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The following selection is excerpted from ��֭����’s Guide to Free Speech on Campus.

Academic freedom — which one may broadly conceive of as a general recognition that the academy must be free to research, teach, and debate ideas without censorship or outside interference — has proven to be an amorphous concept in practice, but serves nonetheless as a guiding and necessary principle for higher education. While the theoretical and rhetorical power of appeals to academic freedom have arguably proven stronger than the concept itself, at least in the courtroom, the utility of academic freedom as an overarching philosophical lodestar for universities cannot be underestimated. Academic freedom, however fuzzy its definition or uncertain its actual legal application, is still a powerful concept, and crucial to our understanding of the university as a true marketplace of ideas.

Academic freedom does enjoy a certain legal resonance, having been recognized as a component of First Amendment rights by the Supreme Court. In Keyishian v. Board of Regents (1967), the Court declared: 

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.

In addition, the Court has drawn a clear link between the importance of academic freedom and the health of our modern liberal democracy. In Sweezy v. New Hampshire (1957), the Court observed:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

Despite this ringing judicial endorsement, however, a recent commentator, Alisa W. Change, after surveying more than forty years of legal precedent regarding academic freedom,  “The Supreme Court has spoken in grand terms about the importance of preserving academic freedom yet has failed to translate its poetic rhetoric into concrete doctrinal guidance as to what academic freedom truly is, where the limits of such liberty lie, and how it should be guarded by lower courts.”

In general, to prevail on a First Amendment academic freedom claim, students and professors must usually join academic freedom with another claim based on some other constitutional doctrine. 

While the Supreme Court noted in Garcetti v. Ceballos (2006) that faculty expression “related to academic scholarship or classroom instruction” may implicate "additional constitutional interests,” as discussed above, and further noted in Grutter v. Bollinger (2003) that courts must grant a “degree of deference to a university’s academic decisions, within constitutionally prescribed limits,” Change correctly notes that specific guidance regarding the precise parameters of academic freedom has not been forthcoming from the high court. In the absence of such guidance, courts typically use “academic freedom” as one additional legal factor or rhetorical device to be weighed with or against other constitutional doctrines, such as the public employee speech rules that we discussed earlier.

In fact, because of the lack of guidance from the Supreme Court, there remains an ongoing debate over who actually possesses the right to academic freedom — students, professors, and/or the university itself. It is wholly true, of course, that all universities, public or private, have a certain right — indeed, mission — to define the curriculum and other aspects of higher education as they see fit. For example, in the case of Lovelace v. Southeastern Massachusetts University (1986), the U.S. Court of Appeals for the First Circuit  that “[M]atters such as course content, homework load, and grading policies are core university concerns.” And in Sweezy v. New Hampshire (1957), Justice Felix Frankfurter’s concurring opinion noted the “four essential freedoms of a university — 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.” But faculty and students may legitimately claim a right to academic freedom, as well.

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In general, to prevail on a First Amendment academic freedom claim, students and professors must usually join academic freedom with another claim based on some other constitutional doctrine. It is important to keep in mind that when a university obstructs academic freedom, it usually has violated some other constitutional right (or rights), so that joining these claims is not usually a difficult task. In addition, as a practical matter, academic freedom arguments exercise a strong power in university communities, which tend to think of themselves as devoted to this value (whether such a self-image is accurate or not). On more than one occasion, FIREhas persuaded administrators to lift speech restrictions or end oppressive practices by arguing that those policies or behaviors impair academic freedom. At a time when officials are all too ready to turn their backs on the First Amendment, the concept of academic freedom can still have an enormous effect on them. Even the most totalitarian professors and administrators will often pay lip service to academic freedom, and they can be called to task and, indeed, shamed when their actions do not match their words.

Also, universities may give students and faculty legal rights to academic freedom when they enact policies guaranteeing academic freedom. Many campuses have adopted the , issued jointly by the American Association of University Professors (AAUP) and the Association of American Colleges and Universities. This statement, generally known as “the AAUP Guidelines,” reflects widely shared professional norms within the academic community. Such norms, when adopted by universities, are almost always legally binding — a contract, in effect — thereby making academic freedom the legal right of faculty members and students (whose right to reasoned dissent in a classroom, without penalty, is also guaranteed by the Guidelines). As a general rule, such academic freedom policies relate to speech in the classroom or to areas of academic study. 

If you believe that your classroom speech is being stifled or if your scholarly efforts are being suppressed, you immediately should check your student handbook or the university website for an academic freedom policy. Many mistakenly believe that only faculty members, or only tenured faculty, are protected strongly by campus academic freedom policies. Since, as noted, the AAUP policies apply to students also, you would do well to assert academic freedom whenever censorship looms.

Given the threat to faculty speech presented by courts’ interpretations of Garcetti, as discussed above, it is important to note that many professors, through faculty governance bodies, are taking action to protect academic freedom as a matter of policy at their institutions. In fact, a faculty member’s best protection from restrictions on his or her classroom speech may come not from the First Amendment, but from the school’s individual academic freedom policy. At the University of Minnesota, for example, faculty members passed a  in response to Garcetti asserting their commitment to “the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research, and creative expression, and to speak or write without institutional discipline or restraint on matters of public concern as well as on matters related to professional duties and the functioning of the university.” The University of Michigan, the University of Wisconsin, and others have passed similar policy changes in an attempt to ensure academic freedom has real meaning on campus.

However, even before Garcetti, faculty speech posed particularly knotty questions for courts, as evidenced by two cases from the U.S. Court of Appeals for the Sixth Circuit. In the first case, , the Sixth Circuit upheld a college’s discipline of a professor who, in the college administration’s view, used sexually offensive language in the classroom, and who published a satirical “apology” for his actions. (According to the professor, he used the language to show his students how “chauvinism” marginalized women.) Here, the court ruled that because Bonnell’s “offensive” classroom speech was not related to the topic of his course, it was not constitutionally protected. Further, it ruled that while the satirical apology (which addressed the issue of sexual harassment) related to matters of public concern, the school’s interests in maintaining a learning environment free of sexual harassment outweighed the professor’s interests in free speech and academic freedom.

Despite all the confusion, the principles of academic freedom serve to emphasize the particular importance of giving broad free speech rights to the academic environment.

Just months after Bonnell, however, the same court decided the case of . Here, the court ruled that a college could not terminate a professor for using offensive language about women and minorities when such language was “germane” to the subject matter of the class. (Hardy had used the language to help his students examine how language can be used to “marginalize” women and minorities.) In Hardy, the court applied the principles of academic freedom to decide that, in this case, college administrators even could be held liable for punishing a professor’s allegedly “offensive” language during class. As reasonable academic officials, the court found, they “should have known” that a professor’s speech, when germane to the subject material of a class and when advancing a legitimate academic purpose, is always protected by the First Amendment.

Cases like these, taken together, can lead to uncertainty and confusion. In Hardy, so-called offensive language was considered “germane” to classroom discussions and is therefore constitutionally protected. In Bonnell, similarly offensive language was considered a “deliberate superfluous attack on a captive audience.” Within the scope of the holdings of other courts, however, Bonnell appears aberrational. In cases such as , courts have held that speech policies similar to those used to discipline the professor in Bonnell were void because they were too vague and because the policies unconstitutionally restricted a teacher’s right to free speech and academic freedom in the classroom. Again, it might well take a Supreme Court decision to resolve the differences between the two sets of views, particularly against the backdrop of Garcetti’s expansion of the government’s power as an employer.

One lesson that may be drawn from these seemingly conflicting cases, however, is that when it comes to determining the parameters of a professor’s right to academic freedom, context matters. The standard of what language is “germane” to the classroom will always remain a matter of contention and must be decided on a case-by-case basis.

Despite all the confusion, the principles of academic freedom serve to emphasize the particular importance of giving broad free speech rights to the academic environment. As eminent historian C. Vann Woodward wrote in the Report of the Committee on Freedom of Expression at Yale, commissioned by Yale University in 1975: 

The primary function of a university is to discover and disseminate knowledge by means of research and teaching. To fulfill this function a free interchange of ideas is necessary not only within its walls but with the world beyond as well. It follows that the university must do everything possible to ensure within it the fullest degree of intellectual freedom.

Public college and university faculty who face a threat of sanction by their institution or have been punished for expressive activity — whether it’s instruction, scholarship, or speaking on issues of public concern — can submit matters to ��֭����’s Faculty Legal Defense Fund for assistance. They can do so through FLDF’s dedicated 24-hour hotline at 254-500-FLDF (3533), or submit a case online. Our staff will quickly review the matter and, if it falls within FLDF’s mandate, connect the faculty member with an experienced First Amendment attorney for free legal help.

To learn more about your rights, explore ��֭����’s Guide to Free Speech on Campus.