Academic journal article Washington and Lee Law Review

Who Owns Academic Freedom?: The Standard for Academic Free Speech at Public Universities

Academic journal article Washington and Lee Law Review

Who Owns Academic Freedom?: The Standard for Academic Free Speech at Public Universities

Article excerpt

Who Owns Academic Freedom?: The Standard for Academic Free Speech at Public Universities^

I. Introduction

Picture the following scenario: Professor X informs her public university administrator of her decision to disseminate research results on the controversial subject of socialized medicine. The university administrator subsequently blocks Professor X's publication based onthe administrator's belief that (1) Professor X's position is politically unpalatable and (2) the publication of such research results would adversely affect the university's interests. Most would agree that the administrator's action is impermissible because it violates the First Amendment1 academic freedon2 rights of the state university professor.3

Now imagine that another member of a state university faculty, Professor Y, wishes to access sexually explicit materials on a state-owned computer to research sexual themes in various topics such as art literature, history, and law. Furthermore, suppose that a state statute requires Professor Y to receive prior written approval from his university administrator to access this sexually explicit material. The administrator refuses to allow Professor Y to research sexually explicit material on the Internet because of the administrator's belief that (1) the position held by Professor Y is politically unpalatable and (2) the publication of such research results would adversely affect the interests of the university. Like the example of Professor X, one would assume that the statutory permission requirement inherently violates Professor Y's First

Amendment rights of academic freedom; it impermissibly restricts Y's freedom of research and inquiry.4 According to the United States Court of Appeals for the Fourth Circuit, however, that assumption is wrong.5

In Urofsky v. Gilmore,6 the United States Court of Appeals for the Fourth Circuit recently upheld a 1996 Virginia statute that prohibits any state employee from using Virginia-owned computer equipment to access or store sexually explicit content unless the employee first obtains written permission from a supervisor to access the prohibited material.7 Six professors at Virginia public institutions challenged the constitutionality of the statute alleging that it interfered with their academic freedom to conduct research and to teach.8 The professors, who teach on subjects such as AIDS, human sexuality,

popular culture, and poetry, also claimed that the prior permission requirement restricted their academic freedom because it imposed an impermissible prior restraint.9 They argued that the Virginia Act permitted the state to restrict the inquiry and knowledge of Virginia state university professors and reduced the independence of those professors by placing a substantial veto power in the hands of university administrators.10

Generally, courts have been willing to offer significant free speech protection to professors under the theory of academic freedom. …

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