Pursuing Academic Freedom after Garcetti V. Ceballos*
Ross, Lauren K., Texas Law Review
In 1915, the American Association of University Professors' (AAUP) Declaration of Principles sought to usher in an as yet undeveloped notion of academic freedom in the United States.1 Drawing on the traditional notion of Lehrfreiheit, the AAUP proposed "not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching."2 The court system gradually seized onto the concept of academic freedom.3 In 1957, the Supreme Court showed its commitment to academic freedom in Sweezy v. New Hampshire,4 declaring "[t]he essentiality of freedom in the community of American universities . . . almost self-evident;" the Court cautioned that "[n]o one should underestimate the vital role in a democracy that is played by those who guide and train our youth."5 Ten years later, the Court reaffirmed its commitment to academic freedom in Keyishian v. Board of Regents of the University of the State of New York.6 Keyishian contained what has become one of the most often quoted defenses of academic freedom:
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 is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.7
Given this ringing endorsement, one could easily think that academic freedom is securely entrenched in American jurisprudence. A 2006 Supreme Court decision, Garcetti v. Ceballos,8 however, has drawn into stark relief the problems inherent in our notion of academic freedom. In Garcetti, the Court restricted the right to free speech for public employees who speak pursuant to their official duties but leftopen the question of how Garcetti would impact academic freedom.9 This Note attempts to distill the problems with academic freedom, particularly as demonstrated in cases grappling with the application of Garcetti, and ultimately argues that the Court should recognize a constitutional, individual right to academic freedom moving forward.
This Note begins by updating and reposing William Van Alstyne's concept of a specific theory of academic freedom, distinguishing the right to academic freedom from a more general notion of First Amendment rights. It then turns to Garcetti v. Ceballos, providing historical context in order to understand why Garcetti marks such a change in our understanding of free speech. The next portion of this Note considers how courts have applied Garcetti to cases raising academic freedom issues. Using the problems revealed in the post-Garcetti decisions, this Note then suggests the Court should officially recognize a right to academic freedom and offers thoughts on what that right should encompass.
I. The Specific Theory of Academic Freedom After Garcetti v. Ceballos
The specific theory of academic freedom seeks to draw a distinction between the right to academic freedom and a more universal, general concept of the right to free expression.10 The initial concept of academic freedom in the United States was closely tied to the distinctive rights and functions of professors; professors needed the ability to express themselves, without fear of sanction, in order to fulfill their important social role of fostering discussion and advancing knowledge.11 Quickly, however, given the lack of general free speech rights, teachers seized on the idea of academic freedom and tried to force the concept to serve as a more general right to free speech.12
Van Alstyne argues this tendency to blur academic freedom into the general civil liberty of free expression has made it more difficult to recognize legitimate claims of academic freedom, delayed the assimilation of academic freedom into full constitutional protection, and leftprofessors with less protection than other public employees. …