Legal Watch: It’s Not Just Yelling Fire

By Ann D. Springer

A political science professor was placed on leave after Muslim students complained that he had called them terrorists and murderers in his classroom. A professor at Johns Hopkins University lost, and then regained, the directorship of a research institute in a furor over his conduct during a panel discussion on terrorism. A University of New Mexico professor made flip comments in class about the Pentagon attack, which led state legislators to call for his dismissal. As emotions run high from recent terrorist attacks, academic administrations and the faculty— the nation’s core source for reasoned analysis and debate—are themselves under assault.

In times of crisis, the nation relies on academics to analyze events. Yet public tolerance for critical voices at such times is low. Faculty are placed in the untenable position of being called on to assess issues while being acutely aware of the escalating risk of being disciplined for expressing unpopular views. In such times, we cling desperately to the life raft of the First Amendment, yet we must also remain aware of its leaks and holes. The New Mexico professor was quoted as saying, "I was being a jerk, but the First Amendment protects my right to be a jerk." Does it really?

The First Amendment provides simply that the government "shall make no law . . . abridging the freedom of speech." Yet the courts have long held the government as an employer, including public colleges and universities, to different standards from the government as a regulator of the public. Courts have determined that public employees have a right to speak on matters of public concern— topics relating to a matter of political, social, or other concern to the community— without fear of repercussion. That right, however, is balanced by the government’s need as an employer to function efficiently. Thus faculty are not actually free to speak out about anything, anywhere.

The "matters of public concern" test protects much speech by professors who teach at public institutions—even that which is critical, inflammatory, or carries violent overtones. Two recent cases affirmed this crucial right. At a community college in Kentucky, an adjunct professor’s contract was not renewed following complaints about his use of racist and sexist terms in a lecture on social constructivism and language. The federal appellate court recognized, however, that "[b]ecause the essence of a teacher’s role is to prepare students for their place in society as responsible citizens," classroom instruction should generally be considered protected speech. Moreover, the court noted that the school’s interest in limiting a teacher’s speech was minimal, given that the speech itself constituted the appropriate performance of his teaching responsibilities.

Another court recently recognized that even "adolescent, insulting, crude, and uncivil" comments containing "overtones of violence" can be, and are, protected. In Bauer v. Sampson, a professor’s impolitic comments about the inadequacies of administrators were deemed protected, because they addressed the management troubles of his university. While the comments arguably interfered with the university employer’s ability to function, the court noted that professors and administrators often disagree: "indeed anyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as are homecoming and final exams."

Faculty speech at public institutions on issues germane to classroom teaching or of interest to the community should be protected by the courts. But that does not mean that the professor who, for example, suspends his poetry class for weeks to discuss his prowar views is protected under his First Amendment right to academic freedom. Moreover, faculty at private institutions (which are not covered by the First Amendment) do not enjoy such constitutional protections. Nevertheless, their right to free expression may be protected in their faculty handbooks or, where applicable, collective bargaining agreements. In addition, some private college faculty are protected by state laws giving special protection to free speech. Moreover, as the 1940 Statement of Principles on Academic Freedom and Tenure makes clear, "institutions of higher education are conducted for the common good . . . [and] the common good depends upon the free search for truth and its free exposition." The legal protections of the First Amendment may have limits, but any academic institution that cannot tolerate the free exchange of ideas, at this time when we need it most, fails to meet its mission as a place of higher learning.

Ann Springer is AAUP associate counsel.

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