By Ellen Schrecker
Professor of History, Yeshiva University, New York, N.Y.
From a legal perspective, these are not good days for academic freedom. While faculty members have not been losing their jobs for political reasons, as they did during the McCarthy era in the 1950s, the freedom of expression that they enjoy in their classrooms, their research and their other professional work is increasingly at risk.
Thanks to several recent court decisions, college and university professors may actually have less freedom to express themselves than their fellow Americans. This is a paradoxical situation. Since academics need more freedom in their everyday work if they are to explore the frontiers of knowledge and challenge their students to think for themselves, these new restrictions are troubling in the extreme.
The founding fathers did not put academic freedom in the Bill of Rights. But over the years, the Supreme Court has extended the First Amendment to ensure that professors at public colleges and universities (though not at private ones) can exercise their freedom of speech without repercussions.
Recently, however, a 2006 Supreme Court decision in the case of a Los Angeles assistant district attorney who had complained about irregularities in the DA’s office may destroy that protection. In that case, Garcetti v. Ceballos, the justices ruled that the First Amendment did not shield public employees from retaliation for speaking out if that speech was part of their “official duties.” Since almost everything that college teachers speak or write about involves their “official duties,” the implications of that decision are frightening.
So frightening, in fact, that Justice Anthony M. Kennedy, writing for the Court’s majority, recognized Garcetti’s threat to higher education and specifically said that he would not deal with whether the decision would apply to “speech related to scholarship and teaching.”
Justice David H. Souter’s dissent was even more explicit: Garcetti, he insisted, could “imperil First Amendment academic freedom in public colleges and universities, whose teachers necessarily speak and write pursuant to ‘official duties.’”
But Souter and Kennedy’s warnings seem to have fallen on deaf ears. In a case involving Juan Hong, an engineering professor, punished because he criticized his colleagues at the University of California-Irvine, a federal judge claimed that Hong’s comments were part of his “official duties” and so could not be protected by the First Amendment. Since peer review — the process by which faculty members evaluate each other’s work and help run their institutions — is essential for the maintenance of educational standards, the Hong decision undermined both academic freedom and the intellectual integrity of higher education.
The judge who ruled against Professor Hong was also relying on several other judicial precedents that limited the free speech of college and university teachers. When, in the mid-1960s, the Supreme Court explicitly recognized that the First Amendment protected academic freedom, it did not — either then or later — specify to whom that freedom belonged. Did it belong to individual professors or to the institutions they worked for?
In the absence of a Supreme Court ruling, the lower courts have tended to defer to administrations when they come into conflict with the professors in their employ. Those courts insist, as the judge in the Hong case did, that the judiciary should not insert itself into academic decision-making.
As a result of Garcetti and these other rulings, college and university teachers must now look beyond the courts to safeguard the special freedom they need if they are to carry out their core academic functions.
Professors represented by unions can demand that the provisions for that freedom be written into their collective bargaining contracts — as many already do. At other schools, faculty will have to work with trustees and administrations to include the protection of academic freedom in their faculty handbooks and other official regulations — again, as many already do.
As the United States becomes ever more dependent on its colleges and universities, it becomes all the more imperative to protect the research, teaching, and faculty governance that have made American higher education the envy of the world.