Academic Freedom

NUMBER 57, FALL 2009

Academic Freedom at the Crossroads in the United States

Louis M. Benedict
Louis M. Benedict has a MBA, JD, and a PhD in higher education administration and is an independent higher education law and policy consultant. E-mail: lbenedi@aol.com.

Academic freedom in the United States has long been associated with the values inherent in the First Amendment free-speech clause of the US Constitution. Indeed, in 1967 the United States Supreme Court definitively stated that academic freedom is “a special concern of the First Amendment.” Despite the fact that the First Amendment applies only to public institutions, academic freedom has been widely espoused as a highly protected value of academia in almost all universities in the United States. In private universities, academic freedom protection is usually stated in a faculty contract or in university policy.

In recent years a deterioration of academic freedom has occurred in higher education institutions in the United States. Exacerbating this trend is that US courts, longstanding protectors of the value of free speech, have whittled away some of the traditional academic freedom protection afforded to faculty at public colleges and universities. Several factors have contributed to a general decline in protection of academic freedom. These factors threaten the future viability of academic freedom and the advantages to higher education and society.

Events of 9/11
The terrorist attack of 9/11 has resulted in an increased attention on national security, resulting in a scrutiny of views different from the official position of the US government. Faculty speech criticizing the US government resulted in demands by some groups and state legislatures for restricting “unpatriotic” faculty speech, especially in public universities, where some argued that taxpayers should not pay to support “anti-American” faculty. These instances directly affect academic freedom by their chilling effect on faculty speech. Before making statements critical of the US government or that could be construed as defending other countries or cultures deemed antagonistic to the United States, professors must consider the possible repercussions to that speech by students, administrators, legislatures, and the public. This movement has subsided to some extent, but the damage has weakened academic freedom through its disturbing effect on faculty speech.

(Mis-)Application of the Business Model
Many higher education institutions in the United States are now attempting to apply a business model of hierarchical management. Power and control are more centralized, resulting in a dramatic decrease in faculty autonomy. Shared governance is disappearing. Instead of providing oversight and overall coordination, administrators are making the decisions (even academic decisions) with less input from faculty. Faculty who openly disagree with the administration can be subjected to retaliatory action. These actions are generally supported by the courts. Courts used to dealing with centralized hierarchical organizations are deferring more to university administration on matters that under traditional academic freedom were decided by shared governance with the faculty.

US Court Decisions
Although the US Supreme Court has stated that academic freedom is a special concern of the First Amendment, it has never precisely defined the protections provided by academic freedom. This has left it to the lower courts to determine how to analyze First Amendment faculty speech (academic freedom) issues. The results have been mixed, with some courts giving great deference to the institution. Without a clear legal definition of academic freedom by the Supreme Court, faculty are hesitant to subject themselves to the expense and time to challenge an institution.

The most recent decision by the Supreme Court has created further ambiguity that some courts have used to reduce academic freedom protection. In Garcetti v. Ceballos (2006), the Supreme Court held that speech made by a public employee pursuant to that employee’s official duties is not protected by the First Amendment. Justice Souter stated in his dissent that he hoped “that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’” In response, the majority opinion of the Court reserved the issue of whether this decision would apply in the same manner to a case involving speech related to scholarship and teaching by faculty at public universities. The result is that lower courts have the discretion as to whether to apply Garcetti to faculty speech cases or not.

Some courts have already applied Garcetti’s holding to college faculty. In Renken v. Gregory (2008), a professor alleged that the university had reduced his pay and terminated his grant in retaliation for his criticism about the university’s handling of a grant. The US Court of Appeals for the Seventh Circuit ruled that the situation in the case was pursuant to his job duties and not protected speech. In Hong v. Grant (2007), a professor alleged that he was denied a merit-salary increase because of his critical statements regarding hiring and promotion policies. US District Court for the Central District of California ruled that the case involved his job duties as a faculty member and not protected speech. Because faculty duties generally encompass more than teaching and research, this expansive definition of “official duties” threatens to make much faculty speech unprotected under the First Amendment, thereby causing important ramification for academic freedom.

The deterioration of academic freedom is not inevitable, and this trend can be reversed. Nevertheless, this approach has been supported by factors affecting the academy, which must be addressed. The Supreme Court could go far to restore the traditional protections afforded by academic freedom for the benefit of higher education and society.

[Online] Available: http://www.bc.edu/bc_org/avp/soe/cihe/newsletter/Number57/p5_Benedict.htm