Resuscitating the Constitutional "Theory" of Academic Freedom: A Search for a Standard beyond Pickering and Connick
Chang, Ailsa W., Stanford Law Review
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. …