Academic Freedom: Revival in the Fourth Circuit

By Wm. Joseph Austin, Jr.

In a case that was already topical, the Fourth Circuit recently rendered an opinion that renewed the concept of Academic Freedom as legal doctrine based in the First Amendment. 

The case of Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019), involved two statements concerning Islamic beliefs presented in a high school world history class.  The plaintiff argued that the statements endorsed Islam over Christianity and compelled her to profess belief in Islam.  The Fourth Circuit affirmed summary judgment against the plaintiff, holding that the statements did not impermissibly endorse Islam or compel the plaintiff to profess belief in it.

The challenged materials included (1) a PowerPoint slide that contained the statement, “Most Muslim’s [sic] faith is stronger than the average Christian”; and (2) a fill in the blank item on a worksheet, which, if completed, would have recited one of the Pillars of Islam, i.e., the belief that there is no god but Allah and Muhammad is the messenger of Allah.  The plaintiff unsuccessfully contended that these materials violated the Establishment Clause of the First Amendment by endorsing the Islamic religion, and that the fill in the blank item, if she had completed it, would have compelled her to promote Islam over Christianity against her will in violation of the Free Speech Clause.

In affirming summary judgment against the plaintiff on the Establishment Clause claim, the Fourth Circuit applied the three-part “Lemon test,” established by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), which holds that government conduct is impermissible if driven by a religious purpose, or has the primary effect of either advancing or inhibiting religion, or excessively entangles church and state.  If a plaintiff has sufficient evidence of any one of the Lemon factors, the challenged conduct violates the Establishment Clause.

The Fourth Circuit held that none of these factors was transgressed.  Citing cases from the Supreme Court and many Circuits, the court explained that “context is crucial.”  915 F.3d at 313.  In the school setting, “[s]uch a determination can only be made by considering the academic framework in which those materials were presented.”  Id.

The Fourth Circuit then gave a shout-out to Academic Freedom.  It was significant.  The court recognized that even though schools are not immune from the sweep of the First Amendment, “academic freedom is itself a concern of that amendment,” 915 F.3d at 315, citing several Supreme Court opinions.  School authorities, not the courts, are responsible for deciding what speech is appropriate in the classroom.  Id.  “[A]cademic freedom would not long survive in an environment in which courts micromanage school curricula and parse singular statements by teachers.”  Id.

On the one hand, the statement in the challenged PowerPoint was recognized as ill-advised, 915 F3d at 312, but it was proffered for the secular purpose of teaching about Muslim empires in the context of world history.  Id. at 318.  There was nothing in the record to indicate that it was made with a subjective purpose of advancing Islam over Christianity.  Id.  Thus, it was introduced “for a genuine secular purpose.”  Id.

Similarly the worksheet item, itself part of a larger assignment which asked the students to demonstrate their understanding of the material by filling in the blanks left in a series of statements, was recognized by the court as “a tool designed to assess the students’ understanding of the lesson on Islam.”  915 F.3d at 318.  In context, it “had a predominately secular purpose in teaching world history.”  Id.  From there, the other Lemon factors fell into place.  The court held that the challenged materials neither advanced nor inhibited religion, id., nor entangled church and state.  Id.

This holding aligns perfectly with Milton’s spurning of the “cloistered virtue.”  The larger dialogue could also take a meaningful and positive turn by bringing to mind St. Thomas Aquinas’s respect for Islamic masters such as Averroes and Avicenna in the Summa Theologica.  He disagreed with them but held their scholarship and ways of thinking in high esteem.  Thus, scholastic Christian philosophy at the very highest level in the most Christian era of the Middle Ages did not exclude Islamic points of view from the dialogue.

Turning to the Free Speech claim in Wood, the Fourth Circuit stated that the worksheet did not require the plaintiff to profess or accept the tenets of Islam, nor to engage in any devotional practice related to Islam.  915 F.3d at 319.  If she had filled in the blanks, she would have written two words, “Allah” and “Muhammad,” doing so “as an academic exercise to demonstrate her understanding of the world history curriculum.”  Id.  On those facts the court concluded that the plaintiff’s First Amendment freedom from compelled speech was not violated.  Id.   

The court did not take it up but the Free Speech claim offered another opportunity to elaborate on the academic freedom implications in this case.  Additional light needs to be shed on the subject.  Dual questions lurk in the concept of Academic Freedom, writ large, across the scope of First Amendment cases.  In public education, each of three distinct groups, the school administration, faculty, and students, possesses a set of interests, sometimes overlapping but sometimes at odds.  Whose freedom is it?  And is it a freedom to act or protection from the acts of others?  Based on the case law, one might answer, “It depends,” which means the correct answer is also, “All of the above.”

Lest we forget, there is also a public interest in public education.

The cases and other authorities on point have been surveyed previously.  See  “Academic Freedom:  Checks and Balances,” NCBA Education Section Law Newsletter (May 2010); “Academic Freedom:  Checks and Balances Part II:  Does the Individual Teacher Have Rights?” NCBA Education Section Law Newsletter (October 2010); and “Academic Freedom in Interesting Times,” Vol. 27, No. 4 North Carolina Lawyer, p. 29 (May 2017).

Questions hung in the balance when those articles were published.  Fundamentally did the judiciary still allow for any real vitality in Academic Freedom as legal doctrine?  If so, evidence of it was scant for about two decades, the conceptual difficulties outlined above apparently clouding the picture.  Now the Fourth Circuit in Wood hasassuredly answered the question in the affirmative.  The court’s treatment of the Establishment Clause issue was in the best tradition of Sweezy v. New Hampshire, 354 U.S. 254, 255 (1957), which gives deference to the educational institution to decide what may be taught and how it shall be taught.

Although Academic Freedom was not explicitly invoked in the discussion of the Free Speech issue, the interest of the student to learn without being subjected to indoctrination nevertheless can be reverse engineered from it.  The Fourth Circuit distinguished between requiring the student to speak or write on a topic with which she disagrees, even requiring the student to speak up when she would rather remain silent, all permissible, from impermissibly demanding that the student profess belief in something that was contrary to her own creed.  915 F.3d at 319.  The distinction should provide the basis for an iron tenet in public education in a democratic pluralistic society.  As the Fourth Circuit viewed the assignment, the student in Wood was permissibly required to demonstrate her understanding of the information being taught, not to impermissibly recite a profession of faith in Islam.

Here the court cited with approval and quoted extensively from C.N. v. Ridgewood Bd. of Edu., 430 F.3d 159, 187 (3d Cir. 2005).  The opinion in that case canvasses the case law on compelled speech in the public school setting.  The compulsion “‘need not take the form of a direct threat or a gun to the head,’” but there must be “actual compulsion,” in other words, action that is punitive (or threatens punishment) is held over the student’s head.  430 F.3d at 189 (citations omitted).  The student must be required to embrace a particular government-favored message or a certain viewpoint, or else.  Id.  In the Third Circuit case the court held that a supposedly voluntary and anonymous survey that required students to provide information about personal habits, experiences, and relationships was not impermissible compelled speech.  Id. at 161. 

Back to the facts in Wood, the student chose not to participate in the challenged module.  915 F.3d at 313.  Although her failure to fill in the blanks lowered her test score, it was not by enough to affect her letter grade for the world history course.  Id.  In a real sense, therefore, she exercised a democratic right to civil disobedience with virtual impunity.

Finally, we note the absence of one issue in Wood, whether Academic Freedom offers any protection to the classroom speech of a teacher.  Unwise as the history teacher’s comparative religion PowerPoint might have been, there is nothing in the Fourth Circuit’s opinion to indicate that she suffered any job action, so discussion of this case is no place to set up a launching pad for speculation on how the dissonant trio of Garcetti v. Ceballos, 547 U.S. 410 (2006), Connick v. Myers, 461 U.S. 563 (1968), Pickering v. Bd. of Edu., 391 U.S. 563 (1968), might have been applied on these facts.

We gain some insight on how the judiciary might treat this issue though from a decision out of the Eastern District of North Carolina in another comparative religion case, Johnson v. Pitt Cty. Bd. of Edu., No. 4:16-CV-214-D,2017 WL 2304211 (EDNC May 25, 2017).  In that case the teacher was conducting a world history class in which the “five major religions around the world” were being studied.  When the subject of Christmas came up in class, the teacher stated that he did not celebrate it because it derived from non-Christian or pagan traditions.  (Note:  This was not the only fault found in the teacher’s pedagogy.)

The teacher suffered consequences, sued, and in pertinent part alleged that his statement about Christmas was protected speech.  The U.S. District Judge worked through the thicket of Garcetti, Connick, and Pickering, holding that the teacher’s speech about Christmas was curricular speech—school-sponsored and intended to impart knowledge to students—therefore not protected by the First Amendment.  *17 – 22.  “‘What manner of speech in the classroom … is inappropriate properly rests with the school board rather than with the federal courts.’”  *22 (citations omitted). 

Coming full circle with our discussion of Wood, it appears provisionally at least that as between the competing interests within Academic Freedom, as well as between the school as educational institution versus the rest of the world, the field is deferentially tilted in favor of the school.  We can then say that as legal doctrine, Academic Freedom fortifies the educational institution from both outside and inside challenges.  In time we might expect much more to be said in behalf of teachers but the case law presently shapes up to afford small protection within the relatively narrow scope of Pickering – Connick, and even less for their curricular speechAs for students’ rights, the bar for the institution looks relatively low, but schools have entered the era of trigger warnings and safe spaces.  In this environment the prohibition against compelled speech may seem quaint when words on the page, pictures and inanimate objects possess properties that sear the eyeball, and when someone is invited to speak any student may question whether an entire campus is “big enough for the both of us.” In the meantime we might do well to brush up on Thoreau’s essay on “Civil Disobedience,” recalling that the original title was “Resistance to Civil Authority,” a phenomenon that school teachers and administrators alike can surely relate to.  It is a safe bet that courts at the very highest levels will be taking up these issues.