ACADEMIC FREEDOM

ACADEMIC FREEDOM

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

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

The American Association of University Professors (AAUP) has long led efforts among educators to define the concept of academic freedom in American COLLEGES AND UNIVERSITIES. In 1940, the AAUP, in conjunction with the Association of American Colleges (now the Association of American Colleges and Universities), drafted and approved the Statement of Principles on Academic Freedom and Tenure. The statement’s purpose is to “promote public understanding and support of academic freedom and tenure and agreement upon procedures to ensure them in colleges and universities.”

According to the statement, educational
institutions should afford full freedom for
teachers to conduct research and publish their
results, subject to their adequate performance in
other academic duties. Teachers should also
have freedom in the classroom to discuss their
subject, but they should be careful not to intro-
duce controversial matter that has no relation to
their subject. Institutions may place limitations
on academic freedom because of religious or
other aims of the institution, though these limi-
tations should be stated clearly in writing at the
time of the teacher’s appointment.

Although the AAUP’s position is not binding
upon colleges and universities, it has had an
important impact on tenure policies of these
institutions. Tenure, according to the AAUP,
promotes freedom of teaching, research, and
other educational activities, and also provides a
“sufficient degree of economic security to make
the profession attractive to men and women of
ability.” Tenure is based upon a contractual rela-
tionship between the educational institution
and the teacher, and this agreement provides
private rights between the two.

Academic freedom was first introduced as a
judicial term of art (a term with a specific legal
meaning) by Supreme Court Justice WILLIAM O.
DOUGLAS.In Adler v. Board of Education of City
of New York, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed.
517 (1952), the Supreme Court upheld a New
York law (N.Y. Civ. Service Law § 12-a) that pro-
hibited employment of teachers in public insti-
tutions if they were members of “subversive
organizations.” In a scathing dissent joined by
Justice HUGO L. BLACK, Douglas argued that
such legislation created a police state and ran
contrary to the FIRST AMENDMENT guarantee of
free speech.

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

Shortly after the Adler decision, a similar
case arose in New Hampshire that received very
different treatment by the Supreme Court. On
January 5, 1954, Paul M. Sweezy was summoned
to appear before New Hampshire attorney gen-
eral Louis C.Wyman for inquiries into Sweezy’s
political associations. Under a 1951 New Hamp-
shire statute, the state attorney general was
authorized to investigate “subversive activities”
and determine whether “subversive persons”
were located within the state (Sweezy v. New
Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed.
2d 1311 [1957]). Wyman was especially inter-
ested in information on members of the PRO-
GRESSIVE PARTY, an organization many
politicians suspected of nurturing COMMUNISM
in the United States.

Sweezy said he was unaware of any viola-
tions of the statute. He further stated that he
would not answer any questions impertinent to the inquiry under the legislation, and that he would not answer questions that seemed toinfringe on his FREEDOM OF SPEECH. Sweezy didanswer numerous questions about himself, hisviews, and his activities, but he refused to answerquestions about other people. In a later inquiryby the attorney general, Sweezy refused to commentabout an article he had written and abouta lecture he had delivered to a humanities class.

When Sweezy persisted in his refusal to talkabout others and about his lecture, he was heldin CONTEMPT of court and sent to the MerrimackCounty jail. The Supreme Court of NewHampshire affirmed the conviction, and Sweezyappealed.

The U.S. Supreme Court went on to reversethe decision. The basis for the reversal was theNew Hampshire statute’s improper grant ofbroad interrogation powers to the attorney generaland its failure to afford sufficient criminalprotections to an accused. The Court commentedstrongly upon the threat such a statuteposed to academic freedom.

The principal opinion, written by Chief JusticeEARL WARREN, questioned the wisdom ofWyman’s legislative inquiry. With regard to thequestions on Sweezy’s lecture to the humanitiesclass, the Chief Justice stated that “[t]o imposeany strait jacket upon the intellectual leaders inour colleges and universities would imperil thefuture of our Nation.”

Justice FELIX FRANKFURTER wrote a separateconcurring opinion. To Frankfurter, the call ofthe Court was to decide the case by BALANCINGthe right of the state to self-protection againstthe right of a citizen to academic freedom andpolitical privacy. Frankfurter concluded thatWyman’s reasons for questioning Sweezy onacademics were “grossly inadequate” given “thegrave harm resulting from governmental intrusioninto the intellectual life of a university.”

Neither of the plurality opinions in Sweezywould have found all congressional inquiriesinto academia to be unconstitutional. However,both opinions helped free educators in latercases by recognizing and emphasizing the dangerof restricting academic thought. In Keyishianv. Board of Regents of the University of New York,385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 629 (1967),the Supreme Court finally awarded to teachersand professors the full complement of freespeech and political privacy rights affordedother citizens. Political “loyalty oaths” requiredof New York State employees (including educators)under state civil service laws were declaredvoid, and New York education laws against“treasonable or seditious speech” were found toviolate the First Amendment right to freespeech. According to the Keyishian decision,“[A]cademic freedom . . . is a special concern ofthe First Amendment, which does not toleratelaws that cast a pall of orthodoxy over the classroom.”

The tension between academic oversight andacademic freedom did not end with the Keyishiancase. The Supreme Court later decidedseveral cases that identified more precisely howmuch control school authorities may exerciseover education. The Court held in Board of Ed.,Island Trees Union Free School Dist. No. 26 v.Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d435 (1982), that a school board can control curriculumand book selection, but it may notremove “objectionable” books from publicschool libraries solely in response to communitypressure. Among the books that the Island TreesUnion Free School District No. 26 in New Yorkhad banned in the mid-1970s were SlaughterhouseFive, by Kurt Vonnegut Jr.; Black Boy, byRichard Wright; Naked Ape, by Desmond Morris;and The Fixer, by Bernard Malamud.

School boards and state legislatures generallycontrol public school curriculums, but theircontrol is not complete. For instance, a statestatute will be struck down if it requires publicschools to teach creationism when they presentevolution, and vice versa. According to the Court in Edwards v. Aguillard, 482 U.S. 578, 107S. Ct. 2573, 96 L. Ed. 2d 510 (1987), such a law undermines a comprehensive scientific educationand impermissibly endorses religion byadvancing the religious belief that a supernaturalpower created human beings. The SupremeCourt has also held that if school authorities canshow additional independent grounds for discharge,they may terminate a teacher for disruptivespeech even if a substantial motivation forthe termination was speech on issues of publicconcern (Pickering v. Board of Ed. of TownshipHigh School Dist. 205,Will Cty., 391 U.S. 563, 88S. Ct. 1731, 20 L. Ed. 2d 811 [1968]; Mt. HealthyCity Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct.568, 50 L. Ed. 2d 471 [1977]). This precedentseemed to give school authorities ample meansto elude liability for unconstitutional terminations.However, neither of the principles helpedCity University of New York (CUNY) when itwas sued by the chair of its black studies department.

Professor Leonard Jeffries specialized inblack studies and the history of Africa, and histeaching style at CUNY was controversial. Somestudents felt that Jeffries discouraged classroomdebate, whereas others applauded him for verbalizingthe frustrations of many African Americans.Jeffries referred to Europeans as “icepeople” and as “egotistic, individualistic, andexploitative.” Africans, on the other hand, were“sun people”who had “humanistic, spiritualisticvalue system[s].”

On July 20, 1991, Jeffries spoke at the EmpireState Black Arts and Cultural Festival, in Albany,New York. In his speech, he assailed perceivedJewish power, asserting that Jews controlledCUNY and Hollywood and had financed theAmerican slave trade. The speech attractednational attention and placed CUNY on thehorns of a dilemma: either it could punish Jeffriesand risk running afoul of the First Amendmentand of academic freedom principles, or itcould do nothing and risk losing expectedincome from offended school benefactors. Forseveral months, the university wrestled with theproblem. Then, in October, the board of trusteesvoted, without explanation, to limit Jeffries’scurrent appointment as chair to one year insteadof the customary three.

At the end of October, Jeffries wrote to JeffreyRosen, dean of social sciences, that he wasdeclaring “war” on the faculty. In November, Jeffriesscolded President Bernard Harleston asHarleston was leaving the administration building.By December, continuing performancereviews of Jeffries had become increasingly negative.On March 23, 1992, the CUNY Board ofTrustees appointed Professor Edmund Gordonto the position of black studies chair.

Jeffries filed suit in federal court against the CUNYtrustees, Harleston, and Chancellor W. AnnReynolds, on June 5, 1992.Jeffries argued that the defendants violatedhis First Amendment free speech rights and hisFOURTEENTH AMENDMENT due process rightswhen they denied him a full three-year term aschair of black studies. The jury agreed with Jeffriesthat a substantial motivating factor in hisdismissal was his speech in Albany. The jury alsofound that CUNY had not shown that Jeffrieswould have lost the chair had Jeffries not deliveredthe Albany speech. The jury further foundthat Jeffries had not disrupted the operation ofthe black studies department, the college, or theuniversity. The jury did find, however, thatCUNY had reasonably expected the speech tohave a detrimental effect on the school. Despitethis seemingly justifiable excuse for the school’saction, the jury finally found that CUNY haddeprived Jeffries of property (the position ofchair) without DUE PROCESS OF LAW.The district court judge held that Jeffries’sFirst Amendment rights had been violated. Onthe issue of liability, the jury awarded Jeffries$400,000 in PUNITIVE DAMAGES: $30,000against President Harleston, $50,000 againstChancellor Reynolds, and $80,000 against eachof CUNY’s four trustees. After the verdict,Harleston, Reynolds, and each of the trusteesmoved to overturn the award. They argued thatthe verdict was inconsistent with the jury’s findingsand not supported by the evidence. Thedefendants also maintained that they wereimmune from individual liability as state officialsacting in their official capacity. Jeffries fileda motion requesting a court order reinstatinghim as chair of CUNY’s black studies department.

On August 4, 1993, the district court judgereduced Jeffries’s recovery in damages by$40,000 but awarded him the black studies chair.Jeffries v. Harleston, 828 F. Supp. 1066 (S.D.N.Y.,1993). According to the judge, it was reasonablefor the jury to find that CUNY had terminatedJeffries solely because of the views he expressedin the Albany speech, without constitutionalgrounds. The school apparently had ampleopportunity to gather and present evidence thatJeffries’s speech had disrupted the efficient andeffective operation of the university but insteadchose to argue that Jeffries had been terminatedfor tardiness, sending grades to the school bymail, and brutish behavior. The lack of evidenceto buttress CUNY’s defenses supported Jeffries’sarguments that his free speech rights had beenviolated and that he deserved to be reinstated tothe position of black studies chair.

Upon appeal, the U.S. Supreme Courtremanded the case to the Second Circuit withinstructions to consider the Court’s ruling inWaters v. Churchill, 511 U. S. 661 (1994). The circuitcourt reversed and remanded the case to thefederal district court. Jeffries’s occupation doesnot afford him “greater protection from stateinterference with his speech than did the nursein Waters.” By taking away Jeffries’s position aschair of the department, the university did notinfringe on his ability to speak publicly or toteach in his own style, both of which could have been violations of his First Amendment rights.Jeffries v. Harleston, 52 F. 3d 9 (2d Cir. 1995).

Though the concept of academic freedomhas traditionally been applied only to teachers, ithas begun to creep into lower-court opinionsinvolving the rights of students. SeveralSupreme Court cases are cited in support ofsuch rights. In Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L. Ed. 2d 266 (1972), the SupremeCourt held that a public university may denycampus access to provably disruptive groups,but it may not deny access based on the viewsthe students wish to express. The SupremeCourt ruled in Hazelwood School District v.Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed.2d 592 (1988), that a public school may censorthe content of a student newspaper if the newspaperis not an entirely public forum and thereason for censure is related to a legitimate educationalconcern. In Board of Education of WestsideCommunity Schools (Dist. 66) v. Mergens,496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191(1990), the Court approved the establishment ofa Christian student group in a public school.The Court also held in Mergens that a school’srefusal to permit a religious student group tomeet at school and use its facilities violates thefederal Equal Access Act (Education for EconomicSecurity Act § 802, 20 U.S.C.A. § 4071 etseq. [1984]) if the school provides such access toother noncurriculum student groups.

FURTHER READINGS
De George, Richard T. 1997. Academic Freedom and Tenure: Ethical Issues. Lanham, Md.: Rowman & Little field.

Hamilton, Neil W. 2002. Academic Ethics: Problems and Materials on Professional Conduct and Shared Governance. Westport, Conn.: Praeger.

Hiers, Richard H. 2002. “Institutional Academic Freedom vs. Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy.” Journal of College and University Law 29 (October): 35-109.

CROSS-REFERENCES
Censorship; Douglas, William Orville; First Amendment; Frankfurter, Felix; Freedom of Speech; Loyalty Oath; Religion; Schools and School Districts; Tenure; Warren, Earl.