Academic Freedom and Discharge from Public Employment: the Unsettled Debate
| Publication year | 2015 |
| Pages | 57 |
| Citation | Vol. 44 No. 10 Pg. 57 |
Special Issue: Education Law
Academic Freedom and Discharge From Public Employment: The Unsettled Debate
By Patrick T. O'Rourke, Jennifer Wunsch.
About the Authors
Patrick T. O'Rourke has been with the University of Colorado since 2005 and currently serves as the Vice President, University Counsel, and Secretary of the Board of Regents. Previously, he served as Managing Senior Associate University Counsel for the University's litigation office and was a director of the law firm Montgomery Little & McGrew, P.C. He has tried some of the University's highest profile cases, including the Churchill case discussed in this article—(303) 860-5691, patrick.orourke@cu.edu. Jennifer Wunsch is an attorney for the University of Colorado's Technology Transfer Office, where she serves as Research Counsel and Contract Specialist. Her work focuses on assisting researchers with intellectual property provisions, primarily within industry-sponsored research—(303) 860-6210, jennifer.wunsch@cu.edu.
This article analyzes the types of protection that courts have provided to teachers and faculty members under the rhetoric of academic freedom. It also discusses the concepts of shared governance and tenure in both the K-12 and higher education settings.
Lawyers practicing education law, as well as faculty members and teachers who work in educational institutions, often use the term "academic freedom." What is apparent, however, is that this term means many different things depending on the context in which the user raises it. For some, academic freedom represents the right of an educator to teach a given topic however she deems appropriate. For others, it represents the right of an educational institution to make its own decisions free from governmental interference. The purpose of this article is to discuss some of the concepts underlying the academic freedom debate and the ways in which courts have addressed claims that public institutions have abridged a faculty member or teacher's right to academic freedom.
Key Institutional Concepts
Before addressing how the courts have discussed the concept of academic freedom, it's important to understand how educational institutions function and how they have construed the concept of academic freedom. Several key concepts serve as the structure upon which academic freedom necessarily depends.
Key Concept 1: Shared Governance
Most large business organizations employ a hierarchical system of governance. In essence, the traditional organization is a "top down" organization in which a defined leader (or leadership group) sets goals and makes policy decisions that are then implemented throughout the organization. While traditional organizations may be flexible in how they structure their operations from a day-to-day perspective, the hierarchy denotes the lines of authority. A hierarchical system might look something like this:
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Higher education, in contrast, regularly ascribes to a model of "shared governance." Since 1920, the American Association of University Professors (AAUP) has endorsed a model (which has been adopted as the policy of most institutions of higher education) where faculty serve a primary role in shaping the institution's academic mission. The AAUP's 1966 Statement on Government of Colleges and Universities describes shared governance as a system where governing boards and university administrators cede their authority over academic matters to the faculty in most instances.[1]
The basic concept of shared governance is that governing boards and university administrators have presumptive authority in matters related to the administrative operation of the university, but the faculty members have presumptive authority over matters of academic concern, including "such fundamental areas as curriculum, subject matter and methods of instruction, research, faculty status, and those aspects of student life which relate to the educational process."[2] On these academic matters, shared governance normally requires the governing board and other administrators to defer to faculty decisions, unless "exceptional circumstances" exist and the reasons for any divergence are communicated to the faculty.[3]
Thus, in contrast to the traditional hierarchical model, shared governance presumes a two-track system of governance where the business aspects of the enterprise are separate from the academic function, although both are subject to the governing board's ultimate authority.
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In Colorado, both the University of Colorado and Colorado State University systems recognize the concept of shared governance.[4]
Shared governance in the K-12 setting. The concept of shared governance is not as strongly rooted in primary and secondary education. Colorado law vests control of individual school districts in local boards of education, which have broad powers, including the authority "to determine the educational programs to be carried on in the schools of the district and to prescribe the textbooks for any course of instruction or study in such programs."[5] School districts also have the power "to employ all personnel required to maintain the operations and carry out the educational programs of the district. . . ."[6The General Assembly's decision to vest these broad powers in the individual boards of education contrasts with a model of shared governance in which academic policy originates with the faculty, although some school districts have agreed to contracts with teachers' unions that have provided teachers with some input into developing and implementing some areas of the curriculum.[7]
Key Concept 2: Tenure
Any discussion of academic freedom needs to include tenure. Again, the generally accepted definition of tenure originated with the AAUP. The AAUP's 1940 Statement on Principles of Academic Freedom and Tenure states that, after a probationary period, a faculty member's service "should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies."[8]
In other words, tenure operates to modify the employment at-will relationship and circumscribe the circumstances under which an institution can discharge a faculty member. Most colleges and universities, consistent with AAUP recommended best practices, [9] allow faculty committees to make an initial determination about whether "adequate cause" exists to discharge a faculty member. The definition of adequate cause varies from institution to institution, but the University of Colorado's definition is representative and states:
The grounds for dismissal shall be demonstrable professional incompetence, gross or repeated neglect of duties, conviction of a felony, sexual harassment, or other conduct that falls below minimum standards of professional integrity.[10]
At most public institutions, a professor with tenure has a property interest in his continued employment that is subject to constitutional due process requirements.[11] In non-public institutions, tenure protections are often considered a term of the faculty member's contract of employment, and are therefore binding on the institution.[12] Significantly, the concept of tenure affects not only the ground for termination, but also the process by which terminations occur. While recognizing the role of governing boards and university administration in making budgetary and administrative decisions, a central tenet of tenure is the faculty's ability to determine whom it should appoint to its ranks and the circumstances under which the institution can discharge a faculty member.
As the AAUP's 1966 Statement on Government of Colleges and Universities describes, a model of shared governance is one where "faculty status" is "primarily a faculty responsibility."[13] As such, at most public institutions, a number of employment decisions "including appointments, reappointments, decisions not to reappoint, promotions, and the granting of tenure, and dismissal" often originate with the faculty.[14] Given that the faculty has the expertise in particular academic fields and has the competency for evaluating the work of other scholars, faculty members are often asked to serve on committees and determine whether the administration demonstrated adequate grounds for dismissal.[15] The governing board of the institution of higher education is then tasked with reviewing the committee's findings and recommendations and making an ultimate decision of whether dismissal is warranted.[16
Tenure at the K-12 level. Tenure is also a concept that exists in primary and secondary education, although it is not implemented in the same manner as within institutions of higher education. Colorado's General Assembly has enacted the Teacher Employment, Compensation, and Education Act of 1990.[17] In general, this statutory scheme provides employment protection to non-probationary public school teachers and limits the grounds for their termination to "physical or mental disability, incompetency, neglect of duty, immorality, unsatisfactory performance, insubordination, the conviction of a felony or the acceptance of a guilty plea, a plea of nolo contendere, or a deferred sentence for a felony, or other good and just cause."[18] The statute also requires due process protections, including notice of the potential grounds for termination[19] and a hearing at which the teacher may contest the stated grounds for dismissal.[20]
Key Concept 3: Academic Freedom
A common belief is that tenure protections exist primarily to protect academic freedom. The 1940 Statement on Principles of Academic Freedom and Tenure explains that tenure is "fundamental for the protection of the rights of the teacher in teaching...
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