By Dave Roland, Contributing Writer, and Andrew Gargano, First Amendment Center Intern
Last updated: October 3, 2017
Colleges and universities, as the training ground of new generations of thinkers, are a common source of controversy concerning what should be taught. Administrators at some public institutions of higher learning, in an effort to promote the values of diversity and equality, have in some cases tried to persuade professors to refrain from voicing certain viewpoints — even from pursuing certain fields of study — that could be seen as working against those ideals.
“Academic freedom,” as the phrase is most commonly used, describes the right of teachers to conduct their classrooms and studies in the way that they believe to be most consistent with a pursuit of truth. Though this concept is not explicitly addressed in the First Amendment, it has been adopted by the U.S. Supreme Court as a freedom protected alongside the other First Amendment values. In a 1967 case, Keyishian v. Board of Regents of the University of the State of New York, the Court declared that academic freedom was a “transcendent value” entitled to the protection of the First Amendment.
However, the very next year a Supreme Court decision left open the question of free speech for faculty at public universities and colleges, challenging the Court’s previous declaration of the value of academic freedom. In Pickering v. Board of Education, the Court ruled that the state “has interests as an employer in regulating the speech of its employees” and adopted a two-part test to determine when the government may impose restrictions on employee speech. First, a court would consider whether an employee’s speech pertains to a matter of public concern. If so, the court would determine whether that speech outweighs a government interest in operating its workplace efficiently. The Court later modified the first step of the Pickering test in the 1983 case Connick v. Myers by adding to the inquiry whether the employee spoke “as a citizen” rather than as an employee.
While few cases arose concerning the extent of academic free speech, the courts for over 20 years relied on the Pickering-Connick test to determine when the government may regulate employee speech. That changed in 2006.
In Garcetti v. Ceballos, the Supreme Court ruled that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” However, the Court held off answering whether the new rule would apply to academic speech. Justice Souter, in a dissent, voiced his concern with the ruling and expressed his hope that the majority “does not mean to imperil First Amendment protection of academic freedom in public colleges and universities.”
In the years since, appellate courts have differed in their approaches to applying Garcetti. The Seventh Circuit in Renken v. Gregory applied Garcetti in an academic setting, finding that a professor’s complaint concerning how the university administered an educational grant fell within his teaching and service duties. On the other hand, both the Fourth and Ninth Circuits have held that, in certain circumstances, Garcetti does not apply to public university professors.
In 2011, the Fourth Circuit in Adams v. University of North Carolina-Wilmington held that a professor’s opinionated columns and news articles were protected by the First Amendment since they were published outside the university. The court found “applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment.” In the 2014 case Demers v. Austin, the Ninth Circuit similarly held that “there is an exception to Garcetti for teaching and academic writing” because “Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.”
While the Supreme Court has yet to clarify the proper reach of Garcetti in academic settings, it clarified part of the Garcetti test in the 2014 case Lane v. Franks. There the Court held that the critical part of the Garcetti inquiry is whether the speech “is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Thus, a public employee’s speech may have greater protection than previously interpreted.
Despite the Supreme Court’s support for academic freedom, administrators at some public colleges and universities continue to try to stop faculty from researching certain areas, publishing their findings, or making unpopular statements. Recent years have seen attempts to prevent studies of racial difference and employment policy at the University of Delaware and the history of homosexual communities in the Pacific Northwest at Idaho State University, and to punish a creative writing professor in Alaska for her exploration of child sexual abuse. Cases arising out of school-initiated censorship are almost invariably settled or decided against the school.
In some cases, state legislatures have tried to silence professors even when colleges have not. Arizona lawmakers recently attempted to prevent public education institutions from promoting “social justice” while two Wisconsin state legislators threatened to withhold public university funding if a course on racism was permitted. Such actions are almost invariably resolved in favor of the professors. As the Supreme Court held in its 1957 decision Sweezy v. New Hampshire that “for society’s good … [p]olitical power must abstain from intrusion” into “the intellectual life of the university.” Besides, it’s not always all bad news in the statehouses. In 2017, Tennessee passed into law a comprehensive campus free speech bill to provide faculty with statutory protection for classroom speech.
Generally, professors may research or speak on any question that is of “public concern” without fear of official reprisal. This principle is not without uncertainty, however. Academic freedom will not cover personal attacks, criticisms or comments that excessively hamper the mission of the university, or expression that does not specifically address a public concern.
Finally, it is important to remember that private universities are governed by a different set of rules than their publicly funded counterparts. Because private schools are not under the control of the government, they are not legally required to assure the same liberties to their administrators, faculty or students. The discussion in this section is applicable only to state-run institutions.