The AAUP’s 1940 Statement on Academic Freedom is the gold standard of academic freedom policies. The principles therein are enshrined in university policies and have been affirmed and reaffirmed in countless court cases.
The second point of the AAUP’s academic freedom policy describes academic freedom in the classroom:
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.
This simple statement contains multitudes and needs to be unwound.
The speech rights of faculty in the classroom are expansive, but not unlimited. In her 2007 address to the AAUP’s Summer Institute, AAUP’s Senior Counsel Rachel Levinson summarized three court cases that describe the limits of free speech in the classroom.
Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002) In Hardy, an African-American student and a "prominent citizen" complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct communications professor, in a lecture on language and social constructivism in his "Introduction to Interpersonal Communication" course. The students were asked to examine how language "is used to marginalize minorities and other oppressed groups in society," and the discussion included examples of such terms as "bitch," "faggot," and “nigger." While the administration had previously informed Professor Hardy that he was scheduled to teach courses in the fall, after the controversy erupted the administration told him that no classes were available.
A federal appeals court concluded that the topic of the class – "race, gender, and power conflicts in our society" – was a matter of public concern and held that "a teacher’s in-class speech deserves constitutional protection." The court opined: "Reasonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment."
Vega v. Miller, 273 F.3d 460 (2d Cir. 2001), cert. denied, 535 U.S. 1097 (2002) Not all courts agree that individual professors have the academic freedom to select the pedagogical tools they consider most appropriate to teach their subject matter. In Vega v. Miller, for example, Edward Vega, a non-tenure-track professor of English, sued the New York Maritime College when the state-run college declined to reappoint him after he led what the college referred to as an "offensive" classroom exercise in “clustering" (or word association) in a remedial English class. The clustering exercise required students to select a topic and then call out words related to the topic. In Professor Vega's summer 1994 class, the students selected the topic of sex, and the students called out a variety of words and phrases, from "marriage" to "fellatio." Administrators found that the professor's conduct "could be considered sexual harassment, and could create liability for the college," and therefore decided not to renew his contract.
Vega argued that the nonreappointment violated his constitutional academic freedom. The federal appeals court sided with the administrators, holding that at the time they made their decision on Vega’s contract, no court opinion had conclusively determined that an administration’s discipline of a professor for not ending a class exercise violated the professor’s clearly established First Amendment academic freedom rights.
The same court has, however, recognized as constitutionally protected a professor’s First Amendment academic freedom "based on [his] discussion of controversial topics in the classroom." Dube v. State University of New York, 900 F.2d 587, 597-98 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991). See also Cohen v. San Bernardino Valley College, 92F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997), and Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1988) (declining to apply institutional sexual harassment policies to punish professor who used "legitimate pedagogical reasons,” which included provocative language, to illustrate points in class and to sustain his students' interest in the subject matter of the course).
Bonnell v. Lorenzo (Macomb Community College), 241 F.3d 800, cert. denied, 534 U.S. 951 (2001) Of course, a professor's First Amendment right to academic freedom is not absolute. As First Amendment and academic freedom scholar William Van Alstyne has said, “There is . . . nothing . . . that assumes that the First Amendment subset of academic freedom is a total absolute, any more than freedom of speech is itself an exclusive value prized literally above all else.” Van Alstyne, "The Specific Theory of Academic Freedom and the General Issue of Civil Liberty," in The Concept of Academic Freedom 59, 78 (Edmund L. Pincoffs ed., 1972). And so, even when courts recognize the First Amendment right of academic freedom for individual faculty members, courts often balance that interest against other concerns.
In Bonnell v. Lorenzo, a federal appeals court upheld Macomb Community College’s suspension of John Bonnell, a professor of English, for creating a hostile learning environment. A female student sued the professor, claiming that he had repeatedly used lewd and graphic language in his English class. While recognizing the importance of the First Amendment academic freedom of the professor, the court concluded that “[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student’s right to learn in a hostile-free environment.” Significantly, unlike the speech in Hardy, the court found Bonnell’s use of vulgar language “not germane to the subject matter” and therefore unprotected.
Of course, speech rights are not the only area where faculty have academic freedom in the classroom. It is a fundamental principle of academic freedom that faculty have the right to control the content of their lessons. Again, Rachel Levinson:
The right of teachers "to freedom in the classroom in discussing their subject" under the 1940 Statement is inextricably linked to the rights of professors to determine the content of their courses. The AAUP’s Statement on Government of Colleges and Universities provides that faculty have "primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction." As one commentator noted: "Faculty will always have the best understanding of what is essential in a field and how it is evolving." Steven G. Poskanzer, Higher Education Law: The Faculty 91 (The Johns Hopkins University Press 2002). Moreover, the expertise of a professor and a department helps insulate administrators and trustees from political pressures that may flow from particularly controversial courses.
Just as with speech, though, the rights of faculty, especially individual faculty are not absolute. In 1998, the 3rd Circuit Court ruled that faculty did not have a First Amendment right to decide what will be taught in the classroom. In that case, though, an individual faculty member was asserting that he did not have to use the department-approved syllabus. The court indicated that the department-approved syllabus was faculty approved, therefore in compliance with the principles of academic freedom.
In several instances, courts have followed Justice Frankfurter in Sweezy v. New Hampshire (1957) and located the right to control in the curriculum, or to determine what is taught, with the institution, not the faculty member.
The UO’s Academic Freedom policy addresses the question of classroom curriculum and seems to give control of classroom content to the faculty member in charge of the class.
1.b. TEACHING. The University's responsibility to help students to think critically and independently requires that members of the university community have the right to investigate and discuss matters, including those that are controversial, inside and outside of class, without fear of institutional restraint. Matters brought up in class should be related to the subject of courses or otherwise be educationally relevant, as determined primarily by the faculty member in charge of the class.
The academic freedom right of faculty members to assign grades is more complicated. In 1998, the AAUP affirmed the general right of faculty members to assign grades as part of academic freedom, but also allowed that there should be an appeals process. The AAUP recommended that an appeals panel should be composed of faculty in the same or allied fields.
In recent years, however, courts, have issued rulings favoring an institution’s right to change the grade a faculty member has assigned. Many rely on Justice Frankfurter’s reasoning in Sweezy v. New Hampshire (1957) and find that it is the institution, not the individual faculty member, that has the freedom to determine what is taught and how it is taught.
Even in cases where courts have found that faculty have the First Amendment right to assign a grade, they have also ruled that the faculty member has no First Amendment interest in the final grade the student receives, allowing institutions to change the grade after it has been issued.