A Close-up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty

By Vikram David Amar & Alan E. Brownstein. Full text here.

Like many other terms bandied about these days, “academic freedom” is something that means different things to different people, and for that reason is often misunderstood. In this Article, we focus on what, if any, special freedoms of expression are enjoyed under the First Amendment to the U.S. Constitution by students and faculty members at any of the nation’s hundreds of public universities. Analyzing key Supreme Court precedent over the last generation, and the way these cases play out in prominent recent disputes—many of which have been litigated extensively in the lower courts—we conclude that while the First Amendment affords significant protections for expression insofar as public higher educational institutions can be likened to municipalities for some purposes, university administrators have a fair degree of control over speech that can be said to be connected directly to the research, classroom teaching, and extracurricular activities that make up the heart of modern university experience. Particularly as to faculty, First Amendment freedoms may be less than many people assume; in some respects (because of the nature of their public jobs), public university faculty may enjoy less expressive latitude than non-academic employees.

There are, of course, sources of support for free speech beyond the First Amendment—such as institutional tradition and policy, state law, contract law, federal due process, and public subsidy. To the extent that advocates want more—rather than less—expressive freedom for students and faculty at universities because of the special role such institutions fill in society, those non-First-Amendment sources may prove more helpful than First Amendment doctrine.