Academic Freedom, Individual or Institutional?
Rabban, David M., Academe
Most federal courts agree that academic freedom is a First Amendment right. But whose right is it?
Can a legislature require professors at state universities to obtain permission from an administrator before using a university computer to search for teaching materials or scholarship "having sexually explicit content"? Can a public university compel a professor to change a student grade, cover prescribed material, or limit potentially offensive classroom or artistic expression that the faculty member defends on professional grounds? Federal courts have addressed such questions at an increasing rate in recent years. Their answers have brought attention to the relationship and potential tension between the academic freedom of an individual professor and the academic freedom of the university as an institution, an issue that had been lurking in legal decisions ever since the U.S. Supreme Court originally identified academic freedom as a form of speech that the First Amendment protects against abridgment by the state.
Judicial Origins of Academic Freedom
Government investigations into the loyalty of professors during the McCarthy period of the 1950s prompted the cases in which the Supreme Court first recognized academic freedom as a distinctive First Amendment liberty. The professors who were the litigants in those cases did not differentiate between individual and institutional academic freedom. Rather, as the AAUP maintained in 1959 when it filed its initial Supreme Court brief on the subject of academic freedom, they perceived university autonomy from the state as a necessary condition for the academic freedom of professors.
In its two most important decisions defining academic freedom, the Supreme Court focused on individual professors. The Court first incorporated academic freedom into the First Amendment in a 1957 case initiated when Paul Sweezy, a lecturer at the University of New Hampshire, refused to answer questions from the state attorney general about the content of his lectures. In Sweezy v. New Hampshire, Chief Justice Earl Warren's plurality opinion maintained that this government inquiry "unquestionably was an invasion" of Sweezy's First Amendment "liberties in the areas of academic freedom and political expression-areas in which the government should be extremely reluctant to tread." In this passage, Warren attached the liberties of academic freedom and political expression to Sweezy as an individual.
Keyishian v. Board of Regents, decided in 1967, was the Supreme Court's next significant discussion of the protection afforded academic freedom under the First Amendment. The majority in Keyishian relied on Sweezy while declaring unconstitutional a complex system of New York statutes and regulations designed "to prevent the appointment or retention of 'subversive' persons in state employment." After quoting from Warren's opinion in Sweezy, the majority emphasized that academic freedom is "a special concern of the First Amendment." In Keyishian, as in Sweezy, the Court focused on the academic freedom of the individual professors who challenged the unconstitutional state action.
While recognizing academic freedom as a First Amendment liberty of professors in Sweezy and Keyishian, the Court also observed the importance of preserving what ChiefJustice Warren called "the essentiality of freedom in the community of American universities." It agreed with the AAUP that the academic freedom of professors depends to a substantial extent on the independence of the university from the state. Justice Felix Frankfurter, who had been a professor and an active member of the AAUP at Harvard Law School before his appointment to the Court, wrote a concurring opinion in Sweezy that emphasized the close connection between university autonomy and academic freedom. "Any government intrusion into the intellectual life of a university," he warned, would jeopardize the essential functions of professors. …