Welcome to Academic Freedom
New Faculty Orientation
August 11, 2009
Prof. Peter B. Bayer,
Boyd School of Law, UNLV
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Important Sources to Determine Scope and
Limits of Academic Freedom:
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The First Amendment of the United States
Constitution.
Nevada System of Higher Education Code,
Regent’s Handbook, UNLV Bylaws.
Professional Associations such as AAUP
Good judgment & good sense.
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The Logic of Academic Freedom:
“Academic freedom creates the space for
questions, takes some of the risk out of
experimentation, and protects unpopular
ideas until they find their own place in
the spectrum of what’s thinkable—or
until they disappear of their own accord.”
Association of American University Professors (AAUP),
Academic Freedom and Freedom of Expression, an
AAUP Position Paper (June 2003)
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NSHE Code, Title 2, Chap.2, sec. 2.1.1
2.1.1 “Higher Education and the Common Good.
Institutions of higher education are conducted
for the common good and not to further the
interest of either the individual member of the
faculty or the institution. The continued
existence of the common good depends upon
the free search for truth and knowledge and
their free exposition.”
(borrowed from AAUP 1940 Statement of Principles on
Academic Freedom and Tenure)
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NSHE Code, Title 2, Chap.2, sec. 2.1.2
• 2.1.2 Academic Freedom. “Academic freedom is
essential to these purposes and is applicable to both
teaching and research. Freedom in teaching is
fundamental for the protection of the rights of the
teacher in teaching and of the student in learning.
Freedom in research is fundamental to the
advancement of truth and knowledge. A member of
the faculty has freedom and an obligation, in the
classroom or in research, to discuss and pursue the
faculty member's subject with candor and integrity,
even when the subject requires consideration of
topics which may be politically, socially or
scientifically controversial.” (Emphasis added.) 5
NSHE Code, Title 2, Chap.2, sec. 2.1.2, con’d.
“In order to insure the freedom to seek and profess
truth and knowledge … the faculty member …
shall not be subjected to censorship or discipline
by the Nevada System of Higher Education on
grounds that the faculty member has expressed
opinions or views which are controversial,
unpopular or contrary to the attitudes of the Nevada
System of Higher Education or the community.”
(B/R 4/02)
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Academic Freedom in the Library
UNLV’s Lied Library has a number of
policies related to the vigorous protection
of researchers’ academic freedom,
including not filtering internet access,
internet usage record retention policies,
and such.
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First Amendment, U.S. Const.
In a public university, academic freedom
is a special category of 1st Amendmentprotected free speech, based on a
fundamental 1st Amendment value:
the search for truth, or creation of
knowledge, is best undertaken within a
free marketplace of ideas.
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More on the First Amendment
• The First Amendment is never absolute;
• Interests in free expression are always
balanced against competing interests;
• e.g., crying “fire” in a crowded theatre?
• Falsely yelling “fire” in a theater (and causing
a panic) has no protection because safety may
trump free expression if the threat is dire
enough and the expression creates a “clear and
present danger” of imminent harm;
• What other countervailing interests limit
academic freedom?
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Employment Matters Vs.
Free Speech
• Professing to the public, to the profession
and to the classroom clearly are protected
by the First Amendment.
• But, what about memoranda, discussions
at faculty and other meetings and similar
expressions of opinion or dissent as part
of contexts “internal” to the government
employer?
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Government As Employer
• Some federal courts have ruled that
faculty opinions regarding hiring,
curriculum and similar subjects expressed
during the course of private faculty
meetings or in internal memoranda, are
not necessarily protected as academic
freedom under the U.S. Constitution
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Pending Proposals of the Academic
Freedom & Ethics Committee
• (1) the Senate should both recommend an
amendment to the HESC Code and enact
bylaws revisions clarifying that academic
freedom includes all expression of opinions
regarding all academic matters including hiring,
retention and other employment issues,
regardless whether the expressions of opinion
are made publically or in contexts such as
faculty meetings which are outside of immediate
public review;
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AF&E’s Proposed Code
Provision on “Arbitrariness”
• The following conduct, being incompatible with
the purposes of an academic community, is
prohibited: any adverse employment action not
based on good cause, including, but not limited
to, any adverse employment action that is
arbitrary, capricious, retaliatory, vindictive,
contrary to the principles of an academic
community or otherwise is based on reasons
unrelated to cause or to legitimate business
needs;
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AF&E’s Proposal Re Contracts
• The Senate should urge that the foregoing
protections be incorporated into
employment contracts.
• (AF&E’s analyses and proposals do not and are
not intended to constitute legal opinion.)
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In Sum
The First Amendment, Nevada-specific
codes and regulations, and good
judgment all use the same analytical
framework:
academic freedom
is balanced against
academic responsibility
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Academic Responsibility
According to:
-- the First Amendment cases;
-- the Nevada System of Higher Education Code;
-- much of the writing about academic freedom; and
-- good sense
the competing interest is the academic’s
responsibility to maintain professional
standards of teaching and scholarship.
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Academic Freedom & Responsibility, NSHE Code., Title
2, Chapter 2, Section 2
Section 2.1 Declaration of Policy
2.1.1 Higher Education and the Common Good
2.1.2 Academic Freedom
2.1.3 Academic Responsibility
2.1.4 Acts Interfering with Academic Freedom
Section 2.2 Applicability
Section 2.3 Freedoms and Responsibility
2.3.1 Freedom in Research
2.3.2 Freedom to Publish
2.3.3 Freedom in the Classroom
2.3.4 Faculty as Citizens
2.3.5 Obligations and Responsibilities
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NSHE, Title 2, Chap. 2, sec. 2.1.3
Academic Responsibility . “The concept
of academic freedom is accompanied by
the equally demanding concept of
academic responsibility. A member of the
faculty is responsible for the maintenance
of appropriate standards of scholarship
and instruction.”
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The Limits on Academic Freedom
• Our interests in free expression are balanced
against our interests in “appropriate standards
of scholarship and instruction”
• What are “appropriate standards of
scholarship and instruction”?
• Perhaps best analogized to “time, place and
manner” regulation under the 1st Amendment.
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Academic Responsibility – Professionalism in
General
“Academic responsibility requires professors to
submit their knowledge and claims to rigorous
and public review by peers who are experts in
the subject matter under consideration; to
ground their arguments in the best available
evidence; and to work together to foster the
education of students.”
(Association of American Colleges & Universities, Board of
Directors' Statement, Jan. 6, 2006, at 1)
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Appropriate Standards of Teaching (Academic
Responsibility)
• 2.3.3 Freedom in the Classroom . A
member of the faculty is entitled to
freedom in the classroom in discussing a
subject, but the faculty member should
be careful not to persist in discussing
matters, which have no relation to the
subject taught. (NSHE Code sec. 2.3.3,
emphasis added)
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Appropriate Standards of Teaching (Academic
Responsibility)
The Nevada System of Higher Education Code
tells us explicitly: Do not persist in discussion
of unrelated subjects
(e.g., persistent discussion of gay rights in math
class is not protected by academic freedom)
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Appropriate Standards of Teaching (Academic Responsibility)
Do not discriminate on the basis of race, color,
religion, gender, national origin, ancestry, age
disability, veteran status, or sexual orientation;
-- whatever you say or do about race, gender, sexual
orientation, religion, and the like, should be based
on sound academic & pedagogical goals;
-- creating a hostile learning environment can be
considered discrimination and otherwise may
disrupt learning &/or intimidate students;
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A General Guiding Rule
The more clearly your comments to students
reflect & support sound educational goals, the
more likely they are protected by academic
freedom.
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e.g., comments about a student’s sexual
attractiveness are not likely to be
protected under academic freedom.
(What is the educational purpose? Sexual
harassment is not protected by academic
freedom.)
e.g., comments about racial differences are
appropriate when based on expertise and
relevant to the subject, but can create a
prohibited, hostile environment if not
based on expertise or not relevant.
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One Important Aspect of Higher
Education
“[I]t is inevitable that students will encounter
ideas, books, and people that challenge their
preconceived ideas and beliefs.” […]
(Association of American Colleges & Universities, Board
of Directors' Statement, Jan. 6, 2006)
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“Students do not have a right to remain free from
encountering unwelcome or “inconvenient
questions,” in the words of Max Weber. Students
who accept the literal truth of creation narratives
do not have a right to avoid the study of the
science of evolution in a biology course; antiSemites do not have a right to a history course
based on the premise that the Holocaust did not
happen. …”
(Association of American Colleges & Universities, Board
of Directors' Statement, Jan. 6, 2006)
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“Students do have a right to hear and
examine diverse opinions, but within the
frameworks that knowledgeable
scholars—themselves subject to rigorous
standards of peer review—have
determined to be reliable and accurate.”
(Association of American Colleges & Universities,
Board of Directors' Statement, Jan. 6, 2006)
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Recap of Appropriate Standards of Teaching
(Academic Responsibility)
• Persistent discussion of unrelated topics is not
protected by academic freedom;
• Harassment (e.g., racial, sexual, tormenting
students) is not protected by academic freedom;
• Words or conduct that create a discriminatory,
hostile, or intimidating learning environment are
not protected by academic freedom;
• Lack of professional competence in your subject
area is not protected by academic freedom.
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Faculty as Public Citizens
• 2.3.4 Faculty as Citizens . A member of the
faculty is a citizen of the community, a
member of a learned profession and an
employee of an educational institution. A
faculty member speaking, writing or acting as
a citizen shall be free from institutional
censorship or discipline. (NSHE Code, Title 2,
Chap. 2, sec. 2.3.4.)
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Faculty as Public Citizens, con’d.
2.3.5. Obligations and Responsibilities .
“The special position of a member of the
faculty imposes special obligations and
responsibilities. As a person of learning and
an employee of an educational institution, a
faculty member should remember that the
public may judge the profession and the
institution by the faculty member's utterances
and acts.” NSHE Code, sec. 2.3.5.
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Faculty as Public Citizens, con’d.
2.3.5 Obligations and Responsibilities (NSHE Code)
Therefore, a faculty member should at all
times be accurate, should exercise
appropriate restraint, should show respect
for the opinions of others and should
indicate clearly that the faculty member is
not an institutional spokesperson. NSHE
Code, sec. 2.3.5 (B/R 4/02)
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Faculty as Public Citizens
• University policies prohibit the use of campus
facilities, including mail and email, for
partisan political purposes;
• Faculty should not use the classroom for
partisan political campaigning.
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Faculty As University Citizens
• Not all business conducted by faculty or
administrators of a public university is protected
by the 1st Amendment.
• Acting as would a citizen is Constitutionally
protected. (E.g., writing letters to authorities
concerning matters of true public concern.)
• Routine conduct of business – even vital
business such as hiring/promotion/tenure -- may
not be protected by the 1st Amendment.
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Academic Freedom Resources
1. For complete NSHE Code, UNLV Bylaws, use Faculty Senate
website: http://facultysenate.unlv.edu/
2. The Faculty Senate also has a Standing Committee on
Academic Freedom and Ethics
3. American Association of University Professors (AAUP)
Academic Freedom materials at www.aaup.org
4. Association of American Colleges & Universities, Board of
Directors' Statement, Jan. 6, 2006 can be found
at:http://www.aacu.org/about/statements/academic_freedom.cf
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