By Lena Williams, Guild-CWA :: Most college and university faculty members freely express ideas and opinions in the classroom and beyond, believing that they – like all Americans — have a First Amendment right to do so.
A study released May 9 shows that academic freedom is an ideal, not a reality, in higher education. In practice, the First Amendment is failing professors and other faculty who share ideas that are controversial – or are deemed to be.
When faculty members litigate speech disputes with their schools, they lose nearly 75 percent of the time, according to the study by Michael LeRoy, a University of Illinois employment law expert.
“There have been a variety of recent controversies dealing with academic freedom, and it’s striking to see faculty members speak up and very sincerely believe that they are absolutely protected in their speech,” LeRoy said. “The First Amendment is not synonymous with academic freedom, and my research shows that courts and faculty are essentially on two different pages regarding constitutional rights.”
Since the 1950s, the Supreme Court has identified academic freedom as “a special concern of the First Amendment.” At least one Justice described academic freedom as an “institutional as well as an individual right.”
That may well be the High Court’s opinion. But in recent years, several state and federal courts have failed to uphold the rights of faculty to freely express their ideas or opinions — in public or private.
Even the Supreme Court’s track record is tarnished. LeRoy said the 1968 decision in Pickering v Board of Education, was the tipping point, favoring an employer’s constitutional right to regulate the speech of its workers.
“The Pickering case created a balancing test that later court decisions have since refined,” said LeRoy.
After Pickering, he said, “courts were compelled to weigh the competing interests of public employees and employers on a case-by-case basis. While the precedent recognizes that public employees do not relinquish their First Amendment rights on the job, it does enable a government employer to regulate the speech of its employees differently from citizens.”
Pointing to his own study’s data, he said courts “usually weigh those interests in favor of universities and colleges.”
In the 1994 case of Waters v Churchill, the Supreme Court gave institutions another edge by allowing them, as public employers, to limit speech that administrators deemed “disruptive to a public school.” Faculty win rates in such cases plummeted.
“If you look at the trend lines, the speech rights of public employees are narrowing, and coincidentally, this is occurring when public speech via social media has become so much more prevalent,” LeRoy said.
Examples abound of professors who have been fired, suspended or forced to resign for speaking openly and freely on issues:
- Larycia Hawkins, a tenured associate professor of political science at Wheaton College in Illinois, was forced to resign last December after posting a photo of herself wearing a hijab on Facebook and expressing solidarity with Muslims.
- John McAdams, a conservative professor at Marquette University in Milwaukee, Wis., was suspended in March after criticizing a fellow lecturer for refusing to allow same-sex marriage to be debated in the classroom.
- William Penn, a tenured professor of creative writing at Michigan State, was removed from his classroom in September 2013, following anti-Republican and other statements, including comments that as a child of the 60s he wasn’t always politically-correct.
- Melissa Click, an assistant professor of communications at the University of Missouri, was suspended after she was seen on video trying to prevent a student photojournalist from approaching a protesters’ encampment on campus.
Regardless of how one may feel about these professors’ actions, and I believe Click overstepped First Amendment boundaries, I nevertheless defend their right to free expression.
As a student at Howard University in the 1970s, I can recall dozens of professors who protested beside us against the Vietnam War and racial discrimination. My professors didn’t hesitate to take controversial positions on the issues of the day. They spoke their minds and hearts without fear or favor and nothing was done to prevent them from doing so.
LeRoy believes it’s incumbent for faculty leaders and prominent university presidents to craft principles of academic freedom that deal with 21st century issues such as extramural speech in social media, academic freedom for research that has political implications, and professional speech that is tied to corporate and foundation funding.
How else are we to teach a new generation of college students their fundamental rights to voice their thoughts, feelings and opinions without fear of reprisals?
As LeRoy suggests faculty members need to take a more proactive role in protect their First Amendment rights, notwithstanding their jobs.
“As politicians take aim at tenure while attacking intellectual culture in higher education, faculty should mobilize for an academic bill of rights,” he said. “If nothing else, my research shows that the alternative to these proactive measures are court rulings that treat higher education more like a government agency rather than what it is – a laboratory of thought, experimentation and speech.”