O.K. Patton Professor of Law, University of Iowa College of Law. Even more than usual, I am deeply indebted to many past and present students at the University of Iowa College of Law for their work in producing this article-students in my Free Speech seminar, especially Scott McLeod and Patricia Weir; research assistants, Jim Angel, Arlene Fitzpatrick, Aaron Dixon, Michael Hatting, Brian Tarnow; and the editors of two volumes of too numerous to mention.
We take it for granted that children are required by law to attend school and to be subjected to the ideas that the school chooses to communicate. And we are probably even more indifferent to the pressures on young people to attend college and to sit in courses they are required or encouraged to "take." The messages communicated to these students are supposed to have an impact upon them by educating them-to make them different from what they would otherwise be. And, of course, some of these messages are highly objectionable to the students (or their parents) who often have little or no choice about the messages received.
Here are some "real life"1 examples:
-As required reading for his high school literature class, a teacher assigns Mark Twain's Huckleberry Finn, in which a prominent African-American character is called "Nigger Jim" and the word "nigger" occurs repeatedly in the book's dialogue.2
-Another teacher selects for her high school dramatics class a play called Independence by Lee Blessing, which involves a Page 215 "dysfunctional, single-parent family-a divorced mother and three daughters, one a lesbian, another pregnant with an illegitimate child."3
-Still another teacher leads a discussion of abortion of Down's Syndrome fetuses with her ninth grade biology class.4
-A fourth teacher includes on his secondary school reading list Eldridge Cleaver's Soul On Ice, which describes how and why, "There are white men who will pay you [black men] to fuck their wives."5
-A university professor teaching a technical writing class compares the methodology of "focusing" in writing to sexual intercourse: "You seek a target. You zero in on your subject. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one."6
-Another university professor, in his class on exercise physiology, repeatedly stresses his beliefs about the importance of God in Human Physiology.7
That some students or their parents might find a particular educational assignment or teaching method objectionable is not a reason for prohibiting it. But the sensitivity of many subjects and the potential value conflicts they may engender for students underline the care that must be taken in making these assignments and point up the importance attached to controversies over the control of the curriculum.
Taking this care is one of the responsibilities of teachers who have and use academic freedom. The classic statement of "academic freedom," the 1915 Statement of the American Association of University Professors (AAUP), included three elements: "freedom of inquiry and research; freedom of teaching Page 216 within the university or college; and freedom of extramural utterance and action."8 The second of these three elements, the freedom of teaching, entails the "academic freedom" to select the materials to be assigned and to determine how they will be taught,9 subject to very minimal qualifications.101 will refer to these teaching functions as "communicating the curriculum" to define them in broad terms-to include not only lecturing, questioning, and selecting material for students to read, but also adopting requirements for student participation through writing assignments and talking in class, testing, evaluating, and grading." At the same time, "communicating the curriculum" distinguishes the in-class teaching functions from extramural expression and from the functions involved in research and scholarly publication. Under the AAUP's view of academic freedom, it is clear that the individual teacher has the power and responsibility to communicate the curriculum. In describing the academic freedom of university professors in its 1915 Statement, the AAUP characterized teachers as "appointees," not "employees." "[O]nce appointed, the scholar has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene."12 Although the AAUP has carefully limited its claim for these prerogatives to teachers at the college and university level,13 others have asserted that teachers have the last word in communicating the curriculum below the college level as well.14
Against the claim of teacher autonomy in controlling the curriculum is the claim of the "owner-managers"15 of educational institutions at all levels to specify what will be taught in "their" schools. Whether the educational institution is public or private, or higher or lower, it has been created by some body for some purpose, and that body claims the power and responsibility to control the means of achieving that purpose. In all cases, the founding and sponsoring body has established some governing agency to accomplish that task-a "board of trustees," a "board of regents," a "board of education," a "school committee"-each with power further to delegate to presidents, superintendents, principals, deans, and, sometimes, teachers, other employees (such as librarians, counselors), and occasionally even to students.
Under this rival view, it is the teacher's prerogative to make curricular decisions only if, and to the extent that, the responsibility for making those decisions has been delegated to the teacher. In higher education, the A AUP was created to check the power of the owner-managers, who were thought to lack competence to make academic decisions but to have the incentive to make these decisions on inappropriate grounds.16 The great triumph of the A AUP has been to obtain delegated authority in the form of institutional commitments to the AAUP principle of faculty governance and individual faculty autonomy in the classroom.17 For an individual teacher at any level, such a delegation might be made through the contractual arrangement under which the teacher was hired. Absent any such delegation, a teacher's claim to hegemony in communicating the curriculum must be a claim of constitutional right.
Teachers i private schools and colleges have no such independent constitutional claim against the educational owner-managers whose exercise of power does not entail "state action,"18 and this article will not consider the right of teachers to communicate the curriculum in private schools or colleges. In "public" or "state" educational institutions, however, the owner-managers Page 218 are "state" entities and thus must not deny the teachers "liberty" "without due processoflaw"undertheFourteenth Amendment19-a constitutional limitation that encompasses the First Amendment's protection of 'the freedom of speech."20 Since speaking is the very essence of a teacher's usual work, in communicating the curriculum, teachers can plausibly claim a prerogative to communicate the curriculum as a matter of constitutional right under the First Amendment. Certainly, the existence of such a constitutionalized right of academic freedom of teaching cannot be rejected as impossible. Government decision-making power in the United States is always limited by pertinent constitutional rights.21
In this article, I will defend two basic positions.22 First, "academic freedom " does not provide an independent constitutional ground for treating the communication of the curriculum as a distinct free speech right under the First Amendment. Specifically, teachers do not have a constitutional right to communicate the curriculum that is superior to the school board (or the equivalent educational official or governing entity in higher education). Second, a teacher's interest in communicating the curriculum has substantial, but not complete, constitutional protection. Specifically, teachers have presumptive expertise to exercise broad discretion in doing what they are hired to do except to the extent that their discretion is expressly circumscribed.
I teach in a state university, I am a card-carrying member of the AAUP, and I strongly endorse the AAUP's philosophy and value its work in protecting faculty freedom. Of course, no one...