Does the First Amendment Protect Academic Freedom?

35 Pages Posted: 28 Sep 2021 Last revised: 19 Oct 2021

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: September 24, 2021

Abstract

Whatever the strength of the case for the AAUP’s or any other conception of academic freedom, it remains the case that academic freedom at public institutions can be granted or withheld at the discretion of their leadership, and the elected officials entitled to dictate policy at those institutions, unless academic freedom enjoys constitutional protection. The constitutional status of academic freedom, in turn, is a matter of some dispute. The Supreme Court has never issued a square holding on the question whether academic freedom is constitutionally protected. In its 2006 decision in Garcetti v. Ceballos., however, the Supreme Court held that a prosecutor’s expressions of doubts about the merits of a pending case were unprotected by the First Amendment because “his expressions were made pursuant to his duties . . . .” This holding has considerable import for academic freedom as a constitutional matter; if public employees lack First Amendment protection when they speak pursuant to their duties, it could well follow that academics at public institutions, to the extent they teach, research, publish, and speak as part of their duties, lack constitutional protection as well.

Most legal scholars to address the implications of Garcetti for academic speech have opined that it should not be understood to limit the First Amendment rights of university faculty engaged in core academic functions such as teaching and scholarship. The federal appellate courts to consider the question have, for the most part, agreed.

This article breaks with the scholarship to date and offers a different account of the relationship of the First Amendment to academic freedom. Part I explores the precedents and concludes that none support a doctrinal conception of academic freedom as a constitutional right of an individual scholar. Part II considers the normative case for a conception of academic freedom as a constitutional right of individual academics and finds it wanting. A First Amendment jurisprudence that would permit courts to override bona fide academic judgments made by universities to protect the “academic freedom” of individual teachers and scholars would be deeply problematic. Debates over the merits of pedagogy and scholarship, as long as they are fought on academic and pedagogical grounds, should occur within the university, not in the courts.

Suggested Citation

Rosenthal, Lawrence, Does the First Amendment Protect Academic Freedom? (September 24, 2021). Journal of College and University Law, vol. 46, p. 51 (2021), Available at SSRN: https://ssrn.com/abstract=3930387

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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