ACADEMIC FREEDOM AND FIRST AMENDEMENT RIGHTS OF FACULTY

From the AAUP 1940 Statement on Academic Freedom and Tenure with 1970 Interpretive Comment*

*The following is an excerpt of the 1940 Statement, with internal citations omitted. 

Academic Freedom

  1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
  2. Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
  3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

1970 Interpretive Comments

Fourth 1970 comment: This paragraph is the subject of an interpretation adopted by the sponsors of the 1940 “Statement” immediately following its endorsement:

 If the administration of a college or university feels that a teacher has not observed the admonitions of paragraph 3 of the section on Academic Freedom and believes that the extramural utterances of the teacher have been such as to raise grave doubts concerning the teacher’s fitness for his or her position, it may proceed to file charges under paragraph 4 of the section on Academic Tenure. In pressing such charges, the administration should remember that teachers are citizens and should be accorded the freedom of citizens. In such cases the administration must assume full responsibility, and the American Association of University Professors and the Association of American Colleges are free to make an investigation.

Paragraph 3 of the section on Academic Freedom in the 1940 “Statement” should also be interpreted in keeping with the 1964 “Committee A Statement on Extramural Utterances,” Policy Documents and Reports, 31, which states inter alia:

The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position. Extramural utterances rarely bear upon the faculty member’s fitness for the position. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.

Paragraph 5 of the “Statement on Professional Ethics,” Policy Documents and Reports, 146, also addresses the nature of the “special obligations” of the teacher:

As members of their community, professors have the rights and obligations of other citizens. Professors measure the urgency of these obligations in the light of their responsibilities to their subject, to their students, to their profession, and to their institution. When they speak or act as private persons, they avoid creating the impression of speaking or acting for their college or university. As citizens engaged in a profession that depends upon freedom for its health and integrity, professors have a particular obligation to promote conditions of free inquiry and to further public understanding of academic freedom.

Both the protection of academic freedom and the requirements of academic responsibility apply not only to the full-time probationary and the tenured teacher, but also to all others, such as part- time faculty and teaching assistants, who exercise teaching responsibilities. 

 

Academic Freedom and the First Amendment (2007)
By Rachel Levinson, AAUP Senior Counsel

At the 2007 AAUP Sumer School, then AAUP General Counsel Rachel Levinson summarized the current standing of the protections faculty members enjoy under the academic freedom and the First Amendment.

An excerpt:

One of the most fertile areas for claims of academic freedom and First Amendment protection is, of course, classroom teaching. Speech by professors in the classroom at public institutions is generally protected under the First Amendment and under the professional concept of academic freedom if the speech is relevant to the subject matter of the course. See, e.g., Kracunas v. Iona College, 119 F.3d 80, 88 & n. 5 (2d Cir. 1997) (applying the "germaneness" standard to reject professor's academic freedom claim because "his conduct [could not] be seen as appropriate to further a pedagogical purpose," but noting that "[t]eachers of drama, dance, music, and athletics, for example, appropriately teach, in part, by gesture and touching"). At private institutions, of course, the First Amendment does not apply, but professors at many institutions are protected by a tapestry of sources that could include employment contracts, institutional practice, and state court decisions.

Faculty members are, of course, uniquely positioned to determine appropriate teaching methods. Courts may restrict professors’ autonomy, however, when judges perceive teaching methods to cross the line from pedagogical choice to sexual harassment or methods irrelevant to the topic at hand.

 

The Free Speech Rights of Off-Duty Government Employees
By Mary-Rose Papandrea

This lengthy law review article appraises the current (as of 2010), muddled, court rulings regarding the free speech rights of government employees. The author concludes that the rights of public employees have ebbed and flowed over the course of the twentieth century and we appear to be in an ebb period, with the courts growing more restrictive of employee rights and giving more deference to the right of the employer to punish or discipline speech that interferes with the employer’s ability to operate “efficiently and effectively.” Ultimately, the author concludes that court rulings have gone too far in restricting employee speech.

An excerpt, internal citations omitted for clarity:

The Supreme Court’s most recent public-employee speech case, Garcetti v. Ceballos, may have served only to muddy the waters by embracing the distinction between a government employee acting as “an employee” and one acting “as a citizen.” The Court had suggested this sort of binary approach to public-employee cases before, but it was not until Garcetti that the Court endorsed this approach as a guiding principle. When an employee is acting as “an employee,” he enjoys no First Amendment protection for his speech. To bolster this conclusion, the Court invoked the government speech doctrine, arguing that when an employee speaks pursuant to his job duties, the government employer “has commissioned or created” that speech and can restrict it without violating the First Amendment. This reference to the government speech doctrine raises the question of whether there are other circumstances under which the government can control the speech of its employees in order to protect its own ability to communicate.

Although Garcetti did not involve off-duty speech, it noted that when an employee is not speaking as part of his job duties but instead is speaking as a citizen on a matter of public concern, he may be subject to “only those speech restrictions that are necessary for [his] employer to operate efficiently and effectively.” This statement is a summary of the Connick/Pickering framework. Under this framework, a public employee’s speech is not entitled to any First Amendment protection unless it is determined, as a threshold matter, that the speech involves a matter of public concern, and, even if that requirement is satisfied, the speech is protected only if the value of the speech outweighs the government employer’s interests in restricting or punishing it.