The First Amendment's Protection of Expressive Activity in the University Classroom: A Constitutional Myth

Abstract:     
The term “academic freedom” creates the impression that university classrooms provide professors a higher order and greater quantum of first amendment protection than other workplaces. But that impression does not comport with reality. Current constitutional doctrine does not support any super protected status for classroom utterances. Instead, classroom speech enjoys less protection than ordinary speech. While the First Amendment has certainly crafted the contours of academic freedom, another concept is clearly at work as well: tenure.

This article argues that, beyond the protections of the First Amendment, lies the protection of tenure. That free speech will be protected for tenured faculty more so than for others. This article not only examines the issues of tenure, but other nonsubstantive considerations in First Amendment jurisprudence, such as state action. Indeed, it will be shown that the greatest protections for faculty lie in these “extraconstitutional” mechanisms.

Number of Pages in PDF File: 76

Keywords: Academic Freedom, Tenure

Accepted Paper Series