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A, Academic Freedom.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Academic Freedom.

American professors had fought for academic freedom since the nineteenth century, but the term did not appear in a United States Supreme Court decision until 1952. Justice William O. *Douglas invoked it then, dissenting in Adler v. Board of Education. The majority, laboring in the shadow of the Cold War and McCarthyism (see communism and cold war) had upheld a New York law that prohibited employment of teachers in public schools if they belonged to “subversive organizations.”

Constitutional recognition of academic freedom was foreshadowed by *Meyer v. Nebraska (1923) and *Pierce v. Society of Sisters (1925). In Meyer, the Court invalidated a state law that prohibited teaching foreign languages to students before the ninth grade. In Pierce, the Court struck down an Oregon statute that required parents to send their children aged eight through sixteen to public schools. Both cases rested upon the substantive *due process rights of private schools, as (p. 7) well as upon parents’ right to control the sort of education their children receive.

Since Adler, the Court has invoked academic freedom in two distinct ways. As Justice David *Souter said, concurring in Board of Regents of the University of Wisconsin v. Southworth (2000), “Our understanding of academic freedom has included not merely liberty from restraints on thought, expression, and association in the academy, but also the idea that universities and schools should have the freedom to make decisions about how and what to teach” (p. 237). These two principles may at times be inconsistent, as when a university regulates the conduct of professors or students and argues that the institutional independence aspect of academic freedom prevents a court from interfering in its decisions.

Academic Freedom for Professors and Students

The premise of Adler has now been rejected. Public employees, including teachers, have at least the same rights of expression as others (*Keyishian v. Board of Regents, 1967). The Court said that “[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” (p. 603).

In Sweezy v. New Hampshire (1957), the Court upheld a Marxist professor’s refusal to answer questions about his teaching and political views. Chief Justice *Warren identified freedom of thought and expression as essential to an academic institution. Justice *Frankfurter, concurring, spoke both of the need to protect the “ardor and fearlessness of scholars” and of the even more venerable tradition of universities’ institutional independence (pp. 262–263). The Warren and Frankfurter views have dominated the Court’s academic freedom discussions ever since.

In *Barenblatt v. United States, the Court by a 5–4 margin refused to insulate academics from congressional inquiry into their political beliefs and associations. But in later cases invalidating teacher loyalty oaths, it decried the chilling effect of coerced political conformity on teachers. In the oath cases, the Court clearly united free expression and procedural fairness values in creating a zone of autonomy for scholars and their activities.

Teachers were the first beneficiaries of the Court’s expanding conception of academic freedom. In Epperson v. Arkansas (1968), the Court struck down a criminal statute that forbade teachers from teaching the theory of *evolution, holding that the state’s undoubted power to shape the curriculum is nevertheless controlled by the First Amendment.

The scope of protected speech may, however, be narrower when the teacher criticizes school officials. In Pickering v. Board of Education (1968), the Court held that the First Amendment prohibited firing a teacher who had publicly questioned school board policies. Although the Court invoked academic freedom, it made clear that a teacher is also an employee, and that disruptive speech, even on a matter of public concern, could be the basis for termination. Mt. Healthy City School District Board of Education v. Doyle (1977) reaffirmed school authorities’ power by permitting termination of a teacher whose speech dealt with public issues, if the employer could show independent grounds for discharge.

In Board of Regents v. Roth (1972), the Court held that the Due Process Clause does not require a university to state reasons and provide a hearing when it does not renew a nontenured teacher’s contract. The teacher can claim a hearing only if she makes a credible showing that nonrenewal would stigmatize her in searching for new employment.

The Court has been more hesitant to recognize student claims to academic freedom. In *Tinker v. Des Moines School District (1969), the Court invalidated a school district’s suspension of high school students who had worn black armbands in protest against the *Vietnam War. However, in Healy v. James (1972), the Court held that a public university may enforce reasonable rules governing the time, place, and manner of public expression. It may deny campus access to provably disruptive groups. But it may not base its actions on the content of the views students wish to express, even if those views are “abhorrent” (p. 188).

In Hazelwood School District v. Kuhlmeier (1988), the Court upheld a high school principal’s censorship of the student newspaper. It found that because students in a journalism class wrote the paper, it was not a public forum and therefore not entitled to full First Amendment protection.

Academic Freedom As Institutional Autonomy

Justice Frankfurter, concurring in Sweezy, had stressed the independence of universities from governmental control. The Court has followed Justice Frankfurter’s lead in more recent cases. There is an obvious tension here, for judicial reluctance to intervene in school or university decisions can mean judicial abdication in the face of student or teacher demands for fairness and self-expression. In Minnesota State Board for Community Colleges v. Knight (1984), the Court rejected any first amendment basis for professors’ participation in academic governance.

The tension between professor rights and university autonomy was clear in University of Pennsylvania v. Equal Employment Opportunity Commission (1990). The commission sought peer review records relating to the university’s decision to deny tenure to a faculty member who claimed that the denial was motivated by racial and sexual discrimination. The Court rejected the university’s (p. 8) claim that such records were protected by an “academic freedom” privilege.

In Board of Education v. Pico (1982), the Court recognized a school board’s discretionary power over curriculum and book selection, but held that the board could not bow to community pressure to remove “objectionable” books from school library shelves. Pico reaffirmed institutional autonomy, but only if the institution functions free from improper pressure to censor.

Institutional autonomy has been a central theme in the Court’s decisions on affirmative action in university admissions. In *Regents of the University of California v. Bakke (1978), the Court invoked institutional academic freedom to permit a state medical school to take race into account in its admissions policy. In *Grutter v. Bollinger (2003), a 5–4 decision, the Court upheld a state law school’s race-conscious admissions policy, again relying on the institution’s academic freedom to foster diversity in its student body.

The Court’s opinions will no doubt continue to waver between individual-oriented and institutional-oriented theories of academic freedom. The Court seems destined to confront the Bakke/Grutter issues in a variety of contexts, and to revisit the issue of professor and student freedom of expression.

See also education; first amendment.

Richard H. Hiers, “Institutional Academic Freedom vs. Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy,” Journal of College & University Law 29 (2002): 35. “Academic Freedom,” symposium in Texas Law Review 66 (1988): 1247–1659.

Michael E. Tigar