Academic Freedom in Urofsky's Wake:Post September 11 Remarks on"Who Owns Academic Freedom?"

Ms. Stacy Smith researched and wrote her excellent Note, Who Owns Academic Freedom?: The Standard for Academic Free Speech at Public Universities,1 in one world; it will be published in another. The watershed event was September 11, 2001. "Normal academics" characterized the world in which Ms. Smith wrote her Note. The subject was sex - but isn't it always? The members of the Virginia General Assembly were avid to curb state employees' use of government time and computers to study sex on the Internet.2 Professors at state universities were eager to examine the forbidden topic; all the better, they maintained, to push back the frontiers of knowledge. The collision was inevitable, but "normal." Although the dispute about professors' internet research into sexually explicit information comes under the heading of "normal academics," Ms. Smith demonstrates that the way the court resolved the dispute was aberrant. Professors' academic freedom to teach and research, as Ms. Smith capably shows, was, we thought, a prominent ingredient in educational culture and law. However, in Urofsky v. Gilmore,3 the Fourth Circuit held that a professor, as an individual teacher and researcher, lacks any separate academic freedom protected by the First Amen; instead, the university that employs the professor "owns" whatever academic freedom exists.4 A state university professor's free speech rights are identical to a prison guard's because academic freedom is merely the institution's right to govern itself in academic matters.5 The court's doctrine is pernicious. Urofsky is a triumph for collectivism and conformity and a recipe for timidity. The American Association of University Professors articulated the correct principles nearly a century ago in its 1915 Declaration of Principles.6 Academic freedom ought to be - we used to think is - an individual, not merely a collective, right.7 Academic freedom protects university autonomy from outside interference; but more importantly, it enables independent teachers and researchers with academic freedom to be indispensable to the modern university's teaching and research missions.8 Ms. Smith demonstrates that the Urofsky decision is a setback for the legal protection of academic freedom, and her Note strengthens the argument against the Urofsky court's result.9 Ms. Smith's thought process is lucid. She writes fluently, and her Note is easy to read. Having picked a subject she could treat in depth within the compass of a Note, she examines the legal rules in light of public policy, and she reaches a courageous conclusion - the Urofsky court's decision is incorrect in principle and ought to be repudiated at the first opportunity.10 I steadfastly hope that other courts will take Ms. Smith's advice - not to emulate Urofsky. Academic freedom has always been "soft law," precarious and narrow.11 If Urofsky foreshadows things to come, the already "soft" law just got a lot mushier. If, after Urofsky, academic freedom is less important in academic law, then it ought to become a more important part of academic culture. It underscores the need for contractual and cultural protections for dissent. Like any subculture, colleges and universities have an overlay of "common law": academic freedom, procedures, values, and precepts which have no counterpart in government or business. …