academic freedom right of scholars to pursue research, to teach, and to publish without control or restraint from the institutions that employ them. It is a civil right that is enjoyed, at least in statute, by all citizens of democratic countries. In the case of scholars, whose occupation is directly involved with that right, the concept of academic freedom generally includes the property right of tenure of office (see tenure , in education). Essential to the acceptance of the concept of academic freedom is the notion that truth is best discovered through the open investigation of all data. A less clearly developed corollary of academic freedom is the obligation of all those who enjoy it to pursue the line of open and thorough inquiry regardless of personal considerations.

Historically, academic freedom developed during the Enlightenment. Early cultures, which viewed education as a system of absorbing a well-defined subject matter, offered little opportunity for speculation. The medieval universities also operated within a field of definite scope, primarily theological, and any teacher or scholar who extended inquiry beyond the approved limits was subject to the charge of heresy. The scientific method of analyzing data and establishing hypotheses, a vital concomitant of academic freedom, was initiated during the Enlightenment , mainly by scholars outside university life such as Thomas Hobbes, John Locke, and Voltaire.

It was in the Prussia of Frederick the Great that the new freedom first flourished within the university itself. In England, it was laymen like Jeremy Bentham, David Ricardo, Herbert Spencer, Charles Darwin, and Thomas Huxley who demonstrated the value of free investigation. Before the concept of academic freedom could gain general acceptance, however, it was necessary that education become secularized. It was not until 1826 that the first nonsectarian university was established in London. In the United States the early colleges were also religiously controlled, and there are still some denominational schools that define areas of inquiry. The American Association of University Professors has been active in establishing standards of academic freedom and has investigated cases in which the right was alleged to have been jeopardized.

Bibliography: See R. Hofstadter and W. P. Metzger, The Development of Academic Freedom in the U.S. (1955); R. M. MacIver, Academic Freedom in Our Time (1955, repr. 1967); L. Joughin, Academic Freedom and Tenure: A Handbook of the AAUP (rev. ed. 1969); W. P. Metzger et al., Dimensions of Academic Freedom (1969); S. Hook, ed., In Defense of Academic Freedom (1971); C. Caplan and E. Schrecker, Regulating the Intellectuals (1983); E. Schrecker, No Ivory Tower (1986).

Academic Freedom American professors had fought for academic freedom since the nineteenth century, but the term did not appear in a United States Supreme Court decision until 1952. Justice William O. Douglas invoked it then, dissenting in Adler v. Board of Education. The majority, laboring in the shadow of the Cold War and McCarthyism (see Communism and Cold War) had upheld a New York law that prohibited employment of teachers in public schools if they belonged to “subversive organizations.”

Constitutional recognition of academic freedom was foreshadowed by Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In Meyer, the Court invalidated a state law that prohibited teaching foreign languages to students before the ninth grade. In Pierce, the Court struck down an Oregon statute that required parents to send their children aged eight through sixteen to public schools. Both cases rested upon the substantive due process rights of private schools, as well as upon parents' right to control the sort of education their children receive.

Since Adler, the Court has invoked academic freedom in two distinct ways. As Justice David Souter said, concurring in Board of Regents of the University of Wisconsin v. Southworth (2000), “Our understanding of academic freedom has included not merely liberty from restraints on thought, expression, and association in the academy, but also the idea that universities and schools should have the freedom to make decisions about how and what to teach” (p. 237). These two principles may at times be inconsistent, as when a university regulates the conduct of professors or students and argues that the institutional independence aspect of academic freedom prevents a court from interfering in its decisions.

Academic Freedom for Professors and Students

The premise of Adler has now been rejected. Public employees, including teachers, have at least the same rights of expression as others (Keyishian v. Board of Regents, 1967). The Court said that “[A]cademic freedom … is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom” (p. 603).

In Sweezy v. New Hampshire (1957), the Court upheld a Marxist professor's refusal to answer questions about his teaching and political views. Chief Justice Warren identified freedom of thought and expression as essential to an academic institution. Justice Frankfurter, concurring, spoke both of the need to protect the “ardor and fearlessness of scholars” and of the even more venerable tradition of universities' institutional independence (pp. 262–263). The Warren and Frankfurter views have dominated the Court's academic freedom discussions ever since.

In Barenblatt v. United States, the Court by a 5–4 margin refused to insulate academics from congressional inquiry into their political beliefs and associations. But in later cases invalidating teacher loyalty oaths, it decried the chilling effect of coerced political conformity on teachers. In the oath cases, the Court clearly united free expression and procedural fairness values in creating a zone of autonomy for scholars and their activities.

Teachers were the first beneficiaries of the Court's expanding conception of academic freedom. In Epperson v. Arkansas (1968), the Court struck down a criminal statute that forbade teachers from teaching the theory of evolution, holding that the state's undoubted power to shape the curriculum is nevertheless controlled by the First Amendment.

The scope of protected speech may, however, be narrower when the teacher criticizes school officials. In Pickering v. Board of Education (1968), the Court held that the First Amendment prohibited firing a teacher who had publicly questioned school board policies. Although the Court invoked academic freedom, it made clear that a teacher is also an employee, and that disruptive speech, even on a matter of public concern, could be the basis for termination. Mt. Healthy City School District Board of Education v. Doyle (1977) reaffirmed school authorities' power by permitting termination of a teacher whose speech dealt with public issues, if the employer could show independent grounds for discharge.

In Board of Regents v. Roth (1972), the Court held that the Due Process Clause does not require a university to state reasons and provide a hearing when it does not renew a nontenured teacher's contract. The teacher can claim a hearing only if she makes a credible showing that nonrenewal would stigmatize her in searching for new employment.

The Court has been more hesitant to recognize student claims to academic freedom. In Tinker v. Des Moines School District (1969), the Court invalidated a school district's suspension of high school students who had worn black armbands in protest against the Vietnam War. However, in Healy v. James (1972), the Court held that a public university may enforce reasonable rules governing the time, place, and manner of public expression. It may deny campus access to provably disruptive groups. But it may not base its actions on the content of the views students wish to express, even if those views are “abhorrent” (p. 188).

In Hazelwood School District v. Kuhlmeier (1988), the Court upheld a high school principal's censorship of the student newspaper. It found that because students in a journalism class wrote the paper, it was not a public forum and therefore not entitled to full First Amendment protection.

Academic Freedom As Institutional Autonomy

Justice Frankfurter, concurring in Sweezy, had stressed the independence of universities from governmental control. The Court has followed Justice Frankfurter's lead in more recent cases. There is an obvious tension here, for judicial reluctance to intervene in school or university decisions can mean judicial abdication in the face of student or teacher demands for fairness and self‐expression. In Minnesota State Board for Community Colleges v. Knight (1984), the Court rejected any first amendment basis for professors' participation in academic governance.

The tension between professor rights and university autonomy was clear in University of Pennsylvania v. Equal Employment Opportunity Commission (1990). The commission sought peer review records relating to the university's decision to deny tenure to a faculty member who claimed that the denial was motivated by racial and sexual discrimination. The Court rejected the university's claim that such records were protected by an “academic freedom” privilege.

In Board of Education v. Pico (1982), the Court recognized a school board's discretionary power over curriculum and book selection, but held that the board could not bow to community pressure to remove “objectionable” books from school library shelves. Pico reaffirmed institutional autonomy, but only if the institution functions free from improper pressure to censor.

Institutional autonomy has been a central theme in the Court's decisions on affirmative action in university admissions. In Regents of the University of California v. Bakke (1978), the Court invoked institutional academic freedom to permit a state medical school to take race into account in its admissions policy. In Grutter v. Bollinger (2003), a 5–4 decision, the Court upheld a state law school's race‐conscious admissions policy, again relying on the institution's academic freedom to foster diversity in its student body.

The Court's opinions will no doubt continue to waver between individual‐oriented and institutional‐oriented theories of academic freedom. The Court seems destined to confront the Bakke/Grutter issues in a variety of contexts, and to revisit the issue of professor and student freedom of expression.

See also Education; First Amendment.

Bibliography

Richard H. Hiers , Institutional Academic Freedom vs. Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy, Journal of College & University Law 29 (2002): 35.
Academic Freedom, symposium in Texas Law Review 66 (1988): 1247–1659.

Michael E. Tigar

Academic Freedom. The American tradition of academic freedom drew inspiration from the German concept of Lehrfreiheit, the statutory rights of professors in state universities to teach and do research freely. Ultimately, the tradition is rooted in the Enlightenment conviction that reason, if left free, could discover useful knowledge and foster human progress. The liberal intellectual system that grew from this conviction was understood as a social community with indefinite possibilities created by human intellectual diversity, but also one that recognized the inherent fallibility of human thought.

In this system, knowledge is the evolving critical consensus of a decentralized community that adheres to the principle that all knowledge claims, regardless of the source, must be capable of being checked. The professoriate saw a unique opportunity to contribute to the progress of knowledge as a community of checkers with specialized training, information, and skills.

For many years after the initial founding of institutions of higher education in colonial America, professors labored under the prevailing assumption that employees had no control over the conditions placed upon them, including restrictions on free expression. As the modern university and its research mission developed in the late 1800s, and as professors increasingly challenged the cherished beliefs of the time, the lack of protection for academic speech became a critical problem.

At the turn of the twentieth century, as social scientists began a critical analysis of the economic order, wealthy members of some governing boards sought to coerce academic speech. For example, in 1900, Jane Lathrop Stanford, the sole trustee of Stanford University, forced Professor Edward Ross to resign because of his support of the free silver movement and his criticism of the corporate and political order. A second faculty member was dismissed for defending Ross, and seven others resigned, including Professor Arthur Lovejoy, who joined the faculty at Johns Hopkins University. Lovejoy in 1913 drafted a letter to colleagues at nine other leading universities, signed by seventeen professors at Johns Hopkins, proposing a professional association, the American Association of University Professors (AAUP). With the founding of the AAUP in 1915, the professoriate sought to pressure university employers to protect the freedom of academic speech.

As the American tradition of academic freedom evolved, university employers, acknowledging the university's unique mission of creating and disseminating knowledge, granted rights of exceptional vocational freedom of speech to professors in teaching, research, and extramural utterance without interference, so long as they met the obligation of professional competence and ethical conduct. The faculty as a collegial body also assumed the duty of peer review to enforce the obligations imposed upon individual professors and to defend the academic freedom of colleagues. Peer review is in fact, an essential corollary of academic freedom in the United States.

Building on this tradition, the U.S. Supreme Court in Sweezy v. New Hampshire (1957) expanded the First Amendment's free speech guarantees to protect academic decisions by universities and individual professors from coercion by the government (ruling that interrogatories by New Hampshire's attorney general about the content of a course were unlawful). In Pickering v. Board of Education (1968), the Court also expanded the First Amendment to protect the speech of government employees, including professors employed in public universities (ruling that a teacher's newspaper editorial criticizing the school board was protected speech).

Since the formation of the AAUP, academic freedom has been threatened repeatedly by waves of zealotry from outside the university, including strident patriotism during World War I, anticommunism prior to World War II, and McCarthyism in the early 1950s. The two most recent waves have come from inside the university: student activism in the 1960s and the “political correctness” standards of the academic left in the 1990s.
See also Bill of Rights; Civil Liberties; Education: Rise of the University; McCarthy, Joseph.

Bibliography

Lewis Joughin, ed., Academic Freedom and Tenure, 1969.
American Association of University Professors , Policy Documents and Reports, 8th ed., 1994.
Neil W. Hamilton , Zealotry and Academic Freedom: A Legal and Historical Perspective, 1995.

Neil W. Hamilton