By Wm. Joseph Austin, Jr.
Of Counsel, Narron O’Hale & Whittington, P.A.

“I cannot praise a cloistered and fugitive virtue”
John Milton, Areopagitica

“Academic Freedom” is an elusive phrase, yet liberty of expression within the academic community is vitally important to a free society. This paper will discuss several aspects of a tradition in academe that means different things to different people, especially among educators, students, and the institution itself.  The law that evolved around this protean concept proceeded from the First Amendment protection of the freedom of speech.  That is the prologue.  The future appears problematic for faculty by application of the SCOTUS opinion in Garcetti v. Ceballos to cases that involve faculty in public schools and universities.  Nevertheless, traditions, customs, and expectations in a democratic society support a legal basis for Academic Freedom even if it defies precise, black letter law definition.

Underlying the concept of “Academic Freedom” is the First Amendment. According to Justice Lewis Powell, “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed a special concern of the First Amendment.” Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978). The First Amendment, which applies to the states through the Fourteenth Amendment, protects the freedom of speech from governmental abridgment. Not yet embracing Academic Freedom as “a specifically enumerated constitutional right,” the case law has invoked the First Amendment time and again when confronting issues of education and the acquisition of knowledge in the classroom.

Defining Academic Freedom, however, is problematic times two. In American jurisprudence it rests on the First Amendment, which itself has the quality of Vedic hymn. Otherwise its sources lie in tradition and custom. There is also the question, to whom does it belong?

The distinguishing features of Academic Freedom form up around the tradition that schools and educators alike should enjoy a degree of autonomy from governmental, religious, and societal pressures.See M. Edwards, et al. Freedom of Speech in the Public Workplace 129 (1988), citing T. Leas & C. Russo, “Waters v. Churchill:  Autonomy for the Academy or Freedom for the Individual?”, 93 Ed. Law Rep. 1099 (1994).  Educators should also be free from undue administrative influence, censorship, and coercion.  O. Griffin, “Academic Freedom and Professorial Speech in the Post-Garcetti  World,” 37 Seattle U. L. Rev. 1 (2013).

Those traditions in the United States are not as time-honored as we might sometimes think.  In bygone days public employees could either keep their jobs or exercise their constitutional rights.  “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,” was how Justice Holmes put it in the case of McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 518 (1892).  And John Scopes’ conviction for committing the crime of teaching evolution was overturned not on constitutional grounds but for a technical sentencing error.  Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927).  Addressing the constitutional issue, the Tennessee Supreme Court brushed it aside on the basis of master-servant doctrine, the public employer had the authority to set the terms of the work unhampered by the United States Constitution.   So as of the first quarter of the 20^th Century Academic Freedom had no purchase for schools or educators in American jurisprudence.

Academic Freedom:  A European Import

                        Academic Freedom was brought back to the United States by American scholars who studied abroad in England and Germany.  W. Van Alstyne, “Academic Freedom and the First Amendment in the Supreme Court of the United States,” 53 Law & Contemp. Probs. 79, 87 (1990).  In 1940, the American Association of University Professors and the Association of American Colleges issued a Statement of Principles on Academic Freedom and Tenure, which would afford teachers individualized rights in research and classroom teaching:

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other duties; [and] . . . 

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

This credo was placed in a larger context, a statement of the ideal of higher education:

Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition. Academic freedom is essential to these purposes.

In the case of Plyler v. Doe, 457 U.S. 202, 221 (1982) (emphasis supplied below), the Supreme Court mapped out a place for this ideal as it functions in public education:

Public education is not a “right” granted to individuals by the Constitution. [citation omitted] But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. “The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance.” [citation omitted] We have recognized “the public schools as a most vital civic institution for the preservation of a democratic system of government,” [citation omitted] “and as the primary vehicle for transmitting the values on which our society rests.” [citation omitted] “As pointed out early in our history, some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” [citation omitted] And these historic “perceptions of the public schools and inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.” [citation omitted] In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society.

Application of these traditions and principles has been complicated by the competing claims laid on them by the cast of characters. One interpretation is that Academic Freedom insulates the institution itself from interference by the state. That is, academic institutions may freely determine, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study. See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957) (“the four essential freedoms” of the university). We might think of that principle as bedrock.

Individual educators have also invoked Academic Freedom as protection against administrative or political interference. Through it, the individual educator seeks shelter for personal decisions of what to teach, in-class remarks, and intramural speech, the latter sometimes referring to criticism of colleagues, administrators, and policies within the academic community. As we shall see, the perceived safe harbor is often full of mines.  Extramural speech may also lay claim to protection under the SCOTUS Pickering-Connick doctrine discussed below but ill-considered expression away from the classroom and outside of campus dialogue is particularly perilous.

Also in the mix is the student’s right to receive and express ideas in school. For example, the plurality opinion in Board of Education, Island Trees Union v. Pico, 457 U.S. 853 (1982), would not allow the school board to remove books from the school library. Once placed there, the school board did not have discretion to remove books, such as Slaughterhouse Five, if the intent was to deny students access to ideas with which the members of the school board disagreed. 457 U.S. at 868 – 872.  Book-removal in suppression of information and perspectives contrary to the political and social doctrines of the board (and their influential constituents) would not be allowed.

But there is also sympathy for the school board. A dissenter in Pico suggested that the locally elected school board not only may determine educational policy, but with impunity might remove books from the shelf of the school library which it previously allowed to be placed there. 457 U.S. at 893‑894 (Powell, J., dissenting), a reminder that the protected zone suggested by the “four essential freedoms” will be subject to intrusion by influences inside and out of the institutional hierarchy.  Everybody wants to run the school.  In a democratic society all of the stakeholders can be counted on to try to have a say.

There is much to sort through. Freedom of speech is conventionally understood as a personal right. Therefore, Academic Freedom proceeding from that constitutional right would seem to give pride of place to the individual educator. But courts are generally deferential to the institution when confronted with competing interests, whether from the outside or within. One court put it this way:

In public schools and universities across this nation, interfaculty disputes arise daily over teaching assignments, room assignments, administrative duties, classroom equipment, teacher recognition, and a host of other relatively trivial matters. A federal court is simply not the appropriate forum in which to seek redress for such harm.

Dorsett v. Board of Trustees for State Colleges & Universities, 940 F.2d 121, 123 (5th Cir. 1991). That passage lights up the reality that judicial resources will not be spent liberally to second‑guess school decisions.

Likewise, the student who seeks to litigate over academic issues may receive a cold shoulder in court. In Board of Curators v. Horowitz, 435 U.S. 78 (1978), the question was whether a medical student had a constitutionally protectable property interest in continued academic enrollment. The Supreme Court’s opinion, though focusing on the impropriety of judicial review, nevertheless implied more:

The decision to dismiss [the medical student] rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision making.

Under such circumstances, we decline to ignore the historic judgment of educators and thereby formalize the academic dismissal process by requiring a hearing. The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students, “one in which the teacher must occupy many roles — educator, adviser, friend, and, at times, parent-substitute” . . .. We decline to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship.

Horowitz, 435 U.S. at 90.

Following the lead of the Supreme Court, the Fourth Circuit—North Carolina is within its jurisdiction–consistently has refrained from interfering with the authority vested in school officials to drop a student from the rolls for failure to attain a prescribed scholastic rating. See, e.g., Henson v. Honor Committee, 719 F.2d 69 (4th Cir. 1983); Sandlin v. Johnson, 643 F.2d 1027 (4th Cir. 1981); Clark v. Whiting, 607 F.2d 634 (4th Cir. 1979). Accordingly, decisions by educational authorities which turn on evaluation of the academic performance of a student are peculiarly within the expertise of educators and particularly inappropriate for judicial review.

Three cases decided by the United States Supreme Court over the course of the refractory ’50’s and ’60’s add insight and substance.  Pertaining to First Amendment protection for teachers is the case of Wieman v. Updegraff, 344 U.S. 183 (1952).  It was decided during the historical time of McCarthyism.  The Supreme Court in Wieman held that a loyalty oath statutorily prescribed for all state officers and employees in Oklahoma was invalid. A qualification for employment, the oath would have required the faculty and staff of a state college to deny that they had been members of subversive organizations. Some of the college employees refused to take the oath and challenged the statute. The Supreme Court struck it down as a violation of the Due Process Clause in the Fourteenth Amendment.

Concurring opinions added that the statute also violated the First Amendment. Justice Frankfurter wrote that it was an “unwarranted inhibition upon the free spirit of teachers” that had “an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice.” 344 U.S. at 195. Justice Frankfurter continued:

It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. . . . [Teachers] must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by a national or state government.

The functions of educational institutions in our national life and the conditions under which alone they can adequately perform them are at the basis of these limitations upon State and national power.

344 U.S. at 196-7.

In the case of Keyishian v. Board of Regents, 385 U.S. 589 (1967), the Supreme Court held that New York statutes and regulations which required the removal of college faculty members for seditious utterances, banned state employment of any person advocating or distributing materials which advocated a forceful overthrow of the government, and made Communist Party membership prima facie evidence of disqualification for employment unconstitutionally abridged the freedom of association protected by the First Amendment. The statutes and regulations were attacked by faculty members of the State University of New York. Striking down the offending laws, the majority opinion stated:

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment which does not tolerate laws that cast a pall of orthodoxy over the classroom.

385 U.S. at 603.

The case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), completes the trifecta in this part of the analysis. The war in Vietnam provided the backdrop for this one.  The year of decision was also one of significant transition. In June of 1969 Chief Justice Earl Warren retired and President Nixon appointed Hon. Warren Burger to take his place. Thus, Tinker, which was decided in February of 1969, was one of the last hurrahs of the Warren Court.

The challenge in Tinker was made on behalf of students who were punished for protesting the Vietnam War by wearing black armbands to school. Nevertheless, the majority opinion at least three times placed teachers and students on equal footing with respect to the exercise of free speech. See 393 U.S. at 506. What the Supreme Court precisely held in Tinker was that suppressing the students’ display of the black armbands in school violated their First Amendment rights. The Court did recognize the school’s need to prevent disruptive conduct that would jeopardize the school’s educational mission. That is, the Constitution permits reasonable, carefully restricted regulation of speech-connected activities. In Tinker, however, there was no evidence that the school or any class was disrupted by violence or the imminent threat of disruptive behavior. After affirming the students’ First Amendment rights in the classroom and on campus, the majority opinion did express the following qualification:

But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Tinker, 393 U.S. at 741.

An interesting feature of Tinker is the dissenting opinion of Justice Black, duly regarded as a great champion of First Amendment rights. Nevertheless, in Tinker he made a distinction between regulating the content of speech, which, in Justice Black’s view, neither the State nor Federal Government had authority to do; and, on the other hand, regulating the time and place for the exercise of the students’ right to free speech, which Justice Black took to be within the ambit of school control. Justice Black, who would have allowed the school to ban the black armbands and to discipline the students who violated the prohibition, concluded as follows:

I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.

Tinker, 393 U.S. at 526.

Justice Harlan, also dissenting, wrote in a separate opinion:

[S]chool officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns–for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.

393 U.S. at 526.

Right or wrong, the dissents make the point that it is freedom from imposition of orthodoxy that students should possess, and constitutionalizing the right to wear a black armband to school trivializes the dialogue on that point.  Nevertheless, these cases not only recognize intrinsic worth in each divergent interest, school, school board, teachers, and students, but also the need to adjust the differences when in conflict. Taken together they teach tolerance for expressive behavior until it threatens discipline and good order. The key word is disruption.  The Court will not sit idly to watch the institution’s very reason for existence jeopardized.  Preserving the school’s educational mission is the paramount goal.

That stance would surely leave room to effectuate the Miltonic dictum, “I cannot praise a fugitive and cloistered virtue,” yet difficult questions remained. At what point does one individual’s free expression impermissibly create a net loss in the public good to which the freedom is intended to contribute? The individual student does not have the right to disrupt the educational process.   In furtherance of the educational mission, on the other hand, is the teacher a free agent in terms of the right of expression, or constrained by virtue of public employment? And, if so, to what end?

Cutting to the chase, neither Academic Freedom nor the First Amendment gives the individual teacher free rein to say or do whatever comes to mind under the aegis of scholarship or teaching.  The case law makes that clear.  Stare decisis abides. 

The Supreme Court has worked out an analytical means of handling these cases. Its component parts were anticipated in many respects in the cases discussed ante. Sometimes called the Pickering/Connick Test, or the Pickering Balancing Test, it takes its name from one or both cases, Connick v. Myers, 461 U.S. 138 (1983); and Pickering v. Board of Ed., 391 U.S. 563 (1968), in which the United States Supreme Court constructed the model for working out tough questions.

By these or any other name, the test applies to a fact pattern in which the actions of the public employer allegedly infringe upon the public employee’s First Amendment rights, in contrast to loyalty oath and subversion cases such as Wieman and Keyishian, which involved direct attempts by the state legislatures to control “who may teach.”  We will see that these cases, one involving an assistant prosecutor (Myers), the other a teacher (Pickering), continue to get applied in the post-Garcetti era.  A primer on how they are applied will be helpful here.  The sequential list of questions that must be addressed when applying the Pickering Balancing Test is as follows:

Did the employee speak out on a matter of public concern? If the answer is “no” the case is over, employer wins. If the answer to this question is “yes” proceed to the next question. 

If so, did the employee’s expression compromise the public employer’s ability to maintain efficient delivery of public service? If the answer to this question is “yes” then the case is over, employer wins. If the answer is “no” proceed to the next question.

If not, can it be said that “but for” the employee’s expressions on a matter of public concern he or she would not have suffered the injury or damage dealt by the employer? If the answer to this question is “yes” employee wins. If the answer is “no” the employer wins.

The Supreme Court defined the task as seeking a balance between the interest of the employee in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Connick v. Myers, 461 U.S. at 142; Pickering, 391 U.S. at 568. The test recognizes that the public employee retains rights “as a citizen” of the United States; and also that the governmental employer does have a legitimate albeit constrained interest in regulating the speech of its employees. Connick v. Myers, 461 U.S. at 140; Pickering, 391 U.S. at 568.

Thus, a key element is the public employer’s interest “in promoting the efficiency of the public services it performs through its employees,” Pickering, 391 U.S. at 568, which must be balanced against “the interests of the [employee], as a citizen, in commenting upon matters of public concern,” Connick, 461 U.S. at 140. Just as the governmental employer’s right is circumscribed, so is the employee’s, and the question whether the employee has gone too far “must be determined by the content, form and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48.

That the test is getting applied presupposes that the public employer has subjected the employee to some unfortunate job action, typically disciplinary in nature. The third question in the test, which incorporates the “but for” standard, is designed to determine whether there is truly a causal connection between employee speech and employer job action. If the employer would have taken the same action due to employee misconduct or some other reason, then the employee’s First Amendment rights have not been violated.

Adverse actions against teachers have been upheld, for example, where a teacher failed to comply with school standards in issuing grades; a high school biology teacher taught scientific theories of his own choosing; a high school teacher showed an R-rated movie to her class; a teacher continued to use profane language in the classroom after several warnings; and a psychologist failed to report that a student had been involved in a sexual encounter with a male teacher. See M. Edwards, et al., Freedom of Speech in the Public Workplace, supra, at 134.

Public school teachers have successfully invoked their First Amendment rights, for example, a teacher’s use of role-playing to teach the history of post-Civil War Reconstruction was protected speech; a teacher could not be disciplined for assigning a magazine article that contained an obscenity where the teacher explained the word and why the author had included it; and an English teacher who allowed her high school students to use profanity in their poems and plays engaged in protected speech. Id. at 133.

Furthermore, even in the case of protected speech, disruption or the threat of harm, whether to the institution, the public service it renders, or relationships of those who work there, justifies action by the public employer. Insubordination, belligerence toward co-workers, or other harmful behavior in the guise of free speech is not entitled to protection. Nor does the public employer have to wait for demonstrable ill effects. Apprehension of disruption is sufficient reason to take action against the employee if the employer’s prediction of disturbance in a sufficient degree is reasonable, Waters v. Churchill, 511 U.S. 661, 673 (1994), thus disruption is in the eye of the judicial beholder.

Although application of the Pickering Balancing Test in the context of classroom utterances by an instructor has been criticized, and, indeed, attempts have been made to formulate a different test in such cases, Fourth Circuit case law indicates that the Pickering Balancing Test is applied to intramural issues in this jurisdiction. Emblematic is the majority opinion in the case of Boring v. Buncombe County Bd. of Ed., 136 F.3d 364 (1998) (en banc). The plaintiff in that case was a high school drama teacher who selected a controversial play to be performed by students in a state competition. The play depicted mature subject matter. As a warm up, it was performed for an English class in the high school. A parent of one of the students complained to the school principal. The drama teacher was transferred at the end of the school year, an action she challenged on First Amendment grounds.

A majority of the Fourth Circuit held that the drama teacher’s selection of the play did not present a matter of public concern. It was part of the school curriculum in which the administration had a legitimate pedagogical interest and right to control. (We will have more to say about that point in the context of North Carolina public schools post.)  Quoting its opinion in an earlier case which involved transfer of a public employee who had advised some affected citizens on the merits of a zoning dispute contrary to the instructions of his employer, the Fourth Circuit stated:

“A government employer, no less than a private employer, is entitled to insist upon the legitimate, day-to-day decisions of the office without fear of reprisals in the form of lawsuits from disgruntled subordinates who believe that they know better than their superiors how to manage office affairs.”

136 F.3d at 369, quoting DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995).

The majority opinion continued:

We agree with Plato and Burke and Justice Frankfurter that the school, not the teacher, has the right to fix the curriculum . . ..

Someone must fix the curriculum of any school, public or private. In the case of a public school, in our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of the curriculum be entrusted to the local school authorities who are in some sense responsible, rather than to the teachers, who would be responsible only to the judges, had they a First Amendment right to participate in the makeup of the curriculum.

136 F.3d at 370-371.

A concurring opinion added that “the curricular choices of the schools should be presumptively their own.” 136 F.3d at 371. A separate concurring opinion would judge the proposition as “unassailable”:

I agree fully with the unassailable conclusion of the majority that the First Amendment does not require school boards to allow individual teachers in the Nation’s elementary and secondary public schools to determine the curriculum for their classrooms consistent with their own personal, political, and other views.

136 F.3d at 372 (Luttig, J., concurring).

Invocation of Justice Frankfurter’s name in the majority opinion is particularly noteworthy. An interesting exercise at this point might be to re-read the language from Justice Frankfurter’s concurring opinion in Wieman, quoted above in this paper, and assay how much “free play” and “free spirit” could remain in teachers’ free speech if the Boring dictum were applied to the logical end.

Seven judges of the Fourth Circuit dissented in Boring. The dissenting judges reached the conclusion that selection of the play and the controversy it created were indeed matters of public concern. One dissenting judge stated that the case was about a school principal and school board who targeted the teacher “as a scapegoat and used her to shield them from the ‘heat’ of the negative outcry resulting from the performance of [the play].” 136 F.3d at 30 (Hamilton, J., dissenting).

Another dissent stated:

School administrators must and do have final authority over curriculum decisions. But that authority is not wholly unfettered. Like all other state officials, they must obey the Constitution. . . . thus, teachers’ in-class speech retains some, albeit limited, First Amendment protection.

136 F.3d at 375 (Motz, J., dissenting).

The majority, by holding that the play was not a matter of public concern, never had to reach the second question in the Pickering Balancing Test, which is where the real balancing occurs, viz. the interest of the teacher versus the school’s efficiency interest. Arguably, the school had an uphill climb on that issue inasmuch as the reported opinion bespeaks no palpable disruption or imminent threat of disorder in the school, its drama department, or the English class where the play was presented. The agon was between the principal and a teacher about the propriety of a play.  Conceivably the principal could have been oblivious to its content if a parent had not complained.  Then, as this writer’s torts instructor, Professor Dan Dobbs, was wont to say, everything is a matter of degree.  Does the volume and critical mass of “negative outcry” become the determining factor of the pedagogical value of the school assignment?

                        We will do well to keep another point in mind.  The Fourth Circuit bench is comprised of superior legal minds appointed at different times by the then POTUS.  The dissent in Boring was not by a lone wolf anomalous thinker but by seven accomplished legal scholars.  In short, great minds can and will differ when it comes to constitutional interpretation.  It is an appropriate juncture in this paper to also quote the dictum of this writer’s Constitutional Law professor, Dan Pollitt, the Constitution means what a majority of the Supreme Court says it means at a given time.  Stare decisis does not hold sway forever.  Precedents can be overturned, not precipitately, perhaps glacially, but often a function of fortune’s wheel turning in politics and perspectives.

The opinion of a U.S. District Judge in Virginia provides additional insight as it works its way through the entire Pickering Balancing Test. Scallet v. Rosenblum, 911 F. Supp. 999 (W.D. Va. 1996), was decided prior to publication of the Fourth Circuit’s opinion in Boring. The result in Scallet is also unfavorable to the teacher, but the judge who made the decision took a broader view of what classroom expression might be considered a matter of public concern.

In Scallet, the plaintiff was a non-tenured instructor at the UVA graduate business school. He alleged that nonrenewal of his teaching contract was in retaliation for his candor on issues of “diversity”and, therefore, violated the First Amendment. The plaintiff alleged that the defendants nonrenewed his contract based on speech which fell into three categories: (i) content of his classroom discussions, in which he addressed such matters as “power relationships” in corporate organization and showed the movie “Roger and Me”; (ii) comments he made at faculty meetings where he expressed the view that materials used in class should reflect the experiences of women and minorities in the workplace; and (iii) articles and a cartoon he posted on the wall outside of his office.

Nonrenewal was defended on the ground that the plaintiff’s behavior made it impossible for other members of the faculty to work with him. There was evidence that the plaintiff bullied some female instructors. There was even evidence that female students “dreaded” the plaintiff’s classes because he made them feel uncomfortable and because his use of profanity interfered with their ability to focus on the materials. Furthermore, it was the defendants’ contention that the plaintiff’s classroom discussions disrupted effective delivery of the course he taught.

The judge who decided the case expressed reservation about applying Pickering/Connick to expressions in graduate school “since the test does not explicitly account for the robust tradition of academic freedom in those quarters.” 911 F. Supp. at 1011. Nevertheless, the judge decided that without clear guidance to the contrary from a higher court the Pickering test that should be applied and he did so assiduously. As to the first category of complaints, content of the plaintiff’s classroom expressions, the judge held that classroom speech is indeed a matter of public concern. The plaintiff, “as an educator, routinely and necessarily discusses issues of public concern when speaking as an employee. Indeed, it is a part of his educational mandate.” 911 F. Supp. at 1013. Going further, the judge stated that “the First Amendment is routinely implicated in the classroom, both at the university level and below.” 911 F. Supp. at 1014.

The judge did draw a line, however, stating that “not all classroom speech implicates matters of public concern.” 911 F. Supp. at 1014. (We will do well to keep this point in mind as well as its corollary, sometimes classroom speech implicates competing matters of public concern.). For example, recapping the facts and decisions reached in some other reported cases, the judge reiterated that neither the use of racial epithets nor cursing in the classroom would be protected under the First Amendment. Id. 

The judge concluded that the plaintiff’s classroom discussions concerning diversity related to a “core issue of public concern.” 911 F. Supp. at 1014. However, the judge recognized that the school as an institution had a powerful interest in the content of its curriculum and coordination of content in required courses. Id. at 1015. The judge then applied the balancing test and concluded that the plaintiff’s in-class speech did disrupt the school’s pedagogical mission. 911 F. Supp. at 1016. By not adhering to the materials which were used by instructors in other sections the plaintiff created disruption, hampered the school’s ability to deliver the course to its students effectively, and created divisions within the faculty. The plaintiff’s in-class speech was not protected by the First Amendment. 911 F. Supp. at 1017.

The judge did conclude that the plaintiff’s expressions at the faculty meetings, where he advocated diversity, were protected under the First Amendment. The defendants argued that it was not the content of the speech, but the plaintiff’s confrontational style of speaking that was the problem. According to the judge, the defendants’ argument on this issue had to be analyzed at the third level of the Pickering Balancing Test.

Before getting to that stage, the judge addressed the third category of expressive behavior, the issue of the cartoon and articles posted near the plaintiff’s door. These materials included a “Guide to Non-Sexist Language” plus a Doonesbury cartoon spoofing the prevalence of dual-track education for boys and girls and an article concerning business and the environment. The judge concluded that these materials were protected forms of expression and not sufficiently disruptive to the school. Consequently, the posted articles and cartoon also had to be evaluated at the third level of the Pickering Balancing Test.

Applying the “but for” causation test, the judge concluded that the plaintiff’s contract would have been nonrenewed regardless of the comments at faculty meetings and the materials posted at his door. Plaintiff’s obnoxious behavior toward his colleagues, bordering in some cases on sexual harassment, together with the disruption he caused in delivery of the course material, created insurmountable problems effectively forcing the defendants to deny his renewal. 911 F. Supp. at 1020. The plaintiff’s refusal to adhere to the school’s vision of the proper content and method of teaching his course, together with poor working relations with other faculty members, were the motivating factors for nonrenewing his employment. Therefore, the defendants’ action did not violate the plaintiff’s First Amendment rights, a decision affirmed by the Fourth Circuit, 106 F. 3d 391 (1997).

Before moving on to a discussion of Garcetti v. Ceballos, it is now an opportune moment to ask the question, how would the courts deal with a new Scopes case?  Would they ever get the chance?  Would any state legislature pass an anti-evolution law in the modern era?  Those questions were indeed answered in the case of Epperson v. Arkansas, 393 U.S. 97 (1968).  An Arkansas statute forbade public school teachers from teaching that mankind ascended from a lower order of animals.  A high school biology teacher challenged the law and ultimately prevailed before the Supreme Court albeit on Establishment Clause grounds, not freedom of speech.  A similar result was reached in the case of Edwards v. Aguillard, 482 U.S. 578 (1987), which involved a Louisiana law that required public school teachers to teach “creation science” if they taught evolution.  If they abstained from teaching evolution they would not have to teach “creation science.”  This law also was struck down by SCOTUS on Establishment Clause grounds.

Epperson and Aguillard provided some of the impetus for a great constitutional scholar to conclude an article on Academic Freedom on a guardedly upbeat note.  According to Professor William Van Alstyne in 1990, although protection of Academic Freedom was assuredly not “now reasonably secure,” there were enough things coming out “nearly right” for him to wrap by saying that “the jurisprudence of the first amendment is vastly better than it once was.”  W. Van Alstyne, supra, 53 Law & Contemp. Probs., at 153-154.  So Academic Freedom, the European import, had gained at least a toehold in American jurisprudence and had also acquired demonstrably American features by the end of the 20^th century.

Now we get to Garcetti.  The Supreme Court’s decision in the case of Garcetti v. Ceballos, 547 U.S. 410 (2006), is the latest SCOTUS landmark decision concerning the First Amendment rights of public employees. Although it did not involve the speech of a teacher, it has generated much dialogue and disputation on the future of Academic Freedom and application of the First Amendment in academe.  In that case, Garcetti, a deputy district attorney complained of retaliation after he criticized a search warrant obtained by a deputy sheriff in a criminal case. The Supreme Court held that public employees who make statements pursuant to their official duties are not speaking as citizens for First Amendment purposes and are not insulated from employer discipline for their communications in the course of public employment.  547 U.S. at 418.  This holding is commonly referred to now as the Garcetti official duties test.  It looks like a return to the bad old days of McAuliff and Scopes from the point of view of the individual public employee, the freedom of speech giving way to employment (formerly referred to as master-servant) law.

In dissent, Justice Souter questioned whether the majority opinion meant to imperil First Amendment protection of academic freedom in public colleges and universities.  547 U.S. at 438. The majority opinion by Justice Kennedy rejoined, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”  Id. at 425.  In other words, because the Court did not have to on the facts of the case, the Court did not “go there.”

The Fourth Circuit already did.  In the case of Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), the Fourth Circuit anticipated the holding in Garcetti in one respect and then went on to answer the question subsequently left open in Garcetti. In Urofsky, the Fourth Circuit held that regulation of access to sexually explicit material placed on professors employed by various public colleges and universities, in their capacity as employees, on computers owned or leased by the state, was consistent with the First Amendment. 216 F.3d at 404.

According to the majority opinion in Urofsky:

This focus on the capacity of the speaker recognizes the basic truth that speech by public employees undertaken in the course of their job duties will frequently involve matters of vital concern to the public, without giving those employees a First Amendment right to dictate to the state how they will do their jobs. . . . .

It cannot be doubted that in order to pursue its legitimate goals effectively, the state must retain the ability to control 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. [Citations omitted.]

Urofsky, 216 F.3d at 407 – 409.

The opinion then went on to conclude that a professor has no constitutionally-protected right of “academic freedom” other than the First Amendment rights to which every citizen is entitled.  216 F.3d at 409. The opinion reasoned that the right to academic freedom inheres in the institution not in the individual professor. Id. The opinion then dissected the Supreme Court opinions from bygone years that appeared to contain contrary language, concluding:

The Supreme Court, to the extent it has constitutionalized a right of academic freedom at all, appears to have recognized only an institutional right of self‑governance in academic affairs.

216 F.3d at 412.

Subsequent post-Garcetti circuit decisions have gone the way of Urofsky in result without going as far on the question of who is entitled to Academic Freedom. See Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009); and Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008). In Hong v. Grant, 516 F.Supp. 2d 1158 (C.D. Cal. 2007), a case in which a university professor claimed reprisal for his criticism of departmental administrative practices, the district judge reasoned that his statements were in the course of official duties, not classroom instruction or professional research, and therefore the professor’s claim was barred on authority of Garcetti, 516 F.Supp. 2d at 1165‑1170, a result that was affirmed by the U.S. Court of Appeals for the Ninth Circuit.

Assuredly the landscape of Academic Freedom is made to appear bleak for teachers in public institutions in the glare of Garcetti, and there is a school of thought that Urofsky accurately predicted where SCOTUS would ultimately come down on the question of the individual teacher’s right to Academic Freedom, i.e., nonexistent.  Nevertheless, Garcetti assuredly does not foreclose the individual teacher’s protection for “speech related to scholarship or teaching” or protection for the teacher’s right to speak out, as a citizen, on matters of public concern.  What if the history curriculum dictated teaching that Stalin was a great benefactor of mankind, or that John C. Calhoun’s nullification theory was the proper interpretation of the U.S. Constitution, or that the Holocaust never happened? Surely there would be a remedy in the case of a history teacher disciplined for saying, “Not so!”. And what is to be done in behalf of the teacher who takes the hardline affirmative stance on any one of those propositions in the classroom. We can hypothesize similar cases at both extremes and all manner of cases in‑between. Justice Kennedy, therefore, made a strategic move in Garcetti to defer rendering a legal opinion that did not need to be decided that day.

As a momentary recap, we can say that in the case of Educator v. Institution there is a presumption in favor of the latter over the individual. Moreover, the threshold of disruption that may cause otherwise protected speech to lose its constitutional shield is relatively low. The institution then is afforded leeway with respect to answering the question of who may teach in case of disagreement over the what and how, a sharp sword over the teacher’s head to be sure.  We said it before, we will say it again, the definition of “Academic Freedom” in our jurisprudence resists tidy definition.  Instead, in optimistic moments we might say it has the texture of democracy, i.e., checks and balances. If one interest gets too far out, another can pull it back. Although not a creation by design, Montesquieu might still recognize his model.  Is that a realistic view? 

Does the Individual Teacher Have Rights?

The pedagogic speech and writing of a teacher in a public institution is distinctly integral to the individual’s official duties. Relentless application of the Garcetti official duties doctrine could place the individual instructor in the cross‑hairs of disciplinary action by the administrator displeased with something said in the classroom. We can hypothesize situations when that result should be so. We can also hypothesize situations in which the instructor’s side of the case would be justified. A modern day Scopes or Galileo would surely deserve protection.

On the other hand, the cause of misguided orthodoxy would prevail against the individual teacher under the Fourth Circuit’s opinion in the case of Urofsky v. Gilmore unless it violated some other provision of the Constitution such as the Establishment Clause in Epperson or Aguillard.    Although the precise issue in Urofsky had to do with access to sexually explicit material via the institution’s computers, the opinion went on to conclude that a professor had no constitutionally protected right of Academic Freedom. 216 F.3d at 409-412.

In short, after the limited protection of Pickering/Connick for the exercise of free speech rights as a citizen, the instructor’s latitude could be constrained from the moment she steps into the classroom. “Good morning, class,” might be the first line of a script. A bare‑knuckled application of Urofsky might cost the teacher her job if she ad‑libbed, even in the interest of balanced exposition.

The issue is fundamental in a democratic society: Does the instructor have legal protection for classroom speech, scholarly research and writing?  If so, is it part of “the freedom of speech” protected by the First and Fourteenth Amendments? If so, is it absolute or qualified? If not absolute, what would be the rules of engagement for discussion, dialogue and disputation in the classroom and in scholarly publication?

According to one noted authority, “the cases posing such dissonance are relatively few,” referring to those in which the institution and faculty are at odds. Robert O’Neil, “Judicial Deference to Academic Decisions: An Outmoded Concept?” 36 Journal of College & University Law 729, 738 (2010). At the top of the commentator’s short list was the Urofsky case. Id. However, end-of-story stopping power was not ascribed to it as, on the facts of the case, “any comments about relative academic freedom claims were necessarily dicta.” Id. at 739.

Another commentator, describing Urofsky as the “nadir” of academic freedom for faculty research, was more deflationary:

Urofsky, if nothing else, serves as an exemplar of contemporary judicial hostility to claims by faculty members for special exemption from expectations of behavior that apply to other state employees and other community members.

Lawrence White, “50 Years of Academic Freedom Jurisprudence,” 36 Journal of College & University Law 791, 832‑834 (2010).

Intuition would say yes to the question whether there should be a measure of Academic Freedom afforded to the individual teacher.  We would recoil from goose stepping conformity to particular points of view which might be installed in a school curriculum, from adherence to the theory of a Ptolemaic solar system to Holocaust denial. Before summarily dismissing those possibilities, we might recall Sinclair Lewis’ ironic assurance, It Can’t Happen Here, where It did.

Furthermore, conventional wisdom among academics is that their role in a democratic society does allow them to lay claim to a “special exemption.” Administrators and counsel for institutions of higher learning are very familiar with instructors who invoke “Academic Freedom” on an ad hoc basis, which may be altogether notional and self‑serving. Nevertheless, instructors can be adamant about their Academic Freedom when challenged about assigning grades at one end of the spectrum, all the way to injecting provocative language into a discussion about literary devices. To be sure, Urofsky serves a useful purpose for reining in the renegade who, to the objective listener, uses ribald language gratuitously in the classroom, but that point of view throws the baby out with the bathwater.

 The 1940 AAUP Statement of Principles on Academic Freedom and Tenure specifically calls for teachers to have individual rights in research and classroom teaching but the 1970 Interpretive Comment provides the following gloss on the phrase “controversial matter”:

The intent of this statement is not to discourage what is “controversial.” Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster. The passage serves to underscore the need for teachers to avoid persistently intruding material which has no relation to their subject.

What is said there does not dispense with the teacher’s obligation to act responsibly. The goal of Academic Freedom under this regime could be said to foster “free academic inquiry” based on material that is relevant to the subject. We could further elaborate by doubling back to a core value contained in the introductory paragraph of the AAUP Statement, “The common good depends upon the free search for truth and its free exposition.” Distilling these thoughts further, we might say that the teacher can and should pose questions in the classroom and expose the truth as he or she sees it.  We would incline then toward the conclusion that the teacher should not be constrained from those endeavors, and, therefore, in positive terms the teacher has individual rights consistent with these precepts.

On the one hand, this rosey impression might seem to play out in reality in North Carolina.  For example, in a state that reveres Billy Graham the most popular professor in the UNC Chapel Hill department of religion is a professed agnostic atheist and prolific author on the subject who speaks to SRO crowds at book signings.  On the other hand, a popular course on the history of the NCAA and scholarship athletes was withdrawn recently at the same institution without explanation.  The teacher, a highly regarded history professor, has been vocal in his criticism of how the administration handled the long-running scandal over fake courses and the ensuing NCAA investigation that has been in the news now for years.  Is it possible that some powerful people can tolerate questioning the virgin birth better than exposing the ways and means of winning championships in collegiate athletics?

A mixed bag for sure.  Nevertheless, North Carolina university and collegiate policies very typically contain some prescription of individual pedagogic rights or procedural safeguards for the instructor to invoke in case those rights are violated.

Traveling Down East to Pamlico Community College, the smallest institution in the North Carolina community college system, we find a very stalwart variation on the theme of free but responsible academic inquiry:

Academic Freedom Policy

Freedom is a necessary element in education. This freedom must be accorded both to the instructor and to the student. Pamlico Community College makes every effort to see that this situation exists. Hence, no semblance of thought control is imposed upon any faculty member. Each individual is free to investigate, to speculate, to revolutionize, and to express his/her academic convictions. However, it is the policy of the Board that no instructor of the College shall teach or recommend that students disobey the law, whether it be local, county, or federal. As the instructor is free, so is the student. A minimum of rules and regulations exist in relation to his/her personal conduct. Respecting the student as an individual, the College assures his/her the right to self‑expression essential in intellectual and educational growth.

Salute an institution that co‑opts Pink Floyd in the cause of Academic Freedom. Emphasizing the freedom of both faculty and students, this policy on the printed page sets the stage for a dynamic, give‑and‑take learning environment.

Back to the western part of the State, the Tri-County Community College policy provides the following (emphasis supplied):

Academic Freedom Policy

The search for knowledge and the dissemination of that knowledge is the foundation upon which education rests. Academic freedom for faculty and students is the freedom to ask questions, seek answers, examine all pertinent data, question assumptions and conclusions, and present those answers within the structure of a given course and its objectives or a given program and its outcomes. Academic freedom is ultimately the freedom to teach and to learn, protected from institutional censorship. Freedom always exists alongside responsibility, and academic freedom is no exception. This freedom carries with it the duties of intellectual honesty and sound judgment.

The explicit protection “from institutional censorship” seems to present the very antithesis of an extreme extension of Garcetti to academic speech.  Although qualified by consideration to responsibility, intellectual honesty, and sound judgment, discretion is left with the instructor.

 Similarly the Stanly Community College Academic Freedom Policy says much with linguistic thrift (emphasis supplied):

Academic Freedom Policy

SCC is dedicated to the exchange of ideas, the development of skills, and to the nurture of those personal and intellectual habits and attitudes which are necessary in a free, open, and democratic society.

The College Board of Trustees endorses the pursuit of academic freedom. The right of an instructor to present facts relative to controversial issues is therefore guaranteed so long as different views of the issue are allowed. A free and open discussion of all points of view will help avoid indoctrination and will foster an atmosphere conducive to learning.

The exercise of academic freedom also requires the exercise of reasonable judgment.

This sample of policies from the community college system is testament to customs, practices, and understandings.  Academic Freedom, responsibly put into practice, is recognized as an individual right of the teacher.         

UNC Charlotte likewise accords individual Academic Freedom rights to all of its faculty members.  University Policy 102.13, Section 2.  It applies to “inquiry, discourse, teaching, research, and publication…to the end that [faculty] may responsibly pursue the transmission and advancement of knowledge and understanding free from internal or external restraints that would unreasonably restrict academic endeavors.”  The policy also states that the University will protect faculty members “in the responsible exercise of the freedom to teach, to learn, and otherwise to seek and speak the truth.”  Nor will the University penalize or discipline faculty members because of the exercise of Academic Freedom “in the lawful pursuit of their respective areas of scholarly and professional interest and responsibility.” 

The last phrase aligns with an excellent explanation of Academic Freedom which ties the individual right to the work done “by specialists in the relevant fields rather than by university officials, state legislators, or other nonexperts.”  Joan DelFattore, Knowledge in the Making:  Academic Freedom and Free Speech in America’s Schools and Universities 1 – 2 (Yale University Press 2010).  We might do well to repeat what this writer takes as the main point here.  It is the “specialists[‘]” expressions that proceed from their knowledge “in the relevant fields” that affords the mantle of protection.

In summary, it is very hard to see how the Urofsky doctrine could hold up in a case that involved an individual faculty member in higher education expressing opinions or publishing other expressions in teaching or scholarship that is within his or her discipline.  Still, the Fourth Circuit itself has not overturned or repudiated it nor is there a Supreme Court case so far that confronted the precise issue as formulated in Urofsky, and 2017 surely is a time of flux and uncertainty.                               

Academic Freedom in Interesting Time

The title of this section of the paper of course borrows a phrase from what is said to be a Chinese curse, may you live in interesting times.  This year has been interesting indeed in that sense, marked as it has been by the proliferation of controversial speech, speech acts, and even aborted speech on college campuses across the length of the United States:

• A university course on college sports, “Big-time College Sports and the Rights of Athletes, 1956 to the Present,” that was earlier reported to be the object of efforts to “do away with the course,” is now hanging in suspension if not done away with.
• The local school board upheld the 10-day suspension of a high school teacher who stepped on the United States flag as a demonstration of the freedom of speech.
• Speakers on several college campuses have been shouted down by people in attendance, and the University of California, Berkeley recently cancelled a scheduled speech by Ann Coulter due to the school’s inability to assure her safety.
• Much has been written about a recently published book by the educator Laura Kipnis, “Unwanted Advances:  Sexual Paranoia Comes to Campus,” which describes her own experience defending herself in a Title IX investigation.

These cases resonate with the First Amendment free speech issues that were discussed in the first section of this paper, and in the case of Prof. Kipnis we also encounter the collision of free expression (her criticism of a campus directive prohibiting professors from dating undergraduates) and the Title IX hostile environment provisions.  The fate of the college sports course, seemingly hanging in a precarious balance if not already moribund, evokes Sweezy. 

Then the continuing relevance of Tinker v. Des Moines Independent Community School District is called to mind by the hecklers’ veto and even violence and threats of violence which have thwarted the speakers.  However, instead of the theoretical disruption of black arm bands we are now seeing event-stopping disruption.  Colleges and universities typically have policies that seek to maintain order at speech events such as the ones that have been reportedly disrupted.  UNC Charlotte’s policy, University Policy 802, hits all of the appropriate stops, including provisions to deal with disruptive noise, force, and violence.  Students who violate these rules are subject to expulsion from the event, as well as disciplinary action under the Code of Student Responsibility. 

That UC Berkeley would cancel an upcoming event due to threats is unusual—the more common practice is to go forward with an event, prepare in advance to meet the challenges that are expected to occur, and deal with bad behavior if and when it does occur—but the government sponsor of an event has greater authority of restraint in the case of imminent lawless action.  As of this writing the latest development at Berkeley is a threatened lawsuit by the student Republicans alleging that their First Amendment rights have been violated by cancellation of the Anne Coulter speech.  This story will likely continue to develop in the days prior to the faculty retreat.

The alleged teacher flag desecration case reminds us that Garcetti v. Ceballos is always in the wings.  Garcetti could be applicable in the flag case inasmuch as the teacher’s actions occurred in the classroom and involved an instructional activity.  That is, he was acting within his official duties and he was teaching.  Would the court make an exception to the official duties test particularly in the case of a secondary school teacher?

However, received wisdom is that K-12 teachers do not possess rights of academic freedom when it comes to teaching in a classroom.  Joan DelFattore, Knowledge in the Making, supra, at  3.  Citing N.C. Gen. Stat. § 115C-98(b1), respected commentators have agreed that it is the local school board in North Carolina that has the sole authority and discretion for controlling curricular speech in the public school classroom.  Mesibov & Dunham, “School Board Control of Curricular Speech,” School Law Bulletin, UNC School of Government (July, 2009).  Quoting from this bulletin:

Although teachers, not board members, deliver the curriculum, teachers do not have a right to select content or instructional materials or methods unless they have been specifically assigned that authority by the state or local board of education.  Court decisions have established that a teacher in North Carolina has no right under the First Amendment to challenge or fail to follow a school board’s decision related to the curriculum, whether or not the teacher is convinced that he or she knows how best to help students learn and achieve.  [Footnote omitted.]

On the other hand, what if a school board required the high school history teacher to teach “alternative facts” such as Holocaust denial?  Could we countenance another Scopes case?  The remedy due the teacher who is ordered to convey factual misinformation to students or to withhold scientifically verified information may be somewhat of an open question, J. Del Fattore, Knowledge in the Making, supra, at 117, although the equities would seem to favor a paradigm shift in such a case in favor of the teacher.  There is also at least one reported case of a U.S. District Judge who reinstated a high school English teacher on First Amendment-Academic Freedom grounds who had been dismissed for teaching Kurt Vonnegut’s Welcome to the Monkey House to her 11^th grade class.  Parducci v. Rutland, 316 F. Supp. 352 (MD Ala. 1970).

 In the case of higher education the Fourth Circuit has worked around Garcetti and even its own Urofsky precedent by applying the Pickering Balancing Test instead to the controversial publications of a UNC-W professor.  Adams v. Trustees of UNC‑Wilmington, 640 F. 3d 550, 563-4 (4th Cir. 2011).  According to the court his speech was directed at a national or international audience on issues of public importance and was outside of his official duties even though he submitted the publications in support of his application for a promotion to full professor.  It might be called an end run but for now in the Fourth Circuit at least the Pickering-Connick analysis is proving to be quite versatile when it comes to expression in the academic setting.

Professor Kipnis’ case is also a reminder that there are legally preemptive constraints on faculty expression.  Nondiscrimination laws place restrictions on faculty speech in public education.  Title IX was the issue in Prof. Kipnis case.  That law prohibits discrimination and harassment on the basis of sex.  Title VI prohibits discrimination on the basis of race, color, and national origin, as well as religious discrimination that is derivative of those traits and characteristics.  The Rehabilitation Act of 1973 and Title III of the Americans with Disabilities Act protect students on the basis of handicaps and disabilities.  Title IV of the Civil Rights Act prohibits religious discrimination in public schools and universities.  These laws not only prohibit disparate treatment on the basis of the respective class, characteristic, or trait but also harassment, thus, Professor Kipnis’ criticism of the university policy that, in its best light, was intended to prohibit predatory behavior by professors was construed by the complainant as creating a hostile environment in violation of Title IX.  It is this sort of misinterpretation or misunderstanding that makes navigation through these issues treacherous at times.  Missteps can occur not only by inattention to the protected nature of a particular class or characteristic but also by overzealous policing of the dialogue.  For example, a teacher’s overreaction to a faith-based comment about LGBT issues in a classroom discussion can bring down a Title IV complaint and a Department of Justice investigation.

UNC Charlotte has promulgated appropriate policies and procedures to address these issues.  University Policy 501 deals with the full array of protected factors (traits, characteristics, and classes) that may not form the basis for educational decisions.  University Policy 502 deals specifically with sexual harassment.  Of course the best practice is to have such policies and procedures, diligently adhere to them, and enforce them even-handedly and consistently.  The real work is what is to be done tomorrow in the inevitable case that no one anticipated, the facts of which seem to fall askew of the words on the page.

Coming full circle to our theme of what’s past is prologue, we recall the so-called “Coy Mistress” case that occurred at UNC Chapel Hill in 1966.  For several weeks in the fall semester of 1966, prior to Title IX and university policies prohibiting sexual harassment, Andrew Marvell’s poem, “To His Coy Mistress,” was a “national sensation.”  William Link, Righteous Warrior: Jesse Helms and the Rise of Modern Conservatism 90 (St. Martin’s Press, 2008) (hereafter Righteous Warrior).  On October 17, 1966, the television station WRAL reported that a UNC English instructor had assigned his students to write a paper on seduction using this 17th-century poem.  Id. at 89.  Subsequent investigation by a departmental committee determined in November that the instructor, Michael Paull, had not given the students that assignment, but asked them to use the poem to explain imagery and six figures of poetic speech.  Id.  93-94. 

In the meantime what was then called the “Coy Mistress” case became the subject of television commentaries by then editorialist Jesse Helms in his Viewpoint series.  Quoting from the transcript of one of them, he had this to say:

In the sometimes fuzzy, superficial world of misguided academic freedom and irresponsible freedom of the press, all the world is mostly a stage and a good many of the people are actors.  Therefore, it is remotely possible, though not logically probable, that the young English professor at Chapel Hill — the one with such an apparent preoccupation with sex — may somehow manage to wear that crown of pious martyrdom so frantically placed upon his head last week by the “liberal” newspapers of the state. 

Radio show transcript, Viewpoint #1466, October 25, 1966, Capitol Broadcasting Co., Raleigh, N.C., from the North Carolina Collection, Wilson Library, UNC‑Chapel Hill.

The history of how a freshman English assignment was seized upon by the press and politicized is discussed in depth elsewhere, for example, in Righteous Warrior, supra, at 89‑98; Bryan Thrift, Conservative Bias 131-136 (University Press of Florida, 2014); Online Exhibit, UNC Libraries, “A Right to Speak and to Hear:  Academic Freedom and Freedom of Expression at UNC,” https://exhibits.lib.unc.edu/exhibits/show/academic_freedom/classroom-filth/unc-filth (last accessed February 1, 2017).  Yet the “Coy Mistress” case is often forgotten.  According to one scholar, it involved the “politics of character assassination,” id. at 89, referring to the invective heaped on the English instructor and the effect it had on his teaching career.  It also involved a direct attack on the Sweezy freedom to let the university determine what may be taught and how.  Regrettable and forgettable as the case may be at some levels, kudos to the School of Information and Library Science at UNC for its excellent exhibit on the subject.  On the one hand it could be said that a great institution that successfully stood down the Speaker Ban Law in the same decade blinked, blanched, or even folded like a cheap suit in the face of a growing, powerful political force in 1966, yet the School of Information and Library Science does not back down from the bad memory but in the spirit of Kierkegaard’s fourth prayer holds the university up against it.

The Coy Mistress case is a reminder that what is intended to be thought-provoking may be miscast or misinterpreted as prurient.  A mundane incident can be turned into a political football.  Anti-intellectualism is not the only and not necessarily the most dangerous enemy of Academic Freedom.

Conclusion

Academic Freedom is the sort of thing that the early Wittgenstein might have been referring to when he said, what we cannot speak about we must pass over in silence.  It is also the very thing that perhaps in the spirit of the later Wittgenstein we must speak about when attacks and compromises seem to be a weekly occurrence in the news.  That Academic Freedom cannot be defined in twenty words or less does not diminish its importance in contentious times when civil dialogue and serious debate are in such short supply.