Against these forces are claims from faculty members that overly restrictive grading policies and practices violate their individual rights to freedom of speech or academic freedom. However, by and large, officials in institutions of higher learning succeed in their defenses of these grading policies and practices. The one notable exception in this trend favoring colleges and universities came in one of the earlier cases, Parate v. Isibor (1989). In Parate, the Sixth Circuit held that forcing a university faculty member to sign a memorandum changing a student’s grade unlawfully constituted compelled speech. The court ruled that the “assignment of a letter grade is a symbolic communication intended to send a specific message to the student . . . [and] is entitled to some measure of First Amendment protection” (p. 827). According to the court, because an instructor’s assignment of grades is central to an individual’s teaching methods, faculty members should retain wide discretion over the evaluation of students.
The trend favoring colleges and universities in faculty challenges to grading practices can be traced, in part, to important language in Sweezy v. New Hampshire (1957), a case that is widely known for its arguments in favor of the rights of individual faculty members. In Sweezy, the Supreme Court acknowledged that colleges and universities have four essential freedoms: the right to determine who may teach, what may be taught, how it shall be taught, and who may be admitted to study. Following this approach, recent courts have reasoned that academic freedom belongs to institutions rather than to individuals (Urofsky v. Gilmore, 2000). For example, a federal trial court in Virginia was of the opinion that a department chair utilizing his authority as chair to alter the course grade of a student did not infringe the First Amendment rights of the faculty member who taught the course, because academic freedom rested with the institution, not with individual faculty members (Stronach v. Virginia State University, 2008).
A review of illustrative cases highlights the point that courts remain deferential to university grading practices, barring a significant infringement on free speech. In Brown v. Armenti (2001), a tenured faculty member, who had been teaching for almost three decades and had been tenured since 1972, was suspended from teaching after he refused to follow an order to change a student’s grade. The faculty member assigned the student a failing grade in a practicum class after the student attended only three of fifteen required meetings even though the president of the university ordered that the grade be changed to an “incomplete.” The faculty member was later dismissed for writing a letter to the board of trustees criticizing the president’s action. On the allegation that the initial suspension was in retaliation for refusing to change the grade, the Third Circuit entered a judgment in favor of the university in explaining that
“In the classroom” refers to those settings where the professor is acting as the university’s proxy, fulfilling one of the functions involved in the university’s “four essential freedoms”: choosing “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” (p. 75)
The court pointed out that had the faculty member been speaking generally on the issue of grade inflation, then his speech that was critical of the president might have been protected. Yet the court found that because the faculty member was essentially expressing his dissatisfaction with the internal office decision of his supervisor, his speech was not protected.
In Wozniak v. Conry (2001), when a long-time faculty member submitted his semester grades, he refused to include grading materials despite requests to do so. In response, the dean of the faculty member’s college barred him from teaching any more classes, canceled his research funds, and reassigned him to manage the departmental Web site. The Seventh Circuit affirmed that the faculty member’s refusal to follow reasonable university rules and such insubordination was unprotected by the Constitution: “No person has a fundamental right to teach undergraduate engineering classes without following the university’s grading rules” (p. 891). The court added that in the area of grades, academic freedom is an institutional concern, because it is a university’s name that is entered on diplomas, and the university’s officials certify to employers, graduate schools, and accrediting bodies that their students have successfully completed the program of study: “Universities are entitled to assure themselves that their evaluation systems have been followed; otherwise, their credentials are meaningless” (p. 891).
Often, the grading practices at issue in legal disputes stem from course syllabi and not merely final assigned grades. In Johnson-Kurek v. Abu- Absi (2005), for instance, the Sixth Circuit affirmed that it is not a constitutional violation to require instructors to provide detailed advice to students on how to meet course requirements. A nontenured faculty member filed suit, alleging that her teaching assignments were reduced in retaliation for her refusal to comply with a request to provide detailed advice to students about what was required to complete a course she had taught. Further, the plaintiff assigned grades of “incomplete” to 13 of the 17 students who were enrolled in the course. In an electronic communication to the class listserv, the plaintiff listed three reasons the students would have received incompletes, namely formatting, citations, and text changes in papers they had written for the class, informing them that it was their responsibility to discover for themselves what problems they had to resolve.
When the faculty member’s immediate supervisor requested that she provide the students with more guidance, she refused to do so. After receiving complaints from students, the supervisor made the request a second time and reduced the plaintiff’s teaching assignment, causing her to file an unsuccessful suit against her university. Upholding an earlier order in favor of the university, the court observed that the faculty member was not compelled to speak or to believe ideas that were not her own and that she was not told what grades to assign her students. Instead, because “she was simply required, as one might be in preparing a syllabus, to spell out in detail the requirements she had devised” (p. 595), the court agreed that her claim was without merit.
In most of the cases involving disputes over grading practices, the courts defer to university policy, determining that disputes rarely concern speech protected by the First Amendment. Rather, courts tend to view the question as to whether a policy is reasonable and whether it has been applied reasonably. Such was the case in Keen v. Penson (1992), where the Seventh Circuit affirmed a university’s decision to demote a faculty member in both salary and rank after he refused to change a student’s grade and offer her an apology for the way he treated her in class and in written communication. Ironically, the dispute escalated when the faculty member directed his student to apologize for her alleged unprofessional behavior in class. When the faculty member ultimately failed the student in the course, the university’s chancellor initiated the required procedures designed to resolve such matters. A faculty rights advocate was assigned to the case initially and recommended to the chancellor that he require the faculty member to change the grade to at least a “C” and to offer a written apology to the student. Two faculty subcommittees reviewed these findings and agreed that the plaintiff violated faculty policies on professional conduct. The faculty member argued that the penalties violated his First Amendment rights, but the court held otherwise. The court was of the view that the plaintiff’s refusal to comply with the committees’ requests was not the reason for the penalties. To the contrary, the court interpreted that the faculty member’s sanctionable misconduct in the way he treated the student and abused his discretion led to his being directed to change the grade.
Legal complaints about grading practices in higher education are not reserved for faculty alone. Students have also raised issues regarding the actions of faculty and administrators regarding the assessment of their work. In such an illustrated dispute, Brown v. Li (2002), a student chose to include a “Disacknowledgments” section at the end of his master’s thesis in which he insulted academic and political leaders whom he considered to be hindrances during his graduate career. In response, his thesis committee did not accept the thesis, withheld the degree, and placed the student on academic probation for failing to complete the degree in a timely manner. After the student had been on probation, the university relented and granted the degree when the student agreed to submit the thesis without the offending section.
The student then unsuccessfully filed suit, arguing that the withholding of his degree violated his free speech rights. The Ninth Circuit affirmed an earlier order in favor of the university and its administrators. The majority opinion applied the principles set forth in Hazelwood Independent School District v. Kuhlmeier (1988), a K–12 case involving student speech in school-sponsored, academic settings. The court in Brown deferred to the authority of an educational institution to establish its curricular standards:
An educator can, consistent with the First Amendment, require that a student comply with the terms of an academic assignment. . . . The First Amendment does not require an educator to change the assignment to suit the student’s opinion or to approve the work of a student that, in his or her judgment, fails to meet a legitimate academic standard. (p. 949)
Applying the Hazelwood standard, the court agreed that because a master’s thesis is part of a university’s curriculum, its applicable procedural and substantive rules were reasonably related to legitimate pedagogical concerns. In fact, the majority opinion indicated that as their “learning progresses,” students in higher education, in particular, need a stronger guiding hand when it comes to oral and written expression.
On the subject of guidance offered to a college student, in Axson-Flynn v. Johnson (2004), the Tenth Circuit considered the question of whether universities may compel certain speech as part of academic programs. The dispute arose when a former student in a university theater program who, instead of using profane language to make her points, wished to refrain from doing so. The former student filed suit against the program faculty, alleging that they violated her rights to free speech and free exercise of religion when they required her to perform monologues and other scenes that contained what she student argued were offensive words. While she received very good grades on assignments, instructors told the student that she would have to “get over” her misgivings if she wished to grow as an actor. At the student’s semester review, faculty members told her that she would have to modify her values or consider leaving the program. The student left the program voluntarily and filed suit, alleging violation of her rights to both free speech and free exercise of religion. While the court agreed that compulsion to speak is intimately related to professional work in theater and was necessary in this instance, it held that there was a factual dispute over whether the compulsion to speak was reasonably related to a legitimate pedagogical concern or was a pretext for religious discrimination. As a result, the court denied the defendants’ motion to dismiss the student’s claim.
Patrick D. Pauken
Pauken, P. D. (2005). Faculty speech. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 151–182). Dayton, OH: Education Law Association.
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).
Brown v. Armenti, 247 F.3d 69 (3d Cir. 2001).
Brown v. Li, 308 F.3d 939 (9th Cir. 2002), cert. denied, 538 U.S. 908 (2003).
Hazelwood Independent School District v. Kuhlmeier, 484 U.S. 260 (1988).
Johnson-Kurek v. Abu-Absi, 423 F.3d 590 (6th Cir. 2005).
Keen v. Penson, 970 F.2d 252 (7th Cir. 1992).
Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989).
Stronach v. Virginia State University, 2008 W.L. 161304 (E.D. Va. Jan. 15, 2008).
Sweezy v. New Hampshire, 354 U.S. 234 (1957).
Urofsky v. Gilmore, 261 F.3d 401 (4th Cir. 2000).
Wozniak v. Conry, 236 F.3d 888 (7th Cir. 2001).