University Mission and Academic Freedom: Are they in Conflict? (original) (raw)
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University mission and academic freedom: Are they irreconcilable?
2000
Academic freedom is generally understood to refer to the right of university faculty to follow their research wherever it leads them, and to teach their students based upon their own best understanding of the truth. Thus understood, it is a precious individual right to freedom of thought, painfully won against both overt and more subtle threats and, as such, recognised as having a significance which goes well beyond the interests of professors. As the United States Supreme Court pointed out in Keyishian v. Board of Regents 385 U.S. 589 (1967), "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 [to the American Constitution], which does not tolerate laws that cast a pall of orthodoxy over the classroom."
Academic Freedom, the First Amendment and Competing Stakeholders: The Dynamics of a Changing Balance
The Review of Higher Education, 2008
The U.S. Supreme Court first affirmed academic freedom in the context of the First Amendment fifty years ago. In glowing terms, Chief Justice Warren pronounced academic freedom as essential to a free society. "To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation" (Sweezy v. New Hampshire, 1957, p. 250). Ten years later in Keyishian v. Board of Regents (1967), the Supreme Court reinforced the idea that the concept occupied a key position under the First Amendment: "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" (p. 603). Given such unequivocal language, we might expect more recent judicial decisions to confirm the vitality of academic freedom. But this does not
2009
a public employee pursuant to carrying out his or her official duties do not constitute speech for First Amendment purposes. [FN4] While acknowledging that applying the decision's standards to speech by faculty members at public colleges and universities potentially raised thorny First Amendment concerns related to individual academic freedom, the majority opinion in Garcetti stated that such an issue was not before the Court. [FN5] In leaving the issue unaddressed, the case opened a new chapter in legal wrangling over constitutional protection for individual academic freedom in public higher education. Several recent cases where courts have unflinchingly applied the decision's standards to faculty speech [FN6] show that the potential impact of the decision on faculty speech rights in public higher education is poised to become more than speculative. Following an overview of the Garcetti decision in Part I, in Part II the article reviews several key U.S. Supreme Court decisions dealing with issues related to academic freedom. Part III of the article examines positions taken by lower federal courts regarding First Amendment protection for individual academic freedom, including discussion of several post-Garcetti cases. Part IV examines the position that constitutional academic freedom should only apply to institutions and not to individual faculty members. *147 The article considers in Part V using academic freedom policies and standards voluntarily adopted by public colleges and universities as a basis to ground legal protection for individual academic freedom, including limiting application of Garcetti to faculty speech. I conclude that courts should give serious consideration to such policies and standards as creating zones of legally protected faculty speech. Rather than supplanting the established system of peer review and professional norms widely accepted by colleges and universities, judicial inquiry would focus on whether institutions had in fact adhered to their own voluntarily adopted policies and standards. Such policies, in blunting the potential impact of Garcetti, could provide a basis to give some degree of First Amendment protection to faculty speech in the areas of scholarship, teaching, and intramural communications. I. OVERVIEW OF GARCETTI V. CEBALLOS In Garcetti, a deputy district attorney, Richard Ceballos, recommended dismissal of a case based on alleged misrepresentations in an affidavit used to obtain a search warrant. [FN7] Besides discussing his concerns with supervisors, Ceballos wrote a memorandum recommending the case's dismissal. [FN8] Ceballos' supervisors refused to heed his recommendations, and he eventually revealed his views concerning the warrant during questioning by the defense. [FN9] In a lawsuit, Ceballos argued that his employer retaliated against him for views expressed in or related to the memorandum in violation of his First Amendment rights. [FN10] While the district court held that the memorandum contained no protected speech, the U.S. Court of Appeals for the Ninth Circuit decided that it did. [FN11] The Supreme Court, reversing the Ninth Circuit, held that because Ceballos made the communications pursuant to carrying out his official duties, they did not constitute speech protected by the First Amendment. [FN12] While noting that public employees do not forfeit all their First Amendment rights, [FN13] Justice Kennedy's majority opinion determined that the balancing test articulated in Pickering v. Board of Education [FN14] and later *148 public employee speech cases [FN15] did not apply to Ceballos' communications. [FN16] The Garcetti decision separated employee speech into two distinct categories: speaking as a private citizen or speaking as an employee carrying out official employment duties. [FN17] If speaking as a private citizen on a matter of public concern, an employee's speech receives First Amendment protection absent a sufficient justification by the employer to restrict such speech. [FN18] But when speaking pursuant to performing official employment duties, public employees do not speak as "citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline." [FN19] In a dissenting opinion, Justice Souter stated that he hoped that the majority did not intend for the standards an-36 JCUL 145
Evolution of Academic Freedom in the US Higher Education System as Part of Constitutional Principles
Zenodo (CERN European Organization for Nuclear Research), 2019
The present paper aims at analyzing the development of academic freedom in the USA as a part of Constitutional principles. The main objective of this research is to identify legal approaches regarding academic freedom, reveal positive and negative sides of its development. It is essential to study the professional and legal definition of the term to determine its international context, what the notion of academic freedom means for the modern society. The research indicates that modern legal constitutional analysis of academic freedom is incomplete for the protection of the interests of academic society. Constitutionally guaranteed academic freedom is limited by state action doctrine, restriction of the principles of freedom of expression of the public servant and judicial decisions, which gives freedom only to the universities and leaves professors' interests without protection when their interests are contrary to the university's interests. Academic freedom guaranteed by the constitution, may be incompatible with the concept that implies freely exchanging the ideas in the marketplace of ideas, which are likely to be limited by universities. In order to completely understand and evaluate the importance and purpose of academic freedom, it is necessary to study those cases which led to the establishment of American Association of University Professors-AAUP and the protection of academic freedom in American universities.
a public employee pursuant to carrying out his or her official duties do not constitute speech for First Amendment purposes. [FN4] While acknowledging that applying the decision's standards to speech by faculty members at public colleges and universities potentially raised thorny First Amendment concerns related to individual academic freedom, the majority opinion in Garcetti stated that such an issue was not before the Court. [FN5] In leaving the issue unaddressed, the case opened a new chapter in legal wrangling over constitutional protection for individual academic freedom in public higher education. Several recent cases where courts have unflinchingly applied the decision's standards to faculty speech [FN6] show that the potential impact of the decision on faculty speech rights in public higher education is poised to become more than speculative. Following an overview of the Garcetti decision in Part I, in Part II the article reviews several key U.S. Supreme Court decisions dealing with issues related to academic freedom. Part III of the article examines positions taken by lower federal courts regarding First Amendment protection for individual academic freedom, including discussion of several post-Garcetti cases. Part IV examines the position that constitutional academic freedom should only apply to institutions and not to individual faculty members. *147 The article considers in Part V using academic freedom policies and standards voluntarily adopted by public colleges and universities as a basis to ground legal protection for individual academic freedom, including limiting application of Garcetti to faculty speech. I conclude that courts should give serious consideration to such policies and standards as creating zones of legally protected faculty speech. Rather than supplanting the established system of peer review and professional norms widely accepted by colleges and universities, judicial inquiry would focus on whether institutions had in fact adhered to their own voluntarily adopted policies and standards. Such policies, in blunting the potential impact of Garcetti, could provide a basis to give some degree of First Amendment protection to faculty speech in the areas of scholarship, teaching, and intramural communications. I. OVERVIEW OF GARCETTI V. CEBALLOS In Garcetti, a deputy district attorney, Richard Ceballos, recommended dismissal of a case based on alleged misrepresentations in an affidavit used to obtain a search warrant. [FN7] Besides discussing his concerns with supervisors, Ceballos wrote a memorandum recommending the case's dismissal. [FN8] Ceballos' supervisors refused to heed his recommendations, and he eventually revealed his views concerning the warrant during questioning by the defense. [FN9] In a lawsuit, Ceballos argued that his employer retaliated against him for views expressed in or related to the memorandum in violation of his First Amendment rights. [FN10] While the district court held that the memorandum contained no protected speech, the U.S. Court of Appeals for the Ninth Circuit decided that it did. [FN11] The Supreme Court, reversing the Ninth Circuit, held that because Ceballos made the communications pursuant to carrying out his official duties, they did not constitute speech protected by the First Amendment. [FN12] While noting that public employees do not forfeit all their First Amendment rights, [FN13] Justice Kennedy's majority opinion determined that the balancing test articulated in Pickering v. Board of Education [FN14] and later *148 public employee speech cases [FN15] did not apply to Ceballos' communications. [FN16] The Garcetti decision separated employee speech into two distinct categories: speaking as a private citizen or speaking as an employee carrying out official employment duties. [FN17] If speaking as a private citizen on a matter of public concern, an employee's speech receives First Amendment protection absent a sufficient justification by the employer to restrict such speech. [FN18] But when speaking pursuant to performing official employment duties, public employees do not speak as "citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline." [FN19] In a dissenting opinion, Justice Souter stated that he hoped that the majority did not intend for the standards an-36 JCUL 145
“ Priests of Our Democracy ”: The Origins of First Amendment Academic Freedom
Journal of Supreme Court History, 2013
In the years after World War II, the Supreme Court under Chief Justice Fred Vinson upheld nearly every aspect of the Cold War anti-communist crusade that came before it, including loyalty investigations of teachers and professors. Although Earl Warren, appointed Chief Justice in 1953, led the Court in a more free speech-friendly direction, change came haltingly. It was not until Keyishian v. Board of Regents in 1967 that the Court rejected the underlying premises of government loyalty programs and declared academic freedom a “special concern of the First Amendment.” Justice William Brennan’s opinion in Keyishian did not clarify the scope or substance of academic freedom, and in the years that followed, the concept remained murky. After the Court’s 2006 ruling in Garcetti v. Ceballos, it is unclear whether the Court will even continue to recognize the core of First Amendment academic freedom: teaching and scholarship.
Academic Freedom in American Legal System: Principles and Paradoxes
Freedom of Speech A Comparative Law Perspective, 2019
The aim of this chapter does not purport to cover all statements on academic freedom in American history, but to show the main legal instruments that have been applied to academic freedom in the United States of America. It rather attempts comprehensively to describe and criticize the roles of the Constitution and the courts in supporting a meaningful system of academic freedom. The analysis begins by suggesting that the meaning of academic freedom must vary among different communities of speech. Accordingly, it examines carefully the transmission of the term, academic freedom, from internal academic arguments about the role of the faculty within our universities to the realm of constitutional law, where its interpretation by judges determines the status of universities within the American political system. In fact, it can be concluded that the term appropriately has different, if related, meanings in the mouths of academics and in the mouths of judges and that both the academy and the courts have suffered from the confusion. An article that aims to resolve confusion about a term that has several meanings needs to take special care with its own usage. I claim that “academic freedom” means something different from “constitutional academic freedom”; accordingly, it entails a problem of terminology, since the sources here discussed often fail to recognize the difference. Therefore, “academic freedom” is here understood as a non-legal term referring to the liberties claimed by professors through professional channels against administrative or political interference with research, teaching, and governance.