High School Academic Freedom: the Evolution of a Fish Out of Water

• Publication year: 2021

77 Nebraska L. Rev. 301. High School Academic Freedom: The Evolution of a Fish out of Water

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W. Stuart Stuller*

High School Academic Freedom: The Evolution of a Fish out of Water

TABLE OF CONTENTS

I. Introduction .......................................... 301
II. What is Academic Freedom? ............................. 307
III. The Supreme Court and Academic Freedom ................ 310
A. The Road to Keyishian .............................. 310
B. The Road Not Taken ................................. 314
IV. The First Coming of High School Academic Freedom-
Procedure and Substance................................ 317
V. Hazelwood and the Regulation of School-Sponsored
Speech................................................. 322
VI. The Second Coming of Academic Freedom-All
Procedure No Substance ................................ 324
VII. When the State Speaks ................................. 329
VIII. Back to the Classroom ................................. 332
IX. The Substantive Right of Academic Freedom ............. 333
X. The Procedural Right of Academic Freedom: Can There
Be Procedure Without Substance? ....................... 339
XI. Conclusion ............................................ 342

I. INTRODUCTION

Much of the strength of the First Amendment arises from the power of its rhetoric. It is a rare judge who can decide a First Amendment case without composing, or at least copying, a short ode to free speech. If nothing else, the introductory rhetoric, like a congressional benediction, solemnizes the decision, reiterating that paramount val-

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ues are at stake.(fn1) The rhetoric represents a thumb on the scale favoring protection of First Amendment values.(fn2)

Within the broad arena of education law, a rhetoric of academic freedom has developed, much of it springing from Justice Brennan's memorable passage in Keyishian v. Board of Regents.(fn3)

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. 'The vigilant protection of constitutional

freedoms is nowhere more vital than in the community of American

schools.' The classroom is peculiarly the 'market-place of ideas.' The

Nation's future depends upon leaders trained through wide exposure to

that robust exchange of ideas which discovers truth 'out of a

multitude of tongues, [rather] than through any kind of authoritative

selection.'(fn4)

Despite the tributes, courts are remarkably consistent in their unwillingness to give analytical shape to the rhetoric of academic freedom. Twenty years ago, a federal district court in the Ninth Circuit noted: "The Supreme Court of the United States has discussed academic freedom in eloquent and isolated statements. Lower courts have spoken more frequently, but none has clearly defined the theory's legal contours. Nor will I."(fn5) Recently, the Ninth Circuit noted: "Neither the Supreme Court nor this Circuit has determined what scope of First Amendment protection is to be given a public college professor's classroom speech. We decline to define today the precise contours of the protection the First Amendment provides the classroom speech of college professors . . . ."(fn6)

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Not surprisingly then, scholars are just as consistent in criticizing courts' failure to give shape to the rhetoric.(fn7) To borrow a wonderful phrase: "Lacking definition or guiding principal, the doctrine floats in the law, picking up decisions as a hull does barnacles."(fn8) This analogy would be entirely accurate except that barnacles tend to look somewhat alike while academic freedom cases do not. The disparity of conclusions is stunning: a school district may refuse to rehire a teacher because he assigned Aldous Huxley's Brave New World.(fn9) A school district may not dismiss a teacher because he assigned Kurt Vonnegut's "Welcome to the Monkey House."(fn10) A university professor has a right of academic freedom in the grades he assigns.(fn11) No, he does not.(fn12) A high school art teacher cannot be compelled to recite the Pledge of Allegiance, (fn13) but a kindergarten teacher can be so compelled.(fn14) A

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teacher's right of academic freedom encompasses a right to wear a turtleneck in preference to a necktie.(fn15) No more so than he has a constitutional
right to have students sit in a circle in preference to rows.(fn16) A high school teacher has a right of academic freedom "in choosing a particular pedagogical method for a course, so long as the course is part of the school's official curriculum and the teaching method serves a demonstrable educational purpose."(fn17) A high school teacher has no right of academic freedom.(fn18)

The formulas used to resolve academic freedom cases are equally divergent. The "material and substantial interference" standard of Tinker v. Des Moines Independent Community School District (fn19) has been applied,(fn20) as has the balancing test of Pickering v. Board of Education of Township High School District 205.(fn21) The "legitimate pedagogical concern" standard of Hazelwood School District v. Kuhlmeier (fn22) is now the dominant framework,(fn23) but courts are in disagreement as to how to apply it. Some courts apply Hazelwood in straightforward

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fashion.(fn24) Other courts supplement Hazelwood with a notice standard. (fn25) Some courts have suggested that Hazelwood requires a balancing test.(fn26)

This schizophrenia is not limited to varying courts. Justice Brennan, whose writing in Keyishian inspired many lower courts to recognize a right of academic freedom in the secondary school setting, also wrote:

The Court of Appeals stated that academic freedom embodies the

principle that individual instructors are at liberty to teach that

which they deem to be appropriate in the exercise of their

professional judgment. But, in the State of Louisiana, courses in

public schools are prescribed by the State Board of Education and

teachers are not free, absent permission, to teach courses different

from what is required. 'Academic freedom,' at least as it is commonly

understood, is not a relevant concept in this context.(fn27)

Thus, Justice Brennan takes a "special concern of the First Amendment" in one case and reduces it to an irrelevant concept in another.

High school academic freedom took flight nearly three decades ago, powered by the rhetoric of Keyishian.(fn28) The arc of its trajectory flattened, however, as courts began to question whether academic freedom claims were really just arguments as to who was entitled to exercise state power.(fn29) Recently, academic freedom cases have pop-

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ped up again,(fn30) reduced in scope but still lacking analytical coherence.(fn31)

A number of factors contribute to this state of affairs. Courts have failed to examine or define the parameters of academic freedom. Courts also have failed to inquire into the nature and theoretical origins of academic freedom. While academic freedom had its genesis in the evoluton of the modern university,(fn32) the bulk of academic freedom cases have arisen in the context of secondary schools.(fn33) There is much salience in the observation that the justification for academic freedom must be found in the character and function of the institution and the scholar's role within that institution.(fn34)

Most significantly, however, courts have not confronted the analytical questions that must be addressed if academic freedom is to be constitutionalized. These questions are unique in constitutional theory: To what extent does the Constitution recognize a right that is not available to the public at large? And to what extent does the Constitution, which typically operates to limit state power, protect an individual's exercise of state power?

High school academic freedom lies along a speech continuum bounded at one end by wholly private speech and on the other end by statements that are unmistakably speech of the government. At various points along the continuum a different set of issues is raised: the three-tiered analysis of public forum jurisprudence,(fn35) the rules that apply to funding for the National Endowment for the Arts,(fn36) the rules underlying government regulation of the airwaves,(fn37) and, of course,

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claims of academic freedom within public institutions. Because of its relative position on the continuum, the high school setting provides a convenient vehicle for identifying the theoretical hurdles that must be overcome if a right of academic freedom is to be formulated based on something more than rhetoric.

II. WHAT IS ACADEMIC FREEDOM?

Discussions of academic freedom inevitably are preceded by powerful

images that color our perceptions of the issues: Socrates put to death for raising difficult questions; Galileo brought before the Inquisition for accurately reporting what he saw through the telescope; and John Scopes haled up on criminal charges for instructing high school students on scientific observations that were already sixty-five years old. Notwithstanding the clarity of these images, the term "academic freedom" itself is hardly self-defining. It is indicative of the malleability of the term that Laurence Tribe can observe that the Supreme Court has never recognized academic freedom as an independent constitutional doctrine,(fn38) while William Van Alstyne can write that the Court has incorporated academic freedom into the Constitution,(fn39) and both can be right.(fn40)

Prior to the Civil War, the concept of academic freedom was "literally inconceivable" in the educational institutions of...