Academic freedom, a Washington Post opinion piece recently asserted, “is under attack across the United States.” To wit, the American Association of University Professors in January lamented “a barrage of hostile actions affecting academic freedom … in Florida’s public higher education institutions.”
In Texas, a bill was filed in March “to protect academic freedom” at the Lone Star State’s public universities from potential legislative assault. And, during her March 29 testimony before the House Committee on Education and the Workforce, Suzanne Nossel (the head of free-expression advocate PEN America) contended that the “drive to render American campuses more diverse, equitable, and inclusive need not — and must not — come at the expense of robust, uncompromising protections for … academic freedom.”
These frets collectively beg a key question: Do professors in public university classrooms (and on Zoom) possess a constitutional right of academic freedom?
Sadly, the right today is tenuous. However, a federal case now pending in Florida provides the U.S. Supreme Court with a propitious chance to add muscle to this vital liberty.
Academic freedom — as a First Amendment right and doctrine — is, as I recently concluded in a law journal article, “both weak and muddled.” The Supreme Court certainly has penned rich rhetoric about academic freedom, dubbing it in 1967 a “transcendent value to all of us.” A decade earlier, the court remarked that “the essentiality of freedom in the community of American universities is almost self-evident.”
But despite such lofty language, the Supreme Court never has articulated precisely what academic freedom protects in public universities. Compounding the problem, one federal court (the U.S. Court of Appeals for the Fourth Circuit) concluded in 2000 that, to the extent any constitutional right to academic freedom exists, it “inheres in the University, not in individual professors.” In short, academic freedom is an institutional right, not an individual one.
The Supreme Court must resolve the confusion regarding academic freedom, given the threats described above. In doing so, it should hold that academic freedom safeguards the right of professors in public university classrooms to: 1) freely express all views reasonably related to a course’s subject matter; 2) openly discuss the strengths and weaknesses of those views; and 3) rationally endorse or reject them in light of their strengths and weaknesses.
This would add much-needed heft to the Supreme Court’s assertion more than 55 years ago that “the Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”
The Supreme Court punted on the chance to embrace such a robust stance on academic freedom in a 2006 case called Garcetti v. Ceballos. The Supreme Court determined there that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Public university professors, of course, are public employees, and when they teach assigned classes, they speak pursuant to their job duties. In short, this spells bad news for recognizing a First Amendment right of academic freedom for professors’ classroom speech.
But the Supreme Court in Garcetti left the door open for lower courts to adopt such a right — to create an academic-freedom exception to the general rule regarding public-employee speech rights. Specifically, the Supreme Court observed that “there is some argument that expression related to … classroom instruction implicates additional constitutional interests” that merit First Amendment protection. But because Garcetti factually did not involve a professor’s speech (Garcetti centered on speech by a Los Angeles County deputy district attorney), the Supreme Court passed on resolving the academic freedom question.
Unfortunately, less than half of the federal appellate courts today have recognized an academic-freedom exception to Garcetti’s general rule that public employees don’t possess First Amendment rights when engaging in on-the-job expression. Significantly, however, a Florida federal district court within the Eleventh Circuit Court of Appeals concluded in November that “academic freedom remains an important interest to consider when analyzing university professors’ First Amendment claims.”
That observation by Judge Mark Walker in Pernell v. Florida Board of Governors largely led him to block enforcement of Florida’s so-called Stop WOKE Act at the university level. The Act restricts what professors can say about eight supposed tenets of critical race theory. Just last month, the Eleventh Circuit left in place Judge Walker’s injunction against the act while it considers the case.
No matter what the Eleventh Circuit ultimately concludes, the Supreme Court should hear the Pernell case. It then should adopt the three-prong view of academic freedom proposed above that safeguards professors’ ability to discuss, critique and reject or endorse all reasonably relevant views on topics covered in a course. Until the Supreme Court does so, academic freedom will remain an amorphous constitutional right.
Clay Calvert, J.D., Ph.D. is professor emeritus at the University of Florida (UF). He held a joint appointment as a professor of law at the Fredric G. Levin College of Law and a Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of “Mass Media Law” (22nd ed. 2023, McGraw Hill).