Bureaucracy and Distrust: Germaneness and the Paradoxes of Academic Freedom Doctrine
31 Pages Posted: 6 Feb 2007 Last revised: 22 Mar 2012
This article proposes a new approach to examining individuals' claims to academic freedom under the First Amendment. It begins with the premise that a major source of confusion under current legal doctrine emerges from two paradoxes. The "positional paradox" exists because various constituents within the public university community may, at times, be state actors, free speech claimants, or sometimes simultaneously both. The resolution of many academic freedom disputes may depend on the relative positions of the free speech claimant and the alleged intruder on that freedom. The "First Amendment paradox" arises because, while a robust version of constitutional academic freedom would suggest that protection of individual academics' speech is consistent with the values most fundamental to the First Amendment, the traditional doctrinal tools that courts ordinarily use to protect those values have limited, and sometimes no, applicability to most academic freedom disputes. The article argues that courts should develop doctrinal tests that require examination of both the academic speech and the government's interest in regulating that speech in relation to their germaneness to the university's central academic mission. Academic freedom claims may better be addressed by inquiring how close the nexus is between the speech (and the countervailing government interests) and the social values that justify the constitutional protection of academic discourse in the first place. Serious consideration of germaneness as an operative concept in the analysis of individual academic speech claims could advance a greater understanding of the First Amendment theory underlying academic freedom and also help courts to implement the Constitution meaningfully in academic freedom disputes.
Keywords: First Amendment, free speech, academic freedom, higher education
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