Disciplining Academic Freedom
The question of academic freedom as a right is far from settled.
By Nadine Strossen
“ABSOLUTION” courtesy of Isaac Tin Wei Lin and Fleisher Ollman Gallery (licensed for use).
David Rabban’s scholarly but readable Academic Freedom: From Professional Norm to First Amendment Right (Harvard University Press, 2024) provides a much-needed defense of academic freedom just when it is imperiled on campuses nationwide.
Rabban, a respected First Amendment scholar, is uniquely qualified to illuminate academic freedom issues. For decades, he held leadership positions with the American Association of University Professors (AAUP), an organization founded in 1915 to spearhead protection of academic freedom as a professional norm and one that has been considered the foremost expositor and enforcer of academic freedom principles. More recently, in 2021, Rabban was a founding member of the Academic Freedom Alliance (AFA).
Rabban’s book provides the first comprehensive analysis and synthesis of the large body of court rulings about academic freedom, far beyond the handful of pertinent Supreme Court decisions to which much analysis is confined. The book would have made an important contribution solely through its systematic presentation of the extensive case law. But supplementing the book, Rabban’s web page provides additional welcome resources for assessing the governing legal precedents, including three charts that helpfully classify the decisions and summarize their key factual and legal elements.
At least as valuable as the book’s comprehensive analysis is its offering of a novel theory of academic freedom which, if adopted by the courts, would provide special, vital First Amendment protection for faculty at public institutions that they currently lack. The courts have endorsed academic freedom as the AAUP understands it—that is, as a professional norm. But Rabban seeks greater protection, arguing that the courts should recognize academic freedom as a distinctive First Amendment right of faculty at public institutions.
This is important because, while the Supreme Court has long stated that academic freedom is “a special concern of the First Amendment,” it has yet to squarely uphold faculty members’ academic freedom rights, or to explain whether such rights simply overlap with general First Amendment free speech protections, or whether instead one’s coverage is broader than the other’s.
Addressing this question, Rabban argues that, “In order to perform their” critical societal “role…in the production and dissemination of knowledge…faculty must have freedom to research, publish, and teach within their academic expertise without interference from the university or the state” (p. 298).
That said, in Rabban’s view, “[e]xpression must meet academic standards to qualify as the expert academic speech that merits the protection of academic freedom,” and so such freedom “does not extend to content or viewpoints that fail to meet academic standards as determined by faculty peers” (p. 9).
Rabban provides a welcome counter to the rampant confusion and controversy about this constantly invoked yet generally misunderstood concept.
The argument in fact has broad implications for both public and private institutions because, while the First Amendment directly applies only to public institutions, most private colleges and universities have voluntarily pledged to support First Amendment principles and have consequently been legally held to those principles.
The most controversial aspect of Rabban’s proposed First Amendment academic freedom concept is its exclusion of faculty members’ “extramural” expression, conveyed in their non-professional role as “citizens.” In Rabban’s view, since “[t]he justification for…academic freedom [is] the societal interest in protecting the expression of academic expertise,” faculty members’ academic freedom “does not apply to general political expression unrelated to their expertise” (p. 16).
In contrast, the AAUP’s definition of academic freedom does encompass faculty members’ extramural expression. In a 1964 statement, the AAUP stressed that “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position,” adding that “extramural utterances rarely bear upon…fitness.” Moreover, the AAUP maintained that such expression ought to be evaluated in the overall context of “the faculty member’s entire record as a teacher and scholar.” This AAUP position has been endorsed in our own time by leading academic freedom experts, including Keith Whittington and John K. Wilson.
On the one hand, Rabban’s exclusion of non-expert extramural expression from his academic freedom theory could be highly consequential, since so many controversies concern precisely this type of expression. On the other hand, the practical impact of this approach may be limited if—as Rabban advocates—faculty members’ non-expert expression is robustly protected under the same general free speech principles that apply to other members of the public and to other public employees (pp. 157-158).
Similarly, Whittington—who endorses protecting extramural expression under both academic freedom and general free speech principles alike—has advocated that free speech principles governing public employee expression be applied with special sensitivity to the unique, societally important role of universities and professors. After all, those principles call for fact-specific assessments of both employer and employee interests. Analyzing extramural expression under either academic freedom or general First Amendment principles, Whittington reaches the same conclusion as Rabban: “There are few circumstances that would justify a university sanctioning a professor for saying controversial things in public.”
Regardless of whether one agrees with all aspects of Rabban’s approach, he offers a coherent concept of constitutionally protected academic freedom that logically flows from and fosters universities’ special truth-seeking mission. As such, Rabban provides a welcome counter to the rampant confusion and controversy about this constantly invoked yet generally misunderstood concept.
It is worth noting that the pervasive confusion about the meaning of academic freedom can be traced to the Supreme Court. While it has issued several eloquent paeans to academic freedom, SCOTUS has provided few specific legally enforceable guidelines on point. As the U.S. Court of Appeals for the Fourth Circuit observed, “to the extent [the Court] has constitutionalized a right of academic freedom at all, [it] appears to have recognized only an institutional right of self-governance in academic affairs.”
Ironically, that institutional right would empower university officials to circumscribe faculty members’ freedom concerning scholarship and teaching. In contrast, the Court’s rhetorical salutes to faculty members’ academic freedom essentially constitute unenforceable “dicta,” which appear in either non-majority opinions or majority opinions that are grounded on other legal rationales.
The Court’s most recent case on point expressly declined to address whether public university faculty members have any special First Amendment academic freedom rights above and beyond the limited First Amendment free speech rights that the Court has recognized for public employees generally. In 2006, in Garcetti v. Ceballos, a case involving a district attorney, the Court held (over four dissenting votes) that when a public employee’s expression is within the scope of the employee’s job responsibilities, that expression receives no First Amendment protection. As the Court explained in a 2022 decision, “for constitutional purposes,” this speech is in effect “the government’s own speech.”
Justice David Souter’s dissent in Garcetti expressed “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.’” In response, the majority opinion included the following caveat: “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.” Nor has the Court subsequently addressed that crucial issue.
Since Garcetti, lower court judges have divided on its academic freedom implications, and some have enforced Garcetti in ways that do indeed “imperil…academic freedom,” as Justice Souter feared. For example, in 2023, the U.S. Court of Appeals for the Fourth Circuit held that the First Amendment provides no protection for a state university faculty member’s comment about university policies. The court construed Garcetti’s key passage that potentially protected “speech related to scholarship or teaching” extremely narrowly, as not including a faculty member’s speech about even key educational policies.
Although the Supreme Court has not explicitly addressed the contention that individual faculty members at public institutions have no First Amendment academic freedom rights, lower courts have so held.
For example, in 2000, the U.S. Court of Appeals for the Fourth Circuit rejected a First Amendment challenge to a Virginia law barring state employees from viewing sexually explicit material on work computers; the lawsuit had been brought by state university faculty members whose scholarship and teaching concerned topics to which this material was germane, such as women’s studies, gender studies, human sexuality, and literature. The Fourth Circuit explained that the professors’ legal challenge "amounts to a claim that academic freedom of professors is not only a professional norm, but also a constitutional right. We disagree."
The complexities presented by some important academic freedom issues are highlighted by recent strong disagreements within the academic community, including among academic freedom advocates.
In lawsuits in Florida and Indiana, both those states are arguing against an academic freedom exception to the general rule set forth in Garcetti, a position that is consistent with the view that professors’ academic freedom is not a constitutional right.
Florida urged the U.S. Circuit Court of Appeals for the Eleventh Circuit to reject state university professors’ First Amendment challenge to the Stop Woke Act’s ban on teaching “divisive concepts” concerning race and gender. During the oral argument, Florida’s attorney said that “in the classroom the professor’s speech is the government’s speech,” and therefore a state can “insist that professors not…espouse…viewpoints that are contrary to the state’s.” In response to a judge’s question whether the state legislature “could…prohibit professors from saying anything negative about a current gubernatorial administration,” the attorney answered “yes.”
Indiana’s Attorney General espoused this same argument in defending a new state law that imposes on all faculty members the vague, subjective requirements “to foster…intellectual diversity,” and to “[introduce] students to scholarly works from a variety of political or ideological frameworks,” on pain of losing their jobs. The Attorney General rejected the professors’ asserted “First Amendment right to academic freedom” as a “brand new” right, entitled to no legal protection.
If courts were to adopt Rabban’s theory that the First Amendment does indeed protect distinctive academic freedom rights, those rights would have prevailed in all four of the above-described cases. Faculty members would be free to pursue research and teaching subject only to professional norms enforced by academic peers. So long as accessing sexually explicit material, discussing “divisive concepts,” and selecting assigned readings for a course are consistent with the standards of the pertinent academic disciplines, these professional undertakings would be protected. Likewise, Rabban’s theory extends to faculty members’ discussion of their institutions’ educational policies, since such policies would benefit from faculty members’ general expertise (pp. 154-55, 299).
That said, the same speech-protective results could also be reached via the Supreme Court’s Garcetti caveat, if it were construed to protect a sufficiently broad notion of faculty expression that is “related to scholarship or teaching.”
While Rabban’s First Amendment academic freedom theory provides a helpful framework for analyzing many academic freedom controversies, it doesn’t provide clear answers to some important issues. Given the important countervailing concerns implicated in many situations, I note this fact not as a critique, but rather as a cautionary note to readers.
The complexities presented by some important academic freedom issues are highlighted by recent strong disagreements within the academic community, including among academic freedom advocates.
A prime example concerns “diversity statements” by candidates for faculty positions or promotions. In October 2024, the AAUP issued a statement rejecting the view that “the use of DEI criteria for faculty evaluation is categorically incompatible with academic freedom.” This followed objections to DEI practices from other advocacy organizations, including the AFA, which in 2022 called upon higher education institutions “to desist from demanding ‘diversity statements’ as conditions of employment or promotion,” on the ground that they are “obvious threats to academic freedom.”
Rabban’s book contains a detailed analysis (pp. 274-280) of the countervailing academic freedom rights of faculty members and their institutions in the context of diversity statements, which reaches a nuanced “uncomfortable conclusion”: on the one hand, he recognizes that mandatory diversity statements “often violate” professors’ academic freedom, but on the other hand, he “regretfully” believes that professors’ academic freedom could be outweighed by universities’ academic freedom “when universities present plausible educational reasons for requiring” diversity statements, “follow faculty determinations about how they should be adapted for different disciplines, and do not use them as an ideological test that treats a professor’s views about diversity as a basis for denying appointment.” Rabban further underscores how complex this calculus is by noting “[t]he failure of most mandatory diversity statements to meet” his proposed standards, hence warranting “intensive judicial review of their use” (p. 280).
Another recent AAUP statement provoked further debates among academic freedom advocates about a topic that Rabban’s book doesn’t address at all: academic boycotts. For almost 20 years, the AAUP categorically opposed such boycotts as “inimical to the principle of academic freedom.” In August 2024, however, the AAUP rescinded this prior position and instead declared that academic boycotts “can be considered legitimate tactical responses to conditions that are fundamentally incompatible with the mission of higher education.”
Other academic freedom proponents strongly criticized the new AAUP position as antithetical to academic freedom. For instance, Heterodox Academy’s August 20, 2024 statement on point referred to the AAUP as an “erstwhile defender of academic freedom,” charging that it “abandoned an ideal that is close to the core of the scholarly profession.”
In November 2024, leaders of the AAUP and FIRE published several sparring pieces, charging each other with insufficiently defending academic freedom. These exchanges prompted academic freedom expert John K. Wilson—who has worked closely with both organizations—to urge all of us academic freedom advocates to “argue about the best principles and…tactics and passionately defend our preferred approach while” we also “recognize that we’re all in this together against the common foe of censorship.”
While David Rabban’s book will not end the essential ongoing debates that Wilson wisely endorses, it should serve as an essential starting point for them.
The author and editor thank HxA Director of Policy Joe Cohn for his assistance with this article.
