Trusteeship - November/December 2021 - 17

Academic freedom and free speech protection for faculty at public
higher education institutions can be slightly more tenuous than
they are for their counterparts at private institutions. Nevertheless,
policies governing free speech and academic freedom may be prudent
for any higher education institution-public or private.
A
CADEMIC FREEDOM is a concept
that is often misunderstood both by
the higher education community
and the public. Academic freedom
has never meant that faculty can do or say whatever
they please, or teach their courses in whatever
manner they choose. For state university faculty,
the issues are even more complicated because of
the interplay between academic freedom and First
Amendment principles of free speech. While faculty
members and university administration may
disagree on the contours of academic freedom and
free speech, especially when a faculty member is
accused of misconduct by the administration, it is
often the courts that make the final decision.
This article will discuss academic freedom for
state university faculty as generally understood by
the university community, as well as federal court
decisions addressing the right of the university to
discipline faculty for their speech.
Defining Academic Freedom in the
Academy versus the Courts
To define academic freedom, most universities have
adopted some version of the American Association
of University Professors' 1940 Statement of Principles
on Academic Freedom and Tenure (Statement).
The definition often appears in faculty handbooks,
employment contracts, university policies, and
collective-bargaining agreements. The Statement
provides in general that faculty are entitled to freedom
in pursuing scholarly research, discussing their
areas of expertise within the classroom setting,
and-as citizens, academic professionals, and educational
institution officers-speaking and writing
without the threat of censorship or discipline. However,
the federal courts have not always accepted
this definition of academic freedom.
In the Sweezey v New Hampshire case, the
Supreme Court described academic freedom as
a university, not faculty right. It established the
four essential freedoms of the university as " to
determine for itself on academic grounds who may
teach, what may be taught, how it shall be taught,
and who may be admitted to study. "
Likewise, in the Regents v. Bakke case, the court
stated that " Academic freedom, though not a
specifically enumerated constitutional right, long
has been viewed as a special concern of the First
Amendment. The freedom of a university to make
its own judgments as to education includes the
selection of its student body. "
Because the courts have not directly ruled that
academic freedom is a recognized constitutionally
protected right of faculty, lawyers representing faculty
members who have been disciplined by their universities
for their speech, often allege that the faculty
member's First Amendment rights were violated. As
seen below, however, this is often not the case.
How the Courts Apply the First
Amendment to Faculty Misconduct
The First Amendment states the following:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to
petition the government for a redress of grievance.
The First Amendment applies only to government
action but not to actions by private entities. Freedom
of speech, as it applies to citizens generally, not only
protects the right to speak and write but also the right
to peacefully demonstrate. However, First Amendment
rights are not unlimited. The federal courts are
tasked with deciding which speech is protected and
Editor's Note: This article is meant to provide information for boards but should not be considered legal advice.
Articles in Trusteeship magazine represent the opinions of the author(s).
SHUTTERSTOCK/ SANDYKOT
NOV.DEC.2021 TRUSTEESHIP 17

Trusteeship - November/December 2021

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