After opposing academic boycotts as “inimical to the principle of academic freedom” for nearly 20 years, the American Association of University Professors declared this month that boycotts may be “legitimate tactical responses to conditions that are fundamentally incompatible with the mission of higher education.”
Earlier this summer, the 11th Circuit Court of Appeals heard oral arguments in a case challenging Florida’s Stop WOKE Act, which bans the teaching of “divisive concepts” related to race and gender. Insisting there is no “purported right to academic freedom,” Florida argued that the classroom speech of faculty at public colleges and universities is “government speech,” subject to state control.
Meanwhile, colleges and universities, under enormous pressure from those concerned about antisemitism, have tightened restrictions on campus protests in ways that may undermine free expression.
In these and many other campus controversies, “academic freedom” is often invoked, but there is little agreement about its scope; legal status; relationship to the First Amendment; who qualifies for protection; whether it applies to off-campus speech or speech outside a professor’s area of academic expertise; and whether it limits an employer’s right to discipline or fire employees.
In the new book “Academic Freedom: From Professional Norm to First Amendment Right,” David Rabban examines these and a host of related questions. Rabban demonstrates that the law remains “frustratingly inconsistent and confusing” and proposes a “theory of academic freedom as a distinctive subset of First Amendment law.”
Like Rabban, we believe a more precise understanding of academic freedom is urgently needed.
In the early 1900s, most colleges and universities were “owned and operated by churches, by private proprietary owners or by the state.” Faculty, Rabban reminds us, were viewed as employees who could be fired if they offended their employer, trustees or donors.
Prompted in part by the efforts of Jane Leland, then the sole trustee of Stanford University, to force the termination of Edward Ross, a prominent economics professor, the AAUP issued its 1915 Declaration of Principles on Academic Freedom and Academic Tenure. The declaration argued that higher education could fulfill its mission of preserving, disseminating and advancing knowledge; teaching students; and training them for democratic citizenship only if faculty were free to pursue their work “without fear or favor,” subject exclusively to the professional judgment of their peers.
In the 1950s, amidst concerns that government investigations into faculty involvement with the Communist party were chilling academic discourse, courts began to connect academic freedom with the First Amendment. In Sweezy v. New Hampshire, the Supreme Court ruled that, given “the vital role in a democracy that is played by those who guide and train our youth,” a professor’s First Amendment rights of academic freedom and political expression justified his refusal to answer questions from the state attorney general about a public lecture. In Keyishian v. Board of Regents, the Supreme Court declared that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
Unfortunately, Rabban demonstrates, subsequent court decisions have applied “general First Amendment law, employee-speech jurisprudence, and the First Amendment law of academic freedom interchangeably in identical or similar contexts, sometimes even in the same case.”
Some courts ignored academic freedom, declined to rely on it or limited it to “the content of expert expression in scholarship and teaching.” Others applied academic freedom to decisions about pedagogy and course coverage. Some extended it to expression about university affairs and general political and ideological issues. And some held that colleges and universities have their own institutional academic freedom, even if that sometimes conflicts with individuals’ academic freedom.
Rabban argues convincingly that academic freedom should be seen as a distinctive First Amendment right and explains how that may give faculty and institutions both more and less protection than relying solely on general First Amendment law.
Although protecting “the academic content of scholarship and teaching” is the core concern of academic freedom, Rabban supports its extension to “intramural speech” — faculty discussion of university policies — but only insofar as that speech “addresses educational issues.”
In contrast to the AAUP, which he once served as general counsel, Rabban maintains — and we agree — that professors’ extramural political expression “raises issues of academic freedom only if it addresses matters within their expertise.” It makes a difference, for example, whether a professor of economics or an astronomer is speaking about a protective tariff.
That said, we believe, with Rabban, that under general First Amendment doctrine, all university employees “should be able to engage in extramural political expression without suffering penalties at work.”
Rabban acknowledges that justification for constitutional protection under academic freedom becomes more tenuous the further one gets from its core purposes. Colleges and universities sometimes contend that “their interest in preserving a healthy educational environment” allows them to regulate and punish offensive speech that would otherwise be protected by the First Amendment, an issue that recently came to a head over protests against the war in Gaza.
Rabban suggests, perhaps surprisingly, that “institutional academic freedom should permit more regulation of campus speech than general First Amendment law allows in the public sphere.” As we have argued elsewhere, however, hate-speech codes tend in practice to censor ideas and punish people for their political views in ways incompatible with the free exchange of ideas that is central to the academic mission.
Rabban concludes with a discussion of student claims to academic freedom. Although noting that students “lack academic expertise” — the “most fundamental justification for faculty academic freedom” — he asserts that the “societal value of the student interest in learning” supports First Amendment protection for a wide range of student interests, from access to competent instruction to “participation in extracurricular activities that have educational value.”
A much clearer distinction between claims that should qualify for the protection of academic freedom and those best left to general First Amendment doctrine is long overdue. Rabban’s book provides a terrific starting point. Clarifying the law in this area will help our colleges and universities advance knowledge, teach students, train them for democratic citizenship — and ensure that American institutions of higher education remain the best in the world.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.