Academic Freedom for Whom: Institutions or Individuals?

To the extent the Constitution recognizes a right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors.

United States Court of Appeals for the Fourth Circuit, Urofsky v. Gilmore (2000, p. 410)

The freedom which is the subject of this report is that of the teacher.  Academic freedom in this sense comprises three elements:  freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action.

American Association of University Professors, 1915 Declaration of Principles on Academic Freedom and Academic Tenure (2015, p. 4)

 

Academic freedom is a term often used in higher education to describe the unfettered intellectual space required for preserving, exploring, or discovering knowledge (Poch, 1993).  As one of the most important values in academe, faculty members and administrators alike consider academic freedom an essential aspect of American higher education (Alexander & Alexander, 2011; American Association of University Professors [AAUP], n.d.; Kaplin & Lee, 2014; O’Neil, 2011; Poch, 1993). It is the foundation for “active discourse, critical debate, free exchange of ideas, and communication of values that characterize effective scholarship, teaching, and learning” (Poch, 1993, p. 1).  A 2005 statement issued by 23 university presidents defined the term as “the freedom to conduct research, teach, speak, and publish, subject to the norms and standards of scholarly inquiry, without interference or penalty, wherever the search for truth and understanding may lead” (Global Colloquium of University Presidents [GCUP], 2005). In 1940, the AAUP adopted a statement since endorsed by more than 200 professional organizations that outlined three forms of activity covered by academic freedom: teaching, research and publication, and extramural speech (AAUP, 2015, p. 14). Regardless of the definition one embraces or its importance in American higher education, the question of who benefits from academic freedom—institutions or individuals—sometimes arises. That is, does the right inhere in universities, as the Fourth Circuit Court of Appeals quotation above suggests, or with individuals, as the AAUP has argued? 

The answer is, “it depends,” since academic freedom can be accorded to different beneficiaries—institutions, faculty, and students—and such may be necessary to secure its possibility (Alexander & Alexander, 2011; Gordon, 2003; Kaplin & Lee, 2014; McConnell, 1993; Poch, 1993; Rabban, 1993; Schauer, 2006; Yudof, 1987). As the 2005 GCUP Statement issued by the university presidents further declared:

The activities of preserving, pursuing, disseminating, and creating knowledge and understanding require societies to respect the autonomy of universities, of the scholars who research and teach in them, and of the students who come to them to prepare for lives as knowledgeable citizens and capable leaders.  The autonomy of universities is the guarantor of academic freedom in the performance of scholars’ professional duties.  (GCUP, 2005)

This statement suggests that scholars must enjoy rights and prerogatives to think, teach, write, and research, subject to scholastic standards (Alexander & Alexander, 2011).  Students possess a similar right to learn (Kaplin & Lee, 2014).  But society must also ensure that institutions have sufficient autonomy to be self-governed, self-directed, and self-determined (Alexander & Alexander, 2011; Byrne, 1989; Hutchens, 2009; Schauer, 2006).  This institutional independence applies to both public and private institutions, whether as “government interests” for public colleges and universities, or as First Amendment constitutional rights for private ones (Kaplin & Lee, 2014, p. 297).

Legally, as the appellate court quotation above highlighted, academic freedom, when invoked at public universities, falls under a broad understanding of the First Amendment’s protection of freedom of speech.  The U.S. Supreme Court has recognized academic freedom “as a special concern of the First Amendment” (Keyishian, 1967, p. 603), and has issued opinions affirming both individual and institutional academic freedom.  Indeed, that Court first upheld academic freedom under the First Amendment as a right accorded to an individual professor at a public university in Sweezy v. New Hampshire, a 1957 decision that began when a scholar refused to answer questions from a state attorney general about his teaching.  Later, in Keyishian v. Board of Regents (1967), the Court again emphasized individual academic freedom when it affirmed:  “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).

However, the idea of institutional academic freedom also originated with the landmark Sweezy decision.  In a concurring opinion, Justice Felix Frankfurter emphasized an institutional understanding of academic freedom.  He described it as the Four Freedoms of the 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” (Sweezy, 1957, p. 263). Subsequent decisions also emphasized institutional academic freedom and applied Justice Frankfurter’s opinion to resolve other academic freedom disputes. In Bakke v. Regents of the University of California (1978), a case addressing affirmative action in admissions, the Court upheld the university’s use of race as a factor in admitting students, emphasizing institutional academic freedom by citing one of the Four Freedoms of the University from Sweezy: to determine on academic grounds who may be admitted to study. In Regents of the University of Michigan v. Ewing (1985), the Court expressed “reluctance to trench on the prerogatives of state and local educational institutions and our responsibility to safeguard their academic freedom” (p. 226). In this decision for a unanimous court, Justice John Paul Stevens also noted the tension between institutional and individual academic freedom: “Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students … but also, and somewhat inconsistently, on autonomous decision-making by the academy itself” (Regents, 1985, p. 226).

Upon examination of the Court’s academic freedom jurisprudence, one legal scholar remarked, “There has been no adequate analysis of what academic freedom the Constitution protects or of why it protects it. Lacking definition or guiding principle, the doctrine floats in law, picking up decisions as a hull does barnacles” (Byrne, 1989, p. 253).  Accordingly, the Supreme Court’s academic freedom jurisprudence appeared “equivocal,” to a lower court of appeals, since “[the term ‘academic freedom’] is used to denote both the freedom of the academy to pursue its ends without interference from the government … and the freedom of the individual teacher (or in some versions—indeed most cases—the student) to pursue his ends without interference from the academy; and these two freedoms are in conflict” (Piarowski, 1985, p. 629).  Thus, when disputes arise between individuals and institutions and claimants and respondents appeal to First Amendment protections of academic freedom, the courts wrestle with this tension.

So far, I have stressed the legal understanding of academic freedom and the frictions implicit within it in its application to individuals and institutions, but there are also more specific variants of this concern that arise from the character of organizations’ missions. For example, the tension between individual and institutional academic freedom can be seen clearly when colleges and universities pursue a religious mission.  The AAUP recognized this in its 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments, declaring, “Teachers are entitled to freedom in the classroom in discussing their subject,” but where appropriate, the group also suggested such liberty must be practiced within the “limitations of academic freedom because of [the] religious or other aims of the institution” (AAUP, 2015, p. 14).  Indeed, at some Christian colleges and universities, faculty members must affirm the institution’s official statement of faith as a condition of employment (Benne, 2001; Litfin, 2004; Ream & Glanzer, 2007; Wagner, 2006).  Some consider the religious mission of such institutions a threat to faculty academic freedom (Bowen, Schwartz, & Camp, 2014; MacIver, 1955; Nelson, 2010).  Others consider such commitments necessary to the pursuit of a unique mission and preservation of a distinct identity (Gordon, 2003; Litfin, 2004; McConnell, 1993).  These analysts have emphasized that academic freedom can be provided at these institutions, but to the college or university first—which allows the institution the freedom to pursue its mission—and to the individual professor second, which allows faculty the ability to pursue their research and publication, teaching, and extramural speech, but within a framework of faith (Cavanaugh, 2004; Jeffrey, 2007; Ream & Glanzer, 2007).  To be sure, such dual commitments create a dilemma:

Christian institutions of higher education [and Christian scholars] are poised between the demands of free academic inquiry and of committed theological loyalty.  Without the first, it is hard to see the Christian colleges preserving intellectual viability, but without the second they will not retain their Christian character. (Noll, 2006, pp. 35-36)

Certainly, such a two-tiered view of academic freedom is complex, but in practice it may align with the legal argument that the concept of academic freedom is “equivocal” (Piarowski, 1985, p. 629).

Regardless of what one thinks about religious versus secular education, the fact that the possibility exists for both individual and institutional academic freedom should be considered to be a strength of our American system of higher education.  One need not choose one at the expense of the other and resolve the tension between the two once and for all.  As disputes concerning academic freedom arise, the courts can weigh the specific interests of claimants to resolve their disagreements.  By balancing interests rather than favoring one form of academic freedom to the exclusion of the other, the courts in fact have preserved a greater degree of diversity of thought and experience.

The First Amendment, often cited in legal cases involving academic freedom, guarantees Americans five freedoms—of religion, speech, press, assembly, and petition.  These different rights are contained in the First Amendment to provide for the greatest freedom possible for citizens, regardless of the tensions that might arise within, between, or among them.  If one or another of these rights were not included, American citizens would surely be less free than we are now. As with citizen rights generally, so it is for academic freedom specifically, greater freedom exists when both individual and institutional academic freedom are accepted.

 

References

Alexander, K. W., & Alexander, K. (2011). Higher education law: Policy and perspectives. New York, NY: Routledge.

American Association of University Professors [AAUP]. (2015). Policy documents and reports. Baltimore: Johns Hopkins University Press.

American Association of University Professors [AAUP]. (n.d.). Academic freedom. Retrieved from http://www.aaup.org/issues/academic-freedom

Bakke  v. Regents of the University of California, 438 U.S. 265 (1978).

Benne, R. (2001). Quality with soul: How six premier colleges and universities keep faith with their religious traditions. Grand Rapids, MI: W.B. Eerdmans Publishing Co.

Bowen, W. M., Schwartz, M., & Camp, L. (2014). End of academic freedom: The coming obliteration of the core purpose of the university. Charlotte, NC: Information Age Publishing.

Byrne, J. P. (1989). Academic freedom: A “Special Concern of the First Amendment”. Yale Law Journal, 99(2), 251-340.

Cavanaugh, W. T. (2004). Sailing under true colors: Academic freedom and the ecclesially based university. In M. L. Budde & J. Wright (Eds.), Conflicting allegiances: The church-based university in a liberal democratic society (pp. 31-52). Grand Rapids, MI: Brazos Press.

Global Colloquium of University Presidents. (2005). Academic freedom statement of the first global colloquium of university presidents.  Retrieved from http://www.columbia.edu/~md2221/global_colloquium.htm

Gordon, J. D. (2003). Individual and institutional academic freedom at religious colleges and universities. Journal of College and University Law 30(1), 1-46.

Hutchens, N. H. (2009). A confused concern of the First Amendment: The uncertain status of constitutional protection for individual academic freedom. Journal of College & University Law, 36(1), 145-190.

Jeffrey, D. L. (2007). Biblical literacy, academic freedom, and Christian liberty. In D. L. Jeffrey & C. S. Evans (Eds.), The Bible and the university (pp. 284-302). Grand Rapids, MI: Zondervan.

Kaplin, W. A., & Lee, B. A. (2014). The law of higher education, student version (5th ed.). San Francisco, CA: Jossey-Bass.

Keyishian v. Board of Regents, 385 U.S. 589 (1967).

Litfin, A. D. (2004). Conceiving the Christian college. Grand Rapids, MI: W.B. Eerdmans Publishing Co.

MacIver, R. M. (1955). Academic freedom in our time. New York, NY: Columbia University Press.

McConnell, M. W. (1993). Academic freedom in religious colleges and universities. In W. W. Van Alstyne (Ed.), Freedom and Tenure in the Academy (pp. 303-324). Durham, NC: Duke University Press.

Nelson, C. (2010). No university is an island: Saving academic freedom. New York, NY: New York University Press.

Noll, M. A. (2006). Introduction: The Christian Colleges and American intellectual traditions. In W. C. Ringenberg, The Christian College: A history of protestant higher education in America (pp. 17-36). Grand Rapids, MI: Baker Academic.

O’Neil, R. M. (2011). Academic freedom: past, present, and future. In P.G. Altbach, P.J. Gumport, & R.O. Berdahl (Eds.), American higher education in the twenty-first century: Social, political, and economic challenges (pp. 88-110). Baltimore, MD: Johns Hopkins University Press.

Piarowski v. Illinois Community College, 759 F. 2d 625 (7th Cir. 1985).

Poch, R. K. (1993). Academic freedom in American higher education: Rights, responsibilities, and limitations. (ASHE-ERIC Higher Education Report, No. 4). Washington, DC: School of Education and Human Development, George Washington University.

Rabban, D. M. (1993). A functional analysis of “individual” and “institutional” academic freedom under the First Amendment. In W. W. Van Alstyne (Ed.), Freedom and Tenure in the Academy (pp. 227-301). Durham, NC: Duke University Press.

Ream, T. C., & Glanzer, P. L. (2007).Christian faith and scholarship: An exploration of contemporary developments. San Francisco, CA: Wiley/Jossey-Bass.

Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985).

Schauer, F. (2006). Is there a right to academic freedom? University of Colorado Law Review, 77, 907-928.

Sweezy v. New Hampshire, 354 U.S. 234 (1957).

Urofsky v. Gilmore, F.3d 401 (2000).

Wagner, K. (2006). Faith statements do restrict academic freedom. Academe 92(1), 21-22.

Yudof, M. G. (1987). Three faces of academic freedom. Loyola Law Review, 32(4), 831-858.

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Walz high resJerald H. Walz is a PhD candidate in Higher Education at Virginia Tech currently researching academic freedom in colleges & universities.  He has earned a B.A. from Asbury College, a M. A. from the Johns Hopkins University, and two graduate certificates from Virginia Tech.  While serving as the Vice President of Operations at the Institute on Religion and Democracy, Jerald taught public policy in Pepperdine University’s Washington, DC program. With his wife, Anita, he enjoys reading, classical music, light gardening, travel, and activities at The River Anglican Church.

 

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