Crossing the Line: The Challenges of Addressing University Faculty Free Speech – JD Supra

Political speech in the United States is generally unfettered, with historically strong legal protections. Contrast that with the broader limitations that public colleges and universities may place on the expression of non-faculty employees, especially in the workplace. Sitting somewhere in between political speech and the limitations on employee speech is the freedom of expression rights of faculty members as encompassed by academic freedom, particularly in the classroom.

Historically, the classroom has been the domain of the faculty member, providing them a pulpit to impart information and knowledge to students, often through provocative stories or language. However, a faculty members right to engage in expression that may be offensive or even provoke anger or discomfort is not without boundaries. In fact, there are multiple and often conflicting standards that address acceptable in-classroom expression.

Faculty members will frequently assert their rights to freedom of expression in their classroom under the American Association of University Professors (AAUP) Declaration of Principles (1915). This Declaration was modified in 1940 to state that, Teachers are entitled to full freedom of research and in the publication of the results, and Freedom in the classroom in discussing their subject . However, this Statement of Principles on Academic Freedom and Tenure (1940) further cautioned that, [teachers] should be careful not to introduce into the teaching controversial matter which has no other relation to their subject. The U.S. Supreme Court has never fully accepted the term academic freedom as defined by the AAUP as a legal right. In fact, the landmark Supreme Court decision, Sweezy v. New Hampshire (354 U.S. 263, 1957), recognizes academic freedom as a First Amendment right of the institution, not of the individual faculty member.

The legal philosophy of in loco parentis gave administrators and faculty broad latitude to act in the place of a parent. Since the courts started to shift away from in loco parentis in the 1970s, the concept of academic freedom held solely by a faculty member in the classroom has been challenged by students more frequently.

For example:

Academic freedom remains an important protection for faculty and for students. While limitations on faculty expression in the public university classroom are few, the expression may not create a hostile learning environment that is severe, pervasive, and objectively offensive; the speech or expression must be germane to the subject matter being taught, have a nexus to the course material, and advance a legitimate academic purpose.

While offensive, provocative speech in the academic setting will likely always be a challenge to institutions, they must strive to balance the rights of free speech with the schools interest in preserving a vigorous learning environment. In many cases, the institution feels compelled to react because of outcry about the speech, but the initial inclination often comes off as overreaction, at least legally.

To calibrate the appropriate response, it will often make sense to consult general counsel, or outside counsel with specific free speech expertise, such as TNG. For further reading on free speech in the higher educations setting, you may be interested in our previous blog post.

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Crossing the Line: The Challenges of Addressing University Faculty Free Speech - JD Supra