National Pulse

Are free speech and academic freedom under assault at colleges and universities?

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Among other incidents:

  • Political commentator Lisa Durden lost her adjunct teaching position at Essex County College after defending a Black Lives Matter march on Tucker Carlson’s show on Fox News in June 2017. She told the Washington Post she was “publicly lynched.”
  • Drexel University associate professor George Ciccariello-Maher resigned from his teaching position in December 2017 after the school investigated his speech on Twitter, including his infamous tweet: “All I want for Christmas is white genocide.”
  • Erika Christakis resigned from her lectureship position at Yale University in December 2015 after controversy erupted when she sent an email that said students should have the right to decide what Halloween costumes to wear, even ones that can be offensive. Hundreds of students called for her resignation.
  • Donald Hermann’s class at DePaul University College of Law was canceled in April after students complained he used the N-word in a lecture. Hermann said he used it as part of a hypothetical situation in which a white supremacist attends the funeral of a civil rights leader and shouts the word to attendees.

Speaking their minds

Durden has filed a lawsuit against Essex, alleging a violation of her free speech rights under the New Jersey State Constitution. “It was a clear violation of her free speech rights,” says her attorney Leslie Farber of Montclair, New Jersey. “There was no connection between what she said and her employment.” Furthermore, Farber says the college hired Durden in part because of her outspoken political commentary and media attention.

Free speech expert Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, a columnist for the ABA Journal and co-author of Free Speech on Campus (2017), calls these cases outliers. “It is not frequent for professors to get fired for their speech; that is why these cases get so much attention,” he says.

Farber says Durden’s case isn’t isolated. “It is a part of a trend,” she says.

“Unfortunately, demands for faculty censorship seem to be as prevalent as ever, if not more so,” Creeley says. “Our balkanized politics and the advent of social media have proven to be an explosive combination for faculty speech rights. Faculty who dare to speak their minds about politics or other matters of public concern risk winding up on a professor watchlist, hounded on social media, or even fielding threats of violence. That’s deeply disturbing.”

Josh Wheeler, senior fellow at the Liberty & Law Center’s Free Speech Clinic at George Mason University law school, agrees. “Without question, free speech as a value has been under attack on college campuses in recent years,” Wheeler says. “Ironically, the free speech movement of the 1960s and the anti-free speech forces of recent years were both largely led by students.”

Academic freedoms unclear

Part of the problem is the U.S. Supreme Court has never clearly defined the contours of academic freedom. The court waxed eloquently about the freedom in Keyishian v. Board of Regents (1967). “Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom,” the court said.

While the court referred to academic freedom as something of “transcendent value,” it did not define its contours. “The relationship of the First Amendment and academic freedom is unclear,” Chemerinsky says. “Both professors at public and private universities can claim protection of academic freedom, but legally it is much more complicated outside of public universities.”

Wheeler agrees the problem is in confusion about the definition. “Although often used, the term academic freedom has been little explained by the Supreme Court and the lower federal courts,” he says. “There is debate over whether academic freedom is a right that belongs to the professor as an individual or to the public university as an institution in matters of self-governance in academic affairs. Such uncertainty in the law makes it very difficult to set policy in the academy.”

Only the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, and the 9th Circuit at San Francisco have ruled Garcetti inapplicable in the college and university context for those exercising academic freedom. For example, the 9th Circuit ruled in Demers v. Austin (2014) that Garcetti doesn’t apply to “teaching and academic writing” because those activities are entitled to protection as academic freedom.

“If Garcetti applies to professors, then there is no First Amendment protection for their teaching and writing,” Chemerinsky says. “I hope the other circuits follow the 4th and 9th Circuits in holding that the case does not apply in the academic setting.” n


This article was published in the October 2018 ABA Journal magazine with the title "Class Dismissed."

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