Resuscitating the constitutional "theory" of academic freedom: a search for a standard beyond Pickering and Connick.

Author:Chang, Ailsa W.
Position:Pickering v. Board of Education, Connick v. Myers


When "the most active and inquiring intellects find it advisable to keep the general principles and grounds of their convictions within their own breasts," John Stuart Mill once wrote, "the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind."(1) Mill insisted that only by protecting full freedom of thought and discussion does a society move closer towards truth. One century later, the Supreme Court echoed the philosopher's sentiments in Sweezy v. New Hampshire, and, for the first time, formally recognized a legal concept individuals would subsequently abbreviate as "academic freedom": "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes."(2) Protecting the right of a professor to refuse to disclose his political affiliations, the Sweezy plurality referred to the "vital role" higher education played in a democracy and warned against imposing "any strait jacket upon the intellectual leaders in our colleges and universities."(3) In only one paragraph, the Court elevated academic freedom to the status of a legal theory and reaffirmed the principles philosophers like Mill uttered long ago. But what the Court seemed to fail to realize then and in academic freedom cases since Sweezy was that judicial opinions differ fundamentally from philosophical writing in one very important aspect: Not written for the mere provocation of thought, they must provide clear binding precedent as guidance for lower courts.

The Supreme Court has spoken in grand terms about the importance of preserving academic freedom yet has failed to translate its poetic rhetoric into concrete doctrinal guidance as to what academic freedom truly is, where the limits of such a liberty lie, and how it should be guarded by lower courts. The ambiguous command of the high court to protect a freedom it has not fully defined forces lower courts today to cling to the familiar public employee speech rules found in Picketing v. Board of Education(4) and Connick v. Myers(5) for lack of a better test to use when public universities attempt to penalize professors for instances of speech. Despite superficial allusions these lower courts may make to academic freedom, their knee-jerk embrace of Connick is troublesome because mechanically applying general public employee speech rules to academic contexts causes the judiciary to disregard the unique considerations that distinguish academic freedom cases from generic employee speech disputes. The Connick test provides an inadequate method for approaching First Amendment cases within universities because substantive academic freedom analysis occupies no distinct place within the test and because undiscriminating adherence to its rules has and will continue to produce awkward, inconsistent results in academic settings.

To develop these arguments, I will provide in Part I a brief overview of Supreme Court jurisprudence thus far regarding the constitutional "theory" of academic freedom, followed by a short summary of general public-employee speech rules in Part II. I will then highlight in Part III the questions the Court leaves unanswered in its vague discussions of academic freedom. To elaborate upon the judicial ambiguity which I argue has compelled lower courts to over-rely on the Pickering/Connick test, I will explain the tension between constitutional and professional definitions of academic freedom. I will particularly focus on the divergent views of academic freedom as both an institutional and individual right and the different types of expression constitutional and professional definitions of academic freedom profess to protect.

In Part IV, I will explain why the general public-employee speech test used in Pickering and Connick does not adequately recognize the unique factors associated with academic freedom cases. First, it is questionable whether professors are "employees" of the university in the traditional sense. Second, it is unclear how the institutional academic freedom of the university is to be "balanced" against the individual academic freedom of the professor within the confines of the Connick test. Third, requiring the disputed employee speech to be of "public concern" before it merits First Amendment protection imposes an especially odd burden when professors speak on university premises.

Finally, in Part V, I will offer alternative standards lower courts might use instead of the Pickering/Connick test when adjudicating cases that involve speech disputes between individual professors and their universities, a standard which hopefully will place more emphasis on academic freedom considerations. In this final section, I will focus on three main types of expression by professors: individual choices of what to teach, in-class remarks made during lectures, and critical speech aimed either at the university administration or colleagues (what I will call "intramural speech"). I will also briefly discuss two recent cases in which appellate courts tried to engage either in a Connick inquiry or in slightly misguided academic freedom analysis.

Throughout this note, I will be referring solely to the scenario in which a university tries to sanction a professor for an instance of expression. This emphasis excludes examination of situations in which state legislatures attempt to directly regulate university or professorial speech. Focusing on internal, rather than external, controls on academic speech allows better exploration of the potential conflicts between institutional and individual notions of academic freedom.


    The term "academic freedom" is often used by courts to describe the freedom of a teacher to investigate questions within her discipline and openly communicate the results free from external control by the government or internal control by the academic institution employing her.(6) Descended from the German idea of Lehrfreiheit (freedom of the teacher), academic freedom evolved as a professional ideal within American universities long before the judiciary first recognized the right as one worthy of constitutional protection.(7) In its 1915 Declaration of Principles, the American Association of University Professors ("AAUP") identified three essential elements of academic freedom: "freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action."(8) Not until the 1950s did the Supreme Court formally give academic freedom legal attention. Since then, there has been a meager quantity of Supreme Court cases explaining constitutionally protected academic freedom.

    Although not granted the type of independent constitutional status as was awarded privacy in Griswold v. Connecticut,(9) the Supreme Court has referred to academic freedom as a constitutionally distinct concept, one that merits vigilant albeit vague protection by the courts. With very general yet emphatic language, the Court first insisted upon guarding this special freedom in a series of decisions limiting the reach of state laws requiring loyalty oaths and authorizing investigations into subversive activities by public employees. In these opinions, the justices painted the battles over academic freedom as struggles between state governments and universities as institutions. Although exalting the importance of freedom of thought and discussion within academic communities in higher education, these decisions provided much elegant dicta yet few specific standards by which to govern any right to academic freedom. The decisions that use academic freedom as a tool of argument never focus on its meaning; in fact, most of the cases that appeal to the concept are ultimately decided upon separate doctrines such as political expression rights, due process and the privilege against self-incrimination.

    A. Academic Freedom Within Higher Education

    In 1952, Justice Frankfurter first referred to the purpose of academic freedom in his concurring opinion in Wieman v. Updegraff.(10) The majority held that the interpretation given by the Oklahoma Supreme Court to a state statute requiring that state officers and employees take an oath denying past and present affiliation with certain "subversive" groups violated the appellants' right to due process.(11) Justice Frankfurter warned against the "unwarranted inhibition upon the free spirit of teachers" and its ability "to chill that free play of the spirit which all teachers ought especially to cultivate and practice."(12) Such intrusion, he stated, would create "caution and timidity."(13) Five years later, the Court in Sweezy v. New Hampshire picked up where Justice Frankfurter's concurring opinion in Wieman had left off, articulating the fullest discussion of constitutional academic freedom to date.(14) In Sweezy, the Court held that convicting a college professor for contempt because of his refusal to answer the state government's questions concerning the content of his lectures and his knowledge of the Communist party abridged the professor's right to free speech and academic freedom without due process of law. Emphasizing how crucial freedom in higher education is to a democracy, the Court stated:

    The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.... Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization...

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