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Academic Freedom

From lawbrain.com

The right to teach as one sees fit, but not necessarily the right to teach evil. The term encompasses much more than teaching-related speech rights of teachers.

Educational institutions are communities unto themselves with rules of their own, and when conflicts arise, the most common and compelling arguments involve freedom. As a result, the academic community is famous for blazing new trails of freedom in society at large, and it is often forced to confront its own concepts of freedom in the process.

The American Association of University Professors (AAUP) has long led efforts among educators to define the concept of academic freedom in American colleges and universities. In 1940, the AAUP, in conjunction with the Association of American Colleges (now the Association of American Colleges and Universities), drafted and approved the Statement of Principles on Academic Freedom and Tenure. The statement's purpose is to "promote public understanding and support of academic freedom and tenure and agreement upon procedures to ensure them in colleges and universities."

According to the statement, educational institutions should afford full freedom for teachers to conduct research and publish their results, subject to their adequate performance in other academic duties. Teachers should also have freedom in the classroom to discuss their subject, but they should be careful not to introduce controversial matter that has no relation to their subject. Institutions may place limitations on academic freedom because of religious or other aims of the institution, though these limitations should be stated clearly in writing at the time of the teacher's appointment.

Although the AAUP's position is not binding upon colleges and universities, it has had an important impact on tenure policies of these institutions. Tenure, according to the AAUP, promotes freedom of teaching, research, and other educational activities, and also provides a "sufficient degree of economic security to make the profession attractive to men and women of ability." Tenure is based upon a contractual relationship between the educational institution and the teacher, and this agreement provides private rights between the two.

Academic freedom was first introduced as a judicial term of art (a term with a specific legal meaning) by Supreme Court Justice William O. Douglas. In Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952), the Supreme Court upheld a New York law (N.Y. Civ. Service Law § 12-a) that prohibited employment of teachers in public institutions if they were members of "subversive organizations." In a scathing dissent joined by Justice Hugo L. Black, Douglas argued that such legislation created a police state and ran contrary to the First Amendment guarantee of free speech.

Justice Douglas equated academic freedom with the pursuit of truth. If academic freedom is the pursuit of truth and is protected by the First Amendment, reasoned Douglas, then the New York law should be struck down because it produced standardized thought. According to Douglas's dissent, the New York law created an academic atmosphere concerned not with intellectual stimulation but with such questions as "Why was the history teacher so openly hostile to Franco's Spain? Who heard overtones of revolution


in the English teacher's discussion of The Grapes of Wrath? and What was behind the praise of Soviet progress in metallurgy in the chemistry class?" Douglas conceded that the public school systems need not become "cells for Communist activities," but he reminded the court that the Framers of the Constitution "knew the strength that comes when the mind is free."

Shortly after the Adler decision, a similar case arose in New Hampshire that received very different treatment by the Supreme Court. On January 5, 1954, Paul M. Sweezy was summoned to appear before New Hampshire attorney general Louis C. Wyman for inquiries into Sweezy's political associations. Under a 1951 New Hampshire statute, the state attorney general was authorized to investigate "subversive activities" and determine whether "subversive persons" were located within the state (Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 [1957]). Wyman was especially interested in information on members of the Progressive Party, an organization many politicians suspected of nurturing communismin the United States.

Sweezy said he was unaware of any violations of the statute. He further stated that he would not answer any questions impertinent to the inquiry under the legislation, and that he would not answer questions that seemed to infringe on his freedom of speech. Sweezy did answer numerous questions about himself, his views, and his activities, but he refused to answer questions about other people. In a later inquiry by the attorney general, Sweezy refused to comment about an article he had written and about a lecture he had delivered to a humanities class.

When Sweezy persisted in his refusal to talk about others and about his lecture, he was held in contempt of court and sent to the Merrimack County jail. The Supreme Court of New Hampshire affirmed the conviction, and Sweezy appealed.

The U.S. Supreme Court went on to reverse the decision. The basis for the reversal was the New Hampshire statute's improper grant of broad interrogation powers to the attorney general and its failure to afford sufficient criminal protections to an accused. The Court commented strongly upon the threat such a statute posed to academic freedom.

The principal opinion, written by Chief Justice Earl Warren, questioned the wisdom of Wyman's legislative inquiry. With regard to the questions on Sweezy's lecture to the humanities class, the Chief Justice stated that "[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation."

Justice Felix Frankfurter wrote a separate concurring opinion. To Frankfurter, the call of the Court was to decide the case by balancing the right of the state to self-protection against the right of a citizen to academic freedom and political privacy. Frankfurter concluded that Wyman's reasons for questioning Sweezy on academics were "grossly inadequate" given "the grave harm resulting from governmental intrusion into the intellectual life of a university."

Neither of the plurality opinions in Sweezy would have found all congressional inquiries into academia to be unconstitutional. However, both opinions helped free educators in later cases by recognizing and emphasizing the danger of restricting academic thought. In Keyishianv. Board of Regents of the University of New York, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 629 (1967), the Supreme Court finally awarded to teachers and professors the full complement of free speech and political privacy rights afforded other citizens. Political "loyalty oaths" required of New York State employees (including educators) under state civil service laws were declared void, and New York education laws against "treasonable or seditious speech" were found to violate the First Amendment right to free speech. According to the Keyishian decision, "[A]cademic freedom … is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."

The tension between academic oversight and academic freedom did not end with the Keyishian case. The Supreme Court later decided several cases that identified more precisely how much control school authorities may exercise over education. The Court held in Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), that a school board can control curriculum and book selection, but it may not remove "objectionable" books from public school libraries solely in response to community pressure. Among the books that the Island Trees Union Free School District No. 26 in New York had banned in the mid-1970s were Slaughterhouse Five, by Kurt Vonnegut Jr.; Black Boy, by Richard Wright; Naked Ape, by Desmond Morris; and The Fixer, by Bernard Malamud.

School boards and state legislatures generally control public school curriculums, but their control is not complete. For instance, a state statute will be struck down if it requires public schools to teach creationism when they present evolution, and vice versa. According to the Court in Edwards v. Aguillard, 482 U.S. 578, 107S. Ct. 2573, 96 L. Ed. 2d 510 (1987), such a law undermines a comprehensive scientific education and impermissibly endorses religion by advancing the religious belief that a supernatural power created human beings. The Supreme Court has also held that if school authorities can show additional independent grounds for discharge, they may terminate a teacher for disruptive speech even if a substantial motivation for the termination was speech on issues of public concern (Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88S. Ct. 1731, 20 L. Ed. 2d 811 [1968]; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 [1977]). This precedent seemed to give school authorities ample means to elude liability for unconstitutional terminations. However, neither of the principles helped City University of New York (CUNY) when it was sued by the chair of its black studies department.

Professor Leonard Jeffries specialized in black studies and the history of Africa, and his teaching style at CUNY was controversial. Some students felt that Jeffries discouraged classroom debate, whereas others applauded him for verbalizing the frustrations of many African Americans. Jeffries referred to Europeans as "ice people" and as "egotistic, individualistic, and exploitative." Africans, on the other hand, were "sun people" who had "humanistic, spiritualistic value system[s]."

On July 20, 1991, Jeffries spoke at the Empire State Black Arts and Cultural Festival, in Albany, New York. In his speech, he assailed perceived Jewish power, asserting that Jews controlled CUNY and Hollywood and had financed the American slave trade. The speech attracted national attention and placed CUNY on the horns of a dilemma: either it could punish Jeffries and risk running afoul of the First Amendment and of academic freedom principles, or it could do nothing and risk losing expected income from offended school benefactors. For several months, the university wrestled with the problem. Then, in October, the board of trustees voted, without explanation, to limit Jeffries's current appointment as chair to one year instead of the customary three.

At the end of October, Jeffries wrote to Jeffrey Rosen, dean of social sciences, that he was declaring "war" on the faculty. In November, Jeffries scolded President Bernard Harleston as Harleston was leaving the administration building. By December, continuing performance reviews of Jeffries had become increasingly negative. On March 23, 1992, the CUNY Board of Trustees appointed Professor Edmund Gordon to the position of black studies chair. Jeffries filed suit in federal court against the CUNY trustees, Harleston, and Chancellor W. Ann Reynolds, on June 5, 1992.

Jeffries argued that the defendants violated his First Amendment free speech rights and his Fourteenth Amendment due process rights when they denied him a full three-year term as chair of black studies. The jury agreed with Jeffries that a substantial motivating factor in his dismissal was his speech in Albany. The jury also found that CUNY had not shown that Jeffries would have lost the chair had Jeffries not delivered the Albany speech. The jury further found that Jeffries had not disrupted the operation of the black studies department, the college, or the university. The jury did find, however, that CUNY had reasonably expected the speech to have a detrimental effect on the school. Despite this seemingly justifiable excuse for the school's action, the jury finally found that CUNY had deprived Jeffries of property (the position of chair) without due process of law.

The district court judge held that Jeffries's First Amendment rights had been violated. On the issue of liability, the jury awarded Jeffries $400,000 in punitive damages: $30,000 against President Harleston, $50,000 against Chancellor Reynolds, and $80,000 against each of CUNY's four trustees. After the verdict, Harleston, Reynolds, and each of the trustees moved to overturn the award. They argued that the verdict was inconsistent with the jury's findings and not supported by the evidence. The defendants also maintained that they were immune from individual liability as state officials acting in their official capacity. Jeffries filed a motion requesting a court order reinstating him as chair of CUNY's black studies department.

On August 4, 1993, the district court judge reduced Jeffries's recovery in damages by $40,000 but awarded him the black studies chair. Jeffries v. Harleston, 828 F. Supp. 1066 (S.D.N.Y., 1993). According to the judge, it was reasonable for the jury to find that CUNY had terminated Jeffries solely because of the views he expressed in the Albany speech, without constitutional grounds. The school apparently had ample opportunity to gather and present evidence that Jeffries's speech had disrupted the efficient and effective operation of the university but instead chose to argue that Jeffries had been terminated for tardiness, sending grades to the school by mail, and brutish behavior. The lack of evidence to buttress CUNY's defenses supported Jeffries's arguments that his free speech rights had been violated and that he deserved to be reinstated to the position of black studies chair.

Upon appeal, the U.S. Supreme Court remanded the case to the Second Circuit with instructions to consider the Court's ruling in Waters v. Churchill, 511 U. S. 661 (1994). The circuit court reversed and remanded the case to the federal district court. Jeffries's occupation does not afford him "greater protection from state interference with his speech than did the nurse in Waters." By taking away Jeffries's position as chair of the department, the university did not infringe on his ability to speak publicly or to teach in his own style, both of which could have been violations of his First Amendment rights. Jeffries v. Harleston, 52 F. 3d 9 (2d Cir. 1995).

Though the concept of academic freedom has traditionally been applied only to teachers, it has begun to creep into lower-court opinions involving the rights of students. Several Supreme Court cases are cited in support of such rights. In Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972), the Supreme Court held that a public university may deny campus access to provably disruptive groups, but it may not deny access based on the views the students wish to express. The Supreme Court ruled in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), that a public school may censor the content of a student newspaper if the newspaper is not an entirely public forum and the reason for censure is related to a legitimate educational concern. In Board of Education of West-side Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 (1990), the Court approved the establishment of a Christian student group in a public school. The Court also held in Mergens that a school's refusal to permit a religious student group to meet at school and use its facilities violates the federal Equal Access Act (Education for Economic Security Act § 802, 20 U.S.C.A. § 4071 et seq. [1984]) if the school provides such access to other noncurriculum student groups.

Further Readings

De George, Richard T. 1997. Academic Freedom and Tenure: Ethical Issues. Lanham, Md.: Rowman & Littlefield.

Hamilton, Neil W. 2002. Academic Ethics: Problems and Materials on Professional Conduct and Shared Governance. Westport, Conn.: Praeger.

Hiers, Richard H. 2002."Institutional Academic Freedom vs. Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy." Journal of College and University Law 29 (October): 35-109.

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