Academic Freedom...
Is It On the Ropes?

Throughout the past few decades, American courts have spoken deferentially about the principle of academic freedom. Typically, they term academic freedom a "special concern" of the First Amendment to the US Constitution, and honor the tradition in reviewing cases of free speech on campus.

A majority of the judges on the US Court of Appeals for the Fourth Circuit, however, is not so impressed.

In Urofsky v. Gilmore, that court considered a Virginia statute that made it illegal for a public employee to use public "computer equipment to access, download or print or store information . . . having sexually explicit content."

Under the law, "sexually explicit content" included specific varieties of questionable materials, such as lascivious pictures and lewd exhibitions of nudity.

The law allowed such use, however, for a bona fide research project. Despite this provision, several professors at public colleges and universities in Virginia claimed the statute violated their First Amendment rights and their right to academic freedom.

The Fourth Circuit held that the law did not affect the professors' speech "as private citizens speaking on matters of public concern," and therefore did not offend the First Amendment.

According to the court, "the state must retain the ability to con-trol the manner in which its employees discharge their duties and to direct its employees to undertake the responsibilities of their positions in a specified way."

Perhaps more surprisingly, however, the court voiced doubts as to whether common law provides any special protection at all for a professor's right of free expression.

The majority questioned whether an individual right of academic freedom exists for the benefit of higher education faculty. It held that the US Supreme Court has "recognized only an institutional right of self-governance in academic affairs."

Upon review of the major decisions concerning the protection afforded an academic's speech, the court held that "at best" courts have acknowledged that the First Amendment "protects values of academic freedom."

The court further opined that the US Supreme Court "has never recognized that professors possess a First Amendment right of academic freedom to determine for themselves the content of their courses and scholarship . . .."

As far as the Fourth Circuit is concerned, the free speech rights of professors at public colleges and universities are no different from those of other public employees.

"[T]he best that can be said," it concluded, ". . . is that teachers were the first public employees to be afforded the now-universal protection against dismissal for the exercise of First Amendment rights."

Urofsky's effect on the viability of academic freedom in the courts remains to be seen. Nevertheless, academics may now face the challenge of distinguishing the importance of their speech from that of other pubic employees.

Published in the Winter 2002 Edition of In Brief