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.

Jon and Kate are splitting!

I love Hollywood gossip (almost as much as the entertainment product the actors and actresses put out), but the salacious reporting this morning of the very human drama also has legal implications. Apart from informing my own continuous drafting of my prenuptial agreements (some girls daydream about their dresses, I suppose), Jon and Kate have planned an interesting approach to the future use of the house and the co-parenting of their fifteen (oh, my mistake, only eight) kids. They are adopting a “bird nest” approach: where the children remain in the marital home, and the parents reside there only when spending their apportioned time with the children.

Bird nesting is a shared custody concept thought to be child-centric. By allowing the children to remain in their home, the children’s stability is protected, as is their relationship with both parents. Too, family law people tell me the arrangement is intended to minimize disputes between parents on sharing time with the children, and the constant to-and-fro of the kids between separate homes (and maybe also, schools). In preparation to post this writing, however, I came across a journal article arguing the arrangement is unnecessary and counter productive, and tends to fail. The author discussed a number of reasons, including: continued hostility between the parents that is detrimentally absorbed by the children, and the quandary of how to handle parents with previous families, or who remarry and build other families later (as nesting is typically not structured to accommodate either).

What I’m wondering first, however, is how practical an option this is for the average middle-class couple going through the trauma of divorce? Who has the financial wherewithal to support the nest, as well as separate apartments or houses for both parents? That’s a lot of money going out each month for mortgage and / or rent, not to mention property taxes and maintenance costs. Also, what are the property rights in this relationship: who owns what, and if the patio is ruined while Mom is at home, does Dad share in the expense of repairing it? If Dad wants to add a stereo system throughout the home, is Mom responsible for contributing to the expense? If she doesn’t, can she participate in any profit earned if the house is sold at a higher value as a result of the improvement? Are “rules of the house” part of the custody agreement ... those that govern both the kids (bed times) and parents (guests)? And I guess most importantly, an arrangement like this requires loads of cooperation from both parents. Is that even a reasonable expectation in the face of dismantling a marriage?

For what it’s worth, good luck Counsel to Jon and Kate!

(Photo courtesy of Us Magazine and Splash News).