Resuscitating the Constitutional "Theory" of Academic Freedom: A Search for a Standard beyond Pickering and Connick

By Chang, Ailsa W. | Stanford Law Review, April 2001 | Go to article overview

Resuscitating the Constitutional "Theory" of Academic Freedom: A Search for a Standard beyond Pickering and Connick


Chang, Ailsa W., Stanford Law Review


INTRODUCTION

When "the most active and inquiring intellects find it advisable to keep the general principles and grounds of their convictions within their own breasts," John Stuart Mill once wrote, "the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind."(1) Mill insisted that only by protecting full freedom of thought and discussion does a society move closer towards truth. One century later, the Supreme Court echoed the philosopher's sentiments in Sweezy v. New Hampshire, and, for the first time, formally recognized a legal concept individuals would subsequently abbreviate as "academic freedom": "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes."(2) Protecting the right of a professor to refuse to disclose his political affiliations, the Sweezy plurality referred to the "vital role" higher education played in a democracy and warned against imposing "any strait jacket upon the intellectual leaders in our colleges and universities."(3) In only one paragraph, the Court elevated academic freedom to the status of a legal theory and reaffirmed the principles philosophers like Mill uttered long ago. But what the Court seemed to fail to realize then and in academic freedom cases since Sweezy was that judicial opinions differ fundamentally from philosophical writing in one very important aspect: Not written for the mere provocation of thought, they must provide clear binding precedent as guidance for lower courts.

The Supreme Court has spoken in grand terms about the importance of preserving academic freedom yet has failed to translate its poetic rhetoric into concrete doctrinal guidance as to what academic freedom truly is, where the limits of such a liberty lie, and how it should be guarded by lower courts. The ambiguous command of the high court to protect a freedom it has not fully defined forces lower courts today to cling to the familiar public employee speech rules found in Picketing v. Board of Education(4) and Connick v. Myers(5) for lack of a better test to use when public universities attempt to penalize professors for instances of speech. Despite superficial allusions these lower courts may make to academic freedom, their knee-jerk embrace of Connick is troublesome because mechanically applying general public employee speech rules to academic contexts causes the judiciary to disregard the unique considerations that distinguish academic freedom cases from generic employee speech disputes. The Connick test provides an inadequate method for approaching First Amendment cases within universities because substantive academic freedom analysis occupies no distinct place within the test and because undiscriminating adherence to its rules has and will continue to produce awkward, inconsistent results in academic settings.

To develop these arguments, I will provide in Part I a brief overview of Supreme Court jurisprudence thus far regarding the constitutional "theory" of academic freedom, followed by a short summary of general public-employee speech rules in Part II. I will then highlight in Part III the questions the Court leaves unanswered in its vague discussions of academic freedom. To elaborate upon the judicial ambiguity which I argue has compelled lower courts to over-rely on the Pickering/Connick test, I will explain the tension between constitutional and professional definitions of academic freedom. I will particularly focus on the divergent views of academic freedom as both an institutional and individual right and the different types of expression constitutional and professional definitions of academic freedom profess to protect.

In Part IV, I will explain why the general public-employee speech test used in Pickering and Connick does not adequately recognize the unique factors associated with academic freedom cases. First, it is questionable whether professors are "employees" of the university in the traditional sense. Second, it is unclear how the institutional academic freedom of the university is to be "balanced" against the individual academic freedom of the professor within the confines of the Connick test. Third, requiring the disputed employee speech to be of "public concern" before it merits First Amendment protection imposes an especially odd burden when professors speak on university premises.

Finally, in Part V, I will offer alternative standards lower courts might use instead of the Pickering/Connick test when adjudicating cases that involve speech disputes between individual professors and their universities, a standard which hopefully will place more emphasis on academic freedom considerations. In this final section, I will focus on three main types of expression by professors: individual choices of what to teach, in-class remarks made during lectures, and critical speech aimed either at the university administration or colleagues (what I will call "intramural speech"). I will also briefly discuss two recent cases in which appellate courts tried to engage either in a Connick inquiry or in slightly misguided academic freedom analysis.

Throughout this note, I will be referring solely to the scenario in which a university tries to sanction a professor for an instance of expression. This emphasis excludes examination of situations in which state legislatures attempt to directly regulate university or professorial speech. Focusing on internal, rather than external, controls on academic speech allows better exploration of the potential conflicts between institutional and individual notions of academic freedom.

I. THE CONSTITUTIONAL "THEORY" OF ACADEMIC FREEDOM

The term "academic freedom" is often used by courts to describe the freedom of a teacher to investigate questions within her discipline and openly communicate the results free from external control by the government or internal control by the academic institution employing her.(6) Descended from the German idea of Lehrfreiheit (freedom of the teacher), academic freedom evolved as a professional ideal within American universities long before the judiciary first recognized the right as one worthy of constitutional protection.(7) In its 1915 Declaration of Principles, the American Association of University Professors ("AAUP") identified three essential elements of academic freedom: "freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extra-mural utterance and action."(8) Not until the 1950s did the Supreme Court formally give academic freedom legal attention. Since then, there has been a meager quantity of Supreme Court cases explaining constitutionally protected academic freedom.

Although not granted the type of independent constitutional status as was awarded privacy in Griswold v. Connecticut,(9) the Supreme Court has referred to academic freedom as a constitutionally distinct concept, one that merits vigilant albeit vague protection by the courts. With very general yet emphatic language, the Court first insisted upon guarding this special freedom in a series of decisions limiting the reach of state laws requiring loyalty oaths and authorizing investigations into subversive activities by public employees. In these opinions, the justices painted the battles over academic freedom as struggles between state governments and universities as institutions. Although exalting the importance of freedom of thought and discussion within academic communities in higher education, these decisions provided much elegant dicta yet few specific standards by which to govern any right to academic freedom. The decisions that use academic freedom as a tool of argument never focus on its meaning; in fact, most of the cases that appeal to the concept are ultimately decided upon separate doctrines such as political expression rights, due process and the privilege against self-incrimination.

A. Academic Freedom Within Higher Education

In 1952, Justice Frankfurter first referred to the purpose of academic freedom in his concurring opinion in Wieman v. Updegraff.(10) The majority held that the interpretation given by the Oklahoma Supreme Court to a state statute requiring that state officers and employees take an oath denying past and present affiliation with certain "subversive" groups violated the appellants' right to due process.(11) Justice Frankfurter warned against the "unwarranted inhibition upon the free spirit of teachers" and its ability "to chill that free play of the spirit which all teachers ought especially to cultivate and practice."(12) Such intrusion, he stated, would create "caution and timidity."(13) Five years later, the Court in Sweezy v. New Hampshire picked up where Justice Frankfurter's concurring opinion in Wieman had left off, articulating the fullest discussion of constitutional academic freedom to date.(14) In Sweezy, the Court held that convicting a college professor for contempt because of his refusal to answer the state government's questions concerning the content of his lectures and his knowledge of the Communist party abridged the professor's right to free speech and academic freedom without due process of law. Emphasizing how crucial freedom in higher education is to a democracy, the Court stated:

   The essentiality of freedom in the community of American universities is
   almost self-evident. No one should underestimate the vital role in a
   democracy that is played by those who guide and train our youth. To impose
   any strait jacket upon the intellectual leaders in our colleges and
   universities would imperil the future of our Nation.... Scholarship cannot
   flourish in an atmosphere of suspicion and distrust. Teachers and students
   must always remain free to inquire, to study and to evaluate, to gain new
   maturity and understanding; otherwise our civilization will stagnate and
   die.(15)

Perhaps the most memorable aspect of the Sweezy decision, however, was another concurring opinion by Justice Frankfurter in which he maintained that "governmental intrusion into the intellectual life of a university" creates a "grave harm."(16) In a developed discussion of the purpose of a university, Frankfurter borrowed from a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand in South Africa what was to become a famous, oft-repeated passage:

   It is the business of a university to provide that atmosphere which is most
   conducive to speculation, experiment and creation. It is an atmosphere in
   which there prevail `the four essential freedoms' of a university--to
   determine for itself on academic grounds who may teach, what may be taught,
   how it shall be taught, and who may be admitted to study.(17)

These four essential freedoms to which Justice Frankfurter referred appeared to mean that a university possessed expansive institutional freedom in faculty appointment and tenure, curriculum, pedagogy and student admissions.(18)

Three years later the Court drew upon the principles expressed in Sweezy when it struck down an Arkansas statute compelling teachers to list, as a condition of their employment, every organization to which they had belonged in the last five years.(19) The Court's decision in Shelton v. Tucker reiterated the judiciary's willingness to protect academic freedom: "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."(20)

Finally, the most recent prominent Supreme Court opinion linking loyalty laws to encroachment upon academic freedom was Keyishian v. Board of Regents of the University of the State of New York, in which the Court voided New York public employee loyalty laws for their vagueness and overbreadth.(21) Justice Brennan delivered the opinion of the Court, specifying for the first time that academic freedom was a "special concern of the First Amendment."(22) He stated: "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. That freedom ... does not tolerate laws that cast a pall of orthodoxy over the classroom."(23) The classroom, the Court emphasized, could only thrive upon diversity of thought: "The classroom is peculiarly the `marketplace of ideas.' 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.'"(24) The Keyishian decision emphasized yet again that battles over academic freedom were institutional battles, fought between state governments and universities. J. Peter Byrne explains:

   The [Keyishian] Court's rhetoric praises academic freedom as an
   institutional right to be free from orthodoxy prescribed by the government
   at large.... This focus on the protection of the system from government
   interference can easily be missed because the term academic freedom had
   always signified an individual right against any interference by
   laypersons.(25)

Since the loyalty oath cases, the Supreme Court has referred to academic freedom only occasionally, without elaborating upon the still hazy articulation of the constitutional theory. In Healy v. James, the Court ordered Central Connecticut State College to officially recognize a student political organization called Students for a Democratic Society, despite the fact that the organization's philosophies were "antithetical" to the school's policies.(26) This decision maintained that the academic freedom of students entitled them to unfettered exposure to diversity of thought: "The college classroom with its surrounding environs is peculiarly the `marketplace of ideas,' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom."(27) The Healy decision did imply that academic freedom may be limited if it produced consequences that were disruptive to the academic community and learning process: "Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education."(28)

In dicta Justice Powell reinforced the Court's support of institutional academic freedom for universities in Regents of the University of California v. Bakke.(29) After declaring that "attainment of a diverse student body" is "clearly a constitutionally permissible goal for an institution of higher education," Powell described academic freedom as including the right of a university to enact admissions policies for itself.(30) He wrote: "Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body."(31) Two subsequent decisions, Regents of the University of Michigan v. Ewing(32) and University of Pennsylvania v. Equal Employment Opportunity Commission,(33) emphasized the deference courts must give to internal academic decisions made by a university. In Ewing, the Court held that the faculty's decision to deny a student's request to retake a written examination was constitutional: "[Judges] should show great respect for the faculty's professional judgment [and] may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment."(34) By maintaining its "reluctance to trench on the prerogatives of state and local educational institutions," the Court was fulfilling its "responsibility to safeguard their academic freedom, `a special concern of the First Amendment.'"(35) However, the majority in University of Pennsylvania v. EEOC, while holding that the EEOC could investigate confidential peer review materials during a discrimination suit, did point out that only "legitimate academic decisionmaking" was entitled to judicial deference.(36) Yet the Court never specified what "legitimate" academic decisionmaking entails.

In sum, piecing together the Supreme Court's references to educational liberties yields a general constitutional theory of academic freedom that aims to preserve the free spirit of education and the unrestricted "marketplace of ideas" that characterizes the ideal classroom. The unfettered search for truth within institutions of learning, a necessity for a modern democracy, is one protected by the First Amendment. Constitutional interpretations of academic freedom suggest that it is primarily a right retained by universities to decide tenure policies, curriculum, pedagogical methods and admissions standards. However, the Court suggests that this freedom might be limited by certain standards that separate legitimate from illegitimate academic decisions.

B. Academic Freedom Within Secondary Education

The Supreme Court has not limited constitutional protection of academic freedom to the university level. Traces of the Court's willingness to protect the rights of teachers and schools to teach as they please at the secondary education level exist as well, though to a lesser degree. As early as 1923, the Supreme Court declared a state law prohibiting the teaching of foreign languages in public schools unconstitutional because no legitimate state interest justified the regulation.(37) An Arkansas statute forbidding any teacher to teach evolution was struck down as violating the Establishment Clause in Epperson v. Arkansas because it had no purpose other than to serve the interests of the dominant religious faith.(38) The Court followed a similar analysis in Edwards v. Aguillard, striking down a Louisiana statute that required the teaching of creationism if evolution constituted an element of the curriculum.(39)

Student expression rights have also been protected within secondary schools. The majority in Tinker v. Des Moines Independent Community School District declared that a ban on black armbands worn on school premises during school hours in protest against the Vietnam War was an unconstitutional restraint on the expressive rights of students.(40) The Tinker Court asserted: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."(41) The Court also intervened when a school board tried to remove certain books from a school's library shelves merely because the board found particular ideas in the books to be "anti-American, anti-Christian, anti-Semitic, and just plain filthy."(42) Justice Brennan explained: "A school library, no less than any other public library, is a `place dedicated to quiet, to knowledge, and to beauty.'"(43) Even though the state government possessed "significant discretion to determine the content of [its] school libraries," such discretion to remove books could not be exercised "in a narrowly partisan or political manner."(44)

However, while the Court supported the importance of freedom of thought and expression in secondary schools, it also acknowledged the greater degree of control state governments could wield over younger students still maturing intellectually and emotionally. In 1986, the Court allowed a public high school assistant principal to discipline a student for sexually oriented comments in a speech to a student election assembly because the school had a "basic educational mission" that might be undermined.(45) The Court in Bethel School District No. 403 v. Fraser stated:

   The undoubted freedom to advocate unpopular and controversial views in
   schools and classrooms must be balanced against the society's
   countervailing interest in teaching students the boundaries of socially
   appropriate behavior. Even the most heated political discourse in a
   democratic society requires consideration for the personal sensibilities of
   the other participants and audiences.(46)

Likewise, the Court granted a high school principal the right to censor portions of the school newspaper in Hazelwood School District v. Kuhlmeier, recognizing the greater need for regulation of expression when the speaker is of a more delicate age: "[A] school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics...."(47)

Critical thinking and the ability to discriminate between varying viewpoints have been regarded by the Court to be abilities acquired only through guidance during the early years. In contrast, courts tend to assume that members of a university community possess the requisite skills to navigate selectively through wide exposure to information and opinions. This recognition of the different levels of emotional and intellectual maturity among secondary school and university students serves as the primary reason academic freedom guarantees for teachers are much stronger at the higher education stage. A teacher in a public high school is expected to indoctrinate to some extent, inculcating particular values and ideas thought indispensable to the young, developing mind. The latitude given such teaching is necessarily more constrained. The university professor, in contrast, is entrusted to maintain an open learning environment in which questioning minds can express differing views. Mark Yudof explains:

   University professors ... are expected to engage in critical examination of
   the dominant paradigms in their fields.... Conversely, ... elementary and
   secondary school teachers are rarely engaged in advanced research, in
   publishing research results, or in testing and sharing their hard-won
   insights with their students.... They are expected to be role models and
   authority figures, commanding the respect and deference of their
   charges.... Thus ... the protection of their pedagogical and intellectual
   autonomy is unlikely to advance the same goals as are identified with
   higher education.(48)

This contrast between the duties of university professors and high school teachers only further emphasizes the special importance academic freedom holds in higher education, and the need to maintain protection of the liberty through specific judicial efforts. By forcing this "special concern of the First Amendment" into a standard public-employee speech formula, courts will be tempted to treat academic freedom as an ordinary, undifferentiated free speech right. The rules in Pickering and Connick, which I detail below, provide minimal opportunity for a tailored analysis of academic freedom concerns.

II. A BRIEF REVIEW OF PUBLIC EMPLOYEE SPEECH DOCTRINE

Because the loyalty oath and subversion cases, which contain the most significant discussions of academic freedom by the Supreme Court, involved direct attempts at control by state legislatures, the constitutional theory of academic freedom primarily focuses on the academic freedom of universities from government influence, rather than of professors from university actions. Lower courts therefore have to improvise when confronted with the latter type of situation. Presently, when a speech dispute arises between a professor and the public university where she is employed, the lower courts' tendency is to automatically apply the general principles of public-employee speech doctrine found in two major cases: Pickering v. Board of Education(49) and Connick v. Myers.(50)

Today, public employers can only limit employee speech pertaining to matters of "public concern" when the employer's interest in "efficiency" outweighs the employee's interest in free speech.(51) The decision in Waters v. Churchill clarified the "efficiency" concern to mean expectation of "disruption," permitting a government employer to fire an employee for speaking on a matter of public concern if (1) the employer's prediction of disruption is reasonable,(52) (2) the potential disruptiveness is enough to outweigh the value of the speech,(53) and (3) the employer took action against the employee based on this potential disruption and not in retaliation for the speech.(54) The government has a legitimate interest in "promot[ing] efficiency and integrity in the discharge of official duties, and [maintaining] proper discipline in the public service."(55)

Rules governing public employee speech rest on the assumption that the government, as an employer, can impose reasonable regulations on the speech of its employees that cannot be imposed upon the speech of citizens in general society. The Court in Waters articulates:

   The government's interest in achieving its goals as effectively and
   efficiently as possible is elevated from a relatively subordinate interest
   when it acts as sovereign to a significant one when it acts as employer.
   The government cannot restrict the speech of the public at large just in
   the name of efficiency. But where the government is employing someone for
   the very purpose of effectively achieving its goals, such restrictions may
   well be appropriate.(56)

The Court's decision in Connick v. Myers clarified what types of speech qualified as expressions of "public concern." Whether an employee's speech addresses a matter of public concern must be "determined by the content, form, and context of a given statement, as revealed by the whole record."(57) Content of the speech should address a matter of "political, social, or other concern to the community."(58) "The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern."(59) The analysis of the speech's "context" and "form" necessarily involves a degree of deference to the government's need to maintain authority and a functioning workplace: "When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view that the employee has threatened the authority of the employer to run the office."(60) In Connick, an assistant district attorney prepared a questionnaire soliciting the views of her co-workers concerning an office transfer policy, office morale, the need for a grievance committee, opinions about various supervisors, and other office issues.(61) This act of expression, considered an act of insubordination by her employers leading to her termination, was declared to pertain to a matter of private concern only. Only the portion of her questionnaire asking whether employees felt pressured to work on political campaigns was deemed to touch on a matter of public concern. On the other hand, the employee's intention to publicly disclose the contents of her speech may weigh in favor of First Amendment protection.(62) In Pickering, a public high school teacher sent a letter to a local newspaper that criticized the way in which the school board and district superintendent handled past proposals to raise new revenue for the schools and the school's allocation of funds among educational and athletic activities.(63) The speech was held to be of public concern.

Once speech is deemed to be of public concern, it must be balanced against various workplace efficiency interests. For example, any "close working relationships ... essential to fulfilling public responsibilities" threatened by the employee's speech will provide additional reason to rule in favor of the employer.(64) If employees have to work together in close quarters or in small teams, speech that tends to disrupt those working relationships can more easily be regulated by employers on the grounds that workplace disharmony will directly obstruct efficiency. Related considerations include "whether the statement impairs discipline by superiors or harmony among co-workers" and whether the speech has "a detrimental impact on close working relationships for which personal loyalty and confidence are necessary."(65)

III. AREAS CURRENTLY LACKING CLARITY IN THE CONSTITUTIONAL THEORY OF ACADEMIC FREEDOM

A. Earnest But Ambiguous Jurisprudence--General Remarks

The lower courts' temptation to disguise free speech cases involving professors and their universities as generic Connick disputes is understandable, given the lack of precise guidance from the Supreme Court's constitutional "theory" of academic freedom. Desiring rules rather than rhetoric, lower courts have clung to the formulaic balancing test in Pickering and Connick simply for lack of a better standard to apply to cases in which professors suffer penalties for their speech. Rich with eloquence yet scanty on doctrinal specificity, academic freedom jurisprudence has left lower courts with a smattering of cases that fail to address several significant issues: how closely constitutional academic freedom is meant to overlap with the AAUP's professional definition, whether academic freedom is an individual right of a professor or an institutional right of a university, and what types of expression by a professor merit protection under the rubric of academic freedom.(66)

J. Peter Byrne criticizes the Court for its analytical restraint:

   The First Amendment protects academic freedom. This simple proposition
   stands explicit or implicit in numerous judicial opinions, often proclaimed
   in fervid rhetoric. Attempts to understand the scope and foundation of a
   constitutional guarantee of academic freedom, however, generally result in
   paradox or confusion. The cases, shorn of panegyrics, are inconclusive, the
   promise of their rhetoric reproached by the ambiguous realities of academic
   life.

   The problems are fundamental: There has been no adequate analysis of what
   academic freedom the Constitution protects or of why it protects it.
   Lacking definition or guiding principle, the doctrine floats in the law,
   picking up decisions as a hull does barnacles.(67)

Discussions of academic freedom often appear to be rhetorical extras in judicial opinions, serving only to underline more basic yet independent doctrinal holdings. For example, the Court ultimately decided Wieman on general due process grounds; the Sweezy opinion relied on due process and political expression rights; the Court held the statute in Keyishian void because of its vagueness; and Powell's discussion of the Equal Protection Clause in Bakke overshadows his fleeting references to constitutional academic freedom. Some, like Mark Yudof, question the extent to which Justice Powell even needed to cite academic freedom in his opinion:

   My own suspicion is that the Powell approach [in Bakke] to academic
   freedom--as my professors used to say in law school--was for that day and
   trip only .... Had he completely omitted reference to academic freedom in
   his opinion and simply stated that the goal of student body diversity is a
   compelling state interest that permits race to be taken into account in
   admissions decisions, he would have reached the same result without
   muddying further institutional academic freedom. But few judges, at least
   in dicta, can resist the temptation to endorse parenthood, family,
   patriotism, and academic freedom.(68)

One factor contributing to the "unfortunate lack of clarity in the judicial definition of academic freedom"(69) is how the constitutional and professional definitions of the freedom diverge, a problem I will now address below.

B. Tension Between Constitutional and Professional Definitions of "Academic Freedom"

The Court's reluctance to define the precise contours of constitutional academic freedom is a natural result of the traditional deference it has paid to educators' decisionmaking. However, while the judiciary attempts to avoid overextending its authority into the academic profession, it must struggle to interpret and apply a term it adopted largely from the professional sphere. How much the Court did or did not intend to use the AAUP's view of academic freedom as guidance for a constitutional version of academic freedom remains unknown, but inconsistency between the constitutional and professional notions of educational liberties is one reason why lower courts are confused as to what legally protectable academic freedom ought to be.

The Court seems to rely, at least in part, on professional interpretations of academic freedom. And, in many respects, constitutional and professional definitions of academic freedom do overlap. Passages in both Sweezy and Keyishian emphasize aspects of academic freedom that are highlighted in the AAUP's own views about the subject. While the Court in Sweezy spoke of "the vital role in a democracy" that is played by higher education,(70) the AAUP referred to the "inviolable refuge from ... tyranny" found in universities.(71) As the Keyishian Court warned against denouncing unpopular ideas and casting "a pall of orthodoxy over the classroom,"(72) the AAUP declared that "the first condition of progress is complete and unlimited freedom to pursue inquiry and publish its results."(73) The AAUP also referred to the university as an "intellectual experiment station,"(74) resembling the Keyishian Court's portrayal of the classroom as "a marketplace of ideas."(75)

However, substantial differences exist between constitutional and professional interpretations of academic freedom as well. First, the professional discussions of academic freedom also refer to duties of professional competence and ethical conduct, and the need for university bodies to enforce such duties.(76) Much of the 1915 Declaration focused on the special training required for professors and the importance of peer review, topics never explored in Supreme Court discussions of academic freedom.(77) The overarching visions of professional and constitutional notions of academic freedom diverge as well: The highest goal of the professional pursuit is an open search for truth among diverse ideas, while the highest goal of constitutional academic freedom, especially with regard to parochial schools, seems to be simply to leave a school alone. Walter Metzger explains this distinction:

   The professional definition subordinates the principle that academic bodies
   should decide things for themselves to the command that they may never
   collectively decide what is true or false. In the constitutional
   definition, institutional neutrality plays no such commanding role. It has
   no bearing on private education, where the constitutional immunity of
   parochial schools from legal bans reinforces the proposition that governing
   boards are at liberty to sponsor creeds.(78)

The two most important differences between professional and constitutional definitions of academic freedom, however, are the contrasting classifications of the right as an institutional and an individual liberty and the types of professorial expression the two definitions each appear to defend.

1. Institutional versus individual academic freedom.

Generally, professionally defined academic freedom is characterized as an individual right, while constitutional academic freedom is described by the Court as primarily an institutional liberty.(79) This divergence results from the fact that the two types of freedom were initially inspired in different settings. The academic freedom highlighted in judicial opinions seeks to limit government action. Opinions like Sweezy were aimed at preventing state governments from interfering with the capacity of educators to believe and teach as they saw fit. The Court in University of Pennsylvania v. EEOC summarized the "so-called academic-freedom cases" as only concerning government attempts "to control or direct the content of the speech engaged in by the university or those affiliated with it" and the right of the university "to determine [for itself] on academic grounds who may teach."(80) The professional notion of academic freedom, in contrast, mainly sought to curb the power of the universities' governing boards. The principles expressed in the 1915 Declaration of the AAUP were directed at lay interference by boards of trustees and university administrators in the research, teaching, and intramural and extramural speech of professors.

Because it regarded an institution (the university) as the potential agent of restriction, the AAUP described academic freedom as a right belonging primarily to the individual professor. For instance, the AAUP's 1940 Statement of Principles on Academic Freedom and Tenure focused on three facets of academic freedom:

(a) The teacher is entitled to full freedom in research and in the publication of the results, subject to the adequate performance of his other academic duties....

(b) The teacher is entitled to freedom in the classroom in discussing his subject, but he should be careful not to introduce into his teaching controversial matter which has no relation to his subject....

(c) The college or university teacher is a citizen, a member of a learned profession, and an officer of an educational institution. When he speaks or writes as a citizen, he should be free from institutional censorship or discipline....(81)

On the other hand, because the Supreme Court adjudicated cases in which state legislatures were pitted against the academic community, the Court's rhetoric largely referred to academic freedom as an institutional right universities possessed. Although the speech of individual professors was at issue in some cases, the Court referred to the academic freedom of the institutions in which they were employed. Justice Frankfurter's concurrence in Sweezy, perhaps the most memorable aspect of the decision, focused on the "four essential freedoms of [the] university,"(82) while Justice Powell's opinion in Bakke referred to "[t]he freedom of a university to make its own judgments as to education."(83) In Widmar v. Vincent, Justice Stevens reinforced the institutional autonomy granted to universities when he wrote in a concurring opinion: "Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities."(84) Admittedly, the Court's categorization of academic freedom as an institutional right is not absolute. The Sweezy and Keyishian decisions addressed state statutes against subversive activities as applied to individual professors, while the Court in Regents of University of Michigan v. Ewing noted that "[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself."(85) But the Court has yet to articulate a theory of academic freedom in a case concerning a speech dispute between a professor and her university, one that weighs the individual academic freedom of the teacher against the institutional academic freedom of the school. Legally, it is not clear which freedom ought to prevail, nor even what standard should be used to choose between the two liberties.

Indecision regarding whether academic freedom should be viewed primarily as an institutional or an individual right prevents any coherent, precise understanding of what the Supreme Court professes to protect. Both unrestricted institutional academic freedom and unrestricted individual academic freedom can potentially lead to troubling results, but whether the Court ever intends to balance the two freedoms against each other is questionable. For instance, if a university is controlled by a lay body, respecting the absolute institutional autonomy of the university certifies the unlimited discretion of a board of trustees whose acts may not always further the pursuit of knowledge. Matthew Finkin argues:

   [T]he German idea [of academic freedom] was premised upon the university as
   a self-governing body of faculty. In America, "the university" encompasses
   a lay governing board and its administrative delegates to which the faculty
   is legally subordinate.... [T]he Powell and Stevens opinions would protect
   as exercises of "academic freedom" decisions that are not necessarily
   related to content or methods of instruction, or to research, inquiry, and
   publication. In fact, the decisions they would insulate need not, and often
   are not, made by academics at all.(86)

The institutional notion of academic freedom does not distinguish between speech that furthers freedom of research and teaching and speech that does not. The First Amendment, therefore, may guard certain decisions from scrutiny that are only weakly related to educational missions.(87) Recognizing academic freedom as an institutional right through judicial deference to university governance may also shield decisions by academic elites within the university's governing structure. Evaluation of research by academic peers will escape review when evaluated professors claim that inappropriate procedures or rationales were used in the peer review process.(88) Such deference may lead to abuse, transforming institutional academic freedom into a tool of power preservation for academic officials, rather than one encouraging an open search for diverse ideas.(89)

Likewise, the Court should not guard absolute individual academic freedom either. Individual academics can make decisions that do not reflect the values underlying academic freedom protection. Certainly no professor has the right to teach factually incorrect material nor material absolutely unrelated to the class students had expected to take. Judicially protected academic freedom that shields the teaching of mathematical inaccuracies or that allows a teacher to spend the entire classroom time sharing his political opinions rather than teaching the foundational material is certainly misguided. As Thomas Gibbs Gee states, "Professor X should not be allowed to decide halfway through English Lit II that instead of completing the class's analysis of The Faerie Queene, he will teach the rudiments of differential calculus."(90) In addition, the possibility of sponsored research for individual professors often places pressures on faculty to shape experiments and even findings in particular directions, a practice which is unquestionably at odds with the unrestricted search for truth associated with the principles of academic freedom.(91) Allowing professors to submit to such pressures without limitation would certainly be an unwise decision. Finally, it would also be odd to allow a professor to openly encourage ethical misconduct within the university community, such as urging students to cheat on exams or to start violent rioting, without having the professor suffer any sort of administrative action for such speech.(92) Professors, as even the AAUP agreed in its 1915 Declaration, must abide by various ethics standards in order to enjoy the privileges of the profession.(93) The Court offers no standard by which individual academic freedom, if such freedom is even part of the educational liberties described in legal opinions, can be limited by the countervailing institutional interests of the university. Instead, the justices pay symbolic homage to academic freedom, failing to define clearly to whom the right belongs.

2. Types of speech protected by constitutional and professional definitions of academic freedom.

Another significant difference between constitutional and professional definitions of academic freedom lies in the type of speech each purports to protect. The Supreme Court has been especially cryptic about the specific kinds of expression that fall under the academic freedom umbrella. Thus far, personal political leanings, classroom lectures, and university policies all seem to fit within the category. In Wieman, Sweezy, Keyishian, and Shelton, the speech at issue was a professor's political associations and beliefs as a private citizen. The New Hampshire state government in Sweezy also inquired into the political content and Marxist biases evident in the professor's classroom lectures. The "speech" in Bakke and Ewing concerned university policies and administrative decisions--the admissions policy crafted by the university's governing board and the decision to deny a student's request to retake a written examination. However, whether a professor is permitted to criticize university policies under a defense of academic freedom has not yet been settled.

The AAUP, on the other hand, implies that speech critical of superiors (i.e., intramural speech) is entitled to academic freedom protection, provided that the expression is somehow related to an academic concern. Its 1940 Statement of Principles declares that "a college or university teacher is a citizen, [and when] he speaks or writes as a citizen, he should be free from institutional censorship or discipline."(94) The AAUP gives no indication that professional academic freedom would shield only a limited subset of professorial speech except for the vaguely general requirement that the professor 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 he is not an institutional spokesman."(95) Overall, professional academic freedom does seem to be more expansive than constitutional academic freedom, particularly in the case of speech critical of university superiors. Matthew Finkin explains:

   [T]he profession never attached hierarchical significance to the subject
   matter of the utterance. Speech by an academic over any matter of academic
   concern was considered protected. Thus, protest over the coerced
   resignation of a colleague, admission standards, athletics, library policy,
   the award of a degree, the quality ... of administrative leadership, salary
   policies, and appeals to outside agencies such as accreditation
   associations and the AAUP itself were all encompassed.(96)

Despite the professional definition's implicit intentions, the Court has yet to explicitly bring professors' speech critical of university policies and officials under academic freedom protection. Only rarely do lower federal courts refer to academic freedom when they invalidate retaliatory dismissals triggered by a professor's criticism of university administrators. Their predominant use of Connick to adjudicate these types of cases only further discourages use of a specific constitutional theory of academic freedom that covers intramural speech; rather, general First Amendment principles are implicitly the sole defense. When a professor criticizes her workplace conditions, just as Sheila Myers did in Connick, the factual parallels are too tempting to resist. Choosing to engage in academic freedom analysis would require lower courts to guess as to whether the Supreme Court ever intended to protect Connick-type speech by professors under a separate rule, and would complicate an otherwise clear balancing test. However, applying Connick too rigidly to university speech cases creates several problems. Before automatically relying upon general public-employee speech rules to tiptoe around the gaps in the Supreme Court's academic freedom jurisprudence, it is important for courts to understand the new perplexities they are creating, and leaving unaddressed, through this hasty application.

IV. AWKWARD RESULTS FROM APPLICATION OF THE PICKERING/CONNICK TEST TO ACADEMIC CONTEXTS

With little guidance as to how much constitutional academic freedom ought to overlap with professional notions, whether academic freedom is an institutional or an individual right, and precisely what types of expression are protected by this liberty, lower courts reach for a formula that, at first glance, applies reasonably well to cases involving public universities that discipline their professors for instances of speech. After all, the public university, funded and run by the state, is a public employer, like the high school in Pickering or the District Attorney's office in Connick. University professors in these cases are, technically, public employees. The Pickering case itself was in an academic context (though a secondary school context). The general rules seem suitable, yet to apply them without any recognition of the unique considerations required by the university setting is to overlook a number of unsettled and important problems created by use of the Connick test.

A. Nontraditional Employer-Employee Relationship in Universities

The first and perhaps most fundamental problem with the automatic application of the Pickering/Connick rules to academic contexts is the fact that university professors are not employees in the traditional sense. Although boards of trustees are entrusted with significant power over university governance, they do not control professors as do typical "bosses." Matthew Finkin explains:

   [U]niversity professors "are the appointees, but not in any proper sense
   the employees" of trustees. "A university is a great and indispensable
   organ of the higher life of a civilized community, in the work of which the
   trustees hold an essential and highly honorable place, but in which the
   faculties hold an independent place, with quite equal
   responsibilities...."(97)

It is true that academic departments within universities have hierarchical structures (e.g., department head, tenured and nontenured professors), but professors, as a whole, do share a significant amount of managerial power at a university. The Supreme Court in NLRB v. Yeshiva University held that university professors resembled managers in an industry, entrusted to make high-level administrative decisions and whose authority is often "absolute."(98) Professors' immense involvement in the hiring, tenure, termination and promotion of other faculty members suggests that in many respects, professors are their own bosses.(99) Calling them mere employees would be careless labeling. Engaging in a general Pickering balancing test to resolve disputes within universities imposes a rigid employer-employee model that distorts the underlying employment structure of these institutions.(100)

B. Neglected Institutional Academic Freedom Interests of the University-Employer

Another shortcoming of the Pickering/Connick balancing test in academic settings is that its mechanistic application cannot effectively take into account the university's institutional academic freedom interests as a public employer. According to Pickering and Connick, government employers have the right to regulate employee speech, so long as the employer's interests in "promoting the efficiency of the public services it performs through its employees" outweighs the employee's free speech interests with regard to comments of public concern.(101) Academic freedom concerns can only be considered when assessing the professor's free speech interests as an employee. This side of the balancing test is open-ended, and it would not be difficult to discuss academic freedom, a "special concern of the First Amendment," in a multifactor analysis of the First Amendment interests at stake for the employee.(102)

However, under Pickering analysis, it seems the greatest concern to a public employer ought to be the smooth functioning of the workplace. The rule does not analyze any First Amendment interests of the employer. The Court isolates a number of factors that weigh in favor of a public employer's right to regulate an employee's speech: (1) the need to maintain "either discipline by immediate superiors or harmony among coworkers;"(103) (2) the importance of "close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning;"(104) (3) the detrimental impact of the speech on workplace operation;(105) and (4) the extent to which the content of the speech concerned the employee's duties as an employee.(106) How much these factors address the underlying academic mission of an educational institution, and therefore the reasons the university would also claim an academic freedom defense, is questionable. Although a school would certainly have an interest in preventing speech that is disruptive to the environment or that threatens harmonious relationships within departments, it seems there is still something greater at stake for a university than mere workplace efficiency. Justice Frankfurter's concurring opinion in Sweezy speaks of the university not as a mere arm of the state government concerned only with its productivity level, but as a place where free inquiry and the search for truth reign:

   In a university knowledge is its own end, not merely a means to an end. A
   university ceases to be true to its own nature if it becomes the tool of
   Church or State or any sectional interest....

   ....

   Freedom to reason and freedom for disputation on the basis of observation
   and experiment are the necessary conditions for the advancement of
   scientific knowledge. A sense of freedom is also necessary for creative
   work in the arts which, equally with scientific research, is the concern of
   the university.

   ....

   ... It is the business of a university to provide that atmosphere which is
   most conducive to speculation, experiment and creation.(107)

To squeeze these unique, multifaceted considerations under the single heading of workplace "efficiency" in a Pickering balancing test is to completely disregard the most important objectives and "special characteristics"(108) of the particular public employer involved in an academic speech case.(109) Judge Motz, in her dissenting opinion in Boring v. Buncombe County Board of Education, recognized the uniqueness of a school's priorities as an employer even at the secondary school level: "School administrators should be free to specify curriculum and to curtail classroom speech for any legitimate pedagogical reason. They should not be required to demonstrate that a restriction on in-class speech is necessitated by workplace efficiency or harmony."(110) The Connick formula oversimplifies, if not misstates, the concerns of a university when its "efficiency" interests are the sole counterweight against the professor's free speech rights. Therefore, a nuanced analysis of conflicting academic freedom interests is not possible, or is at least very difficult, under this generic approach to university speech cases.

C. "Public Concern" as a Meaningless Requirement for Professors

An additional reason academic speech cases fit awkwardly within traditional public employee speech doctrine involves the type of speech that must be at issue before a Pickering balancing test can even be triggered: expression pertaining to matters of "public concern." Employers may restrict speech of strictly "private" concern without making any adequate showing of workplace efficiency interests. The vague Connick holding tells us that whether speech is of public concern depends upon the "content, form, and context of a given statement"(111)--whether the general public would likely be interested in the message or whether it was intended for the public's ears or merely for co-workers' ears, for example. The public concern requirement of the Connick balancing test is a confusing hurdle to overcome in the case of academic speech. When analyzing two areas of professorial speech--instructional choices and intramural speech--it becomes apparent that a public concern rule cannot guarantee consistent results under the Connick formula. As I discuss below, the inevitable confusion caused by the public concern requirement is an additional reason to reject habitual application of the general, public-employee speech cases to the university setting.

1. Decisions of what to teach.

Requiring a professor's speech to be of societal interest before it merits First Amendment protection is a strange prerequisite when the speech in question is a professor's choice of what to teach in one of her courses. Because most of the public employee speech cases concern utterances critical of workplace policies and practices (as in Connick and Pickering), application of Connick rules to academic teaching decisions seems an awkward fit. But even if one were to disregard this awkwardness and apply public employee speech doctrine to these disputes, two theoretical difficulties arise. First, it is possible to argue that what a professor chooses to teach her students in a public university is inherently and always of public concern. Second, it is also possible to argue that public concern analysis forces courts to label nearly all curriculum decisions as private speech because a professor's selection of course material constitutes expression that relates only to the workplace and therefore cannot, by definition, be of general public interest. Either argument renders the public concern requirement a useless rule. I separately discuss each problem below.

It would hardly be a stretch to argue that what professors choose to teach their students is inherently a topic of great concern to much of the public. And, if almost all teaching decisions cart be linked to a topic of public concern in some way, the public concern requirement becomes an illusory hurdle for professors to clear before insisting upon protection of such expression. Debates about what public schools should teach have gained the attention of Americans many times. The removal of "inappropriate" books from school libraries and the teaching of evolution in public schools are only two examples of the intense feelings and opinions inspired by these controversies.(112) These types of conflicts arguably involve expression of some "political, social, or other concern to the community."(113) The role of religion in curriculum has long been a controversial and extremely important issue to the public. For example, in Edwards v. California University of Pennsylvania, a recent case, Professor Edwards had attempted to change his syllabus for a course he taught entitled "Introduction to Educational Media."(114) The second syllabus included a new emphasis on issues of bias, censorship, religion and humanism.(115) One of Edwards' students then complained to the university that the professor had used the class to advance religious ideas. Although the court upheld Edwards' dismissal, the court could not base its decision on the argument that the syllabus changes constituted expression of purely private concern--perhaps because such an argument would clearly seem illogical. Instead, it argued in vague terms, stating that when a professor is designing a class, the state becomes the "speaker," and therefore is allowed to make content-based choices about the curriculum.(116)

Another recent case, though involving secondary education, provides a relevant example of how directly teaching decisions can involve topics of public concern. In Boring v. Buncombe County Board of Education, a high school drama teacher was disciplined for having her class perform a play about a divorced mother and her two daughters, one of whom was lesbian and the other pregnant with an illegitimate child.(117) Although the Fourth Circuit found that the selection of the play was not expression of public concern, the court never explained its reasons for this aspect of the holding. The opinion merely explained, somewhat illogically, that because the conflict was an "ordinary employment dispute," it could not have involved speech of public concern.(118) However, it is possible to argue that the selection of the play indeed pertained to issues of public concern. A production about family life, motherhood, divorce and sexual orientation relates immensely to concerns of the community, and discussion of these themes through a public performance at a state competition further characterizes Boring's choice of the play as speech of public concern. Perhaps the Fourth Circuit refrained from such analysis because it is difficult to articulate a reason why these issues, so important to many individuals today, were not of public concern.

On the other hand, it is also possible to argue that teaching decisions are hardly ever of public concern. Some teaching choices, first of all, do relate to topics of little interest to the general community. While the debate surrounding the teaching of evolution or creationism gained widespread public attention, it is fair to state that a dispute about whether teaching the styles of architecture described in nineteenth-century Victorian literature is relevant material in an English course would not inspire mass public interest. But perhaps mass public interest was never meant to be a rigid requirement to overcome the public concern standard. At most, the Court simply wishes to excise the subset of speech solely involving employment concerns, as in Connick, and apply the balancing test to the type of speech someone would utter as a private citizen, independent of being a public employee.(119)

However, if the Court's intention really is to exclude from First Amendment protection speech that arises only by virtue of employment, another puzzling question is presented. When does a professor's discussion of the material she will teach, which is truly the heart of her employment at the university, ever pass the public concern test? In other words, when a professor speaks about the substance she teaches, she is technically speaking about one of her duties as a public employee. Therefore, can a professor ever be speaking as a private citizen when making intellectual decisions about the structure or direction of her course? The implied answer in Connick is no. It is difficult to argue that Connick would have been decided differently if Myers had, for example, disagreed with the organization of the arguments in a legal brief she was writing with her superiors. This situation, though not perfectly analogous to a professor's teaching decisions, also reflects an intellectual decision made by a public employee. But the language in Connick, paying deference to the employer's need for authority and harmony, may lead to the finding that the discussion about the brief's organization is just another employment dispute, one that Myers' bosses need to win for the benefit of a smoothly functioning District Attorney's office.

Yet, telling a university professor that her decision about what to teach is purely employment-related, and therefore merits no protection according to Connick, is troubling. The personal passions that often define the intellectual leanings of these individuals as private citizens away from the university are the very forces that drive them to a university to teach what they want to teach as public employees. A professor's statements about what aspects of a particular subject are more important to emphasize in her course or what authors to assign on a reading list reflect both personal and professional opinions. Classifying every intellectual thought and decision concerning a course a professor is teaching as strictly internal "workplace" speech erases from potential First Amendment protection an entire sphere of expression a professor would likely utter independent of her job as a teacher. Professor Edwards' Christian beliefs probably did not materialize merely from his experience as a teacher. Declaring that his syllabus revisions, which were likely influenced by his religious beliefs, pertained to a matter of private concern because they concerned a matter that was solely a consequence of his employment at the university (i.e., a syllabus) negates his private convictions as a Christian man. Although Edwards' syllabus revisions do not categorically deserve protection merely because he is a professor, private beliefs are unavoidably going to creep into teaching decisions, and academic freedom principles do demand some personal discretion for professors while teaching.

In sum, a Connick "public concern" requirement fits poorly into academic contexts in two different ways when teaching choices are at issue. Either the requirement is thoroughly useless and indiscriminate if we agree that all curriculum decisions are inherently of interest to the public, or public concern analysis forces courts to label nearly all curriculum decisions as private speech because choosing what will be taught in a class is expression that relates solely to the workplace. The latter consequence is a particularly disturbing Connick over-kill because often, teaching decisions are extensions of personal opinions held by professors as private citizens. Ripping away all First Amendment protection for decisions of what to teach in a class threatens to erode some of the liberties the Supreme Court appeared to be so eager to embrace in the academic freedom cases. The public concern problem as applied to course decisions shows that the automatic application of Pickering and Connick to university speech cases potentially causes confusing and troubling results.(120)

2. Intramural speech.

When a professor's speech is critical of her university's policies or decisions (e.g., complaints about university admission standards, grading policies, tenure policies, peer review standards, personal treatment by colleagues, and other administrative actions)--what I refer to as "intramural speech"--applying the public concern requirement generates further confusion. On one hand, like the first argument about curriculum decisions, such speech is often closely tied to university governance, a topic many would agree is of great public concern.(121) Therefore, again, a public concern requirement may prove useless.

On the other hand, even if we reject the argument that speech about university governance is categorically of societal interest, current lower court jurisprudence regarding the public concern doctrine yields haphazard, uninformative results. A review of lower court decisions about what types of intramural speech by professors pertain to matters of public concern clearly shows that judges cannot make up their minds about what "public concern" is or what types of university speech trigger it. The following instances of intramural expression at the university level have been held by lower courts to be of public concern: a female basketball coach's comments on gender equity problems at the university;(122) a professor's allegations of grade fraud by an adjunct professor under his supervision that were believed to be false;(123) public criticism by several professors of the department in which they worked concerning the curriculum, facilities, faculty-to-student ratio and poor student performance on a licensing exam;(124) a law professor's speech stating lack of confidence in the dean and protesting the school's admission policy, size of student body, budget administration and failure to timely certify students for the bar exam;(125) a professor's speech about multiculturalism at a faculty meeting in which he criticized the multicultural curriculum;(126) and a dental professor's criticism of the recent administration decisions.(127)

However, lower courts have found the following not to be of public concern: a professor's complaint about poor treatment from his colleagues, including ethnic slurs;(128) a professor's complaint about nepotism in creation of a special training program for a relative of a trustee;(129) a professor's accusation that several colleagues had violated ethical rules governing research;(130) a professor's complaint about alleged discriminatory hiring practices at a university;(131) a professor's statement opposing affirmative action in faculty appointments;(132) and an architecture professor's statement at a faculty meeting about the lack of guidance from the university on grading and the university's failure to develop a master's program.(133)

It is immediately evident that no coherent, meaningful line separates intramural speech held to be of public concern and intramural speech held not to be of public concern. To say that these discrepancies are merely the result of the fact that the public concern issue is decided on a multifactor, case-by-case basis is quite an understatement--it seems the lower courts have so meticulously dissected these cases that the dispositive distinctions between them are not apparent. The relevant factors that subtly separate public concern cases from private concern cases have apparently escaped legal scholars as well. Listing the types of secondary school cases in which speech of public concern is likely to be found by courts, Ann Hassenpflug writes: "Speech that addresses issues of quality of education and safety for students, district use and misuse of public funds, a district's implementation of mandated instructional programs, electoral politics, and equity of personnel decisions and procedures is most likely to receive protection."(134) Listing the types of university level cases in which speech of public concern is not likely to be found by courts, Matthew Finkin observes, "Courts have held that speech concerning departmental administration and curriculum, the denial of tenure to a colleague, personnel actions, and the reorganization of an academic program ... as well as personal complaints over salary, promotion, assignment, and collegial relations are unprotected."(135) Clearly, no common "public concern" standards have been ascertained by the courts or by those who study their opinions. The failure of the judiciary to clearly define what types of intramural speech fall under the public concern category only further illustrates the rule's lack of utility in such cases. A rule that has been used incomprehensibly thus far is a rule that can hardly be used effectively in the future. I do not argue that the Connick and Pickering rules are poor standards as applied generally. They simply must be supplemented with additional guidelines that can adequately incorporate academic freedom considerations in university speech cases. In the following Part, I will offer a few ideas that integrate public employee speech doctrine with academic freedom principles, proposing new standards courts may use to decide academic speech cases.

V. FINDING THE APPROPRIATE STANDARD FOR LOWER COURTS

The overreliance on Pickering and Connick has produced inconsistent results and sheds little light upon how academic freedom, a "special concern of the First Amendment," enters into any balancing of interests between university and professor. In this Part, I will suggest possible alternatives to the Connick/Pickering standard, attempting to address the workplace concerns that public employee speech cases guard and also resurrecting the academic freedom principles the Supreme Court had so confidently declared in the early loyalty oath cases. The standards I offer will focus on three basic types of speech by academics: choices of what to teach, in-class remarks, and intramural speech critical of the university or its policies.(136)

A. Decisions of What to Teach

Personal decisions a professor makes about what to investigate in her field or about what direction she should take while teaching a particular course are always, at the outset, most deserving of the academic freedom shield.(137) For example, if a history professor is assigned to teach a modern American history class, academic freedom principles require that the professor be given a significant amount of discretion to decide the organization of the course, the contents of the reading list, what events in recent American history deserve particular emphasis, what types of writing assignments should be assigned to students, and what type of final exam should be given. Because automatic application of Connick rules seems to be particularly inappropriate in cases where a university and professor do not agree on how these decisions should be made, I offer an alternative approach to use when examining a professor's decision of what to teach in a particular course.(138)

Cases of deliberately false or professionally incompetent teaching are the simplest to resolve: a math professor who teaches that 2 + 2 = 8 or a history professor who assigns only his own writings explaining his political beliefs about current events is committing a clear abuse of academic freedom. As the AAUP emphasizes, the privileges of academic freedom are always accompanied by the correlative duties of competence and ethics in teaching. If a professor desires to teach something she deliberately knows is false or outdated, academic freedom defenses are not available. Although a university is a place where the search for truth theoretically never ends, critical evaluation of research and writing and maintenance of professional standards form the foundation of university employment. Academic freedom does not demand absolutely unfettered discretion in teaching. Throwing out the critical aspect of university faculty life is not a victory in the name of academic freedom. J. Peter Byrne explains:

   The First Amendment formally insists upon a complete relativity of value
   among ideas and expressions in order to preserve liberty. Imposing such a
   model on the university would be false and perverse. The government agents
   here--faculty and deans--presumptively are competent to judge by academic
   criteria the value of the speaker's ideas; if we deny their collective
   authority we deny the structural principle of collective scholarship upon
   which the university is built. To "liberate" the fomenter of innovative
   scholarship from adverse consequences would introduce a thoroughgoing
   relativity into scholarly discourse that would destroy categories and
   disciplines, based as they are on accepted and identifiable--as well as
   disputed and changing-- premises.(139)

New controversial speech in academics must always be confronted with critical inquiry and challenge. Academic discourse that fails to meet reasonable professional standards has always been justifiably excludable.

The most challenging teaching disputes are those that involve differing, equally legitimate academic opinions between the professor and the university. For example, a political science department head may ask an associate professor of the department to assign readings from a particular scholar, while the associate professor may believe another author would provide a more lucid explanation of the same concept. If both the university and the professor can demonstrate that their contrasting opinions are derived from wholly educational considerations--that the professor is not choosing a particular scholar's work as a personal favor to the writer, or that the university is not urging the reading of a certain scholar because a wealthy alumnus suggested that the university needed to assign more of the author's works--the court must resolve an extremely difficult conflict. Such cases concern the very crux of the liberties academic freedom theories, whether professional or constitutional, intend to protect: the freedom to make academically grounded decisions within a university. They place the individual academic freedom of the professor in direct conflict with the institutional academic freedom of the university.

Because the sole expression at issue here is a purely academic decision, whether an associate professor's deviation from the university's view merits some sort of sanction is a decision that depends upon the interpretation of professional standards, not legal rules. In such situations, academics should look to authorities such as the AAUP for guidance rather than a lay jury. Rigorous peer review, not courtrooms, must be sought to resolve the conflict. Use of the Connick balancing test is especially inappropriate in these academic disputes because both parties in the conflict arguably possess free speech concerns, not just the employee. The university is most likely concerned with far more than mere efficiency or workplace harmony. Both opinions, allegedly, stem from scholarly judgment. Rather than isolating a conflict between efficiency and First Amendment rights, courts must recognize that the real sources of opposition are grounded in academic theories.

Yet, it is nearly impossible for the judiciary to make an informed choice between the two types of academic freedom. Judges simply cannot be entrusted to comprehend and discriminate among competing academic theories and writings. Justice Kennedy emphasized precisely this point in Board of Regents of the University of Wisconsin System v. Southworth, stating, "It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning."(140) Therefore, it is the role of the academic community to enforce its own professional standards in disputes involving pure academic conflicts. David Fellman explains: "[Academic freedom is] tightly bound up with the special needs, problems and expectations of the teaching profession. A judge, who does not understand these needs, problems and expectations, is not likely to be very helpful in dealing with a case in which academic freedom is the central issue."(141)

Courts can still review certain aspects of the conflict in these cases, however. Judges should at least place the burden upon the university to articulate how its conflicting viewpoint was based on professional academic concerns. If the university cannot fulfill this requirement plausibly, the academic freedom of the professor should prevail. When it appears that both the professor's and university's opinions are legitimate academic viewpoints (which, I admit, will be easy for both parties to convey because, as explained above, judges lack the expertise to engage in "quality-control" of academic decisions), a court can still review a university's method of penalizing the professor for possible academic due process violations. For example, a judge can examine: (1) whether the professor received adequate notice of the institution's conflicting views, (2) whether many colleagues within the department were consulted regarding the course decision, (3) whether the university gave the professor an opportunity to change his lesson plans before dismissal, and (4) whether the university made substantive efforts to understand the professor's academic opinions through fair hearings.(142)

1. Edwards v. California University of Pennsylvania.

Edwards v. California University of Pennsylvania, for example, provided an opportunity for this judicial deference.(143) The university and Edwards disagreed as to the contents of a course syllabus--and both were entitled to some degree of academic freedom. The university could have claimed an institutional freedom to ensure that its professors did not create an uncomfortable learning environment through religious indoctrination in classes. Similarly, Edwards could have insisted that his own academic freedom as a professor, to determine the direction of his course, was threatened. Although the court did ultimately defer to the judgment of the university, it provided little rationale for doing so beyond stating that as an employee of the university, Edwards could not be a purely autonomous speaker.(144) He was essentially a speaker for the university, and therefore the school's institutional interests had to prevail.(145) The court should have placed the burden upon the university to articulate reasons grounded in professional academic standards explaining why Edwards' syllabus changes did not reflect professional competence, or why the university's pedagogical concerns could be better fulfilled without the syllabus changes. Merely declaring that a university's discretion ought to prevail sidesteps the professional and educational concerns that should be the focus of academic freedom disputes. If a university is to win such a case, it must be compelled to ground its decisions in academically based reasoning. The court could also have weighed additional due process factors: (1) the amount of notice Edwards received before dismissal, (2) whether extensive discussion among Edwards' peers took place regarding the syllabus changes, (3) whether Edwards was given ample opportunity to conform to the university's views, and (4) whether the department made substantive efforts to understand Edwards' professional motivations behind the syllabus changes. Although the court may not have been qualified to substantively review the decisions made by Edwards and his peers, overview of the process is a function judges can fulfill.

2. Additional considerations.

Some readers may now be thinking that confining judicial involvement to examination of process, rather than allowing substantive review of the professional decisions made by the universities, will provide only minimal protection for the professor. After all, a professor has little recourse for relief if his peers, the head of the department, or the university president oppose his academic ideas but have half-heartedly gone through the formalities of "hearing the professor out." Although I believe most universities have an interest in maintaining sincere, rigorous evaluation procedures for their professors, I also feel that leaving some room for institutional discretion is not distressing on a theoretical level. Any discussion of academic freedom cannot ignore the great amount of autonomy to which universities have always been entitled in governing themselves. Universities are certainly allowed to pursue their own educational objectives, making overarching judgments about schoolwide curriculum and academic policies. Justice Stevens explained precisely this point in his concurring opinion in Widmar v. Vincent:

   In performing their learning and teaching missions, the managers of a
   university routinely make countless decisions based on the content of
   communicative materials. They select books for inclusion in the library,
   they hire professors on the basis of their academic philosophies, they
   select courses for inclusion in the curriculum, and they reward scholars
   for what they have written.(146)

To some extent, a university actualizes its educational mission through the hiring of professors. Although these professors are not mere spokespeople for the university, a school must retain some amount of control over the academic decisions of the professors--otherwise, an institutional academic vision becomes hopeless.(147)

Even the AAUP's 1915 Declaration made references to the idea of peer review to serve as a check against decisions made by individual professors whose motivations were not driven by purely academic values. These peer review bodies, "composed of members of the academic profession, which may be called into action before university teachers are dismissed or disciplined, ... may determine in what cases the question of academic freedom is actually involved."(148) A university's ability to discriminate against less promising scholarly work is one of its most important functions. Ronald Dworkin writes:

   Universities do well not to hire scholars, no matter how clever or
   persuasive, who are committed to ideas their colleagues think patently
   wrong, or trivial, or of no intellectual importance. It is unobjectionable
   for a biology department not to hire a creationist, or a history department
   someone who denies the Holocaust, or an economics department someone who
   will devote his career only to the special economics of the baseball card
   market. University resources are limited and should not be spent on those
   who will occupy their time developing arguments for what is plainly false
   or researching what is obviously of no serious interest.... [O]verall,
   given that academic resources are limited, it is better that they be
   allocated to scholars whose work strikes other academics as promising.(149)

Universities necessarily act on the basis of employee speech--they can sanction professors whose teaching or research does not satisfy academic standards of competence. Judge Easterbrook emphasizes:

   "The government" as an abstraction could not penalize any citizen for
   misunderstanding the views of Karl Marx or misrepresenting the political
   philosophy of James Madison, bur a Department of Political Science can and
   should show such a person the door--and a public university may sack a
   professor of chemistry who insists on instructing his students in moral
   philosophy or publishes only romance novels.(150)

The bias towards institutional academic freedom evident in Supreme Court opinions further strengthens this argument. Yet, this is not to say that institutional autonomy over curriculum should be absolute. By adhering to the standards that govern the academic profession, the individual rights of the professor must constantly be weighed against the rights of the university. At a minimum, any university that penalizes a professor must first ensure some form of due process, taking into account the factors discussed above.(151)

B. In-Class Remarks

Cases concerning controversial or intensely offensive remarks made by professors during lectures present challenging academic freedom disputes as well.(152) Although a professor must be given a significant amount of discretion in crafting classroom lectures to reflect both her personal understanding of the material and her individual style in conveying that knowledge, not all comments made by a professor during lecture necessarily promote a pedagogical purpose. The less a statement is driven by a sincere, professional motivation to teach the course's designated material, the less academic freedom protection a professor can demand for her utterance. I am not arguing that nonacademic statements should receive no First Amendment protection at all; safeguarding those statements should simply rest on some ground other than academic freedom. A classroom is committed to a specific educational purpose--the dissemination of knowledge. Any speech that deviates from the subject to which the particular hour is devoted does not further this goal, and, therefore, cannot as readily rely on a defense rooted in educational values. Discourse in the classroom that strives to enjoy academic freedom protection must reflect a professor's genuine efforts to substantively educate her students.

Admittedly, a rule that grants academic freedom protection merely to relevant "educational statements" cannot be applied very easily. Lectures by professors are characterized by a variety of rhetorical devices--personal anecdotes, jokes, illustrative examples of everyday life, and personal opinions on current issues, to name a few. Drawing a line between speech that is purely instructional and speech that is not is a challenging task, because pedagogical expression rarely falls into clean, unqualified categories. In this section, however, I will attempt to roughly sketch where such a separation might be made by offering certain examples of classroom expression and specifying the degree to which the speech can rely upon an academic freedom defense.

Instances of speech that can most easily be denied academic freedom protection are cases in which a professor speaks solely with the purpose to degrade or humiliate a student. These types of utterances, popularly referred to as "hate speech," are insulting statements aimed at a person's race, gender, ethnicity, religious affiliation, disability or sexual orientation.(153) This expression is clearly not driven by legitimate pedagogical intentions and can even harm academic objectives by creating a hostile learning environment for students. For example, consider an English professor who calls on a Chinese-American student in class, saying, "Prove that you people can actually speak understandable English. Read the first passage aloud, please." If the university administration were to discipline the professor for this insult, the professor should not be able to rely on an academic freedom defense. It is difficult to argue that the statement above embodies "the freedom of inquiry and research" or "the freedom of teaching"; it does not promote the learning of the student nor is the statement motivated by a sincere desire to impart knowledge. Such utterances only serve to dampen student morale, disrupting the search for truth that should take center stage in a classroom.(154) The professor in this example may be able to depend on other First Amendment theories--I only argue that his defense should not be derived from academic principles.

Even statements that are not uttered to deliberately insult individuals can be denied academic freedom protection if the speech is irrelevant to the class material, detracts from the learning process, and is not expressed for any clear teaching purpose. Academic freedom should not excuse gross insensitivity driven by unprofessional motivations. For example, in Booher v. Board of Regents, Northern Kentucky University, an art professor was disciplined for allegedly causing a sexually hostile environment for his students.(155) While teaching the concept of "mechanical[ly] drawing" a person with a nude female model present, Professor Booher apparently said to a male student, "You want to lick her," referring to the model.(156) On another occasion, while a student was taking photos to document her mural project, Booher asked her, "Did you get my bald spot in the picture?" After the student asked him if he tried Rogaine, he said, "No, because I was told that if you have sex with your girlfriend once a day that will cure it."(157) Claiming that these statements fall under academic freedom protection would require the conclusion that this speech furthers a pedagogical goal. What Professor Booher intended to "teach" through these off-the-cuff utterances, however, is unknown. Booher himself offered no specific, professionally grounded justifications for his expression either--most likely because these particular statements were not meant to teach anything at all. A theory of academic freedom cannot guard remarks that embody no academic values.

Another relevant example of professorial speech uttered for no clear teaching purpose occurred when an assistant professor of public relations at Florida A&M University used the term "nigger mentality" to describe an unambitious state of mind.(158) Before class one day, Professor Gerald Gee's students were complaining that the university did not provide adequate practical experience in preparing them for their careers. Although the discussion did not pertain to the lesson planned, Gee devoted a few moments of lecture time to the matter, insisting that one cannot "in this day and age ... sit around waiting for a break" and that anyone who did not "take advantage of the opportunities that are there, or who doesn't make opportunities ... may be guilty of having what some would call a `nigger mentality'--the sort of thinking that can keep us all on the back of the bus forever."(159) A professor is only entitled to academic freedom in her professional capacity. Statements made outside of that professional role must rely on general First Amendment principles for protection. Although Gee might have argued that he was teaching the "lessons of life" to his students, such pedagogy strays from the professional scope of Gee's university duties as a public relations professor. Justifications for academic freedom are strongest when the expression at issue directly relates to a professor's particular expertise or designated role at a university. The theory does not bestow upon a professor added free speech rights for every statement uttered merely because of her status as a teacher.(160) Statements by a professor that do not directly clarify or present course material presumptively deserve less protection than do other remarks uttered in the classroom, at least under a theory that bolsters the "freedom to teach."(161)

A more difficult, and probably more common, category of in-class speech is expression that is clearly meant to facilitate instruction of the designated course material, but is so distasteful or offensive that the university tries to discipline the professor for her choice of words. In Silva v. University of New Hampshire, Professor Donald Silva explained "focus" in writing as follows:

   I will put focus in terms of sex, so you can better understand it. Focus is
   like sex. You seek a target. You zero in on your subject. You move from
   side to side. You close in on the subject You bracket the subject and
   center on it. Focus connects experience and language. You and the subject
   become one.(162)

Female students complained that Professor Silva had violated the school's sexual harassment code. Another case, Cohen v. San Bernardino Valley College, presented a similar situation. During a class discussion on pornography, English professor Dean Cohen read aloud articles he had written for Hustler and Playboy, which contained graphic sexual descriptions of his reactions to pornographic movies.(163) Cohen also used profanity repeatedly during his lectures. Some students felt Cohen's speech could be punished under the school's policy against sexual harassment. Finally, in Hetrick v. Martin, another English professor tried to illustrate the "irony" and "connotative" qualities of the English language by telling her freshman students, "I am an unwed mother."(164) The statement apparently caused great confusion and discomfort among some of her students, some of whom were generally displeased with her teaching. For several reasons, some involving teaching philosophy and some not, the university failed to renew her contract.(165)

These cases present troublesome hybrids between what appears to be a professor's sincere desire to teach and (according to the university) a poor choice of words. Speech that is genuinely aimed to teach students assigned course material must enjoy at least a presumption of academic freedom. The court should then place the burden upon the university to explain why the pedagogical justification given by the professor was pretext or why it did not conform to professional standards of competence. If the university at this point articulates its own academically substantiated justification for disciplining the professor, the court is again faced with a situation in which the individual academic freedom of the professor is directly pitted against the institutional academic freedom of the university. A professor may have the academic freedom to present material to her class in her individual style, but the university can simultaneously claim its own academic freedom to ensure that school-wide educational goals are not subverted by misguided professors. For example, a university may point to a sexual harassment policy, as in Silva and Cohen, and argue that maintaining a nonhostile learning environment is essential to the promotion of scholarship. To adjudicate such conflicts, a court might attempt to weigh the pedagogical motive of the professor against the speech's likely instructional effect--examining such factors as the relevance of the professor's comments in clarifying the material being taught,(166) whether the statements effectively fulfilled their illustrative purpose,(167) how disruptive or disturbing the comments proved to be to the classroom environment.(168) and how egregiously the speech falls outside established professional norms.(169) But again, courts may find themselves ill-equipped to make certain judgments academic committees could more appropriately handle, especially when trying to establish how much a professor ignored professional standards when choosing her words. As for decisions of what to teach, when institutional and individual academic freedoms directly conflict, courts should extricate themselves from nuanced academic review and instead closely examine the academic due process given to professors.(170)

C. Intramural Speech

Crafting a standard governing a professor's right to criticize colleagues, administrators, policies and other issues within the university community also presents a complex task. The first obstacle is deciding what portion of intramural speech deserves First Amendment protection. To claim that the entire scope of intramural speech falls under the shield of academic freedom is to advocate protection for complaints about faculty parking spaces, salaries and medical benefits--protection that is supposedly justified by the unique professional concerns of academics such as the advancement of knowledge and critical inquiry. It is certainly neater to sweep all professorial expression "under the umbrella of academic freedom,"(171) but choosing this simplistic approach threatens to cloud the original meaning of academic freedom. Paul Brest states:

   [A]t some point the relationship between artistic expression and political
   speech is not close enough to fit within [Meiklejohn's extended political]
   conception of the first amendment. Analogously, I doubt that there is a
   close enough relationship between criticizing the college president for her
   parking policy or the paint color she chooses and espousing a controversial
   or unpopular view in one's discipline.(172)

Academic freedom should not be understood as a right that reaps personal benefits for an individual professor. Grounded in the importance of freedom of inquiry, the protection of the right was meant to further the search for knowledge, the fruits of which would benefit society at large. Therefore, traditional notions of academic freedom never demanded unlimited, absolute freedom of intramural utterance--academics were granted freedom on the condition that each would fulfill the accompanying duties of professional competence and ethics. These duties were to be enforced by colleagues and the university as an institution. The AAUP did not explicitly grant unlimited freedom of intramural speech in its 1940 Statement. The two main freedoms discussed in that report only concerned the professor's "freedom in research and in the publication of the results" and the "freedom in the classroom in discussing his subject."(173) For these reasons, it is harder to accept the argument that professors are "uncompartmentalized whole[s]," whose expression cannot be divided into categories.(174) Protesting that lines should not be drawn between "professional" and "unprofessional" speech simply because these lines would be difficult to draw unreasonably brings into question every legal doctrine that forces judges to make distinctions. The possibility that professors may have to "guess" as to whether their speech is protected before expressing it is no greater of a burden than that placed on other public employees who have to guess as to whether their statements regard topics of "public concern" before they choose to utter them.(175)

Therefore, academic freedom protection should only cover certain portions of intramural expression. But rather than separating the protected from unprotected areas by deciding which statements involve matters of "public concern," as Connick would require, the threshold question for courts to answer should be whether the speech directly relates to a core concern of the academic profession. Speech related to teaching and research is, after all, "different [from] speech about faculty parking."(176) Utterances concerning matters outside a professor's academic expertise, or expression that links tenuously to research, publication, critical inquiry, and the search for knowledge, should not receive protection from a theory that is built upon strictly academic values. Examples include complaints about faculty parking, low or inequitable salaries, inadequacy of medical and retirement benefits, the nonresponsiveness of administrative officials, and racial and gender discrimination. Similarly, strictly personal disputes with superiors and accusations against administrators and colleagues that demonstrate a reckless disregard for truth merit no academic freedom protection. All these examples are instances of speech that can be found in nonacademic professional settings as well. Therefore, these areas of professorial expression can be legitimately governed by the Pickering and Connick standards--these cases truly involve ordinary employment disputes. The instances of speech here may deserve First Amendment protection, but the justification for this shield is not to be derived from unique academic freedom principles.

On the other hand, intramural speech that addresses concerns both particular to the academic profession and tightly connected to the freedom of research and teaching deserves the unique defense of academic freedom. It is not sufficient that the speech merely be "unique" to professors--it must clearly relate to the values of critical inquiry. For instance, a professor who complains about the distasteful decorations of a graduation ceremony may be uttering remarks public employees of other professions would probably not have reason to make, but the remarks do not concern any educational search for truth or knowledge. Intramural speech that implicates academic values includes complaints about grading standards, admission policies, tenure requirements and decisions, class size, and course load--any issue that closely and directly impacts a professor's ability to teach, research and engage in the pursuit of knowledge. The more clearly a professor's intramural speech relates to topics of an academic nature, the stronger the justification is for courts to protect her speech through a theory of academic freedom.

Unquestionably, there will be difficult hybrid cases in which academic concerns might be driven by personal motives (e.g., a professor pushing for reform of admissions standards to make it easier for her nephew to get admitted) or in which workplace-type complaints are fueled by strictly academic disagreements (e.g., a professor complains that his peers are "unfriendly and cold" to him and purposely do not volunteer to help him on committees just because they do not like the controversial theories he publishes). A theory of academic freedom, although offering no clear-cut resolution to these disputes, will at least impel a judge to ask the relevant questions. The inquiry will be focused on how much the expression furthers the goals of academic freedom, rather than how much this otherwise protected expression sacrifices workplace efficiency. The threshold "public concern" requirement in Connick would provide an ill-fitting standard in such cases, because academic intramural speech might not always attract substantial public interest--such as a professor's complaint that being forced to grade on a mandatory curve is a poor idea for her particular course. However, lack of societal concern regarding an academic topic should not prevent protection of such speech on university premises.

1. Feldman v. Ho.

A very recent Seventh Circuit case provides an example of a difficult intramural speech case. In Feldman v. Ho, a math professor charged one of his colleagues with plagiarism, alleging that she had tried to improve her standing by falsely claiming that she had written a paper jointly with a famous mathematician.(177) The university found the accusation largely unsubstantiated and decided not to renew Feldman's contract for the next year. Although acknowledging that the charge may have been speech of "public concern," the court felt it inappropriate that a "jury rather than the faculty determine[d] whether Feldman's accusation was correct."(178) The Seventh Circuit, like the court in Edwards, agreed that the university was entitled to a high degree of institutional autonomy, and validated the school's actions in deference to the department's judgment.(179) Although the court appropriately recognized the shortcomings of the Connick balancing test in a university speech dispute, it prematurely advocated a stance of judicial abstention. The court should have first addressed the threshold question of whether Feldman's comments were of a wholly academic nature. After investigating the nature of the speech--determining whether the accusation was a statement relating to academic policy concerns or mere personal invective--the court would have two choices: If the charge appeared to be a sincere attempt at enforcing ethical standards within academic scholarship, the speech should be protected under a defense of academic freedom; however, if the accusation was little more than an unsubstantiated personal attack, the court should apply the Connick standard because the conflict would be nothing more than an ordinary employment dispute. Under Connick, such speech would probably not fulfill the public concern requirement, because it is primarily motivated by personal animosity generated in the workplace. It is unknown from the facts of the case whether Feldman's charge had been driven by personal animosity or valid academic judgment, and perhaps this type of factfinding would prove extremely difficult. However, the court must begin by asking the relevant questions, must recognize the substantial academic freedom concerns potentially at stake in such a case, and must not readily surrender its decisionmaking to universities which do not always act in the best interests of academics.

2. Additional considerations.

Judicial deference to the professional decisionmaking of academics is not required as greatly in cases of intramural speech because, unlike disputes over what a professor shall teach in her course or how pedagogically effective a professor's in-class comment is, intramural complaints against the university do not directly interfere with nor threaten the institutional academic freedom of the school. When a professor resists the department head's advice about what to teach in a particular course, the professor might be defying the educational mission of the university by teaching as she pleases. When this educational mission is obstructed, the university's freedom to pursue its own academic goals is limited. However, when a professor merely complains about the university's tenure requirements or admission standards, she does not utter any speech that displaces the university's. Professors in these cases are sanctioned by their universities for the mere utterance of the complaint--not for the attempts to actually change the policy. Therefore, intramural speech cases, if defined as speech cases that involve only criticism of the university, do not involve direct conflicts between individual and institutional academic freedom. Only the professor's academic freedom is at stake.

Therefore, once the court believes particular intramural expression contributes to the goals of academic freedom, it should guard the speech without balancing it against any university interests. No Connick balancing test should be employed in these cases. Judicial analysis concerning intramural speech should first turn upon the threshold classification of the speech (academic versus nonacademic). Then only when the intramural speech is considered too weakly related to teaching or research to merit an academic freedom defense should the court weigh the speech against the university's Connick-type workplace interests, such as the tendency of the speech to cause disruption of the work environment or disharmonious relationships among colleagues.

By automatically circumventing a Connick balancing test once a sufficient nexus between the intramural speech and academic values has been established, I am implicitly arguing that speech implicating academic freedom rights presumptively deserves more First Amendment protection than the speech of other public employees, whose expression must always be weighed against the employer's efficiency interests once the speech is said to involve a matter of public concern. It is possible to argue that if academic freedom is simply a fight within the First Amendment, a professor's claim of First Amendment protection should not be considered so substantial that it can escape being weighed against efficiency interests while a regular public employee's comment of "public concern" cannot. However, this disparate treatment between the speech of professors and that of other public employees is precisely the approach needed if courts are to bolster the notion of academic freedom with substance rather than lip service. Academic freedom may occupy a place within First Amendment rights, but it is a distinct concept that might be diluted or neglected if lumped into a general First Amendment category and forced into a standard Connick balancing test. The term "academic freedom" does not simply translate into a professor's "freedom of speech"; instead, it is conferred upon statements that reflect particular values. Merely asking if the professor's speech addresses a matter of public concern may cause courts to overlook attributes that render the speech more deserving of protection than "ordinary" public employee speech.

Another reason speech that gives rise to academic freedom rights is presumptively more deserving of protection is the fact that academic freedom is not solely an interest of the professor-employee. The university, an institution created for the furtherance of knowledge, is fundamentally devoted to maintaining the principles of academic freedom, particularly in cases where no institutional academic freedom conflicts with the professor's. The professor and university are therefore engaged in a symbolically mutual endeavor to guard academic freedom--even if in a specific instance the university misguidedly tries to retaliate against a professor's academic speech. In contrast, other public employers, such as a district attorney's office, do not profess to promote their employees' professional free speech as a fundamental mission. Efficiency and workplace harmony have greater relative importance for other public employers than for public universities. To balance a professor's academic freedom rights against merely the "efficiency" concerns of the university assumes that efficiency is the only value at stake for a school of higher education. Professorial speech that implicates academic freedom rights should absolutely enjoy a stronger presumption of First Amendment protection than the speech of other public employees, because one of the primary purposes of the university-employer should be promotion of that very freedom as well.

CONCLUSION

If the Supreme Court cannot bring clarity to the concept of academic freedom, the term risks receiving only superficial legal treatment and offering very little meaningful use. Specifically, the Court has yet to explain the precise contours of the freedom--how much of the legal definition of academic freedom coincides with the professional definition, whether the freedom is entitled to institutions or to individuals, and what types of speech fall under its protection. Giving academic freedom mere rhetorical support without grounding it in clear legal doctrine, the Supreme Court has placed in the hands of lower courts a challenging, ambiguous task. It asks that these courts decisively safeguard a freedom it has indecisively described.

Therefore, when a public university retaliates against a professor for a particular instance of expression, the professor waves the banner of academic freedom futilely to courts that prefer to cling to familiar, well-worn public employee speech principles rather than to attempt a sensible application of emphatic but uninstructive dicta. These courts treat academic speech cases as ordinary public employee speech disputes, asking whether the speech relates to a public concern and outweighs the university's interests in "efficiency." However, applying Connick and Picketing as a reflex is an inappropriate response to speech disputes within academic contexts. The general public employee speech rules provide no methodical way to incorporate academic freedom analysis, professors are not employees of the university in the traditional sense, considerations of the institutional academic freedom of the university are easily lost in a Connick test, and the "public concern" requirement produces questionable results when applied to teaching choices and the intramural speech of professors.

I have attempted to offer alternative approaches by which courts can decide speech disputes within universities. A professor's decision of what to teach and what to utter during a lecture should enjoy the protections of academic freedom only to the extent that the choice is motivated by a sincere desire to further the education and knowledge of her students. Deliberate instruction of false or outdated material and offensive, discriminatory comments that are irrelevant to teaching the subject of a course do not possess any instructive value and therefore should not be entitled to the shield of academic freedom. However, when both the university and the professor have legitimate but conflicting views about what should be taught in a particular course or how the material should be taught, strictly professional standards, rather than courtroom analysis, is the most fitting approach. Judicial deference to academic peer review committees may be necessary when the institutional freedom of the university is in direct conflict with the individual freedom of the professor, because it will be difficult for judges to make informed, nuanced decisions without academic expertise. Finally, with regard to critical intramural speech, the closer the expression in question aligns with the goals of the freedom to teach and research, the stronger the justification is for an academic freedom defense.

Before I conclude, it is important to point out certain realities that exist beyond any vigorous legal debate about academic freedom. To argue that academic freedom can be protected as an absolute right is naive. A young professor who wishes to gain recognition for her work will never enjoy academic freedom in the fullest sense. The main danger to her liberties is not necessarily an explicit imposition of control by university officials but her own internal adjustment of ideas while seeking to earn favorable regard among her peers. In this sense, junior professors are certainly free to write and teach as they choose--to the extent that their work excites those who endow such scholars with professional rewards. This internal censorship is unavoidable in the world of academia, and to many, a necessity in light of a university's limited resources and need to maintain academic standards. But it is an academic influence we must acknowledge, despite how earnestly judges may try to preserve academic freedom principles in the courtroom.

Despite this truth, we must formally and legally preserve the ideal of academic freedom if universities are to remain symbolically committed to the search for truth and the dissemination of knowledge. A society that tolerates penalizing a professor because of the critical or controversial substance of her professional speech deals an injurious blow to the foundations of the entire academic profession. Therefore, by resuscitating the vague yet emphatic principles set out in Sweezy v. New Hampshire, we help give meaning not only to a brief moment of Supreme Court rhetoric, but also to the very basis of academic scholarship and university life.

(1.) JOHN STUART MILL, ON LIBERTY 31 (Elizabeth Rapaport ed., Hackett Publ'g Co. 1978) (1859).

(2.) Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

(3.) Id. Justice Frankfurter's concurring opinion also promoted the notion of academic freedom, offering a fuller and even more memorable discussion of the topic. This opinion will be examined more closely later in this note.

(4.) 391 U.S. 563 (1968).

(5.) 461 U.S. 138 (1983).

(6.) See Valerie Earle, Academic Freedom--The Price is Eternal Vigilance by Professors (II), in ON ACADEMIC FREEDOM 25, 25 (Valerie Earle ed., Am. Enter. Inst., Special Analysis No. 17, 1971):

   [A]cademic freedom is not a natural or civil right of the citizen, but a
   derived right of a particular profession. The scholar as professional can
   fulfill his function only when the right of academic freedom is preserved,
   and only when he himself clearly recognizes and actively assumes the
   obligations correlative to that right.

See also Sidney Hook, Academic Freedom and the Supreme Court: The Court in Another Wilderness, in ON ACADEMIC FREEDOM, supra, at 31, 44 ("[T]he right to academic freedom differs essentially from the rights in the gill of Rights in

that it must be earned, in that it is a function of specific qualifications in whose absence or violation it is extinguished.").

(7.) RICHARD HOFSTADTER AND WALTER P. METZGER, THE DEVELOPMENT OF ACADEMIC FREEDOM IN THE UNITED STATES xii, 386-87 (1955).

(8.) AM. ASS'N OF UNIV. PROFESSORS (AAUP), THE 1915 DECLARATION OF PRINCIPLES, reprinted in ACADEMIC FREEDOM AND TENURE 157, 158 (Louis Joughin ed., 1969) [hereinafter Declaration].

(9.) 381 U.S. 479 (1965).

(10.) 344 U.S. 183, 194-98 (1952).

(11.) Id. at 184-92.

(12.) Id. at 195 (Frankfurter, J., concurring).

(13.) Id.

(14.) 354 U.S. 234 (1957).

(15.) Id. at 250.

(16.) Id. at 261 (Frankfurter, J., concurring).

(17.) Id. at 263.

(18.) Despite the discussions of academic freedom in both the plurality and concurring opinions in Sweezy, the Supreme Court ultimately decided the case by finding what amounted to a procedural due process violation in the Attorney General's encroachment on substantive constitutional guarantees. Id. at 254 ("In our view, the answer is clear. No one would deny that the infringement of constitutional rights of individuals would violate the guarantee of due process where no state interest underlies the state action.... We believe that an equivalent situation is presented in this case.").

(19.) Shelton v. Tucker, 364 U.S. 479 (1960).

(20.) Id. at 487.

(21.) 385 U.S. 589 (1967).

(22.) Id. at 603.

(23.) Id.

(24.) Id. (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)).

(25.) J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L.J. 251, 298 (1989).

(26.) 408 U.S. 169 (1972).

(27.) Id. at 180-81.

(28.) Id. at 189.

(29.) 438 U.S. 265 (1978).

(30.) Id. at 311-12.

(31.) Id. at 312.

(32.) 474 U.S. 214 (1985).

(33.) 493 U.S. 182 (1990).

(34.) 474 U.S. at 225.

(35.) Id. at 226 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

(36.) 493 U.S. at 199.

(37.) Meyer v. Nebraska, 262 U.S. 390 (1923).

(38.) 393 U.S. 97 (1968).

(39.) 482 U.S. 578 (1987) (Although the Court noted that the Louisiana legislature gave lip service to academic freedom as the purported purpose behind the law, the Court found the real purpose to be the advancement of a religious viewpoint.).

(40.) 393 U.S. 503 (1969).

(41.) Id. at 506.

(42.) Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 857 (1982).

(43.) Id. at 868 (quoting Brown v. Louisiana, 383 U.S. 131, 142 (1966)).

(44.) Id. at 870.

(45.) Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986).

(46.) Id. at 681.

(47.) 484 U.S. 260, 272 (1988). See also Pico, 457 U.S. at 914 (Rehnquist, J., dissenting) (distinguishing "the broad-ranging inquiry available to university students" from the need for "an orderly exposure to relevant information" at earlier stages of education); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 524 (Black, J., dissenting) ("School discipline, like parental discipline, is an integral and important part of training our children to be good citizens--to be better citizens."); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (Schools must be a "principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."); Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 370 (4th Cir. 1998) (quoting PLATO, REPUBLIC: BOOK II 281 (B. Jowett trans., Walter J. Black, Inc. 1942) ("For a young person cannot judge what is allegorical and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts.")).

(48.) Mark G. Yudof, Three Faces of Academic Freedom, 32 LOY. L. REV. 831, 836-37 (1987) (citations omitted).

(49.) 391 U.S. 563 (1968).

(50.) 461 U.S. 138 (1983).

(51.) Pickering, 391 U.S. at 568.

(52.) 511 U.S. 661, 673 (1994).

(53.) Id. at 680.

(54.) Id. at 677 ("It is necessary that the decisionmaker reach its conclusion about what was said in good faith, rather than as a pretext....").

(55.) Ex parte Curtis, 106 U.S. 371, 373 (1882).

(56.) Waters, 511 U.S. at 675 (emphasis added).

(57.) Connick, 461 U.S. 138, 147-48 (1983).

(58.) Id. at 146.

(59.) Rankin v. McPherson, 483 U.S. 378, 387 (1987).

(60.) Connick, 461 U.S. at 153.

(61.) Id. at 141.

(62.) See Matthew W. Finkin, Intramural Speech, Academic Freedom, and the First Amendment, 66 TEX. L. REV. 1323, 1331 (1988) ("Although Ms. Myers questioned office efficiency and morale, the information she sought was not developed in anticipation of some public disclosure concerning the conduct of the district attorney's office, but rather was sought in pursuit of a personal grievance, which was not a matter of public concern.").

(63.) 391 U.S. at 564.

(64.) Connick, 461 U.S. at 151-52.

(65.) Rankin v. McPherson, 483 U.S. 378, 388 (1987). Finally, additional factors courts consider in balancing the employee's interest in speaking on matters of public concern against the government-employer's interests include "the extent to which the speech indicates the speaker's lack of fitness to perform his or her duties," "the extent to which the speech affects others in a way that limits the speaker's ability to perform his or her duties," "the extent to which the speech disrupts routine, affects morale, and undermines discipline," and "the extent to which public confidence is affected." NEIL HAMILTON, ZEALOTRY AND ACADEMIC FREEDOM 201 (1995) (citing Thomas W. Rynard, The Public Employee and Free Speech in the Supreme Court: Self-Expression, Public Access to Information, and the Efficient Provision of Governmental Services, 21 URB. LAW. 447, 467-68 (1989)).

(66.) See David M. Rabban, A Functional Analysis of "Individual" and "Institutional" Academic Freedom Under the First Amendment, in 53 LAW & CONTEMP. PROBS. 227, 236-37 (1990) ("Courts have used academic freedom and free speech interchangeably or ambiguously, have attached academic freedom to professors as well as to universities, and have extended it to teachers in public schools and to students generally without considering how its meaning might differ in these various contexts.").

(67.) Byrne, supra note 26, at 252-53. See also Yudof, Three Paces of Academic Freedom, supra note 48, at 844 (citation omitted):

   Until a more persuasive constitutional argument for academic freedom as
   professional autonomy is set forth, the Constitution and the language of
   rights will do little to bolster its case. At best we will encounter only a
   symbolic affirmation by the courts of academic freedom as personal
   autonomy, an approach readily evidenced by the near absence of clear-cut
   academic freedom holdings--despite some extravagant language by our most
   able jurists.

(68.) Yudof, Three Faces of Academic Freedom, supra note 48, at 855-56.

(69.) E-mail from David Rabban, Professor, University of Texas School of Law, and General Counsel, AAUP, to Ailsa Chang (Mar. 25, 2000) (on file with author).

(70.) Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

(71.) AAUP, Declaration, supra note 8, at 167.

(72.) 385 U.S. 589, 603 (1967).

(73.) AAUP, Declaration, supra note 8, at 164.

(74.) Id. at 167.

(75.) 385 U.S. at 603.

(76.) See HAMILTON, supra note 65, at 193.

(77.) See AAUP, Declaration, supra note 8, at 173.

(78.) Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66 TEX. L. REV. 1265, 1320 (1988).

(79.) See, e.g., Cooper v. Ross, 472 F. Supp. 802, 813 (E.D. Ark. 1979) (noting the "fundamental tension between the academic freedom of the individual teacher to be free of restraints from the university administration, and the academic freedom of the university to be free of government, including judicial, interference").

(80.) 493 U.S. 182, 197 (1990) (internal quotations omitted).

(81.) Am. Ass'n of Univ. Professors (AAUP), 1940 Statement of Principles on Academic Freedom and Tenure, reprinted in 53 LAW & CONTEMP. PROBS. 407, 407-08 (1990) [hereinafter Statement of Principles] (emphasis added).

(82.) 354 U.S. 234, 263 (1957) (emphasis added).

(83.) 438 U.S. 265, 312 (emphasis added). One interesting, slightly tangential question is: To what extent does institutional academic freedom really limit state legislatures from regulating public universities, if a public university is, in some respects, an extension of the state? If a public university is established and funded by the state, are the arguments for institutional academic autonomy as persuasive for such a school as they are for a private institution? At some level, most might agree that state legislatures have some rights to set student tuition, student body size, and nonresident admissions policies.

(84.) 454 U.S. 263, 279 (1981) (Stevens, J., concurring) (emphasis added).

(85.) 474 U.S. 214, 226 n. 12 (emphasis added) (citations omitted).

(86.) Matthew W. Finkin, On "Institutional" Academic Freedom, 61 TEX. L. REV. 817, 846 (1983).

(87.) See id. at 851 (quoting Matthew W. Finkin, Some Thoughts on the Powell Opinion in Bakke, 65 ACADEME 192, 196 (1979)):

   The potential evil of the theory of `institutional' academic freedom lies
   in this very lack of differentiation, because, "the interests insulated are
   not necessarily those of teachers and researchers but of the administration
   and governing board; the effect is to insulate managerial decision making
   from close scrutiny, even in cases where the rights or interests of the
   faculty might be adverse to the institution's administration."

(88.) See Amelie Oksenberg Rorty, Dilemmas of Academic and Intellectual Freedom, in THE CONCEPT OF ACADEMIC FREEDOM 97, 103 (Edmund L. Pincoffs ed., 1975) (emphasis added):

   Adjudicating disagreements about whether someone has violated the central
   standards of professional competence by slanting or directing his research
   to serve some interest or preconception will involve judging substantive
   questions, especially when there is considerable stress and disagreement in
   a society.... [J]udgments of disinterested competence are difficult to
   distinguish from judgments of truth and validity.... Our dilemma is that,
   on the one hand, we want to assure academics and intellectuals freedom from
   external interference with their professional activities, while on the
   other hand, we want to avoid placing judgment in the hands of a
   self-perpetuating academic elite, which must form their judgments following
   existing standards of competence.

(89.) See Rabban, A Functional Analysis of "Individual" and "Institutional" Academic Freedom, supra note 66, at 259 (discussing fears among some faculty at Princeton that "[p]rivate universities ... could invoke institutional academic freedom to preclude judicial review of administrative decisions to fire a professor doing controversial research, to determine the content of a course, to revise grades assigned by faculty to students, and to revoke tenure without cause.").

(90.) Thomas Gibbs Gee, "Enemies or Allies?" In Defense of Judges, 66 Tex. L. Rev. 1617, 1617 (1988); see also Judith Jarvis Thomson, Ideology and Faculty Selection, 53 LAW & CONTEMP. PROBS. 155, 170 (1990) ("Suppose a man applies for our position in mathematics and tells us at his interview that he's discovered a frightful mistake made by mathematicians: strictly speaking, 7 + 5 = 13.... A slightly less weird possibility is the candidate for our position in modern European history who tells us at his interview that there was no Holocaust.").

(91.) See David M. Rabban, Does Academic Freedom Limit Faculty Autonomy?, 66 TEX. L. REV. 1405, 1417 (1988):

   External sponsorship creates doubts about whether the professor' s choice
   of topics and stated conclusions actually reflect scholarly judgments, or
   are unduly influenced by the nonacademic interest of the corporations or
   government agencies that fund the research. Professors may be tempted to
   evaluate and treat their colleagues and students based on the possibility
   of financial profit rather than on professional considerations.

(92.) See Hook, supra note 6, at 34:

   [C]onsider the question of a teacher who publicly proclaims that there is
   nothing wrong about cheating on examinations, that students should be
   encouraged to do so, and that the only thing objectionable about the
   practice is to get caught. He certainly has the right to say this as an
   ordinary citizen and enjoy the protection of the First Amendment.... But
   suppose this teacher is employed in an institution where examinations are a
   required element of instruction. Would it be impermissible for his
   colleagues or administrative superiors to take measures, observing the
   safeguards of due process ...?

Consider also the case of Professor H. Bruce Franklin of Stanford University. In 1972, the Board of Trustees fired the tenured English professor for having incited "disruptive" behavior on the campus when he allegedly encouraged students to break into the Stanford Computation Center, where a Vietnam War-related computer program was supposedly being developed. After forcibly entering the building, the students shut down the center. Assuming that Franklin did deliberately engineer the forcible entry, it seems odd to argue that the university had no right to sanction him in some way (though I believe his immediate dismissal was a bit extreme). See Franklin's Firing Final, S.F. EXAMINER, Jan. 23, 1972, at 1; Kenneth Lamott, In the Matter of H. Bruce Franklin, N.Y. TIMES, Jan. 23, 1972 (Magazine); Daryl Lembke, Stanford Teacher Fired for Fomenting Violence, L.A. TIMES, Jan. 24, 1972, at B.

(93.) AAUP, Declaration, supra note 8, at 157-76.

(94.) AAUP, Statement of Principles, supra note 81, at 407-08.

(95.) Id at 408.

(96.) Finkin, Intramural Speech, supra note 62, at 1337-38 (citations omitted).

(97.) Id. at 1335 (quoting AAUP, Declaration, supra note 8, at 397) (ellipses in original) (citations omitted).

(98.) 444 U.S. 672, 686 (1980) (emphasis added):

   The controlling consideration in this case is that the faculty of Yeshiva
   University exercise authority which in any other context unquestionably
   would be managerial. Their authority in academic matters is absolute. They
   decide what courses will be offered, when they will be scheduled, and to
   whom they will be taught. They debate and determine teaching methods,
   grading policies, and matriculation standards. They effectively decide
   which students will be admitted, retained, and graduated. On occasion their
   views have determined the size of the student body, the tuition to be
   charged, and the location of a school. When one considers the function of a
   university, it is difficult to imagine decisions more managerial than
   these. To the extent the industrial analogy applies, the faculty determines
   within each school the product to be produced, the terms upon which it will
   be offered, and the customers who will be served.

(99.) See id. at 686 n.23.

(100.) See Finkin, Intramural Speech, supra note 62, at 1340-41 (citations omitted): The theorists of academic freedom distinguished the professoriate from the prevailing way of thinking about the employment relationship and propounded a profession fully the equal of administrative authority. Consequently, to concede the assumption of a master-servant relationship here, reserving the profession's claim of freedom of expression only to narrowly defined disciplinary discourse, not only would produce a profession in a sense "half slave and half free" ... but also would tend inexorably to place in question the tenability of the claim of equality itself.

(101.) 391 U.S. 563, 568 (1968) (emphasis added).

(102.) Although, to reiterate, how much constitutional academic freedom may be construed as an individual right is unclear, given the amount of judicial rhetoric describing it as an institutional liberty,

(103.) Pickering, 391 U.S. at 570.

(104.) Id.

(105.) See id, at 571 ("[T]he fact that particular illustrations of the Board's claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board.").

(106.) See id, at 574 (pointing out that Pickering's employment was "only tangentially and insubstantially involved in the subject matter of the public communication [he] made").

(107.) 354 U.S. 234, 262-63 (1957) (Frankfurter, J., concurring) (quoting THE OPEN UNIVERSITIES IN SOUTH AFRICA, 10-11 (Witwatersrand University Press 1957) (a statement from a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand)).

(108.) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

(109.) See Finkin, Intramural Speech, supra note 62, at 1333:

   [I]n contrast to Pickering, [academic freedom demands that] as long as the
   professor has adhered to the canons of responsible scholarship--so long ...
   as the professor has adhered to a professional standard of care
   --disciplinary discourse is not to be weighed against any consideration of
   collegial disharmony or hierarchical accountability.

(110.) 136 F.3d 364, 378 (4th Cir. 1998) (Motz, J., dissenting).

(111.) 461 U.S. 138, 147-48 (1983).

(112.) See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987); Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982); Epperson v. Arkansas, 393 U.S. 97 (1968).

(113.) Connick v. Myers, 461 U.S. 138, 146 (1983) (emphasis added).

(114.) 156 F.3d 488, 489 (3d Cir. 1998).

(115.) Id.

(116.) Id. at 491. The court put the matter bluntly: "[A]s a threshold matter, we conclude that a public university professor does not have a First Amendment right to decide what will be taught in the classroom." Id. But see Vanderhurst v. Colo. Mountain Coll. Dist., 208 F.3d 908, 914 n. 1 (10th Cir. 2000) (specifically rejecting this language in Edwards).

(117.) 136 F.3d 364, 366 (1998).

(118.) Id. at 368.

(119.) See Connick w Myers, 461 U.S. 138, 153 ("When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view that the employee has threatened the authority of the employer to run the office."); see also DiMeglio v. Haines, 45 F. 3d 790, 805 (4th Cir. 1995) (Pickering test only invoked when speech is of "public concern" and is spoken in the employee's capacity as a private citizen).

(120.) These concerns are certainly not unique to academic speech cases. Perhaps this is a confusing aspect of the Pickering and Connick rules as generally applied. Whenever a court declares that an instance of speech is not of public concern, and the speech in some way reflects beliefs actually held privately by the speaker, the court might not provide protection to the very types of speech the rules seek to safeguard--speech that the employee would utter as a private citizen. Only if the "public concern" requirement is applied rigorously and judiciously enough to perfectly carve away that expression the employee would not utter but for her status as a public employee can the court prevent these contradictory results. Whether such a judicial feat is possible on a consistent basis, however, is questionable. Some scholars recommend a drastic solution: to overturn Connick and to enlarge the rights of all public employees to criticize their colleagues, superiors, and office policies without requiring that the speech first address a public concern. If the public concern requirement were imposed on all public employees except on professors before workplace speech is protected, some argue, significant questions of inequity arise. See Paul Brest, Protecting Academic Freedom Through the First Amendment: Raising the Unanswered Questions, 66 TEX. L. REV. 1359, 1362 (1988) (suggesting that overturning Connick and expanding free speech rights of all public employees might eliminate some of the difficult problems of inequity created by bolstering only professors' freedom of expression under academic freedom and not the speech rights of other public employees). As I will argue later, however, favorable treatment for professors' speech is not troubling. Without some differentiation, academic freedom, as a uniquely professional liberty, offers no substantial protection for the expression of scholars.

(121.) See Johnson v. Lincoln Univ., 776 F.2d 443, 451-52 (3d Cir. 1985) (noting that even intense disputes about grading, curriculum, and study programs may implicate important public concerns over the academic standards adopted in a public university); HAMILTON, supra note 65, at 201 ("Public education at all levels is an area of great public debate.... Thus, employee speech concerning educational policies on admission standards, curriculum, or grading would be in a context for employee speech that would generally satisfy, the first step of the Connick analysis."); Finkin, Intramural Speech, supra note 62, at 1346 (citations omitted):

   [A]t a time when college costs, curriculum, and quality are the subject of
   intense public debate ..., when university admissions and grading reach the
   Nation's highest court, when an obscure and densely argued book on
   undergraduate education remains on the New York Times best seller list for
   more than forty weeks, it seems there is little that occurs on the campus
   that is not of "political," "social," or at least "other" concern to the
   larger community.

Of course, it is possible to argue that conduct in a DA's office, the focus of the speech at issue in Connick, would also be of interest to society at large. Determining what truly is or is not of public concern is a very difficult task in a society as diverse as ours. An extremely broad range of topics can be said to invoke the interest of significant portions of our community. Perhaps the judicial definition of "public concern" is simply too broad and too vague ("political, social, or other concern to the community"), which renders the Pickering/Connick public concern requirement no longer helpful.

(122.) Lowrey v. Tex. A&M Univ., 117 F.3d 242,251 n.16 (5th Cir. 1997).

(123.) Powell v. Gallentine, 992 F.2d 1088, 1090-91 (10th Cir. 1993).

(124.) Maples v. Martin, 858 F.2d 1546, 1552-53 (11th Cir. 1988).

(125.) Honore v. Douglas, 833 F.2d 565, 569 (5th Cir. 1987).

(126.) Hall v. Kutztown Univ., Civ. A. No. 96-4516, 1998 WL 10233, at *24, *26-27 (E.D. Pa. Jan. 1998).

(127.) Shovlin v. Univ. of Med. & Dentistry, 50 F. Supp. 2d 297, 311-14 (D.N.J. 1998).

(128.) Gumbhir v. Curators of the Univ. of Mo., 157 F.3d 1141, 1145 (8th Cir. 1998).

(129.) Dodds v. Childers, 933 F.2d 271, 273-75 (5th Cir. 1991).

(130.) Stein v. Kent State Univ., 994 F. Supp. 898, 907 (N.D. Ohio 1998), aff'd on other grounds, 181 F.3d 103 (6th Cir. 1999).

(131.) Drennon-Gala v. Univ. of N.C., No. 5:97-CV-947BR(1), 1998 U.S. Dist. LEXIS 15393, at *19 (E.D.N.C. June 30, 1998).

(132.) Harris v. Ariz. Bd. of Regents, 528 F. Supp. 987, 999 (D. Ariz. 1981).

(133.) Pressman v. Univ. of N.C., 337 S.E.2d 644, 646, 648 (N.C. Ct. App. 1985), petition granted, 341 S.E.2d 28 (N.C. 1986) (The appeal seems never to have been heard.).

(134.) Ann Hassenpflug, Avoiding Violations of Faculty First Amendment Freedom of Speech Rights, 134 Ed. Law Rep. 439, 443 (1999).

(135.) Finkin, Intramural Speech, supra note 62, at 1326 (citations omitted).

(136.) These three categories of professorial speech are the three types of utterances which I have chosen to discuss, but they certainly do not include every type of expression by an educator that a university might attempt to restrict. For instance, one category of speech by a professor that I do not discuss separately below is a scholar's freedom of expression within academic work (freedom to research and publish within the academic community as she pleases). This category received considerable attention recently when Dr. Peter Singer was named Princeton University's first professor of bioethics in the fall of 1999. Several demonstrations protested Singer's arrival on campus, pointing out that the scholar's writings had advocated killing disabled infants, the terminally ill, and the elderly and supported human cloning. See David Gibson, Furor over Ethicist Subsides, SAN JOSE MERCURY NEWS, May 27, 2000, at El; Princeton Protesters Seek Ouster of Bioethicist, N.Y. TIMES, Apr. 24, 2000, at B5. Had Singer been dismissed by Princeton because of the public pressure the controversy generated (Princeton continues to support his retention.), the standard I would urge courts to use in deciding such a conflict should closely resemble the standard I propose for "decisions of what to teach" (first category). As I discuss in that section, courts should rely on professional standards of competence within the academic community rather than on rigid judicial tests. Please refer to this first section for a more detailed explanation of the suggested standard.

(137.) See, e.g., E. Hartford Educ. Ass'n v. Bd. of Educ., 562 F.2d 838, 843 (2d Cir. 1977) ("Freedom to teach in the manner of one's choice is a form of academic freedom that is universally recognized, if not invariably protected, at the college level."), rev'd en banc on other grounds, 562 F.2d 838, 856-66.

(138.) Decisions of "what to teach" are academic judgments made in the planning phases for a course--decisions by the professor still designing the direction a class will take (e.g., choices of what aspects of the designated topic she will emphasize in the course, what viewpoints or ideas will be treated superficially or thoroughly, what readings to assign in the course syllabus, what kinds of assignments to give students, and how the final exam will be shaped). The next section, "In-Class Remarks," analyzes what a professor actually says while lecturing.

(139.) Byrne, supra note 25, at 310; see also Thomas I. Emerson & David Haber, Academic Freedom of the Faculty Member as Citizen, 28 LAW & CONTEMP. PROBS. 525, 551 (1963) (citation omitted):

   [I]n the society at large there is an assumption of the equivalence of
   speech. Therefore, no immediate or irremediable harm is done even in the
   case of deliberate distortion, misinformation, or falsehood. In the long
   process of debate the truth will emerge. But the university, ... in so far
   as it performs an indoctrination and certifying function, is designed to
   short-cut the process of debate in certain areas by a full and fair
   presentation through its experts of all the available relevant information.
   In certain contexts where a faculty member fails to do this the harm to the
   educational process may be immediate and at times irremediable.

(140.) 120 S.Ct. 1346, 1355 (2000) (holding that the First Amendment permits a public university to charge its students an activity fee used to fund a program promoting extracurricular student expression, provided allocation of fees is viewpoint neutral).

(141.) David Fellman, Academic Freedom--The Price Is Eternal Vigilance by Professors (I), in ON ACADEMIC FREEDOM, supra note 6, at 19, 19; see also Rabban, A Functional Analysis of "Individual" and "Institutional" Academic Freedom, supra note 66, at 287 ("Courts cannot become a `Super-Tenure Review Committee[s]' or `evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions.'") (citations omitted).

(142.) Because, as I acknowledged, a judge cannot realistically review academic decisions with great scrutiny, placing the burden upon the university to articulate an academically legitimate reason for its judgment may turn into a mere formality with no bite, posing no real "burden" at all. In this sense, this first step I have suggested reminds me of the Supreme Court test in Batson v. Kentucky, 476 U.S. 79 (1986), in which the Court demands that a prosecutor articulate a race- and gender-neutral reason before dismissing a juror through a peremptory challenge. Under the Batson rule, prosecutors have learned that they can make up almost any reason under the sun, as long as race or gender is not mentioned, and the court will likely respect the peremptory challenge. Therefore, to give some "bite" to an academic freedom inquiry when conflicting decisions between a professor and a university regarding what to teach are at issue, I believe courts should rigorously examine the academic due process the professors receive, considering such factors as I mentioned above.

(143.) 156 F.3d 488 (3d Cir. 1998).

(144.) See id. at 491-92.

(145.) See id. at 492.

(146.) 454 U.S. 263, 278 (1981) (Stevens, J., concurring).

(147.) See, e.g., Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972) (holding that the termination of an assistant professor in Northern Illinois University's biology department for overemphasizing sex in his health survey course did not violate the professor's First Amendment rights). The court stated:

   Clark would have us drastically and radically curtail the scope of
   discretion which may be exercised by a state school in deciding whom it
   shall rehire.... Clark has cited no sound authority for his proposition
   that he had a constitutional right to override the wishes and judgment of
   his superiors and fellow faculty members as to the proper content of the
   required health course....

(148.) AAUP, Declaration, supra note 8, at 174.

(149.) Ronald Dworkin, We Need a New Interpretation of Academic Freedom, in THE FUTURE OF ACADEMIC FREEDOM 181, 186 (Louis Menand ed., 1996).

(150.) Feldman v. Ho, 171 F.3d 494, 496 (7th Cir. 1999).

(151.) See, e.g., Perry v. Sindermann. 408 U.S. 593, 603 (1972) (holding that professor was entitled to protection of procedural clue process before being dismissed by state junior college, including being given a hearing, notice of grounds for his nonretention, and an opportunity to challenge those grounds); Mailloux v. Kiley, 448 F.2d 1242 (1st Cir. 1971) (holding that high school teacher who was dismissed for uttering an obscenity in an English class did not receive adequate notice from her superiors telling her that they felt her conduct constituted inappropriate teaching methods).

(152). Courts have noted that the application of an academic freedom theory to classroom speech has been treated with especially disappointing ambiguity. See, e.g., Mahoney v. Hankin, 593 F. Supp. 1171, 1174 (S.D.N.Y. 1984) (recognizing that the contours of academic freedom "are not well-defined, especially with regard to a teacher's speech within the classroom.").

(153.) "Hate speech" is a fairly loose term and precisely what it encompasses has varied. Sometimes the term has been used to cover hateful speech aimed only at the race, gender or religious affiliation of individuals (e.g., epithets such as "nigger," "nip," "jap," "gook," "chink," "wop," "kike," "spic," "wetback," and "cunt"). Other times, the term refers to speech targeted at a more expansive set of characteristics, including sexual orientation or disability (e.g., "pansy," "faggot," "dyke," and "crip"). For my purposes here, the exact parameters of the category need not be decided. Any speech uttered by a professor solely to degrade, hurt, or humiliate an individual should be denied a defense based on academic freedom.

(154.) See James Weinstein, A Constitutional Roadmap to the Regulation of Campus Hate Speech, 38 WAYNE L. REV. 163, 210 (1991):

   [A] student might not try as hard if she believes her efforts to excel are
   preordained to fail.... [M]uch more subtly, a student who knows that a
   professor thinks poorly of her intellectual abilities may, for various
   psychological reasons, perform worse than a student whom the professor has
   instilled with confidence.

(155.) Booher v. Bd. of Regents, N. Ky. Univ., No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998).

(156.) Id. at *6 n.5.

(157.) Id. Booher also told a student that if she wanted to do a Degas project, she could use a male subject and that "(male model's name) could be [her] sex object." Id.

(158.) See Gee v. Humphries, No. 97-2265 (11th Cir. Apr. 3, 1998).

(159.) Id.

(160.) For this reason, a history teacher who discusses the "unimportant role" women have played in American history deserves greater protection for such statements under an academic freedom theory than does an engineering professor who utters the same comments. If a professor does not have to speak from some basis of professional expertise before enjoying a professional freedom, granting academic freedom rights to scholars will depend less on the scholarly characteristics of the speech and more on the status of the speaker as a professor. However, as I explain throughout this section, I do not feel that all speech uttered by a professor deserves the same degree of academic freedom protection merely because the words in question escaped from a professor's lips. Courts must scrutinize the characteristics of the speech (i.e., how closely the expression adheres to professional academic standards), not the status of the speaker. Status does matter, but only at a minimal level. For instance, non-professors who utter academically driven statements do not deserve academic freedom as well. The freedom is entitled only to the educational profession--but what statements within that profession deserve the shield of academic freedom requires further inquiry into the nature of the particular expression at issue.

(161.) For a case that raises concern very similar to those found in Gee v. Humphries and which I would treat in the same manner, see Bishop v. Aronov, 926 F.2d 1066, 1068 (11th Cir. 1991). In this case, Dr. Bishop, an assistant professor of health and physical education at the University of Alabama, occasionally referred to his religious beliefs during lectures, which he prefaced as personal "bias." Most of these statements involved giving advice to students on how to cope with academic stress. He never engaged in prayer nor read passages from the Bible. One day he stated:

   [W]hen I die, I would like to leave behind something more important and
   valuable than a stack of technical papers.... I want to invest my time
   mainly in people. I personally believe God came to earth in the form of
   Jesus Christ and he has something to tell us about life which is crucial to
   success and happiness.... I try to model my life after Christ, who was
   concerned with people.... You need to recognize as my students that this is
   my bias and it colors everything I say and do.... You need [to] filter
   everything I say....

The university administration asked that he refrain from such comments for fear that students would become extremely uncomfortable. Although I believe Dr. Bishop's remarks did not deserve academic freedom protection because they were not motivated by a specific desire to teach health or physical education, whether they should be protected under general First Amendment roles is an entirely separate question.

(162.) 888 F. Supp. 293, 299 (D.N.H. 1994). Silva also, while illustrating the art of explaining the unfamiliar, used a quote by the famous belly dancer Little Egypt, who explained belly dancing as "jello on a plate with a vibrator under the plate." Id.

(163.) 92 F.3d 968 (9th Cir. 1996). For more detailed descriptions of the article Cohen read aloud in class, see Cohen v. San Bernardino Valley College, 883 F. Supp. 1407, 1410 n.3 (C.D. Cal. 1995), aff'd in part, rev'd in part, 92 F.3d 968 (9th Cir. 1996) ("Cohen's article discusses the definition of a `four-handkerchief movie' (i.e., a pornographic film which is extremely arousing to the male viewer) and contains the line `I had an erection in about eight seconds.' ... This article was discussed in those classes.").

(164.) 480 F.2d 705, 706 (6th Cir. 1973).

(165.) Consider also the following hypothetical posed by James Weinstein: "Suppose ... a law professor in teaching Brown v. Board of Education says, `I think Brown was wrongly decided because black children are not genetically as intellectually capable as white children, and therefore, the state should be able to educate them separately." Weinstein, supra note 154, at 210-11. For examples of questionable instructional speech at the high school level, see Miles v. Denver Pub. Sch., 944 F.2d 773, 774 (10th Cir. 1991) (holding that a high school civics teacher's First Amendment rights were not violated when the high school disciplined him for repeating a rumor, saying, "I don't think in 1967 you would have seen two students making out on the tennis court" in response to a student asking for "specific examples" as to why Miles thought the quality of the school had declined since 1967), Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990) (holding that dismissal of elementary school teacher for reading his Bible during "silent reading period" did not infringe upon teacher's First Amendment rights), and Adams v. Campbell County Sch. Dist., 511 F.2d 1242 (10th Cir. 1975) (finding that dismissal of high school teachers was appropriate where teacher was being too informal, discussing current events at the expense of finishing the curriculum, playing records in class, and not getting along with other teachers).

(166.) The universities could argue that both Silva's and Cohen's illustrations were excessive and provided details that did not further clarify the lesson.

(167.) For instance, the record in Cohen showed that several students felt Cohen's abrasive classroom style "contributed to their learning." 883 F. Supp. at 1419.

(168.) In Cohen, the court stated that only one student formally complained about Cohen's teaching methods, suggesting that Cohen's manner of teaching did not cause widespread discomfort or disapproval. Id. at 1410.

(169.) For example, the chair of the English department at San Bernardino Valley College, who was `also a defendant in the action, felt Cohen's teaching style was "within the range of acceptable academic practice." Id. at 1419.

(170.) In a review of academic due process when professors are disciplined for in-class remarks, courts should focus on the same factors that apply when professors defy university viewpoints as to what should be taught. For a list of these factors, see notes 137-51 supra and accompanying text. Also refer to my explanation in that section as to why analysis of due process becomes more crucial in light of the fact that universities will often find it very easy to claim academic justifications for disciplining professors--leaving courts without academic expertise no choice but to buy the universities' arguments if no other judicial standard is used.

(171.) Mark G. Yudof, Intramural Musings on Academic Freedom: A Reply to Professor Finkin, 66 TEX. L. REV. 1351, 1356 (1988).

(172.) Brest, supra note 120, at 1361.

(173.) AAUP, Statement of Principles, supra note 81, at 407.

(174.) See Matthew W. Finkin, "A Higher Order of Liberty in the Workplace": Academic Freedom and Tenure in the Vortex of Employment Practices and Law, 53 LAW & CONTEMP. PROBS. 357, 378 (1990).

(175.) See Rabban, A Functional Analysis of "Individual" and "Institutional" Academic Freedom, supra note 66, at 244 ("Such a drastic prophylactic role is unnecessary and would be likely to generate more resentment against the `special pleading' of professors than even a narrow and convincing conception of academic freedom inevitably does.").

(176.) E-mail from David Rabban, supra note 69.

(177.) 171 F.3d 494, 495 (7th Cir. 1999).

(178.) Id.

(179.) See id. at 497:

   A university seeks to accumulate and disseminate knowledge; for a
   university to function well, it must be able to decide which members of its
   faculty are productive scholars and which are not (or, worse, are
   distracting those who are).... A university is entitled to decide for
   itself whether the charge is sound; transferring that decision to the jury
   in the name of the first amendment would undermine the university's
   mission--not only by committing an academic decision to amateurs (is a jury
   really the best institution to determine who should receive credit for a
   paper in mathematics?) but also by creating the possibility of substantial
   damages when jurors disagree with the faculty's resolution, a possibility
   that could discourage universities from acting to improve their faculty.

Ailsa W. Chang, J.D. Candidate, Stanford Law School, 2001. A.B., Stanford University, 1998. Law Clerk, Judge John T. Noonan, Jr., 9th Cir., 2001-2002. Warmest thanks to Professor Gerald Gunther for his insightful feedback, continual interest and patience, and supportive words. Thanks also to Professor David Rabban at the University of Texas School of Law for his helpful comments as General Counsel for the AAUP, and to all the editors of the Stanford Law Review who donated their efforts to this note. Most of all, I want to thank Andrew Luh, my parents Chin-Hai and Ivy Chang, and my brother Victor for all their love and encouragement through the years--and for always reminding me what life is all about.

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Resuscitating the Constitutional "Theory" of Academic Freedom: A Search for a Standard beyond Pickering and Connick
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