ACADEMIC FREEDOM

Although academic freedom has become a FIRST AMENDMENT principle of special importance, its content and theoretical underpinnings have barely been defined. Most alleged violations of academic freedom can be sorted into three catagories: claims of individual professors against the state, claims of individual professors against the university administration or governing board, and claims of universities against the state. Judicial decisions have upheld claims in all three contexts.

The Supreme Court, however, has not developed a comprehensive theory of academic freedom comparable to its recent elaboration of freedom of association as a distinctive First Amendment DOCTRINE. The relationship between "individual" and "institutional" academic freedom has not been clarified. Nor has the Supreme Court decided whether academic freedom is a separate principle, with its own constitutional contours justified by the unique roles of professors and universities in society, or whether it highlights but is essentially coextensive with the general First Amendment rights of all citizens. Similarly unsettled is the applicability, if any, of academic freedom in primary and secondary schools. While acknowledging that teachers, unlike university professors, are expected to inculcate societal values in their students, the Supreme Court in BOARD OF EDUCATION V. PICO (1982) expressed concern about laws that "cast a pall of orthodoxy" over school as well as university classrooms. Student claims of academic freedom also remain unresolved.

This uncertainty about the constitutional definition of academic freedom contrasts with the internal understanding of the university community, which had elaborated its meaning before any court addressed its legal or constitutional significance. The modern American conception of academic freedom arose during the late nineteenth and early twentieth centuries, when the emerging research university eclipsed the religious college as the model institution of higher education. This structural change reflected an equally profound transformation of educational goals from conserving to searching for truth.

Academic freedom became associated with the search for truth and began to define the very idea of the university. Its content developed under the influence of Darwinism and the German university. The followers of Charles Darwin maintained that all beliefs are subject to the tests of inquiry and that apparent errors must be tolerated, and even expected, in the continuous search for truth. The German academic influence reinforced the growing secular tendencies in the United States. Many attributed the international preeminence of German universities to their traditions of academic freedom. As universities in the United States strove for similar excellence, they adapted these traditions.

This adaptation produced several major changes. The clear German differentiation between great freedom for faculty members within the university and little protection for any citizen outside it did not take hold in America. The ideal of FREEDOM OF SPEECH, including its constitutional expression in the First Amendment, and the philosophy of pragmatism, which encouraged the participation of all citizens in social and political life, prompted American professors to view academic freedom as an aspect of more general CIVIL LIBERTIES. The traditions of powerful administrators and lay boards of governors in American universities posed threats to academic freedom that did not exist in Germany, where universities were largely governed by their faculties. As a result, American professors sought freedom from university authorities as well as from external interference. And academic freedom, which in Germany encompassed freedom for both students and professors, became limited to professors in the United States.

The first major codification of the American conception of academic freedom was produced in 1915 by a committee of the nascent American Association of University Professors (AAUP). Subsequent revisions culminated in the 1940 Statement of Principles on Academic Freedom and Tenure, jointly sponsored by the AAUP and the Association of American Colleges, and currently endorsed by over 100 educational organizations. The 1940 Statement defines three aspects of academic freedom: freedom in research and publication, freedom in the classroom, and freedom from institutional censorship or discipline when a professor speaks or writes as a citizen. Many colleges and universities have incorporated the 1940 Statement into their governing documents. In cases involving the contractual relationship between professors and universities, courts have recently begun to cite it as the COMMON LAW of the academic profession. This contractual theory has provided substantial legal protection for academic freedom without the support of the First Amendment, whose applicability to private universities is limited by the doctrine of STATE ACTION.

The emergence of academic freedom as a constitutional principle did not begin until the McCarthy era of the 1950s, when public and university officials throughout the country challenged and investigated the loyalty of professors. Although earlier decisions had imposed some limitations on governmental intrusions into universities and schools, no Supreme Court opinion explicitly referred to academic freedom until Justice WILLIAM O. DOUGLAS, dissenting in ADLER V. BOARD OF EDUCATION (1952), claimed that it is contained within the First Amendment.

The Supreme Court endorsed this identification of academic freedom with the First Amendment in SWEEZY V. NEW HAMPSHIRE (1957), which reversed the contempt conviction of a Marxist scholar who had refused to answer questions from the state attorney general regarding his political opinions and the contents of his university lecture. A plurality of the Justices concluded that the state had invaded the lecturer's "liberties in the areas of academic freedom and political expression." Both the plurality and concurring opinions in Sweezy emphasized the importance to a free society of the search for knowledge within free universities and warned against governmental interference in university life. Justice FELIX FRANKFURTER'S concurrence included a particularly influential reference to academic freedom that has often been cited in subsequent decisions. Quoting from a plea by South African scholars for open universities, Frankfurter identified "'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."

The opinions in Sweezy indicated that academic freedom and political expression are distinct yet related liberties, and that society benefits from the academic freedom of professors as individuals and of universities as institutions. Yet neither in Sweezy nor in subsequent decisions did the Supreme Court untangle and clarify these complex relationships. Throughout the 1950s, it alluded only intermittently to academic freedom in cases involving investigations of university professors, and reference to this term did not necessarily lead to protective results. Even the votes and reasoning of individual Justices fluctuated unpredictably. During this period, many within the academic community resisted the advocacy of academic freedom as a constitutional principle, fearing that a judicial definition might both weaken and preempt the one contained in the 1940 Statement and widely accepted throughout American universities.

Supreme Court opinions since the 1950s have emphasized that academic freedom is a "transcendent value" and "a special concern of the First Amendment," as the majority observed in KEYISHIAN V. BOARD OF REGENTS (1967). Justice LEWIS F. POWELL'S opinion in REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978) reiterated the university's academic freedom to select its student body, but the Court has held in Minnesota State Board for Community Colleges v. Knight (1984) that academic freedom does not include the right of individual faculty members to participate in institutional governance. By eliminating the RIGHT-PRIVILEGE DISTINCTION, which had allowed dismissal of PUBLIC EMPLOYEES for speech otherwise protected by the First Amendment, the Supreme Court during the 1960s and 1970s dramatically expanded the rights of all public employees, including university professors, to speak in ways that criticize or offend their employers. Yet none of these decisions has refined the relationships between "individual" and "institutional" academic freedom or between "academic freedom" and "political expression," issues posed but not resolved in Sweezy. The Supreme Court's continuing reluctance even to recognize issues of academic freedom in cases decided on other grounds underlines the primitive constitutional definition of this term.

Cases since the early 1970s have raised novel issues of academic freedom. University administrators and governing boards have asserted the academic freedom of the university as an institution to resist JUDICIAL REVIEW of their internal policies and practices, which have been challenged by government agencies seeking to enforce CIVIL RIGHTS laws and other statutes of general applicability, by citizens claiming rights to freedom of expression on university property, and by professors maintaining that the university violated their own academic freedom or their statutory protection against employment discrimination. Faculty members have even begun to make contradictory claims of academic freedom against each other. Professors have relied on academic freedom to seek a constitutionally based privilege against compelled disclosure of their deliberations and votes on faculty committees to junior colleagues who want this information to determine whether they were denied reappointment or tenure for impermissible reasons, including reasons that might violate their academic freedom. These difficult issues may force the courts to address more directly the meaning and scope of academic freedom and to resolve many of the lingering ambiguities of previous decisions.