Academic Freedom in K-12 Education

• Publication year: 2021

79 Nebraska L. Rev. 956. Academic Freedom in K-12 Education

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Donald F. Uerling*

Academic Freedom in K-12 Education

I. INTRODUCTION

The principle of "academic freedom" is part of the culture of American education. But what are the legal contours of this principle? And, what protections do K-12 teachers actually enjoy in their schools and classrooms?

For purposes of this article, "academic freedom" will mean the First Amendment protections of professional discretion that a public school teacher may exercise in the course of performing his or her teaching functions. As used here, "academic freedom" does not include the First Amendment rights enjoyed by all public employees "to speak out, as a citizen, on matters of public concern,"1 at least when those rights are exercised outside the school environment.

The discussion that follows will focus on academic freedom in K-12 schools. It must be recognized, however, that much of the case law positing principles of academic freedom has been generated by disputes arising in the arena of higher education, and some of those cases will be noted in the first part of the discussion that follows.2

II. THE CONCEPT OF ACADEMIC FREEDOM

Endorsing the Concept

The Supreme Court has provided ringing endorsements of the general concept of "academic freedom" in reference to higher education. In Sweezy v. New Hampshire,3 the Court stated:

The essentiality of freedom in the community of American universities is almost self-evident. . . . To impose any strait jacket upon the intellectual lead-ers in our colleges and universities would imperil the future of our Nation. . . .Teachers and students must always remain free to inquire, to study and to

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evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.4

And in Keyishian v. Board of Regents5 the Court stated:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.6

Locus of Academic Freedom

The "essential freedoms" of the academy were delineated in this often-cited passage from Justice Frankfurter's concurrence in Sweezy:

It is the business of a university to provide an atmosphere most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms' of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.7

At least one lower court has thought this principle applicable to K12 education. In Boring v. Buncombe County Board of Education,8 the Court of Appeals for the Fourth Circuit stated that these "four essential freedoms" should also apply to public schools, "unless quite impracticable or contrary to law."9

As the language in these excerpts implies, the benefits of "academic freedom" is vested in the academy, not in the academicians. In fact, educational institutions enjoy an "academic freedom" that is in some ways at odds with the notion of a teacher's "academic freedom" in the classroom. As the Court noted in another higher education case, "[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself."10

Urofsky v. Gilmore,11 another higher education case, provided a thorough review of the history and constitutional dimensions of "academic freedom." The Court of Appeals for the Fourth Circuit 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.12

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That the academy, not the academician, is the locus of "academic freedom" is borne out by the majority of cases. Nevertheless, as will be discussed below, a teacher's in-school expression does sometimes enjoy a modicum of constitutional protection.

III. CONSTITUTIONAL CONTOURS OF ACADEMIC FREEDOM EXPRESSED

This part sets out the constitutional contours of "academic freedom" in K-12 education. The intent is to provide a framework of basic principles that can be applied by both attorneys and educators.

Authority of School Officials

The Supreme Court has often acknowledged the power of the state and of school district boards and administrators to exercise reasonable control over curriculum, instruction, and other school activities. This power is, however, subject to constitutional constraints.

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech, inquiry and belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.13

"[L]ocal school boards must be permitted to establish and apply their curriculum in such a way as to transmit community values, and there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political."14 At the same time, however, the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.15

Role of Teachers

Although the Supreme Court has noted "[t]he State's undoubted right to prescribe the curriculum for its public schools,"16 it has also

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acknowledged the important role that teachers play in delivering that curriculum to the students.

Within the public school system, teachers play a critical part in developing students' attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students' experience to achieve educational goals, teachers, by necessity, have wide discretion over the way the course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring.17

Public school teachers do enjoy the protections of the Constitution in their employment setting. "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students."18 However, teachers' speech in the role of "teacher" is, in certain contexts, subject to school control. If school facilities are not open for "indiscriminate use by the general public," then the school is not a public forum and "school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community."19

A First Amendment Right

As noted in the introduction, "academic freedom" is not an independent constitutional right. Instead of positing a new, distinct right of academic freedom grounded in the Constitution, courts analyze academic freedom cases as free speech claims, though in a distinct set of contexts and therefore implicating a distinct set of rules.20

In evaluating a teacher's First Amendment claim, a federal district court used the term "academic expression" rather than "academic free-dom."21 This terminology may prove to be a useful denotation of teacher expression that may enjoy some constitutional protection.

Some courts have stated that, at least to some extent, the First Amendment protects a teacher's classroom discussion.22 For example,

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school boards may not fire teachers for random classroom com-ments.23 Other courts have gone farther, suggesting that a teacher's First Amendment rights encompass the notion of "academic freedom" to exercise professional judgment in selecting topics and materials for use in the course of the educational process.24

In some of the cases noted immediately above, the courts did not reach the essential issue of the extent of substantive First Amendment protections, determining that the selection of curricular topics25 or instructional materials26 was not intended to send any particularized message and thus was not constitutionally protected expression. Instead, these actions by the teachers constituted conduct not protected by the First Amendment.

In other cases, teachers failed to clear the threshold into the realm of constitutional protection when their in-school speech was deemed not to be on a "matter of public concern."27 Thus, the speech was viewed as a private employment issue, no balancing test was invoked, and school officials were never put to the test of justifying their actions.28

In summary, much of this judicial discussion of "academic freedom" and teachers' First Amendment rights in the classroom has been more rhetoric than reality. In most instances, teachers who invoke these protections have not been successful.

School Authority and Teacher Rights

In disputes between school officials and teachers arising over "academic freedom" or "freedom of expression"...