The concept of academic freedom, although not enumerated in the First Amendment, is based on freedom of speech and applies generally to all levels of education. In its broadest sense, academic freedom is the right to teach or speak freely without reprisal. Disputes over classroom content and methodology typically pit the more commonly recognized faculty academic freedom to teach what and how educators deem appropriate against the institutional academic freedom of colleges and universities to determine the curriculum and programs on their campuses. Educators presume that academic freedom provides greater protection of their campus actions than case law supports. Based on the notion that academic freedom applies to institutions rather than individuals, courts generally side with colleges and universities when faculty members refuse to follow curricular policies and administrative directives, use or allow objectionable language in the classroom, or criticize their colleagues and institutions in ways not protected by the First Amendment.
External Attempts to Regulate Faculty
The initial stage of academic freedom litigation occurred during the 1950s and 1960s and arose from McCarthyist concerns of subversion and disloyalty. A series of U.S. Supreme Court cases reviewed governmental attempts to impose loyalty requirements in education, often at the university level. The Court issued mixed rulings on academic freedom in the 1950s, with some judgments upholding loyalty oaths and governmental restrictions. However, by the end of the 1960s, the Court clearly recognized the constitutional status of academic freedom, largely based on First Amendment freedom of speech and association, and generally rejected external attempts to limit faculty members’ freedom of expression.
In Keyishian v. Board of Regents of University of State of New York (1967), educators refused to sign a Feinberg Certificate affirming that they were not Communists and that if they had ever been Communists, they had so informed the SUNY president. In ruling for the faculty members, the Court built on its defense of educators’ freedom of thought in Shelton v. Tucker (1960), acknowledging that academic freedom is a “special concern of the First Amendment” (p. 603).
Attempts at external control of expression on college campuses have resurfaced in the past decade, as interest groups use educational institutions as forums to promote their ideological viewpoints and agendas. Challenges brought by community members and students against the content of first-year student orientation reading assignments and student plays performed as course assignments have generally failed. Further issues concerning academic freedom were raised in Urofsky v. Gilmore (2000). In this case, the Fourth Circuit upheld statutory restrictions on the rights of faculty members and other public employees to visit sites containing sexually explicit material on publicly owned or leased computers. Thus, this case raises questions about the boundaries of academic freedom in the cyber age and the rights of academicians to choose for themselves, without state interference, the topics of their research and teaching.
Internal Conflicts Over Faculty Actions
After Keyishian, the primary focus of academic freedom litigation shifted from external attempts at control to internal conflicts. The Supreme Court has recognized that academic freedom, at times, involves a somewhat inconsistent and fundamental tension between educators who desire uninhibited, independent freedom in teaching and institutions that want autonomous decision making over their educational programs and campus activities. Over four decades, higher education has witnessed numerous legal disputes between institutional and faculty academic freedom over who has the authority to control activities within a course, language used within a classroom, and grading.
Courts consistently uphold the authority of colleges and university officials, absent unconstitutional intent, to regulate curriculum, including the content of courses. In the 1970s, institutions prevailed when officials chose not to renew the contracts of two faculty members who failed to meet their expectations for course workload, rigor, and coverage of topics. Another court found no violation of academic freedom when officials at an institution refused to assign an additional class to a part-time lecturer after she was unwilling to explain to her students precisely what was required to receive a final grade in a writing class in which 13 of 17 students had incomplete grades.
Courts generally support colleges and universities when faculty members unilaterally change approved curriculum or practices. Illustrative of this pattern is a case from the Tenth Circuit in which the court found that a faculty member had no right of academic freedom to reject the institution’s standardized student evaluation policy because she did not believe that teaching and learning could be evaluated by a standardized process. However, a university’s authority to control classroom activities is not absolute. Courts ruled for faculty members in two cases where administrators reacted to classroom content (one involved a controversial play, the other use of profane and offensive language in a pedagogical manner and related to course content) when community opposition created what one court described as administrators’ unsubstantiated fear of disturbance. In other litigation, a federal appellate court remanded a faculty member’s claim to a federal trial court in New York; the claim alleged that he was denied tenure as a result of community pressure in a controversy over the identification in his course, The Politics of Race, of Zionism along with Nazism and apartheid as the main forms of racism. As such decisions are increasingly politicized, it will be interesting to observe how institutions of higher learning, and undoubtedly the courts, balance the conflicting values of the free exchange of ideas in academic settings and the free speech rights of faculty members.
Courts have also agreed that officials at educational institutions have the authority to discipline faculty members who interject their religious beliefs into courses unrelated to religious topics. Two decisions upheld university restrictions (on lecture content, course materials, and optional class meetings) placed on faculty members who included religious beliefs in their lectures, and in one instance changed a departmental course syllabus to include religion as a topic in educational media and exercise physiology courses. Moreover, other courts rejected claims that officials violated individuals’ rights to freedom of speech, in one case by terminating the employment of a member of a mathematics department who began each class by reading from the Bible, and in another case by choosing not to reemploy a part-time cosmetology instructor who gave two religious pamphlets on the sinfulness of homosexuality to a gay student.
Courts generally hold that there is no general faculty right of academic freedom to use or permit derogatory, offensive, or profane language in classrooms. Cases from the Sixth Circuit illustrate the basic support that courts show for higher education institutions that discipline educators who, without pedagogical justification, use such language in teaching their classes. The court agreed with university officials that discharged a basketball coach for using a racial epithet for Black players in a locker room session (although he alleged it was used in a positive, reinforcing manner) and that suspended a member of an English department for using profane terms for sexual intercourse and derogatory terms for female reproductive organs (despite his claim that he used these terms in class to demonstrate an academic point).
In contrast to these two decisions, the Sixth Circuit ruled in favor of an instructor at a community college whose contract was not renewed after he used crude and offensive language in his teaching. The court determined that the First Amendment protected the faculty member’s use of offensive terms for Blacks and females within an academic and philosophic discussion, not gratuitously in an abusive manner, in a class devoted in part to interpersonal communication. Other courts also blocked the punishment of educators whose use of vulgar and sexual descriptions in classroom discussions led students to file sexual harassment charges of a hostile academic environment, when the courts found the harassment policies vague and their application subjective.
A third category in which institutions generally prevail over faculty claims of academic freedom includes grades, grading standards, and grading policies. Courts typically reject the argument that educators’ grading policies are constitutionally protected. Courts have decided that because officials at colleges and universities have basic authority over grading standards and policies, they can discipline faculty members who refuse to adhere to them, including educators guilty of unprofessional conduct in their grading. For example, the Seventh Circuit, in 2001, upheld the reassignment to nonteaching duties, along with loss of research funds, of an engineering faculty member who refused to comply with policies requiring instructors teaching courses with multiple sections to grade on a prescribed curve and to submit their grading materials to administrators. Another court accepted as one of the reasons for denial of tenure the fact that a faculty member assigned inappropriately high grades (249 of 257 students received A’s or B’s in a course).
A related issue is whether university officials violate academic freedom when they order faculty members to change students’ grades. While the Sixth Circuit, in Parate v. Isibor (1989), noted that university officials infringed on a faculty member’s First Amendment rights in ordering him to change a student’s grade, it also pointed out that the faculty member lacked a constitutional right to determine the ultimate grade the student received and that superiors could administratively change the grade. However, the Third Circuit later split from Parate in asserting that a faculty member lacked a First Amendment right of expression in grade assignment where the university president ordered him to change a grade.
Faculty Criticism of Employers
Claims of academic freedom and freedom of speech often arise when educators criticize their colleagues, administrators, or institutions and later find themselves facing discipline. Under the Mt. Healthy City School District Board of Education v. Doyle (1977) test, courts first consider whether an employee’s expression was constitutionally protected, a finding requiring that the speech dealt with a matter of public concern and was not issued pursuant to official duties. Courts have reasoned that because critical views on university spending (for example, rising administrative salaries and reduction-in-force plans), campus priorities, presidents’ managerial styles, outside community influences on departmental curriculum and education, and governance issues (such as forming faculty bargaining units and campaigning for candidates for the board of regents) are matters of public concern, they are entitled to protection as such. However, faculty members have failed to meet Mt. Healthy’s first step when their published speech deals with internal or personal matters such as membership on committees, teaching assignment of summer and overload classes, and requests for review of faculty disputes and committee operations.
The second step of the Mt. Healthy test balances a faculty member’s right of freedom of expression with an institution’s need for efficient, harmonious operation of its programs. Educators have prevailed when officials failed to present evidence of disruption to their services or undermining of the working relationships within departments or programs, or when the institution’s evidence consisted merely of administrators’ undocumented fear of disruption. However, courts have entered judgments in favor of colleges and universities that established that the faculty member’s expression disrupted the efficient operation of the school. For example, the Eleventh Circuit upheld the reassignment of faculty members in mechanical engineering to other engineering departments in Maples v. Martin (1988) when their published criticisms of the program (among other things, on the eve of the program’s accreditation visit, they called the department head dictatorial and inflexible) created an atmosphere of tension within the department. In other words, while the faculty members addressed matters that were arguably of public concern, the court believed that the expression of these views was not entitled to protection, because it disrupted the efficient operations of their original department.
At the third step of the Mt. Healthy test, plaintiffs must establish that their protected expression was a substantial or motivating factor in the decision subjecting them to punishment. Some institutions prevail at this stage, because faculty members present no evidence tying the discipline to their comments dealing with a matter of public concern. In other claims, courts review the institution’s explanation for its negative employment decision and determine which party’s evidence is persuasive. One university prevailed when officials demonstrated that they chose not to renew the contract of a confrontational writing instructor because of the disruption his style brought to the department, not because he championed diversity in his class and in faculty meetings. Yet, in another case, a history instructor established that officials at a junior college elected not to renew her contract because she participated in efforts to form a faculty chapter of the National Education Association and worked on her husband’s campaign to win a seat on the institution’s governing board, not because of the school’s proffered reasons of poor evaluation of her teaching and the need to reduce staff due to declining enrollment.
Colleges and universities then have the burden of showing at the final Mt. Healthy step that they would have disciplined the employees had the protected expression not occurred. Higher education plaintiffs have not progressed to this final stage in published case law thus far.
- Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001).
- Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995).
- Fossey, R., & Beckham, J. C. (2008). University authority over teaching activities: Institutional regulation may override a faculty member’s academic freedom. West’s Education Law Reporter, 228, 1–22.
- Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001).
- Hiers, R. H. (2002). Institutional academic freedom vs. faculty academic freedom in public colleges and universities: A dubious dichotomy. Journal of College & University Law, 29, 35–110.
- Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589 (1967).
- Maples v. Martin, 858 F.2d 1546 (11th Cir. 1988).
- Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).
- Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989).
- Shelton v. Tucker, 364 U.S. 479 (1960).
- Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).