Follow the Truth Wherever It May Lead: The Supreme Court’s Truths and Myths of Academic Freedom

Universities have historically been fierce guardians of intellectual debate and free speech, providing an environment where students can voice ideas and opinions without fear of repercussion.” Quite simply, “knowledge cannot be advanced unless existing claims to knowledge can with freedom be criticized and analyzed.” As the best contemporary statement of academic freedom explains, “the ideas of different members of the University community will often and quite naturally conflict,” but an institution should not “attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” Indeed, “concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some” individuals. The First Amendment provides broad protection for academic freedom, but every institution, “has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.” “[F]ree speech is bred into the bones of a modern university” but “[u]nless the campus zest for censorship is combatted now, what we have always regarded as a precious inheritance could be eroded beyond recognition and a soft totalitarianism could become the new American norm.” Of course, defining academic freedom raises other questions about whether academic freedom is universal, or grants greater protections for faculty, or allows the university to defy the government. First, the Chicago Statement emphasizes “all members of the University community [have] the broadest possible latitude to speak, write, listen, challenge, and learn” and “to discuss any problem that presents itself.” Academic freedom is not limited to the faculty, but extends to the students, non-faculty scientists and researchers, and even administrators. If you are part of the university community, you enjoy academic freedom. Second, the American Association of University Professors, while not necessarily denying academic freedom to non-faculty, envisions “enhanced academic freedom” for faculty member. With enhanced academic freedom, “a university professor possesses a constitutional right to determine for himself, without the input of the university (and perhaps even contrary to the university's desires), the subjects of his research, writing, and teaching.” Third, late twentieth century court decisions suggested there was an “institutional academic freedom.” Although public universities are completely free from control by the Church or Synagogue or Mosque or private corporation, state institutions may have rights against its creating State or the National Government. Just as a private university, like any private entity, can resist the government, public universities may be able to resist state or federal government officials. Yet, the Constitution takes a different approach to the questions of whether academic freedom is universal, or grants greater protections for faculty, or allows the university to defy the government. As recent decisions of the Supreme Court of the United States illustrate, academic freedom is both a constitutional truth and a constitutional myth. First, the Chicago Statement’s notion of academic freedom for all is a constitutional truth for public universities. Regardless of whether you are a student, a staff researcher, a faculty member, or a senior administrator, institutional officials may not punish you for expression, force you to conform, or require you to subsidize causes you oppose. In a sense, liberty has never been greater on a public campus. Second, enhanced academic freedom for faculty members is a constitutional myth. In terms of constitutional rights, faculty members at state universities are no different than ordinary public employees. Third, with respect to a state university and its creating State, institutional academic freedom is a constitutional myth. Yet, as to the relationship between a state university and National Government, institutional academic freedom is a constitutional truth. The purpose of this Article is to demonstrate how the Supreme Court has recognized the constitutional truths and destroyed the constitutional myths of academic freedom. This purpose is accomplished in three parts. Part I explores how the recent Supreme Court decisions in a variety of First Amendment contexts guarantee academic freedom for the entire university community. In particular, it focuses on decisions concerning offensive speech, coercive expression, compelled subsidies, student organizations, public employee free speech effectively set up academic freedom for the entire public university community. Part II explains why the idea of enhanced academic freedom for faculty is a constitutional myth. Faculty members have the same rights as other public employees—no more and no less. At the same time, the Supreme Court’s decision in Garcetti v. Ceballos may diminish constitutional protections for faculty speech in the employment capacity. Part III examines why institutional academic freedom is a constitutional myth at the state level, but a constitutional truth at the federal level.