union, 466 U.S. 485, 504 (1984);
Old Dominion Branch v. Austin, 418 U.S. 264, 284 (1974).

Does the Supreme Court mean that we must tolerate, in the name of freedom of speech, a professor of geography who claims that the Earth is really flat and is carried through space on the back of a giant beetle?

In mathematics, physics, chemistry, and other sciences it is possible to prove an idea false, by demonstrating a contradiction. It is much more difficult to prove an opinion by a professor of history, philosophy, or music to be false. This difference in subject matter makes it easier to require a fundamental level of orthodoxy among professors of mathematicians and scientists than among professors of humanities and arts. I discuss other aspects of this issue later in this document.

I have posted elsewhere at this web site an essay that discusses the U.S. Supreme Court's metaphor that truth should be determined in the "marketplace of ideas", not by politicians, not by judges, and not by government bureaucrats. However, it is acceptable and proper for university faculty to consider the content of their colleague's statements in making judgments about hiring, promotion, tenure, and dismissal from employment. Scholars are free to say or write whatever they want, but they must also take responsibility for their expression. If scholars make a mistake or do sloppy work, then their reputation will properly suffer.

state action

Finally, the First Amendment only protects speech from regulation by government. If academic freedom is truly derived from the First Amendment, then there is no legal basis for protecting academic freedom at private universities, since a derived right can not have broader applicability than its source. Yet the conventional dogma is that professors at private universities (with the possible exception of universities operated by a religious group) have the same academic freedom as universities that are operated by state or local governments. This contradiction needs a resolution. I suggest that academic freedom is not derived from the First Amendment.

An alternative view is that institutional academic freedom is derived from the First Amendment and that private universities have no need for institutional academic freedom, because private universities are not dependent on government's financial support (except for research contracts from government agencies) and are not under direct governmental control. However, from a historical perspective, it seems clear that institutional academic freedom comes from a doctrine of academic abstention, as is discussed in my separate essay. Further, the First Amendment protects speech of people, not institutions – hence, the First Amendment can only be a possible source of individual academic freedom, not institutional academic freedom.

special privileges in egalitarian democracy

The Dean of the University of Texas Law school said:
... I am deeply troubled by the concept of academic freedom defined in terms of the intellectual autonomy of the professor. In particular, how does the claim to academic freedom rise to the level of a constitutional entitlement under the first amendment to the Constitution?
Mark Yudof, "Three Faces of Academic Freedom," 32 Loyola Law Review 831, 837 (1987).
He then goes on criticize the idea that professors should have greater autonomy than other professions:
... why do not engineers at NASA have the constitutional right to engineer rockets in the most efficient, productive and self-realizing manner – even if their managers and the Congress disagree with them?
Id. at 840.

Given that the USA is an egalitarian democracy, there is no reason to give a higher level of civil liberties for behavior by professors than for the same behavior by ordinary adults. It is an important and fundamental principle in the USA that the same law apply equally to everyone, a principle that suggests that one occupational group (e.g., professors) should not have greater rights than another occupational group. On the other hand, one could argue that journalists are a special class under law (e.g., freedom of press, plus – in some states – a legal privilege that journalists can not be compelled to disclose names of their sources), not because journalists are noble, but only in recognition of the benefit to a democratic society of vigorous investigative journalism. Similarly, one could argue that allowing, even encouraging, professors to experiment with new ideas is beneficial to society. Students have an enriched educational experience when they are exposed to a wide variety of viewpoints and styles by different professors, so academic freedom for professors arguably leads to better education for students. It is certainly true that discoveries by scientists and engineers have resulted in improved technology, and have been responsible for economic growth. In particular, consider the high-tech industry located in the Boston area (in the shadow of MIT, Harvard, Tufts, etc.), Silicon Valley (in the shadow of Stanford University and the University of California at Berkeley), and Research Triangle Park in North Carolina (in the shadow of Duke University and the University of North Carolina at Chapel Hill). While it is harder to quantify contributions of professors in the arts and humanities to society, there is no doubt in my mind that such contributions are also important.

Protection against termination of a professor's employment in retaliation for a controversial remark on a political topic can be accomplished in the employment contract between the professor and university, without the need for a legal doctrine of academic freedom.

No Protection for Wayward Professor

Prof. Katz wrote:
Despite its rhetoric about the glories of academic freedom, the priesthood of teachers, and the value of robust and wide-open debate in the classroom, the [U.S. Supreme] Court has relegated the procedural rights of nonretained academicians to those of the "common herd" of city, state, and federal employees. Their procedural rights upon nonretention stand or fall with those of public employees in particularly, and all who are aggrieved by government action in general. Certainly, the Supreme Court has not recognized any greater or more readily triggered due process rights in faculty members than in government employees in general, even though the safeguarding of first amendment expressive freedoms argues for prophylactic measures.
Katheryn Katz, "The First Amendment's Protection of Expressive Activity in the University Classroom: A Constitutional Myth," 16 Univ. Calif. Davis Law Review 857, 875 (1983). [footnotes omitted]

This essay is not the place to discuss opinions of courts in numerous cases brought by professors who were denied tenure or whose employment contracts were not renewed. However, mention of a few cases will show that, in practice, individual academic freedom is illusory.

In 1970, Dr. Phyllis Hetrick's contract as a tenure-track assistant professor of English at Eastern Kentucky University (EKU) was not renewed. EKU gave as its reasons for nonrenewal of her contract: Hetrick v. Martin, 480 F.2d 705, 706 (6thCir. 1973).

These complaints by the EKU administration were clearly petty.
The Court of Appeals noted that:
The school administration considered the students as generally unsophisticated and as having "somewhat restrictive backgrounds," and for this reason apparently expected the teachers to teach on a basic level, to stress fundamentals and to follow conventional teaching patterns – in a word, to "go by the book." Plaintiff's evidence, on the other hand, tended to show that her teaching emphasized student responsibility and freedom to organize class time and out-of-class assignments in terms of student interest, all in an effort, she claims to teach them how to think rather than merely to accept and to parrot what they had heard.
Id. at 707.

The district court's memorandum opinion said:
... the evidence produced at the hearing leads only to the conclusion that the University's determination not to rehire was based solely upon concern for her pedagogical attitudes. Although the court is inclined to believe that the classroom inadequacies that Dr. Hetrick was alleged to have displayed – inconclusive assignments, extraneous classroom discussions, and insufficient coverage of suggested materials – were largely superficial and thus easily correctable, it is not the duty of the court to evaluate the wisdom of the University's decision not to renew the contract. It simply seems that Dr. Hetrick's teaching methods were too progressive, or perhaps less orthodox than the other faculty members in her department felt were conducive to the achievement of the academic goals they espoused. The court must conclude that a State University has the authority to refuse to renew a non-tenured professor's contract for the reason that the teaching methods of that professor do not conform with those of the tenured faculty or with those approved of by the University.
Id. at 708.

There was no showing that Dr. Hetrick was incompetent, either as an instructor or as a scholar. The Court of Appeals noted that the
district court found that even though the school administration was concerned about the appropriateness of these occurrences, "it does not appear that any of the faculty members felt that Dr. Hetrick had on those particular occasions exceeded the bounds of her teaching prerogative." The student complaints during October and November 1969 allegedly centered on their inability to comprehend what she was attempting to teach them or what was expected of them, although no students were produced at trial to testify that he or she had complained about or was dissatisfied with plaintiff's teaching methods.
Id. at 706.

The Court of Appeals summarized the issue as:
This appeal requires us to decide whether the First Amendment prevents a state university from discharging a teacher whose pedagogical style and philosophy do not conform to the pattern prescribed by the school administration.
Id. at 706.

After a through discussion, the Court of Appeals concluded:
  We do not accept plaintiff's assertion that the school administration abridged her First Amendment rights when it refused to rehire her because it considered her teaching philosophy to be incompatible with the pedagogical aims of the University. Whatever may be the ultimate scope of the amorphous "academic freedom" guaranteed to our Nation's teachers and students, [citations omitted] it does not encompass the right of a nontenured teacher to have her teaching style insulated from review by her superiors when they determine whether she has merited tenured status just because her methods and philosophy are considered acceptable somewhere within the teaching profession.
Hetrick v. Martin, 480 F.2d 705, 709 (6thCir. 1973), cert. den., 414 U.S. 1075 (1973).
Justice Douglas – bless his heart – cast the sole vote to grant certiorari.

The Hetrick case is important because it concerns the evaluation of teaching style, something that is part of a professor's personality and individuality. Here, EKU was intolerant of a professor who departed from the bland qualities that the administration apparently desired. Further, there is an issue of standards here. EKU is an accredited university that grants bachelor's degrees. If the syllabus and teaching methods are less challenging at EKU, than at other universities, then a degree from EKU is worth less than a degree from a university with higher academic standards (i.e., a more demanding curriculum). If students at EKU are to be competitive in a national job market, their best interests are served by giving them the same education as at schools in, for example, New York state and Massachusetts. Instead of seeing Dr. Hetrick as the problem, the real problem is that the EKU administration was admitting students who could not do college-level work, then dumbing down the academic program to accommodate those substandard students.

At the conclusion of the case, quoted above, the Court of Appeals characterized Dr. Hetrick's positions as desiring "to have her teaching style insulated from review". But that is not what she was requesting. Her position was that terminating her employment violated her First Amendment rights under "academic freedom" as stated by the U.S. Supreme Court. There was no showing by EKU that Dr. Hetrick was either an ineffective teacher or an incompetent scholar. Dr. Hetrick was fired because her teaching style irritated the administration, who then, in their attempt "to cast a pall of orthodoxy" over EKU, dismissed Dr. Hetrick for reasons having nothing to do with her merit. The Court of Appeals easily dispensed with this troubling case, by mischaracterizing Dr. Hetrick's position as seeking to avoid review, and by ignoring the issue of her alleged draft counseling. Note that notions of academic freedom gave no protection to Dr. Hetrick. Note also that both the District Court and the Court of Appeals treated Dr. Hetrick as a mere at-will employee who could be fired for any reason (except constitutionally impermissible reasons, e.g., discrimination on race, religion, or gender). For someone who believes that university administrators are intelligent and enlightened people, who not only tolerate but also respect individual differences of style and mannerisms, the behavior of EKU was appalling.

Dr. Hetrick's case is not unusual, in fact it is well established law that untenured professors are mere employees with the same legal rights as a waitress in a restaurant or a clerk in a store. The following quotations show that academic freedom offers no legal protection to professors who irritate the university administration.
But we do not conceive academic freedom to be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution.
Clark v. Holmes, 474 F.2d 928, 931 (7thCir. 1972), cert. denied, 411 U.S. 972 (1973).

Academic freedom is not a license for activity at variance with job related procedures and requirements, nor does it encompass activities which are internally destructive to the proper function of the university or disruptive to the education process. .... Academic freedom does not mean freedom from academic responsibility to students, colleagues and the orderly administration of the university.
Stastny v. Central Washington University, 647 P.2d 496, 504 (Wash.Ct.App. 1982), cert. denied, 460 U.S. 1071 (1983).
The strong language quoted above (e.g., "internally destructive") makes it appear that the plaintiff-professors put bombs in campus buildings. In fact, Clark had some disagreements about the content of classes and counselling students; Stastny was absent while presenting a research paper at a seminar in Israel.

Dr. Wirsing was a tenured Professor of Education who believed that teaching and learning can not be evaluated by any standardized approach. As a result of her professional opinion, she refused to distribute student evaluation forms to her students. The University retaliated by refusing to give Dr. Wirsing a merit salary increase, although a faculty evaluation committee had given the highest possible score to Dr. Wirsing's teaching. Dr. Wirsing sued in federal court on grounds of interference with her academic freedom. The district court granted summary judgment to the University because Dr. Wirsing's conduct was not speech. The district court quoted Stastny about academic freedom not encompassing activities that are "internally destructive" or "disruptive of the educational process", then declared:
Further, although Dr. Wirsing may have a constitutionally protected right under the First Amendment to disagree with the University's policies, she has no right to evidence her disagreement by failing to perform the duty imposed upon her as a condition of her employment.
Wirsing v. University of Colorado, 739 F.Supp. 551, 553 (D.Colo. 1990), aff'd without opinion, 945 F.2d 412 (10thCir. 1991), cert. denied, 503 U.S. 906 (1992).

In quoting from these cases, I do not imply that Clark, Stasny, and Wirsing were correct and the university administrations were wrong. I simply want to demonstrate that the doctrine of "academic freedom" offers no legal protection to a wayward professor.

Academic freedom does not apply to ...

It is important to recognize that students do not have academic freedom, in either Germany or the USA. Students are on campus to learn, not to create new knowledge. Even in the case of graduate students who are doing research for their dissertations, the topic and methods are approved and periodically reviewed by professors, which is a level of supervision that would be inappropriate for a professor's research. Students are not colleagues of professors.

Despite some court opinions in the USA to the contrary, academic freedom does not apply to teachers in elementary and high schools. The following reasons for distinguishing school teachers from university professors can be mentioned:
In short, school teachers can not have academic freedom because such teachers are not academics. Only professors in colleges and universities are properly academics.

The careless word usage by judges (e.g., confusing pupils and students, confusing school teachers and professors, confusing rights of students with academic freedom) shows that judges have not carefully considered the fundamental reasons for either academic freedom or judicial review of educational decisions. One gets the impression that judges carelessly use the phrase "academic freedom" as buzz words, like motherhood, apple pie, and waving the American flag.

Only a few reported court opinions mention the distinction between schools and colleges:
  1. High schools may regulate the length of pupils hair, but colleges may not regulate the length of student's hair. Lansdale v. Tyler Junior College, 470 F.2d 659, 663 (5thCir. 1972), cert. den., 411 U.S. 986 (1973).

  2. A court distinguished Pickering and Tinker, two U.S. Supreme Court cases on freedom of speech in schools, as not obviously applicable to a university environment. Mabey v. Reagan, 537 F.2d 1036, 1046-1048 (9thCir. 1976).

  3. "It could be argued, although we need not decide here, that an educational institution possesses a different pattern of rights and responsibilities and retains more of the traditional custodial responsibilities when its students are all minors, as in an elementary school, or mostly minors, as in a high school." Bradshaw v. Rawlings, 612 F.2d 135, 140 (3dCir. 1979), cert. den., 446 U.S. 909 (1980).

Legal Barriers

Despite the literal promises of academic freedom for professors in opinions of the U.S. Supreme Court, there are three legal barriers to a professor enforcing his/her academic freedom in a court of law.
  1. In my reading of more than 240 reported cases involving professor v. university or student v. university disputes (excluding laboratory injury cases), the university nearly always wins. This consistent result speaks louder than any doctrine about academic freedom for professors, or rights of people (e.g., professors or students) to fair treatment. This refusal of judges to decide purely academic disputes is called academic abstention. However, judges will hear disputes involving constitutional rights, which is the source of the academic freedom cases that were cited above. I have written a separate essay, Academic Abstention, that quotes from many judicial opinions and law review articles, as well as explains the mysterious origins of the doctrine of academic abstention.

  2. Untenured professors are at-will employees. Under the doctrine of at-will employment, an employer can dismiss an employee for any reason, no reason at all, or even a morally repugnant reason, and courts will not protect the former employee. I have written a separate essay about the history and criticism of at-will employment. At-will employment makes academic freedom a very fragile right for untenured professors.

  3. The rights of government employees (e.g., professors at a state university, teachers in a public school) to freedom of speech have been restricted in a series of U.S. Supreme Court cases since 1977. See my separate essay on freedom of speech.

Is Academic Freedom Different
in Different Disciplines?

The concept of Truth in science and mathematics is quite different from the concept of Truth in the humanities.

Theorems in mathematics are rigorously proved. There is a uniqueness theorem in differential equations that says there can be only one solution, although there are different ways to find, and to express, that solution. Knowledge in physics and chemistry is susceptible to verification by experiment. A hypothesis that can not be empirically tested is inherently unscientific, although it may be an appropriate hypothesis in another intellectual field, such as philosophy or history.

No competent scientist would seriously suggest that the outcome of an experiment in physical science, or the outcome of a mathematical calculation, would depend on the race, religion, or political views of the observer. However, in other areas (e.g., history, civics so-called "political science", sociology, economics) the concept of Truth can be elusive. Interpretation of historical facts can depend on the race, religion, or political views of the person making the interpretation.

The U.S. Supreme Court hinted at these differences in a case involving a guest lecture by a socialist:
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.
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
Does this mean that, for example, a civics professor has more academic freedom than a physics professor, just because Truth or correctness is more difficult to establish in the study of government than in the study of physical law? The fact that knowledge is asymptotically approaching some unattainable final state of perfection should not prevent us from saying that some statements are definitely false, because they are contain a contradiction, or because they disagree with experiment.

Here are some examples of where issues in academic freedom could differ from one subject area to another. For example:
From these differences, we can see why a professor in one department might express academic freedom in different terms than a professor in another department. Most judges have an educational background in history, English literature, or some other discipline in the humanities or in the so-called social sciences, therefore judges would not be expected to see the situation from the perspective of the sciences.

These differences in academic freedom occur naturally in different departments of the university, and are routinely expressed, for example, in the criteria for hiring faculty, and in making tenure, promotion, and salary increase decisions.

Conclusion

In conclusion, academic freedom in the USA is a matter of internal policy at colleges and universities. Academic freedom in the USA is not a constitutional right belonging to professors. Academic freedom can be a contract right granted to professors by the administration of a college or university, but contract rights are privately negotiated, not imposed by the Constitution.

In saying that academic freedom appears to be an unnecessary concept in law of the USA, I am not expressing my personal opinion of what the law should be, but only what the law really is. In an utopia, a strong case could be made for giving the most intelligent and the most creative individuals adequate resources and freedom. But the USA is not that utopia.
ASIDE: There is a long history of discrimination against, and open contempt of, intellectuals in the USA, as documented in Richard Hofstadter's book Anti-Intellectualism in American Life (1963). This disdain for intellectuals even appears in common English-language phrases, such as "it is [only] of academic interest", which means that something is of no practical importance, or the image of a university community as an "ivory tower" that is disconnected from "the real world". In fact, experiments done by scientists and engineers in university laboratories are just as real as those done in industrial laboratories. Phrases like "academic interest" and "ivory tower" are only labels to denigrate and marginalize intellectuals.

What universities and professors really need is not meaningless words about the importance of "academic freedom" from judges, but adequate financial support for professors' salaries, and adequate financial support for scientific equipment and research expenses, libraries, buildings, etc. Academic freedom means nothing if professors can not afford to do the research that they are supposedly free to do.

I have a separate essay that discusses the U.S. Supreme Court decisions on freedom of speech for government employees, which include professors at state universities and teachers in public schools. That essay concludes with a brief discussion of a few cases in which lower courts considered the freedom of speech for professors at state universities, specifically when the professor is critical of the university's administration.

Finally, I have a long essay on wrongful discharge cases under state law in which a learned professional (e.g., attorney, physician, nurse, engineer, or scientist) has his/her employment terminated because the employee chose to follow professional ethics, instead of follow his/her manager's commands. While none of the reported cases involve a professor, such law might be a future possibility for professors to fight an unjust dismissal or failure to renew their contract.

Short bibliography

There is a large literature on academic freedom, mostly written by professors, and mostly consisting of self-serving praise and unsupported assertions. However, I can recommend the following as containing substantial information and deep intellectual content:
While normally I would recommend reading opinions of U.S. Supreme Court, those opinions are not particularly helpful in the area of academic freedom. The justices have failed to provide a precise definition of academic freedom. The justices have failed to provide a justification for academic freedom. And, to properly interpret the effusive prose that the justices have written about academic freedom, one must first have a detailed understanding of First Amendment law, which itself is a complex and evolving area of law.


this document is at   http://www.rbs2.com/afree.htm
My most recent search for court cases on this topic was in July 1999.
version 3 July 2000, link to academic abstention essay added 1 June 2007.


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