Thursday, January 7, 2010

Academic Freedom: For / From Whom? by Emily Walsh

Academic freedom exists as a controversial, yet “special concern” of the First Amendment. Keyishian v. Bd. of Regents of the State of N.Y., 385 U.S. 589, 603 (1967). The purpose of academic freedom is to promote the free exchange of ideas in an academic setting, which many would argue is the cornerstone of democracy. The Supreme Court has recognized two kinds of academic freedom – academic freedom for the university as an institution, and academic freedom as a personal, individual right. Sweezy v. New Hampshire, 354 U.S. 243, (1957); see also Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214 (1985). In Sweezy, the Supreme Court promulgated four essential freedoms of a university to determine who may teach, what may be taught, how it shall be taught, and who may be admitted to study. 354 U.S. at 262 (Frankfurter, J., concurring). The Court also recognized that the First Amendment protects the right of academic freedom for university scholars. Sweezy was a professor at a public university who resisted government inquiry into the content of his lectures. 354 U.S. at 236–38. The Court found that the government’s investigation “unquestionably was an invasion of [the professor’s] liberties in the areas of academic freedom and political expression” and cautioned against the government treading in those areas. Id.

As expected, the rights of the institution sometimes conflict with those of the individual, as professors and administrations clash over control of the classroom. The Courts of Appeals have split regarding the rights of individual professors to be free from excessive institutional influence. For instance, the Second Circuit recognized a public university professor’s academic freedom to discuss controversial topics in his classroom. Dube v. State Univ. of N.Y., 900 F.2d 587 (2d Cir. 1990). The Sixth Circuit found a public university’s ordering a professor to change a student’s grade compelled the professor’s speech, violating the professor’s First Amendment right to academic freedom. Parate v. Isibor, 686 F.2d 821 (6th Cir. 1989). On the other hand, the Third Circuit found that the assignment of student grades is not professorial speech, but instead part of a university’s essential freedom. Brown v. Armenti, 247 F.3d 69 (3rd Cir. 2001). Similarly, the Fifth Circuit found that an administrator who changed a student’s grade over a professor’s protestations did not violate the professor’s First Amendment right to academic freedom. Hillis v. Stephen F. Austin State Univ., 665 F.2d 547 (5th Cir. 1982).

The Seventh Circuit extended a professor’s right of academic freedom to researching, finding that First Amendment protection “extends as readily to the scholar in the laboratory as to the teacher in the classroom.” Dow Chem. Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982). Likewise, the Eighth Circuit recognized two professors’ academic freedom as “a ‘special concern of the First Amendment.’” Burnham v. Ianni, 119 F.3d 668, 670 (8th Cir. 1997). Lastly, the Ninth Circuit found that a university’s application of a vague sexual harassment policy to classroom speech violated a professor’s academic freedom. Cohen v. San Bernardino Valley Colll., 92 F.3d 968, 971–72 (9th Cir. 1996).

When recognizing academic freedom for the individual, some Courts of Appeals also concede that institutional academic freedom does not supercede the academic freedom of professors. For instance, in Piarowski v. Illinois Community College District 515, the Seventh Circuit found that academic freedom is used to “denote both the freedom of the academy to pursue its ends without interference from the government, and the freedom of the individual teacher. . . to pursue his ends without interference from the academy.” 759 F.2d 625, 630 (7th Cir. 1985). Likewise, the Sixth Circuit observed that academic freedom thrives not only on the uninhibited exchange of ideas inside the classroom, but also on the “‘autonomous decisionmaking [of] . . . the academy itself.’” Parate, 867 F.2d at 826 (quoting Ewing, 474 U.S. at 216 n.12). Therefore, academic freedom of the institution, while important, does not supplant academic freedom of the individual. The right of the professor prevails because democracy depends upon the freedom of inquiry and expression, particularly in the academic setting.

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