The Emergence of First Amendment Academic Freedom

• Jurisdiction: United States,Federal
• Citation: Vol. 85
• Publication year: 2021

85 Nebraska L. Rev. 793. The Emergence of First Amendment Academic Freedom

793

R. George Wright(fn*)

The Emergence of First Amendment Academic Freedom

TABLE OF CONTENTS

I. Introduction .......................................... 793 R
II. The University and the Logic of Academic Freedom .... 800 R
A. University Missions ............................... 800 R
B. University Missions and Academic Freedom ........ 802 R
C. Individual and Institutional Academic Freedom .... 805 R
D. Religious Private University Missions and Academic
Freedom .......................................... 807 R
E. Free Speech Values and Academic Freedom ........ 809 R
III. The Current Free Speech Tests as Poorly Adapted to
the Logic of Constitutional Academic Freedom ......... 816 R
IV. Conclusion ............................................ 826 R

I. INTRODUCTION

794

The idea of a constitutionally protected realm of academic freedom is controversial and judicially unsettled.(fn1) With their most protective rhetoric, courts have referred to "the robust tradition of academic freedom in our nation's post-secondary schools."(fn2) The Supreme Court has proclaimed that

794

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.(fn3)

Beyond the strands of supportive rhetoric, however, lies much current controversy and uncertainty. One court has observed that "`academic freedom' is a term that is often used, but little explained, by federal courts."(fn4) Academic freedom is largely unanalyzed,(fn5) unde-fined,(fn6) and unguided by principled application,(fn7) leading to its inconsistent(fn8) and skeptical or questioned invocation.(fn9)

Thus, the relationship between academic freedom and the First Amendment is typically left unclear. Could any teachers ever have special academic freedom claims that are not subsumed under general First Amendment doctrine?(fn10) If university administrations and boards of trustees themselves have academic freedom claims of any sort,(fn11) do those claims fall equally within the logic of freedom of speech?(fn12)

795

Assuming that only public universities are bound to respect First and Fourteenth Amendment free speech rights, does the logic of academic freedom nonetheless suggest any guidance for private universities?(fn13)

The existence of the First Amendment itself has not yet brought clarity regarding the degree, if any,(fn14) to which a college professor's(fn15) or other public school teacher's(fn16) classroom speech is protected explicitly, in academic freedom terms or not, under the First Amendment. There are ringing declarations to the effect that

796

the First Amendment protects the right of faculty members to engage in academic debates, pursuits, and inquiries and to discuss "ideas, narratives, concepts, imagery, and opinions--scientific, political or aesthetic--with an audience whom the speaker seeks to inform, edify, or entertain."(fn17)

At the same time, other lines of authority suggest that such academic freedom rights under freedom of speech may be limited(fn18) if they exist at all, and may not extend beyond the rights available to any nonteacher.(fn19)

It is not surprising, given this confusion, that the courts have not yet settled upon a single judicial test in addressing First Amendment academic freedoms of teachers at any level of schooling.(fn20) For the sake of initial simplicity, we may reduce the major test contenders to two,(fn21) but each of these two major contending tests has generated its own significant variations and offshoots.(fn22)

797

The two most popular general contenders, neither of which seems reducible to the other, are the Hazelwood test(fn23) and the Pickering-Connick-Garcetti test.(fn24) To dramatically oversimplify, in applying the Hazelwood test to teacher speech the first question is whether the teacher's speech could reasonably be perceived to reflect the approval of the school administration.(fn25) If so, regulation of the teacher's speech can be justified if the speech restriction is reasonably related to any legitimate pedagogical concern.(fn26) Whether such a regulation, unlike regulation of speech in typical nonpublic forum cases,(fn27) could be based on the viewpoint or message of the teacher's speech is unclear and has divided the circuits.(fn28)

The main alternative to Hazelwood is the Pickering-Connick- Garcetti test,(fn29) or for convenience hereafter, the "PCG" test. It would be an understatement to say that the PCG test involves important complications and uncertainties. In the interests of simplicity, though, we can say that the PCG test first asks whether the teacher's speech addresses a matter of public interest and concern hereinafter, occasionally, a MOPIC.(fn30) It has been suggested that a teacher's broadly curricular speech cannot rise to the level of speech on a MOPIC.(fn31) If, on the other hand, the teacher' speech is shown to address a MOPIC, the court then undertakes an interest balancing. The court weighs the teacher-employee's(fn32) interest in speaking against the government-employer's(fn33) interest in the efficiency, discipline, mo

798

rale, and overall appropriate operation of the government workplace.(fn34)

For the teacher's speech to be protected under PCG, the speech thus must, at a minimum, address a matter of public interest and concern, and the teacher's interest in speaking must outweigh the conflicting government workplace interests.(fn35) In addition, however, the Supreme Court in Garcetti has recently validated a number of lower courts in insisting that the speaker also have spoken in the capacity of a citizen, rather than in the capacity of a task-discharging government employee.(fn36)

The latter idea seems to be that speaking as a government employee pursuant to employee responsibilities, as opposed to as a citizen, is a crucially distinct role.(fn37) Speech uttered in one's role as public employee, perhaps including as a teacher discharging one's obligations as a teacher,(fn38) is thus not speech uttered as a citizen. Such public employee speech is not, in general, eligible under Garcetti for constitutional protection.(fn39) This result may rely on a theory that speech in one's employee capacity must inescapably also be speech that is merely on a matter of personal interest. Or perhaps the theory is that speaking merely in one's employee capacity, even on a matter of great public interest, must, given the conflicting interests, always be decisive against free speech protection.(fn40)

799

In any event, the Hazelwood and the PCG tests, with their offshoots and complications, form much of the basis upon which constitutional academic freedom cases at various academic levels are typically resolved. In Part II below, we develop a context for critiquing all of the standard judicial approaches to claims of constitutional academic freedom. Part II briefly introduces the idea of fundamental underlying purposes or missions of major universities.(fn41) We then draw upon the explicit understanding of the universities themselves as to the vital role that academic freedom must play in promoting the basic purposes or missions of the university.(fn42)

We then note the distinction between the academic freedom of individual faculty members and groups thereof on the one hand, and academic freedom as institutional autonomy and self-directedness at the level of the university administration or board of trustees on the other.(fn43) This distinction is then used to briefly address the extent to which private universities with distinctive religious missions might either fit or not fit within the academic freedom paradigm.(fn44) We then more generally link academic freedom to basic values and purposes underlying the idea of constitutional protection for free speech.(fn45)

In light of the above, we briefly characterize the sorts of academic freedom that are most worthy of constitutional protection as "emergent phenomena."(fn46) The point is not to trace historically or through case law how academic freedom has developed or been limited. Instead, we borrow the idea of "emergence" in a loosely philosophical sense.(fn47) The idea is roughly that an object can come into being with important characteristics that could not have been inferred from the elements and circumstances that have combined to create the emergent phenomenon. In this case, the emergent phenomenon is academic freedom worthy of constitutional protection.

Based on this understanding, Part III critiques a number of aspects of the major contemporary judicial tests applied to claims of academic freedom. None of the major judicial tests and their offshoots work well, and all are commonly inappropriate.(fn48) A brief conclusion(fn49) emphasizes that the scope and strength of academic freedom should track not the current judicial tests, but instead the considerations de

800

veloped in Part II. In particular, constitutional protection of academic freedom should track the logic of academic freedom as an "emergent" phenomenon(fn50) in the context of university missions and the efficient pursuit of those missions. This will generally require more rigorous First Amendment protection of academic freedom than is currently afforded.

II. THE UNIVERSITY AND THE LOGIC OF ACADEMIC FREEDOM

A. University Missions

If academic freedom is to be found worthy of constitutional protection in even limited circumstances, surely it must be defended, as must freedom of speech itself as a constitutional value, largely in terms of the purposes underlying academic freedom and freedom of speech. In a generally...