Essay - Academic Freedom: A Basic Guide (James Liszka)

Academic Freedom: A Basic Guide

Dr. James Liszka
Dean of the College of Arts and Sciences and Professor of Philosophy
University of Alaska Anchorage

A Brief History of Academic Freedom

The idea of academic freedom in America actually had its beginnings in nineteenth century German universities, which were considered to be some of the best in the world at that time. The German concept was based on two notions: Lehrfreiheit, the freedom to teach; and Lernfreiheit, the freedom to learn. The latter referred to the right of students to choose a course of study and electives, while the former formed the heart of what we consider academic freedom today. Lehrfreiheit meant that professors were free to pursue the study of their expertise with no interference from the state. There were self-imposed restrictions on extramural activities, particularly in areas outside of a professor’s expertise. But otherwise, the concept was widely recognized and well protected by governmental institutions.

The freedom to teach and learn had powerful positive effects on the German universities. The lack of political constraints led to faster and more innovative research development in a number of fields, and the practice of hiring and retaining faculty for their research competence rather than political conformity or favoritism led to a more competent, expert faculty. Both outcomes were key to the success of the German universities. Indeed, the original justification for academic freedom was the claim that it led to better, more innovative research and scholarship.

Most American universities of the time were sectarian, having been founded on a religious basis. They were typically controlled by trustees with an avowed interest in ensuring that the creed and vision of their religious sect was realized in the mission of its university. Often this became an impediment to research, particularly in the sciences. Many American professors had received their degrees from German universities and seen the results of the German freedoms in action. They began to wish for similar conditions in their own institutions.

Change

An impetus to change was Charles Darwin’s theory of evolution. It was introduced to the world with the publication of The Origin of Species in 1859, and it gained progressively larger numbers of adherents among scientists in the next few decades. At the same time, it became a source of conflict between the mission and vision of sectarian universities and the yearning for academic freedom of scientists. In those early years, many professors and scientists were dismissed from their positions for teaching or advocating the theory of evolution. Even by 1880, many college presidents denounced the theory.

However, as the result of the well-publicized struggles of these professors (and others, similarly dismissed for advocating theories or ideas contrary to their institution’s ideology), the professoriate began to organize to advocate for and defend the notion of academic freedom. In 1915, two philosophers, Arthur Lovejoy (of Johns Hopkins University) and John Dewey (of Columbia University), formed the American Association of University Professors (AAUP), with the defense of academic freedom at the forefront of its mission. Especially through the efforts of Lovejoy—who traveled around the country gathering cases—the AAUP became a strong advocate and protector of academic freedom.

The AAUP made its first and strongly definitive statement on academic freedom in 1915, with a later revision in 1940. Both versions expressed three basic principles pertaining to the intellectual life of the professoriate, outlining both freedoms and limitations:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter that has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, exercise appropriate restraint, show respect for the opinions of others, and make every effort to indicate that they are not speaking for the institution.

Legal History

Although the idea of academic freedom was gaining ground in academic settings by the beginning of the twentieth century, it was not yet an accepted legal notion. In fact, at the time of AAUP’s 1915 Statement on Academic Freedom, the Supreme Court had a rather weak interpretation of the First Amendment itself, upon which the legal notion of academic freedom would eventually be based. The courts were slow to take up the idea, and many academicians are surprised to discover that the first mention of academic freedom in the legal system was not made until the 1950s.

Legal scholars recognize four phases of the development of academic freedom as a legal concept. The first, roughly up to 1919, was dominated by the incongruity between the academic and legal notions. The Supreme Court at that time regarded professors solely as employees of the institution, and, because of the agency relation involved, considered it permissible for the employer to restrict the speech of the employee. This was so even up until 1929 in the famous Scopes trial, concerning a high school biology teacher who taught evolution in the classroom.

In the second phase, from 1919 to 1950, the higher courts developed a broader interpretation of the First Amendment that paved the way for the recognition of academic freedom. In the third phase, from 1950-1970, we see the first legal establishment of the notion of academic freedom, prompted in part by issues raised during the McCarthy era. In the most famous case of this period (Sweezy v. New Hampshire,1968), Justice Felix Frankfurter established a precedent by articulating four essential freedoms a university must be allowed to determine for itself on academic grounds: who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

The fourth phase, from 1970 to today, involves a clarification of the institutional, instructional, and student interests in academic freedom. Most of the recent court cases focus on whether academic freedom resides primarily with the institution or with the faculty member, and attempts to define the limits of speech in the classroom, particularly in terms of hostile, racially charged, and sexually explicit language.

Academic Freedom Today: General Guidelines

There is still ambiguity concerning several issues in academic freedom, and the courts continue to interpret and clarify the precedents of the past. Because of the ongoing nature of all this, many faculty and administrators are unclear about the rights and limits of academic speech in the university setting.

1. What is protected under academic freedom?

As guidelines, the following are considered to be protected under academic freedom, given current legal interpretations:The freedom to pursue inquiry and publish its results. This is one of the original and most important reasons for academic freedom. The independence of the scholar and the ability of the university to protect the scholar from the pressures of public opinion or legislative power are key duties of the university.

The freedom to discuss or read materials in the classroom, although the AAUP cautions against the introduction of controversial material that has no relevance to the subject matter.

The freedom to refuse to sign loyalty oaths as a condition of employment.

Student speech, subject to the same constraints as faculty classroom speech given below.

2. What is not protected under academic freedom?

Based on a body of legal cases, the following have not been protected in the courts under the purview of academic freedom claims:

Sexual harassment.

Speech, forums, performances, or art on campus that can be shown to be illegal, obscene, libelous, slanderous, or are a clear and present danger, or can be shown to be disruptive to the operations of the classroom or university. The exhibition of controversial or offensive art may be restricted by administration as to time, place, and manner of exhibition.

Racial slurs, excessively obscene, vulgar, or profane language in the classroom, explicit sexual materials, and other forms of language that create a hostile learning environment for students, unless they are used as examples, or for the purposes of study, or are relevant to the subject of the class.

Speech or dissemination of materials with the university imprimatur by employees of the university community who are not authorized to speak or disseminate information on behalf of the university. Only designated officers of the university may speak on behalf of the university or distribute or disseminate materials that carry the imprimatur of the university.

3. Where is academic freedom protected?

The classroom and the university are the primary places of academic freedom; print and publications are included as well.
Extramural settings and matters of public concern, as long as faculty members indicate that they are not speaking for the institution. The AAUP emphasizes that such speech should be accurate, restrained, and respectful.

4. Who is protected?

This is less clear than answers to the other questions. Although most faculty are under the impression that it is faculty members alone who are the central focus in academic freedom issues, recent court cases have suggested that where there are conflicts between faculty and institutions on this issue, the locus of academic freedom is not always with the faculty member; in many cases it lies with the institution. Some recent cases (in particular Lovelace v. Southeastern Massachusetts University) have suggested that matters such as grading policy and even course content can be subject to policy decision by university administrators. Students have also been the focus as well. Tinker v. Des Moines Independent Community School District (1969) showed that teachers or administrators cannot discipline students through suspension, grades, or otherwise for non-disruptive classroom expression of political views.