Is academic freedom a constitutional right?

Academic freedom is a treasured ideal in universities and is protected to allow free exercise and expression of ideas necessary to support the creation of new knowledge.

There are many forms of academic speech, direct speech; exploring ideas through words, and indirect speech, expressed, through teaching methods, research activities, or serving on committees.

Some view academic freedom as a form of speech and as such, cannot be limited by government, or more narrowly, in any publicly funded university.

Another view is that academic freedom is an employment benefit, it is a mechanism that allows university professors to do their job but does not warrant constitutional protection.

The first academic freedom cases to come before the US Supreme Court were directly related to McMarthyism, the period between between 1950 to 1956, also know as the Red Scare. During this period people were often required to publicly denounce the communist party, and refusing to do so often resulted in loss of employment. Entertainers, academics and public employees were frequent targets of federal investigative committees.

In 1959, the Supreme Court ruled in Barenblatt v. United States, Lloyd Barenblatt, a university professor, was questioned about his political and religious beliefs and about groups and associations he belonged to. He refused to do so claiming the the First Amendment protected his speech, beliefs and right to associate, and therefore the House Committee on unAmerican activities had no authority to question him on these matters.

In a close decision of 5 to 4, the Supreme Court ruled against Barenblatt stating that as long as the Congressional inquiry is pursued to “aid the legislative process” and protect important government interests, it is allowed.

Eight years later, in 1967, the Supreme Court heard a similar case Keyishian v. Board of Regents. Keyishian, a professor at SUNY Buffalo, refused to sign an oath that he was not a member of the Communist party and his employment was terminated.  In another narrow decision, the Court ruled in favor of Keyishian, finding that the New York State law was too broad and vague.

The last significant examination by the Supreme Court on matters relating to academic freedom came in 1968.

First, in Pickering v. Board of Education, a strong court majority (8 to 1) ruled in favor of a teacher and established a two part test for balancing faculty members free speech rights, with rights of the university as an employer.

The Court ruled that faculty speech is protected if their speech addressed “matters of public interest in connection with the operation of the institutions in which they work” and if their interest in speaking out outweighs the employers interest in promoting public service.

 In 1968 the Court heard an academic freedom case that asked whether a state law prohibiting the teaching of evolutionary theory was unconstitutional. In Epperson v. Arkansas the Court ruled unanimously that the Arkansas law violates the Establishment Clause because it bans the teaching of evolution solely on religious grounds.

Similarly, in 1987, the court ruled in Edwards v. Aguillard that a Louisiana law that bars the teaching of evolution in public schools unless the teaching is accompanied by instruction about creationism in unconstitutional.

Pickering was largely overruled in 2006 by Garcetti v. Ceballos where the Court ruled First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. However, Justice Kennedy, who wrote the majority opinion, stated that “We need not… decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

To learn more about these cases and reveal what you can learn about academic freedom and the First Amendment, explore the case browser, visualization and citation networks below.

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