Academic Freedom and Free Speech for Public College and University Faculty

Academic freedom and free speech protection for faculty at public higher education institutions can be slightly more tenuous than they are for their counterparts at private institutions. Nevertheless, policies governing free speech and academic freedom may be prudent for any higher education institution—public or private.

Academic freedom is a concept that is often misunderstood both by the higher education community and the public. Academic freedom has never meant that faculty can do or say whatever they please, or teach their courses in whatever manner they choose. For state university faculty, the issues are even more complicated because of the interplay between academic freedom and First Amendment principles of free speech. While faculty members and university administration may disagree on the contours of academic freedom and free speech, especially when a faculty member is accused of misconduct by the administration, it is often the courts that make the final decision.

This article will discuss academic freedom for state university faculty as generally understood by the university community, as well as federal court decisions addressing the right of the university to discipline faculty for their speech.

Defining Academic Freedom in the Academy versus the Courts

To define academic freedom, most universities have adopted some version of the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure (Statement). The definition often appears in faculty handbooks, employment contracts, university policies, and collective-bargaining agreements. The Statement provides in general that faculty are entitled to freedom in pursuing scholarly research, discussing their areas of expertise within the classroom setting, and—as citizens, academic professionals, and educational institution officers—speaking and writing without the threat of censorship or discipline. However, the federal courts have not always accepted this definition of academic freedom.

In the Sweezey v New Hampshire case, the Supreme Court described academic freedom as a university, not faculty right. It established the four essential freedoms of the university as “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

Likewise, in the Regents v. Bakke case, the court stated that “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.”

Because the courts have not directly ruled that academic freedom is a recognized constitutionally protected right of faculty, lawyers representing faculty members who have been disciplined by their universities for their speech, often allege that the faculty member’s First Amendment rights were violated. As seen below, however, this is often not the case.

How the Courts Apply the First Amendment to Faculty Misconduct

The First Amendment states the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievance.

The First Amendment applies only to government action but not to actions by private entities. Freedom of speech, as it applies to citizens generally, not only protects the right to speak and write but also the right to peacefully demonstrate. However, First Amendment rights are not unlimited. The federal courts are tasked with deciding which speech is protected and to what extent. This often involves the balancing of individual rights with the rights of others, including employers. Different types of speech receive different levels of protection. Political speech is given the highest level of protection. Commercial speech, such as advertisements or solicitations, receives a lesser degree of protection.

Differing Roles of Faculty

Faculty members working at state colleges and universities are unique when it comes to the First Amendment. They act in three capacities: citizens, government employees, and faculty. The following is a brief analysis of the law applied to each capacity.

Faculty as Citizens 

Rule 1: Regulating the Content of Speech

In general, any attempt by the government, which includes state universities, to restrict or regulate a citizen’s speech based upon the content of the speech, will be stuck down unless the government can show: (1) it has a “compelling state interest” in restricting or regulating the speech and (2) the method used to restrict or regulate the speech is “narrowly tailored” to only limit speech that undermines the government’s expressed interest.

Rule 2: Regulating Speech for Reasons Other Than Its Content

If the government attempts to regulate or restrict speech based upon considerations other than the content, those restrictions will be upheld so long as they further “an important or substantial government interest.”

Rule 3: Time, Place, and Manner Restrictions

The government always has the right to restrict the time, place, and manner of speech if those restrictions:

• Are not based on the content of the speech;
• Serve a significant governmental interest;
• Are narrowly tailored to only address the government interest being protected; and
• Provide alternative venues for speech.

Faculty as Government Employees 

As government employees, state university faculty give up some of the protections they have as citizens. The Supreme Court in the 1986 Pickering case established the initial framework for determining whether the First Amendment protects a government employee’s speech from employer discipline. Under that framework, the first step is to determine if the employee is speaking in the course of their job duties or as a private citizen, and whether the speech addresses a matter of public concern. The Supreme Court has held that a matter of public concern is one “relating to any matter of political, social, or other concern to the community.”

If an employee is speaking both as a private citizen and about a matter of public concern, the court then balances the employee’s speech rights against the public employer’s right to maintain efficiency, integrity, and discipline in the workplace. If the court finds the employer’s interest outweighs the employee’s interest, the disciplinary action will not violate the First Amendment. This weighing of employee versus employer interest is known as the Pickering Balancing Test.

Conversely, if an employee is either not speaking as a private citizen or is not speaking about a matter of public concern—for example, expressing internal work grievances—there is no First Amendment protection and the employee can be disciplined without violating the First Amendment.

The Supreme Court in the 2006 Garcetti case modified the Pickering Balancing Test by ruling that a government employee speaking in connection with their official duties can never be speaking as a private citizen. Consider the example of a state employee who is asked to appear on a television show to discuss his work but chooses instead to use the opportunity to criticize public officials over homelessness in the city. Even though he may be acting as a private citizen and discussing a matter of public concern, he is doing so using a platform made available to him by virtue of her status as a public employee. In that case, the First Amendment will not protect the employee from discipline by his employer.

Exception for State University Faculty?

The Garcetti court did leave the door open for applying a different standard for state university faculty, even if speaking pursuant to their official duties. The court said, “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. 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.” While encouraging, the court did not actually address that issue.

Justice Souter stated in a dissent that “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write pursuant to official duties.”

Unfortunately, the Supreme Court has not provided additional guidance on whether faculty have a special status under the First Amendment and lower courts have also failed to provide further guidance. Therefore, it is often unclear whether Pickering or Garcetti is controlling law, or if a new standard for faculty will be applied.

The Supreme Court needs to clarify whether state university faculty members have greater first amendment rights than other government employees, so that their speech on matters of public concern, even made as part of their official academic duties, is at least entitled to be weighed against their employer’s interests before upholding discipline. Without this clarity, there will be uncertainty as to when faculty may be disciplined for academically related speech.

Contract Rights

So what should universities do to bring some clarity regarding academic freedom for state university faculty? Public universities, like privates, should establish clear definitions of academic freedom by contract, in institutional regulations, policies, appointment letters, faculty handbooks, and/or collective-bargaining agreements. While the courts can strike down contract provisions that are more restrictive on academic freedom than the First Amendment allows, considering the courts’ current employer-friendly interpretation of faculty rights, that is unlikely to happen. To avoid ambiguity and unnecessary litigation, state universities and their faculty should take the time to reexamine their current contract provision on academic freedom to see if they are unambiguous and consistent with university culture. Any revisions should be carefully negotiated and documented so that there are no misunderstandings of their respective rights.

As an example, the right of faculty to criticize university policies is presumed by most academics to be protected speech. However, the courts have held that this is exactly the type of speech not protected by the First Amendment since it is made in the course of employment and does not involve matters of public concern. By clearly establishing by contract what is and is not acceptable speech and behavior in criticizing university policies, faculty can express their views without fear of discipline.

Conclusion

While the language of the First Amendment is deceptively simple, its application, especially as to state university faculty, is anything but. However, the trend in court rulings is to grant state university faculty less protection of academic freedom than their private university counterparts. Therefore, unless or until the courts explicitly provide protection for faculty academic freedom, it is crucial that faculty and the administration negotiate clear contractual provisions governing academic freedom at their institution to avoid any misunderstanding.

Scott Cole, JD, served as general counsel at the University of Central Florida for 18 years and associate general counsel at the University of Florida for a decade. He has broad experience in myriad transactional, regulatory, compliance, litigation, and governance issues, including issues involving athletics, due process and First Amendment, complex transactions, construction, tax-exempt finance, health science campuses technology, Title IX alternative revenue sources, research, federal grants, and the many competing interests that intersect in large and diversified academic communities. In addition, he is well-versed in emerging issues confronting presidents and governing boards, including diversity and inclusion, administrative restructuring, and collective bargaining. Cole served on the board of directors of the National Association of College and University Attorneys from 2010–2013. He is currently chair of the higher education practice at Gray Robinson, P.C., in Orlando, Florida.