The Constitution of Academic Freedom

We denizens of the American university developed a penchant for catching the public eye for behavior unbecoming of traditionally respectable social classes. Anything from politicizations of the humanities and even sciences among the faculty to DEI excesses and financial shenanigans in the administration to riots and entitlements among the students. When such mischief surfaces among the faculty, we hear calls for academic freedom. So we should, but why?  

Academic freedom of faculty is a difficult and somewhat self-referential concept. We need academic freedom for faculty because they should be free to pursue their responsibilities as teachers and scholars. What entitles them to this freedom? Well, they are teachers and scholars. How do we know faculty are using their freedom well? Because they assure us it is so. Some clarity would go a long way to understanding the nature of academic freedom, its protections and limits, and how it may help us in our current academic travails.   

In the past century, courts have redefined academic freedom from a professional privilege to a First Amendment right. David Rabban, the Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law and Distinguished Teaching Professor at the University of Texas School of Law, explains this transformation in Academic Freedom: From Professional Norm to First Amendment Right, and defends it better than most and perhaps all of the judges and justices in the court cases he discusses in what turns out to be a magisterial treatment of the subject. Anyone familiar with Rabban’s Free Speech in its Forgotten Years (1997) would suspect as much. Rabban served as counsel for the American Association of University Professors (AAUP) from 1980 to 1982, and earlier as Associate Counsel for Academic Freedom and Tenure, Due Process, Employment Discrimination, Collective Bargaining, and Organizational Matters. The depth of his legal and scholarly experience in this area comes across in the text.  

The main problem of academic freedom is how it made the transition, articulated so clearly and forcefully in the 1915 Declaration of Principles by the AAUP, to a First Amendment right in Sweezy v. New Hampshire in 1957, and whether that second designation is accurate and helpful. Rabban believes that it is, but he also believes that the courts have failed to fully flesh out what it means for academic freedom to be a First Amendment right distinguishable from freedom of speech in its various manifestations. Principles related to free speech seem to help in some ways. The marketplace of ideas metaphor, for example, surely has some applicability to those who generate ideas as part of their professional status.  

That said, there is an obvious difference between free speech rights as generally conceived and academic freedom. Rabban writes, “Whereas the general First Amendment right of free speech is individualistic and egalitarian, the specific First Amendment right of academic freedom is communitarian and meritocratic.” Rabban explains.

straitjacketThe general First Amendment right of free speech protects the right of all citizens to express themselves about a broad range of subjects. It requires content and viewpoint neutrality in ‘the marketplace of ideas.’ The specific First Amendment right of academic freedom primarily protects the right of a limited group of people within universities to pursue and convey their expert knowledge.   

Then, is it best to speak of academic freedom in the context of First Amendment rights? Rabban contends that the reason we should speak of academic freedom as a First Amendment right is that it raises First Amendment values, namely “the production and dissemination of knowledge, and the contribution of free expression to democratic citizenship.” Justifications for First Amendment rights of speech, press, and association have tended to raise precisely these issues. However, as I have argued, there is more to the First Amendment than this, a point relevant perhaps to academic freedom. More on that later.  

Rabban begins his story with the 1915 Declaration of Principles. He names the major players who shaped the document and the various contending views they expressed. Among them was John Dewey, who analogized academic freedom to judicial immunity, both privileges for a certain class of people that protect both good and bad actors of those classes. Both are essential to the integrity of their respective professions, and neither is absolute. Protection extends only to the judge in his judicial role and to the professor in his academic role.  

Many prominent American professors had been trained in Germany and took the German conception of academic freedom in research and teaching back to America. In the 1915 Declaration, extramural speech receives protection as well, although the assertion is tempered, perhaps because, Rabban suggests, there existed a lack of consensus in the AAUP itself. Some thought it related to the core concerns of academic freedom. Others said that it was better understood in terms of the “personal liberty of the citizen,” as then Harvard President Abbott Lawrence Lowell described it. Rabban agrees. If academic freedom is a distinctive right, then it must be distinguished from general First Amendment free speech rights to speak out on relevant matters. All citizens can do this as a matter of free speech, but not all citizens have a right to academic freedom.  

The Supreme Court did not apply the First Amendment to academic freedom until 1957, but it applied the Constitution to universities much earlier, establishing a pattern of constitutional categories to universities. In Dartmouth College v. Woodward (1819), the Court ruled that New Hampshire’s intervention into Dartmouth College’s internal governance was a violation of the Impairment of Contracts Clause. Rabban details the controversies giving rise to, and arising out of, the case, which we need not rehearse here. The point is that the Supreme Court has long held that the Constitution applies to universities. While it acknowledged the civic role of education, the Court would not permit the state of New Hampshire to treat a college as a civil institution, subject to the state.  

As substantive due process began to pick up steam in the late nineteenth century, the Supreme Court used the Fourteenth Amendment “as the constitutional vehicle for judicial review of legislation affecting educational institutions.” The Court would incorporate the Speech Clause in 1925, applying it to states. While the Court was imprecise and justices disagreed among themselves on whether the First Amendment Speech Clause or the general Fourteenth Amendment Liberty Clause actually protected speech, the Court became more willing to apply these concepts when reviewing legislation regulating universities, always insisting on a distinction between public and private institutions.  

Some states applied the First Amendment to higher education through legislation, others through judicial interpretation of their own state constitutions. Not until Sweezy v. New Hampshire did the Court rule that academic freedom was protected as a First Amendment right of professors; before then, the Court had acknowledged the “importance of independent critical inquiry by professors.” In one case, Justice Frankfurter went so far as to call teachers “priests of our democracy.” The Sweezy majority distinguished academic freedom from political expression but insisted both were protected by the Bill of Rights and Fourteenth Amendment. At the core of its argument is the role of American universities in our democracy. The Sweezy Court wrote, 

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role of those who guide and train our youth in a democracy. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if anyBlunt Instrument: Why Economic Theory Can't Get Any Better...Why We Need It Anyway: Rosenberg, Alex: 9780262049658: Amazon.com: Books, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. 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.  

After Sweezy, the Court applied the Fourteenth Amendment and First Amendment in various ways to professors, often in the context of the Red Scare, to protect professors’ refusal to answer questions about communist affiliations. In Keyishian v. Board of Regents (1967), the Court asserted academic freedom as “a special concern of the First Amendment,” relying upon Sweezy and other First Amendment opinions, most of which applied First Amendment principles such as vagueness, political speech, breathing room, chilling effect, and the like, but none spelling out what exactly a First Amendment right to academic freedom meant and how that right was distinguishable from a general free speech right.  

Rabban points out that the Keyishian majority insisted upon academic freedom as a distinctive First Amendment right. One can argue that such rights become more important on campus and in the classroom, but then the justification for academic freedom relies on the marketplace-of-ideas metaphor, used by Justice Holmes in his 1919 Abrams dissent regarding political speech. That’s a free speech metaphor. Again, what distinctly justifies academic freedom in a way different from the right to political speech as a First Amendment right? What the Court gives us is a single paragraph in Keyishian on academic freedom, making sweeping claims about its distinctiveness that offer no actual justification for that distinctiveness.  

Cases that followed Keyishian adopted this pattern, claiming academic freedom as a First Amendment right and then failing to provide a clear definition without reference to established First Amendment doctrines. The essential problem with this framing continues unsolved: First Amendment rights are supposed to apply to everyone. How can courts claim a First Amendment right that is distinctive to university professors, a subset of the population at large?   

One additional wrinkle that has been especially problematic is that of employee speech. In Garcetti v. Ceballos (2006), the Court ruled that speech by public employees made “pursuant to their official duties” was not protected by the First Amendment. Employees can speak as citizens and that speech is protected, but they may not speak out on issues as part of their job and receive the same protection. The case involved a deputy district attorney, a public employee, but what about professors at public universities? Under the Garcetti standard, all their academic work would be unprotected because all of it is done pursuant their job. Given the very nature of the academic enterprise, academic freedom ought to protect speech “pursuant to their official duties,” by definition, the very standard the Garcetti Court used to deny First Amendment protection to workplace speech. What about speech about the university in general or their own university in particular? Academic experts on English lit and physics alike understand the nature of their enterprise and can speak intelligently to it. It would make sense for academic freedom to cover such speech as well, but the Garcetti standard would put the kibosh on such utterances. 

Rabban lays out his theory of academic freedom in some detail. Key to his theory is that academic freedom is distinguishable from free speech generally while implicating the same values and thus deserves First Amendment protection. He writes, 

The societal value of the contribution to knowledge through the expert academic speech of professors provides the most convincing justification for treating it as a distinctive category of First Amendment analysis differentiated from the general free speech rights of all citizens, including professors when they are speaking as citizens rather than as academic experts.  

Rabban articulates the primary justifications for academic freedom in the 1915 Declaration: the societal function of academic work, which is distinct from other forms of speech, and peer review as the measure by which such speech meets academic standards and thus deserves First Amendment protection. From these, we see how academic freedom, unlike a general right to free speech, is meritocratic and communitarian. Rabban explains, “[Academic freedom] is meritocratic because expression is protected only if it meets academic standards. It is communitarian because the community of faculty peers makes the determination of merit.” Developing a distinctive right for a distinctive class is not unheard of in the First Amendment. Consider the development of freedom of the press and “librarian’s freedom” developed to protect the particular functions of certain professions that, by their nature, implicate the First Amendment values of knowledge and citizenship.  

What of the problem of peer review? Surely, the worst form of scholarly review—except for all the others. Rabban’s response is an understandable shrug. Peer review ensures academic quality, but it can suppress academic innovation. New and better ideas will have a demanding time receiving a hearing. Furthermore, speech about the profession should be protected, as it is the context in which the First Amendment right to academic freedom is exercised. Extramural speech receives distinct First Amendment protection, that of citizens, and Rabban insists that it doesn’t need, nor deserves, specific academic freedom protection.  

Professors are the primary recipients of academic freedom, but by no means the only ones. Rabban also discusses institutional and student academic freedom. Universities themselves enjoy academic freedom because they are the contexts in which research and teaching take place. However, their First Amendment right to academic freedom is limited to educational decisions. There are many details to work out here. Rabban explores the tenure review process, peer review, due process protections for academic discipline, and related topics, explaining how he thinks institutional freedom is balanced with faculty self-governance, as well as various ways universities can be structured to shield academic freedom. For example, he argues that, to the extent the institution oversees faculty research, it must be done by those with expertise in what they oversee. He further argues that free speech on college campuses may be more constrained than in society at large because the university’s interest in its academic mission permits it to censor speech that disrupts the academic environment. Rabban has more than loud noises in mind. He would also apply this to racial epithets and similarly offensive speech that may disrupt the dissemination of knowledge while adding nothing to the development of democratic citizenship. A libertarian manifesto, this is not.  

Rabban closes with a discussion of student academic freedom. The distinctive claim that students have to the First Amendment right of academic freedom comes from “the societal value of the student interest in learning.” Admittedly, a more difficult case to make since students lack academic expertise, the core justification for both professorial and institutional academic freedom. 

This is the first study to treat academic freedom case law in such a comprehensive way, and such an effort is immensely valuable. Going forward, we need to consider the university’s place in our broader society, including the states. I have some thoughts and even quibbles with Rabban’s argument. My first quibble is with much First Amendment scholarship, and one I wrote a whole book about. Rabban’s vision is reduced entirely to expression and democracy because he claims that is all the First Amendment is about. He must fit academic freedom into that rubric. As I’ve argued, that framework concedes too much to the political state. While the Speech Clause has relevance to academic freedom, the Assembly Clause would like a word.  

Rabban writes, “It is conceptually more difficult to apply the First Amendment to institutions than to individuals. Individuals obviously speak. Institutions do not speak in the same direct way.” This is a problem under the Speech Clause, but not the Assembly Clause. First Amendment scholars would do well to widen their gaze and remember that the First Amendment contains more than protections for speech and press, as important as those are. Among the things the Assembly Clause would help us understand is how to think about the context of academic freedom.  

Let me explain. The major problem Rabban identifies with academic freedom is its “communitarian and meritocratic” nature. If we think about academics as individuals, we run into problems. Why doesn’t everyone else have the right to pursue truth in this way? But if we describe universities as “academic assemblies,” as institutions that exist for the purpose of pursuing and disseminating knowledge, it becomes immediately relevant from the perspective of the Assembly Clause whether the institution has the protection it needs to fulfill that core function. I’ve described this freedom as “functional autonomy.” Academic freedom assures autonomy as long as the assembly is pursuing its academic function.  

If we understand the Assembly Clause to protect both the formation of a community around a set of communal values and the functions that community pursues on behalf of those values, we may better understand what we need to protect to safeguard academic freedom as a distinctive First Amendment right. Individuals in the academic assembly share that freedom insofar as they engage in the function of that community. The class of employees at public universities engaged in teaching and research would be given the freedom necessary to pursue that goal.  

There’s more to say here, but I think this provides a better theoretical justification for the institutional academic freedom question. The university administration may act in certain ways when it is advancing its academic mission. This would not mean a suppression of students' free speech rights; students are also part of the academic community and engaged, even if on the receiving end, in teaching and, to a lesser extent, research. We can take this further and see how an Assembly Clause analysis might help us understand protection for journalists, librarians, and the like, each acquiring freedom insofar as they are attached to particular institutions, let’s call them press assemblies and librarian assemblies, with a particular function and acquiring requisite autonomy around that function.  

A second quibble I have is with his discussion of proprietary universities. He notes that the 1915 Declaration excluded its asserted protections for academic freedom from “proprietary universities,” those institutions operated according to a clear philosophical perspective, often under the direct authority of the Catholic Church or Protestant denominations. He writes, “I am unaware of any current counterparts to the secular proprietary institutions identified in the 1915 Declarations.” One of the primary critiques of the contemporary university is precisely that it operates according to set ideological dogma and acts as though its primary purpose is the advancement of that dogma. Hiring practices and public purges have eliminated the heretics. The secular analogue to the proprietary university may be upon us. Rabban writes, “If the university no longer seeks the production and dissemination of knowledge, it loses the primary justification for its academic freedom.” Trump’s attack on universities is only possible because of their turn toward this model. The university claims to be a place where truth is pursued and has received the requisite institutional autonomy for that purpose, but then betrayed that function in favor of that of a proprietary institution. The question Americans justly ask is why they are obligated to pay for it.  

Luke C. Sheahan is associate professor of political science at Duquesne University, a senior affiliate in the Program for Research on Religion and Urban Civil Society (PRRUCS) at the University of Pennsylvania, contributing editor at Law and Liberty, and editor of The University Bookman. He is author of Why Associations Matter: The Case for First Amendment Pluralism (2020) and editor of several books.