What have judges said about a faculty member’s right to academic freedom privilege?
Lisa Gilbert
Florida State University

Introduction
The concept of a faculty member’s right to academic freedom is a topic that is of interest to faculty, students, administrators, and parents alike. As educators, faculty members play an important role on campuses, as they are arguably the most immediate source of education for students seeking a higher education degree.
Faculty members have a direct responsibility to educate the students who walk through their classroom doors. The question remains, then, what limitations are faculty members under when it comes to academic freedom?
Education comes in many forms. The days of green chalk boards with lines written on them have long since found a place in the past. Instead, professors are looking at different ways that they can engage their students. The historic classroom roles of professors teaching students through lectures have shifted as faculty members attempt to increase student engaging by posing dialogue-stimulating questions and incorporating hands on activities that will assist students in drawing conclusions and connections for the course material. With a shift in methods, however, it also sometimes follows that there is a shift in course material and what is discussed in the classroom. As faculty members strive to become more innovative and progressive in their teaching methods, where does their right to academic freedom privilege end? Because academic freedom is something that impacts all faculty members, regardless of institution size, type, or location, it’s important to examine what speech and actions have been allotted academic freedom privilege as well as what classroom conduct has resulted in scrutiny or repercussions on the offending faculty member.

Legal Precedent
In 1940, the American Association of University Professors (AAUP) adopted the 1940 Statement of Principles on Academic Freedom and Tenure (1940
Statement) with the intention of offering clarity and guidance on academic freedom privilege. The statement claimed that not only did academic freedom apply to both teaching research (including the publication of research results), but also entitled professors “to freedom in the classroom in discussing their subject” so long as the content is related to their subject area. Another stipulation was that organizational missions and religious justifications might overturn these academic freedom privileges. The 1920 Statement also addressed the notion that faculty members have several roles, such as “citizens, members of a learned profession, and officers of an education institution.” Because there are different obligations associated with these various roles, the statement acknowledged that these roles also have different rights. While AAUP’s 1940 Statement has provided a great deal of guidance when examining issues surrounding academic freedom, it is by no means a static or definitive definition on the matter. Since 1940, the topic of academic freedom has made its appearance in the courtroom on multiple occasions, challenged or defended for a multitude of reasons.
In the matter Keyishian v. Board of Regents (1967) 1 , faculty members of a
New York state university were required to sign certificates stating that they were not members of the Communist Party during the “McCarthy Era.” Each faculty
1 Keyishian v. Board of Regents of University of State of NY, 345 F.2d 236 (2d Cir.
1965).

member was notified that if they failed to sign the certificate they would be dismissed from their faculty position. The appellants – the faculty members – brought an action for declaratory and injunctive relief, alleging that this program of the state violated various respects of the United States Constitution.
When Keyishian v. Board of Regents (1967) made its way to the Supreme
Court, the ruling was that the regulations set forth by preexisting law were lacking in any term of providing some form of objective measurement. The Supreme Court also ruled that those laws were ambiguous enough in nature that any man of common intelligence would need to guess or speculate at their meaning and differing application. Due to this vague nature and the general broadness demonstrated by the state law requirements that the faculty members were objecting to, the Supreme Court ruled that the law was in violation of the first
Amendment. This reasoning was based in the notion that mere membership did not specifically demonstrate intent of any kind to act in any unlawful aims for the
Communist party.
The precedent that Keyishian v. Board of Regents (1967) set was a huge milestone for the concept of academic privilege as this was the first time that the
Supreme Court had a majority ruling in favor of academic freedom having protection under the First Amendment of the U.S. Constitution. Citing Adler v. Board
of Education (1952) 2 as precedent, the ruling discussed how important protecting free speech and inquiry is to the nation as a whole, including in educational contexts. As stated in part of the case’s opinion:
2 Adler v. Board of Ed. of City of New York, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517
(1952).

Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of use and not merely to the teachers concerned
That freedom therefore is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom (Id. At
603).
While academic freedom has continued to receive scrutiny and clarification in the courts since the Keyishian ruling, this decision set an initial tone for protecting faculty’s rights to academic freedom privileges.
In another case that originated in the state of New York, Hayut v. State
University of New York (2003) 3 , a student sued her professor, the state university, and university officials under the allegations that the professor was sexually harassing her and that she did not receive the appropriate response from the university and its officials. The sexual harassment took the form of verbal harassment, with the professor allegedly referring to the student by the name of an individual who was involved in a high profile scandal of a sexual nature as well as comments of a sexual nature being directed at the student.
The court ruling was that the claim against the professor by the student was properly alleged, as the professor’s conduct was clearly found to be offensive, and that when reviewed objectively, the professor’s offensive and inappropriate comments and behavior resulted in a hostile and uncomfortable environment for the student. The court also stated that it was apparent to them based on the material of the case that the professor’s actions were motivated largely in part by the
3 Hayut v. State University of New York, 352 F.3d 733 (2d Cir. 2003).

student’s gender, causing the student to suffer actionable injury. However, the court also ruled that while the students claim against the professor were properly alleged, this was not the case for the university and its officials. Instead, the court ruled that the student had failed to show any liability on behalf of the university or the university’s officials. The court found that the university as well as the officials had responded to the student’s complaint in a proper timely fashion, meaning that there could be no liability attached by employment or supervision of the professor under scrutiny.
Following the Keyishian ruling, the Hayut ruling shows that while professors and their academic freedom are protected by the First Amendment, this is only the case when the professor’s actions or remarks are related to their actual study area and when they do not result in a personally hostile environment for a student.
In the case of Pickering v. Board of Education of Township High School Dist.
(1968) 4 , a teacher was dismissed from his school because he sent a letter of support to a local newspaper criticizing a decision by the board of education in connection with a recently proposed tax increase. As a result, the board of education dismissed the teacher based on the concept that the letter was “detrimental to the efficient operation and administration of the schools of district”, which requirement the professors dismissal under Illinois statue, III. Rev. Stat., c. 122, § 10-22.4 (1963) (Id.
at 565).
4 Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563,
88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

On appeal, the Supreme Court of Illinois affirmed the judgment of the Circuit
Court’s affirmation of the professor’s dismissal. However, the Illinois Supreme Court also stated that there was “probably jurisdiction of the appellant’s claim that the
Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments” (Id. at 565). The court ultimately ruled that institutions cannot sanction an employee for sharing a public concern on a public forum, regardless if it is about their place of employment. This ruling supports the idea that faculty members hole a number of different roles, and that it’s important to examine all of these when looking at whether or not faculty members’ actions fall under First Amendment protection as academic freedom.
For Mt. Healthy City Bd. of Ed. v. Doyle, (1977) 5 , a professor was terminated by the petitioner school board for sending a copy of the school board’s memorandum regarding a dress code for teachers to a radio station as well as for making gestures of an obscene nature to students. In turn, the professor claimed that he was terminated for exercising his right to free speech. The court stated that with respect to the respondent teacher’s claim that he was terminated while exercising his right to free speech, no causation was appropriate that would place him in a better position as a result of his conduct in regards to the memorandum or the obscene gestures than he would have occupied had he done nothing. The court held that instead, the proper procedure was one that required the professor to show that his conduct was constitutionally protected, and that his conduct was a motivating and substantial factor in the school board’s decision not to rehire him.
5 Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471
(1977).

The one caveat to this was that if the school board could show by a preponderance of the evidence that they would have reached the same employment decision regardless of the professor’s conduct.
The court concluded that the respondent professor’s telephone call to the radio state was protected by the First Amendment, and that “because it had played a
‘substantial part’ in the decision of the Board not to renew Doyle's employment, he was entitled to reinstatement with back pay (Id. at 287).” Ultimately, the court vacated the judgment for the respondent teacher since the proper test to be applied by the lower courts was one that balanced respondent's rights to engage in constitutionally protected conduct under the First Amendment against the petitioner school board's interest in promoting efficient delivery of public services.
Any test that left the professor better off for the exercise of his rights under the First
Amendment than had he not engaged in the conduct was erroneous.
Mt. Healthy City Bd. of Ed. v. Doyle, (1977) stressed the importance of look at the role of faculty members, and when considering whether or not their speech or conduct is protected under the First Amendment whether or not they are acting as a private citizen or as government actors. This case also emphasizes the need to consider what the nature of the faculty’s forum is as this helps shed light on whether or not their actions are a matter of public or private interest, impacting the protections they may receive for academic freedom under the First Amendment.
Legal Principles
Ultimately, the courts have primarily ruled that faculty members are entitled to academic freedom privileges with some restrictions. The overarching take away

is that unless the professor is speaking from a point of academia, their academic freedom privileges are very restricted, if they’re protected under the First
Amendment at all. However, the university itself has more of a right to academic freedom than do faculty; it is not guaranteed to faculty members by any means.
Throughout the cases examined by this paper, a consistent principle – arguably the most important principle – that has been established is the concept that the Supreme Court and the rest of the nation views academic freedom as something worth protecting and nurturing. The value in academic freedom is that it provides colleges and universities as well as the faculty of these institutions to continually strive to push the limitations of education in their attempts to provide a more thorough education and knowledge base to the students they have been entrusted to instruct. As mentioned by the court in the Adler ruling, “ [academic] freedom… is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom” (Id. At 603). This shows a federal dedication and commitment to continuing to provide an academic experience that is intended to educate rather than to restrain.
Another principle that can be derived from the presented cases is the notion that while the Supreme Court and this nation have a special interest in academic freedom, this freedom can only be extended to the subject matter on which faculty are contracted to teach on. While, for the most part, a professor’s classroom appears to be a safe haven for new or individual educational thought, it is not a safe space for remarks that can create a hostile environment, bring harm to others, or take away from educational mission that colleges and universities have to educate students.

Ultimately, these principles are the core of academic freedom on college and university campuses. While there are a number of different variables that factor into whether or a not a professors words or conduct are protected by the First
Amendment as academic freedom privileges, the courts have established that there will never be one true determining action or method of determining what falls under academic freedom and what does not. Instead, they have offered guidelines that allow colleges and universities to set their own standards (within limits), helping to contribute to the overall mission of higher education: learning.