Academic freedom and the Supreme Court

Description: Ability to freely exchange ideas and concepts in an academic setting.

Significance: The Supreme Court has never granted academic freedom full constitutional status. It has ruled both for and against the protection of academic freedom on the basis of the First and Fourteenth Amendments.

In many rulings, the Supreme Court recognized that citizens possess constitutional rights of free speech and due process. However, when these citizens were faculty members at academic institutions, the Court also obligated them to respect their responsibilities to their students, their academic community, and society in general. In early cases such as Gitlow v. New York (1925) and Whitney v. California (1928), the Court struggled with the standard for judging constitutionality of state laws or actions that were being challenged as violations of the free speech clause of the First Amendment. The Court upheld convictions for subversive advocacy in both Gitlow and Whitney and ruled that the defendants’ First Amendment rights had not been violated. The dissent issued in Gitlow by Justice Oliver Wendell Holmes joined by Justice Louis D. Brandeis became the test by which the Court determined what speech was allowable. The justices stressed that speech should be protected unless it creates a clear and present danger. In Stromberg v. California (1931), Stromberg’s lawyers used the clear and present danger test in their arguments before the Court, which overturned Stromberg’s conviction by a state court on a charge of displaying a red (communist) flag at a youth camp.

Two Supreme Court decisions in 1952 focused on the First Amendment rights of teachers. Both cases, Adler v. Board of Education and Wieman v. Epdegraff, involved teachers being discharged because of membership in subversive organizations. In Adler, the Court upheld New York’s Feinberg Law, which banned teachers who belonged to subversive organizations from public schools. Justice Sherman Minton reasoned that because teachers shape the attitudes of young minds toward the society in which they live, the state has a vital concern in protecting schools from subversive organizations. In the dissent, Justices William O. Douglas and Hugo L. Black wrote of their concern for censorship and threat to First Amendment rights. This concern for constitutional freedoms would be echoed by Justice William J. Brennan, Jr., in Keyishian v. Board of Regents (1967). In Wieman v. Epdegraff, the Court overruled an Oklahoma statute that disqualified people from teaching or other public employment solely on the basis of membership in a subversive organization and not whether they had knowledge of its purposes and activities. The Oklahoma statute was ruled unconstitutional under the due process clause. Justice Felix Frankfurter endorsed the issue of academic freedom for teachers at all levels.

The Warren Court

As chief justice, Earl Warren led the Court in landmark decisions guaranteeing First Amendment protections. In Shelton v. Tucker (1960), the Court declared unconstitutional a New York statute that required teachers to disclose all organizational affiliations. In Keyishian v. Board of Regents, it struck down sections of the Feinberg Law that had been upheld in Adler and established broad First Amendment protections for academic freedom for college faculty. In the majority opinion, Justice Brennan stressed the importance of academic freedom for all people, not just for teachers.

The Court’s ruling in Epperson v. Arkansas(1968) extended academic freedom to precollegiate levels as it negated an Arkansas law prohibiting the teaching of evolution. The Court ruled on the basis of the First Amendment prohibition against religious establishment and therefore did not set a precedent for free speech rights for elementary and secondary schools. Free speech protection would not be extended to the precollegiate level until Tinker v. Des Moines Independent Community School District (1969).

Burger-Rehnquist Eras

Justices appointed by Presidents Richard M. Nixon and Ronald Reagan (Warren E. Burger, William H. Rehnquist, Lewis F. Powell, Jr., and Sandra Day O’Connor) formed the core of a new majority on the Burger and Rehnquist Courts. Under these chief justices, the Court would issue opinions contradicting rulings that had previously limited the authority of school-governing officials. In Ambach v. Norwick (1979), two teachers from Scotland and Finland challenged the New York statute that denied certification to foreign nationals who were not in the process of attaining US citizenship. In writing the majority opinion, Justice Powell stressed the role of the school as an agency for socialization and the importance of the influence of the teacher in this process. The teachers argued on the grounds of academic freedom, but the Court ruled on the basis of an equal protection case under the Fourteenth Amendment rather than a free speech case under the First Amendment. The Ambach case, which describes the political socialization of schools, was cited by both sides in Island Trees School District v. Pico (1982). Justices Brennan and Harry A. Blackmun asserted in the majority opinion that judicial review of book removals from libraries is warranted in order to prevent First Amendment violations. In their dissent, Justices Burger, Powell, and Rehnquist argued that it is not unconstitutional for school officials to remove from the library books that contain expressions of values that are not shared by the community.

Hazelwood School District v. Kuhlmeier(1988) was a milestone in supporting the authority of school officials. The case involved a Missouri high school principal who removed articles from a school newspaper. The Court ruled that the newspaper was part of the school curriculum and was rightfully under the control of the school. The Court did not view the principal’s action as a First Amendment violation.

University of Pennsylvania v. Equal Employment Opportunity Commission (1990) placed a different twist on the typical academic freedom argument. The University of Pennsylvania denied tenure to an associate professor who then filed a charge with the Equal Employment Opportunity Commission alleging discrimination in violation of Title VII of the Civil Rights Act of 1964. When a subpoena was issued requesting tenure-review files of the professor and of five other male faculty members, the university filed suit. The university argued that the files would jeopardize a common-law privilege against disclosure of confidential peer review materials and would violate the faculty members’ First Amendment rights, including academic freedom. The Court rejected this position and ruled that a university does not enjoy a special privilege regarding peer review files.

The Twenty-First Century

The Supreme Court ruled in Garcetti v. Ceballos (2006) that public employees do not have First Amendment protections for speech conducted during their jobs. The decision thus led to widespread implications for public school teachers. When Garcetti is applied to cases involving public education—for example, ones in which teachers have been fired or suspended for teaching controversial subjects or books—the teachers overwhelmingly lose, as their freedom of speech rights are not protected. The debate over teachers' First Amendment protections became more heated during the 2020s when controversy arose over the teaching of antiracist lessons, also termed "critical race theory." As conservative states passed new legislation aimed at banning the teaching of topics related to race, issues of free speech among teachers, and their lack of academic freedom, were widely debated.

During the administration of Donald Trump (2017–21), three new justices were appointed to the US Supreme Court (Neil Gorsuch, Brett Kavanuagh, and Amy Coney Barrett), giving the Court a solid conservative majority. In this Court, opinions were issued that often marked a substantial change from rulings related to academic freedom made by the Court in prior decades. While the Court consistently ruled against instances of school prayer up until that point, in June 2022 it ruled 6 to 3 in Kennedy v. Bremerton School District that a high school football coach's post-game prayer was protected by the First Amendment. According to the Court, the coach, who was fired from his Washington state public high school for his refusal to stop kneeling in prayer following games, was considered a private citizen rather than a district employee and thus should not be punished "for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment," as Justice Neil Gorsuch wrote in his majority opinion. The Court rejected the opposing side, which argued that such public displays of prayer would lead to students feeling pressure to join religious activities in schools. Many legal experts believed the ruling set a new precedent on the issue of separation of church and state in the US.

Bibliography

Lopez, Brian. "Supreme Court Sides with School Coach Who Prayed at a Game, Offering More Protection to Public Displays of Religion." The Texas Tribune, 27 June 2022, www.texastribune.org/2022/06/27/supreme-court-school-prayer-texas/. Accessed 30 Aug. 2022.

Menard, Louis. The Future of Academic Freedom. Chicago: University of Chicago Press, 1996.

Poch, Robert. Academic Freedom in American Higher Education: Rights, Responsibilities, and Limitations. Washington, D.C.: George Washington University Press, 1993.

Walsh, Mark. "If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment?" Education Week, 10 June 2021, www.edweek.org/policy-politics/does-academic-freedom-shield-teachers-as-states-take-aim-at-critical-race-theory/2021/06. Accessed 30 Aug. 2022.

Whitson, James Anthony. Constitution and Curriculum. London: The Falmer Press, 1991.