November-December 2001

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Legal Watch: The Play’s the Thing

By Donna R. Euben

Artistic expression in the campus theater merits the protection of academic freedom. As the AAUP’s statement Academic Freedom and Artistic Expression provides, "Faculty members and students engaged in . . . the performing arts are as much engaged in pursuing the mission of the college and university as are those who write, teach, and study in other academic disciplines." Nevertheless, skirmishes continue over campus productions for academic credit of controversial plays.

In 1985 religious organizations and citizens tried to cancel a student production at Nassau Community College of Christopher Durang’s Sister Mary Ignatius Explains It All for You because it was "anti-Catholic." The college president staunchly defended the production as protected by academic freedom: "If I could cancel this play, I could cancel any play and I could censor the entire curriculum according to my personal views. We must guarantee our faculty and our students freedom in the classroom."

Similarly, in 1989 state legislators and citizens opposed a student production at Southwest Missouri State University of Larry Kramer’s The Normal Heart, which is about gay men and the AIDS crisis in New York City. The administration refused to halt the play, stating, "[A]ny decision by SMSU to prohibit the production . . . would constitute a violation of the First Amendment rights of both students and faculty."

In 1996, however, the Catholic University of America, a private, religiously affiliated institution, issued an "advertising ban" on a student thesis production of Tony Kushner’s Angels in America, a play about AIDS, because, according to one professor, "publicity for the show might look like an endorsement of the homosexual lifestyle by the university and the Catholic Church." In the end, the student director chose to move the production off campus, rather than adhere to the administration’s other options, which were to close the show or restrict audience attendance.

The most recent campus battle over artistic freedom involved a production of Terrence McNally’s Corpus Christi at Indiana University–Purdue University, Fort Wayne. The play depicts Jesus Christ as a gay man, which some Indiana taxpayers and state legislators viewed as "blasphemous." In July 2001 they sued the university and its trustees, seeking to compel the public institution to stop the play. The administration refused. As the chancellor testified, administrators did not interfere with the selection of a student production approved by theater department faculty because there is a "general university policy . . . of academic freedom where administrators do not interfere with either how or what subject matter is taught in the classroom."

In Linnemeier v. Board of Trustees of IPFW, the trial court sided with the university, ruling that the campus production did not violate the Establishment Clause of the First Amendment, which provides that "Congress shall make no law respecting an establishment of religion." In so doing, the court observed that a university is a "‘hub of ideas’ and a place citizens traditionally identify with creative inquiry, provocative discourse, and intellectual growth."

The taxpayers appealed, but the federal appellate court, in a 2 to 1 ruling, upheld the district court’s decision not to halt the play. It found that faculty have the academic freedom to allow their students to present controversial theater as part of the curriculum. The majority wrote:

The contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to conventional Christian beliefs is absurd. It would imply that teachers in state universities could not teach important works by Voltaire, Hobbes, Hume, Darwin, Mill, Marx, Nietzsche, Freud, Yeats, Heidegger, Sartre, Camus, John Dewey, and countless other staples of Western culture.

The majority concluded that "the school authorities and the teachers, not the courts, decide whether classroom instruction shall include work by blasphemers."

The AAUP argued in its amicus brief in support of the university that the administration would have violated the faculty’s First Amendment right of academic freedom if it had interfered with the professors’ determination to allow their students freedom to select plays to fulfill a course requirement.

Playwright McNally’s preface to Corpus Christi draws a parallel between the death of Christ and the 1998 murder of Matthew Shephard, the gay student who was killed because of his sexual orientation. Writing about the educational value of drama, McNally reminded us: "Look. Remember. Weep, if you will, but learn."

Donna Euben is AAUP counsel.