A Very Sketchy Guide to the First Amendment Law of Academic Freedom:

I had to compose it for a (likely not very influential) document on which a committee here is working, and I thought I'd share it with others. Please keep in mind that this is a very sketchy guide, lacking in the sort of nuance that would turn four pages into forty. It tries to be a summary of existing First Amendment law, and the likely implications from existing First Amendment law when the existing law isn't clear; though I necessarily had to make judgment calls based on what strikes me as the most sensible interpretation of the law in light of the facts as I see them, I am not trying to design the Perfect Constitutional Rule.

Please note also that this at times alludes to what should be dictated by broader academic freedom principles — which may well be more protective of student and professor speech than the law is — but does not take much of a stand on what those principles are; that's the job of another part of the memo on which I'm not working. Finally, note that I do not discuss here the very broad First Amendment protections that private universities enjoy with respect to government action (or the nonexistent First Amendment protections that private university students and faculty enjoy with respect to the private university's action).

* * *

Public universities are bound by the First Amendment. Thus, both public university students and public university teachers are entitled to some protection from discipline, firing, and other retaliation for their speech. In some areas, this protection is pretty clear and pretty broad. In others, it's relatively vague. Student speech outside the classroom and outside academic assignments. Most clearly, students generally may not be expelled, suspended, or otherwise disciplined for what they say in student newspapers, at demonstrations, in out-of-class conversations, and the like. The Supreme Court made this clear in Papish v. Board of Curators, 410 U.S. 667 (1973), and Healy v. James, 408 U.S. 169 (1972). Lower courts have followed suit, especially in the late 1980s and 1990s cases that have struck down student speech codes. See, e.g., Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995); Iota Xi v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993); UWM Post v. Univ. of Wisc., 74 F. Supp. 1163 (E.D. Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989).

Of course, student speech may be restricted if it falls within the narrow categories of speech that's generally unprotected (e.g., threats of violence, personal face-to-face insults likely to cause a fight, or intentional incitement of imminent and likely unlawful conduct). Likewise, the university may impose a substantial range of content-neutral time, place, and manner restrictions, such as bans on the use of sound amplification that would be audible from classrooms. And the university may impose reasonable and viewpoint-neutral limits on student speech on "nonpublic forum" property, such as building corridors and the like.

Still, generally speaking, student speech outside the classroom and outside academic assignments is protected from university punishment, even if it's offensive, wrongheaded, racist, contemptuous, anti-government, or anti-administration. Of course, it's not protected from university criticism. The university is itself free to publicly speak to condemn student statements that university officials find to be unsound or improper. Student speech within the classroom. The Supreme Court has never faced this question expressly, but the logic of the Court's cases strongly suggests that university professors have broad authority to refuse to call on students, to punish students for talking out of turn, and to stop calling on students who insult other students. Purely passive speech, such as speech on T-shirts, may still be protected, see Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969). But oral statements, which can easily disrupt the class discussion, are within the professor's authority. Student speech in academic assignments. Evaluating students' academic performance necessarily involves making content-based, and often even viewpoint-based, judgments. Did the student give the correct answer? Do the student's arguments make sense? Is a student essay well-written, well-reasoned, calm, and rhetorically effective?

There are no Supreme Court cases squarely on the subject, and very few lower court cases, but First Amendment principles generally suggest that universities must have very broad authority to judge such student speech. This is especially so because judges often lack the competence to evaluate the quality of work in various disciplines; they therefore rightly defer to the judgments of academics who are better able to tell what's a good student paper and what's a bad one.

Naturally, academic freedom requires tolerance of a broad range of student viewpoints, so long as they are thoughtfully argued and pay attention to counterarguments. But judges generally stay out of such grading decisions, and leave their limits to professional ethics rather than to First Amendment law. Faculty speech outside teaching and scholarship. Government employers generally have considerable authority over the speech of their employees, much more than public universities have over the speech of their students. Generally speaking, an employer may fire an employee for the employee's speech when (1) the speech is on a matter of private concern, such as general small-talk, or the employee's concern about his own job conditions, or (2) the speech is so likely to disrupt the employer's functioning that the likely disruption outweighs the value of the speech to the employee and his listeners, or (3) the speech is made as part of the employee's official duties. See Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Ed., 391 U.S. 563 (1968); Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).

Nonetheless, the Supreme Court has repeatedly stressed, including in university professor speech cases, that "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," Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). The Court may well ultimately conclude that the role of university professors is such that the normal government employee speech rules don't quite apply to them. As the Court pointed out in Garcetti (which held that speech made as part of an employee's duties is constitutionally unprotected), "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence"; the Court therefore expressly declined to decide whether the Garcetti limitation on employee speech "would apply in the same manner to a case involving speech related to scholarship or teaching." See also Jeffries v. Harleston, 52 F.3d 9, 14 (2nd Cir. 1995) (likewise leaving open the possibility that "a faculty member in a public university[] deserves greater protection from state interference with his speech than [do other government employees]"),

And lower court cases have generally concluded that faculty speech outside teaching and scholarship is indeed quite broadly protected by the First Amendment from employer retaliation, so long as it is on matters of public concern. See, e.g., Levin v. Harleston, 966 F.2d 85 (2nd Cir. 1992). The courts seem to take the view that a considerable degree of debate, controversy, and even disruption caused by offensive ideas is an inherent part of the interchange of ideas in which universities must engage. See, e.g., Mabey v. Reagan, 537 F.2d 1036, 1050 (9th Cir. 1976); Adamian v. Jacobsen, 539 F.2d 929, 934 (9th Cir. 1975). Therefore, while normal employers are generally entitled to fire employees who have (for instance) offended customers or members of the public, universities are probably bound by the First Amendment to tolerate similarly offensive speech by teachers, at least outside the classroom.

Note that this applies to professors facing discipline that might affect their academic posts. Professors who double as administrators — deans, chairs, heads of institutes — may generally be stripped of their administrative positions whenever they say something that higher administrations reasonable see as likely to disruptive. See Jeffries v. Harleston, 52 F.3d 9, 14 (2nd Cir. 1995). Academic freedom may mandate that the professor keep his academic post, but not that he keep related administrative posts.

There seems to be a contradiction, but perhaps I'm reading it wrong:

Generally speaking, an employer may fire an employee for the employee's speech when . . . (3) the speech is made as part of the employee's official duties.

As the Court pointed out in Garcetti (which held that speech made as part of an employee's duties is constitutionally protected)

Those two statements seem to be saying exactly the opposite, but the context doesn't appear to be one of competing arguments
2.26.2007 8:04pm
J. F. Thomas (mail):
Shorter Eugene:

My buddy Glenn can make all kinds of immoral, fascistic, and downright nutty statements (not to mention making legally embarrassing arguments to support those statements), and UT still has to let him teach future lawyers.

Heh, indeed.
2.26.2007 8:11pm
I think you did read it wrong. The first quote talks about the GENERAL rule for government employees, the second quote is DISTINGUISHING the rule for academics in particular. See the preceding sentence: "The Court may well ultimately conclude that the role of university professors is such that the normal government employee speech rules don't quite apply to them"
2.26.2007 8:16pm
Yeah, I think it would be much clearer if it said "(which held that speech made as part of a professor's duties is constitutionally protected"
2.26.2007 8:36pm
The General:
What I'd be particularly interested in knowing is whether a university or college, can define its curriculum to compel political, social or religious beliefs?

For example, say X State Education College requires its students to possess and display certain "professional dispositions." It defines dispositions as "caring for others" or "promoting social justice." Clearly, those are vague definitions. Are they unconstitutionally vague?

Now, what if a professor of a required class, Diversity 101, further defines those vague concepts in class to require acceptance of the ideas taught in the class. One of the theories taught in the class is white teachers can't teach non-white students because of the white teacher's inherent racism. A Student in the class, Adam, (a white guy) disagrees with the professor, argues vigorously against that concept, and attempts to cite materials disputing it in an assignment. The other students just go along to get along.

The professor refuses to allow any source material to be cited if it contradicts the class teachings and further refuses to allow any arguments against that white racism theory. She makes Adam rewrite the assignment. In fact, she makes Adam rewrite every single assignment for a similar flaw.

The professor tells the class that when she hears Adam dispute the white racism theory, it makes her believe that Adam is "unfit to teach." The Professor also tells Adam, via email, that he is not displaying the proper dispositions because he disputes the racism theory and other similar concepts taught in the class. The professor eventually gives Adam an F grade for the class, which puts him on academic probation and prevents him from starting his internship that he needs for graduation.

Adam sues the professor and the College of Education claiming they are compelling him to accept certain beliefs with which he disagrees, violating his First Amendment rights under West Virginia State Board of Ed. v. Barnette (can't compel students to pledge allegiance). The Professor and College argue that the belief system is part of the curriculum, and thus they are protected by their First Amendment right of academic freedom and the court can't step in. They further argue that these beliefs are required because of the influence that teachers have over children. The Court agrees with the Defendants and dismisses the case. Did the court make the right decision? (Obviously, and imperfect hypo.)
2.26.2007 9:02pm
Eugene Volokh (www):
FantasiaWHT: D'oh! My mistype -- it should be unprotected. Will fix it, both above and in the document.
2.26.2007 9:15pm
My understanding of Sweeney is that it articulated a right of a university to determine who may teach, what may be taught, etc. -- not a right of a professor. Also, I've often thought an example of throwing away the ladder once one claimed. Originally, the marital relationship was compared to the academy as a special institution essential to the preservation of the First Amendment, hence Griswold got the door. But only a few years later, Eisenstadt held that it was irrational to treat the marital relationship differently from a non-marital relationship.

Is it rational to treat academic relationships differently from non-academic relationships? After all, if it is people as individuals, not as members of institution, who are protected by First Amendment penumbra, if it is actually irrational to give an institution or institutional membership any special attention, one wonders why members of the institution of academia have any more claim to First Amendment oenumbrae than members of the institution of marriage. Why is it rational for academic speech have any more special protection than non-academic speech? Eisenstadt always struck me as an example of a case where people simply asserted a distinction was irrational without ever supplying a rational basis to support such a claim. One can make such an assertion about virtually any special protection arising from membership in an institution.
2.27.2007 12:51am
I don't have the time to look it up now, but there's a 7th Circuit opinion by Easterbrook, I believe the plaintiff's name is Weinstein, rejecting the claim of a publications-poor tenure candidate that he had a First Amendment right not to speak.
2.27.2007 12:02pm
james (mail):
Some examples of unprotected speech are listed and I feel the need to question whether they are truly unprotected.

Personal face-to-face insults likely to cause a fight - How can this possibly be unprotected? Many a religious or political (or sports) conversation has a high probability of inciting violence. This standard effectively gives the audience the de-facto right of speech censorship through the threat of violence.

Intentional incitement of imminent and likely unlawful conduct: Wasn't this originally limited to plotting treason against the United States?
2.27.2007 6:37pm
JosephSlater (mail):

Nice summary. What's your prediction for academic speech after Garcetti (the question that, as you note, the court left open)?
2.27.2007 10:01pm
Eugene Volokh (www):
James: Personal face-to-face insults likely to cause a fight is a pretty good description of the fighting words exception. Many have criticized it, but it appears to still exist.

Intentional incitement of imminent and likely unlawful conduct is a pretty good description of the incitement exception. It has never been limited to plotting treason.

Joseph Slater: My guess is that, even after Garcetti, scholarship would be treated as protected (note that Garcetti specifically reserved the possibility that universities are different), but both before and after Garcetti, in-class speech was/is subject to considerable potential control (subject to some heightened precision-of-regulation requirement).
2.28.2007 2:29am
james (mail):
The ruling in R. A. V. v. CITY OF ST. PAUL and the original ruling in Chaplinsky v. New Hampshire imply that the intent of the speaker must be only to incite violence. That if the speech includes protected content that the likelihood of inciting violence is immaterial.
2.28.2007 9:25am