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ACADEMIC F REEDOM , PREJUDICE , AND THE L IMITS OF L IBERTY

Jason Sugarman*
The concept of academic freedom is essential to the realm of academia in the United States, but its working definition is still somewhat ambiguous. This article traces the history of academic freedom and pinpoints essential discrepancies in the application of the device to both professors and universities. The application of academic freedom to the realm of prejudice specifically that of anti-Semitism and in preventing certain speech in the classroom is analyzed with recent case studies. The necessary limits of academic freedom are debated and the author questions how inclusive academic freedom ought to be. This article argues that academic freedom ought to be treated like a right protected by the First Amendment to the United States Constitution.

I. LEGAL ANALYSIS

or an educational institution, academic freedom is fundamental to creating an intellectually diverse and honest atmosphere. In 1915 the American Association of University Professors (AAUP) released a Declaration of Principles which, in part, outlined academic freedom and its importance in academia. It defined academic freedom as the freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action.1 In 1940, after a 1925 conference between the AAUP and Association of American Colleges (AAC) (now the Association of American Colleges and Universities), the two organizations released a statement with further detailed guidelines for academic freedom. These guidelines dictated what professors could teach, thus making a distinction
Undergraduate at Brandeis University, Class of 2013. Edwin R. A. Seligman et al., 1915 Declaration of Principles on Academic Freedom and Academic Tenure 170 (American Association of University Professors eds., 1915), available at http://www.aaup.org/report/1915-declaration-principles-academic-freedom-and-academic-tenure.
1
*

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between the sorts of discussions that could occur inside and outside the classroom. Inside the classroom, the professor could present any viewpoint as long as it is related to the subject matter. 2 In addition, if the school wanted to censor what was to be taught in the classroom, then the institution must lay out its stipulations upon the hiring of that teacher.3 When speaking outside the classroom, however, professors were free from censorship as long as they were accurate, respectful, and made clear that they were not speaking on behalf of the university.4 These rules were relatively clear and seemed to leave the professor with a large amount of space for personal expression in and out of the classroom. Protection of the professor broadened in 1970, when these initial guidelines were revised. The alterations included clauses that elucidated that a professors opinion is not grounds for termination unless it proved the professor unfit to teach. The decision to release a professor also needed to take into account his or her entire academic record as a professor and researcher. This meant that a professor could violate the rules on academic freedom and still continue to teach as long as the individual was a leading scholar in the field. These guidelines do not seem to have a practical bearing on the legal right of academic freedom. The only court case that even mentions the AAUP guidelines is Urofsky v. Gilmore,5 where the court decided to lay out a history of academic freedom in its opinion. In this opinion, Justice Wilkins explained that the AAUP conceived academic freedom as a professional norm, not a legal one.6 This has created tremendous ambiguity as to the legal status of academic freedom. Is academic freedom a right protected by the First Amendment (similar to the right to privacy)? Or is it a philosophical theory with other value in society with no formal constitutional protection?
2 See 1940 Statement of Principles on academic freedom and Tenure (American Association of University Professors eds., 1915), available at http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm. 3 Id. 4 See id. at 3. 5 See, e.g., Urofsky v. Gilmore, 167 F.3d 191, 87 (4th Cir. 1999). 6 Id.

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Before introducing the cases, it is imperative to recognize the difference in how academic freedom is applied to both public and private universities. There are three types of academic freedom cases: a claim of a professor against university colleagues (such as deans, trustees, and administrators), a claim of a professor against the state, and a claim of the university against the state. The only manner in which a case can be brought is if there is a state action involved, and therefore only the latter two claims are applicable to a private university. For a public university, a claim by a professor against other university employees involves state actions because everyone at the university is considered a state employee.7 The first case to touch upon academic freedom was Sweezy v. State of New Hampshire.8 When Professor Sweezy gave a lecture in which he stated that socialism was inevitable, the Attorney General of New Hampshire filed a petition for the professor to answer about his possible affiliations with the Communist Party. The professor refused to follow the Attorney Generals demand, and he was held in contempt. The Supreme Court held that Sweezys rights were safeguarded by the Bill of Rights and the Fourteenth Amendment. More specifically, it determined that his liberties in the areas of academic freedom and political expression,9 had been violated. This case makes clear that academic freedom is a liberty protected by the Bill of Rights (seemingly the First Amendment). In Parate v. Isibor, the Sixth Circuit Court clearly saw academic freedom as a First Amendment right when it ruled that Professor Natthu Parates First Amendment right to academic freedom was violated by the defendants when the Dean of Tennessee State University forced him to change a grade given to a student.10 Another Sixth Circuit case (Hetrick v. Martin) refers in a footnote to the First Amendments guarantee of academic freedom.11 From these cases it is clear that academic freedom is its own right, parallel to
7 See David M Rabban, A Functional Analysis of Individual and Institutional Academic Freedom Under the First Amendment, 53 Law & Comtemp. Probs. 227, 231 (1990). 8 Sweezy v. State of New Hampshire 354 U.S. 234 (1957). 9 Id. 10 See, e.g., Parate v. Isibor 868 F.2d 821 (1989). 11 Hetrick v. Martin 480 F.2d 705 (1973).

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freedom of speech or freedom of religion, and it is protected by the First Amendment. It is apparent that academic freedom can be applied as a constitutional right, and it should be consistently treated as such. Yet, there are also cases, which, despite mentioning academic freedom as a value, deliberately use other constitutional rights to argue their decisions. These decisions seem to be based on the logic presented in a Second Circuit case, Gray v. Board of Higher Education, which explains that, academic freedom is a concept fashioned from other constitutional rights, including the First Amendment.12 This implies that academic freedom cases are only decided as a breach of the right of academic freedom when the action violates some other constitutional right. For example, in Epperson v. Arkansas,13 a teacher brought an action against the state school board that prohibited evolution from being taught in the classroom. This board was supposedly violating the First Amendment. The opinion of the Supreme Court mentioned that the state could not prohibit evolution from being taught because it violated academic freedom by cast[ing] a pall of orthodoxy over the classroom,14 a standard set in another academic freedom case (Keyishian v. Board of Regents). In its decision, however, the court used the Establishment Clause as the basis for its findings, not academic freedom; it claimed that the state violated the Establishment Clause by attempting to establish a religious doctrine by banning evolution.15 The decision of the court to use the Establishment Clause instead of academic freedom points to a weakness in the legitimacy of academic freedom as its own constitutional right. In an even more explicit manner, Judge Wilkins in a Fourth Circuit case, Urofsky v. Gilmore, explains that academic freedom is not a constitutional right but a professional norm.16 He explains that even though it is mentioned in Supreme Court cases, academic freedom is only mentioned in reference to
12 13 14 15 16

Gray v. Board of Higher Education 692 F.2d 901 (1982). See Epperson v. Arkansas 393 U.S. 97 (1968). See, e.g., Keyishian v. Board of Regents 385 U.S. 589 (1967). See Epperson v. Arkansas, supra note 13. See, e.g., Urofsky v. Gilmore 216 F.3d 401 (2000).

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freedom of speech or freedom of expression cases and not as its own legitimate constitutional right. Judge Wilkins goes on to point out that, (as of the year 2000 when the case was decided) the Supreme Court has never set aside a state regulation on the basis that it infringed a First Amendment right to academic freedom.17 Additionally, in the 1991 case Bishop v. Aronov, the Eleventh Circuit Court explicitly stated that, we do not find support to conclude that academic freedom is an independent First Amendment right.18 Although one can argue from these cases that academic freedom is not its own right but a value that is grounded in other constitutional rights, these decisions are not contrary to the previous cases that designate academic freedom as a constitutional right. Although the judges chose to use different precedents and utilize other constitutional rights as the basis for their decisions, these rulings do not negate the precedent set out in Sweezy v. New Hampshire that determines academic freedom to be a constitutional right. The inconsistency in the court decisions regarding the constitutional status of academic freedom is exemplified in the case Stastny v. Central Washington University. In this case, the Judge of the Court of Appeals of Washington seemed to imply both that academic freedom is a right and not a right in two separate locations in the opinion. In one instance, he writes that, the right of academic freedom, like all other constitutional rights19 and equates academic freedom to all other constitutional rights, as if it was one itself. Later, however, he says that, Although academic freedom is not one of the enumerated rights of the First Amendment, the right to teach, inquire, evaluate and study is fundamental to a democratic society.20 In this case, the Judge explains that academic freedom is not an enumerated right but is a key component of democratic society. This judicial opinion is a perfect example of the issue with finding a legal
Id. See, e.g., Bishop v. Aronov 926 F.2d 1066 (1991). See e.g., Stastny v. Central Washington University, 647 P.2d 496, (Wash. Ct. App. 1982), cert. denied, 460 U.S. 1071 (1983). 20 Id.
17 18 19

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understanding of academic freedom. It is not well defined and is interpreted differently by different courts. In a Second Circuit case (Burt v. Gates), the ambiguity with academic freedom is seen once again as the ideal is described as a constitutional interest at the heart of the First Amendment.21 This language is vague; academic freedom is important to the constitution and the First Amendment, but it is not necessarily protected by it. Regardless of the ambiguity, however, academic freedom can clearly be seen as a constitutional entity strongly relating to the First Amendment, and it must be protected as such. That being the case, academic freedom ought to be defined through the eyes of the court in order to understand and explore the standards judges have set for academic freedom. Although the courts are ambiguous about the status of academic freedom as a constitutional right, they do aid in crafting a definition of academic freedom. Firstly, they recognize and make a distinction between a professor and universitys right of academic freedom. In Regents of the University of Michigan v. Ewing, the Supreme Court elucidated that, [a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but alsoon autonomous decision making by the academy itself.22 Both of these dynamics are important for academic freedom to function properly. A professors academic freedom is understood to be integral to society and must be protected by the courts because, as Justice Warren dramatically explained in Keyishian v. Board of Regents:
To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to

21 22

Burt v. Gates, 502 F.3d 183 (2d Cir. 2007). Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985).

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evaluate, to gain new maturity and understanding; otherwise our 23 civilization will stagnate and die.

The Sixth Circuit echoed this sentiment when it explained that the purpose of academic freedom is to preserve the free marketplace of ideas and protect an individual professors classroom method from arbitrary interference of university officials.24 The universitys right to academic freedom, categorized into the four essential freedoms of a university, 25 is defined by Justice Warren in Sweezy v. New Hampshire as the right 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.26 Interestingly, when these two freedoms clash, the freedoms of the institutions are viewed as the more important of the two. In Piarowski v. Illinois Community College the Seventh Circuit court ruled in favor of the academic institution by explaining that the right of the university to control its curriculum was more important than the professors freedom of expression.27 The Supreme Court created a balance of interests test in Pickering v. Board of Education to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.28 Usually, the interests of the employee (i.e. the university) override the interests of the individual. At the same time, however, in Keyishian v. Board of Regents, the Supreme Court made a pall of orthodoxy standard limiting the schools control over the curriculum, ruling that a school could not make rules that cast a pall of orthodoxy over the classroom,29 as mentioned previously. This standard simultaneously protects professors from university restrictions and universities from
23 24 25 26 27 28 29

See Epperson v. Arkansas, supra note 8. Parate v. Isibir, supra note 10. See Epperson v. Arkansas, supra note 13. Id. See Piarowski v. Illinois Community College, 759 F. 2d 625 - Court of Appeals, (7th Cir. 1985). Pickering v. Board of Education, 391 U.S. 563 (1968). See Keyishian v. Board of Regents, supra note 14.

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government interference.30 Moreover, it sets a very high standard for what can be banned from a classroom. Based on this strong level of constitutional protection and the broad definition and pall of orthodoxy standard laid out by the court, a teachers spectrum of what can be said in the classroom seems almost limitless. As long as the teacher is presenting a theory or ideology that would add to the free marketplace of ideas, then the individual is protected to speak as he or she pleases. There are other standards, however, made to protect the special environment of the classroom that allow the abridgement of certain types of speech. In two cases concerning inappropriate language used in a classroom, Bonnell v. Lorenzo and Martin v. Parrish, the courts explained that there are special interests of the university at stake because of the unique environment a classroom provides. In Bonnell v. Lorenzo, the Sixth Circuit ruled that [w]hile a professors rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a students right to learn in a hostile-free environment.31 This case was in reference to sexual harassment; it can be argued, however, that any kind of speech that creates a hostile learning environment should and can be monitored by the university. In fact, the decision further claims that [s]peech that rises to the level of harassmentwhether based on sex, race, ethnicity, or other invidious premiseand which creates a hostile learning environment that ultimately thwarts the academic process, is speech that a learning institution has a strong interest in preventing.32 Furthermore, the classroom environment is special because the audience to which the professor is preaching is a captive audience33 and is therefore more vulnerable to the teachings. Because of this susceptibility, the teacher must more closely monitor his speech and how he or she presents any ideas. It can be further suggested that there are other restraints on freedom of speech, such as the falsity or reckless disregard for the
30 31 32 33

See Burt v. Gates, supra note 21. Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001). Id. See, e.g., Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986).

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truth standard set in New York Times Co. v. Sullivan. Other examples include the standards for obscenity, libel or defamation, and fighting words; all of these restraints could possibly be used to combat claims of academic freedom in the classroom that are truly prejudiced. The pall of orthodoxy standard was used to allow evolution (Epperson v. Arkansas) and theories of communism (Keyishian v. Board of Regents) to be taught in the classroom; but it would not allow for theories of biological racial superiority or things of that nature in the classroom. In addition, it would doubtfully allow for breaches of the freedom of speech in the classroom. Although the window to combat prejudiced professors who hide behind academic freedom is small, it is still a viable option if one is to argue based on the violation of the parameters of freedom of speech and the lack of protection that academic freedom supplies beyond the pall of orthodoxy standard. II. CASE STUDIES: ANTI-ZIONISM AND ANTI-SEMITISM ON COLLEGE CAMPUSES

A. An Extracurricular ConferenceUniversity of Hastings, California College of the Law

In March of 2011, UC Hastings College of the Law hosted a two day conference titled Litigating Palestine: Can Courts Secure Palestinian Rights? The conference caused some concern by those who viewed it as unbalanced because the demonstration gave more time to one side of a controversial issue than the other. Many also felt that panelists harbored biases and did not necessarily speak objectively on issues. The concern was that, by sponsoring the program, the College of the Law was therefore endorsing the views of the organizers of the program.34 There can be no question that the participants in that program had the right to express their views, particularly since the program was not in a classroom setting. The issue is what role the Law School should
34 Emerging Anti-Israel Trends and Tactics on Campus, Anti-Defamation League, http://archive.adl.org/NR/exeres/9BD8ADB4-73EB-4AF8-96D5-81D22F8B1187,DB7611A202CD-43AF-8147-649E26813571,frameless.htm (last visited Apr. 11, 2013).

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appropriately play. Should it sponsor the program? Should it provide the facility to house the program? Should it financially support the program? After considering the issue, the Law School released a statement the night before the conference saying,
BE IT RESOLVED by the Board of Directorsin its EMERGENCY CLOSED SESSION that it is in agreement that the College should take all steps necessary to remove the UC Hastings name and brand from the Litigating Palestine conference. By taking this action, the Board strongly endorses the principles of academic freedom and the process used to determine which conferences to present. It is the Boards position that a decision by the College to host or financially support an academic conference does not constitute endorsement of any viewpoints expressed at a conference, or the academic goals of the conference.

This was a significant moment because the University used its power of academic freedom to distance itself from what was perceived as a biased conference (whose organizers also had a claim to academic freedom). The question, however, remains as to how far the school could have gone to prevent this kind of conference in the first place. With regard to a conference hosted by a university, there is not much literature or many court cases to look to for precedent. Piarowski v. Illinois Community College, however, offers some interesting insight. The case involves the universitys demand of a professor to remove certain artwork from a public art exhibit in the college. One of the similarities between the two cases is the claim that the professor(s) have the right to display their opinions, either through an art exhibit or a conference, in a public university sponsored forum. In Piarowski, the court ruled in favor of the college because the teacher was employed by the institution; the PR (public relations) interests of the college to not display inappropriate artwork in their largest public gallery were greater than the individuals interests to display the artwork. The opinion stated, however, that, the colleges interest was not great enough to have justified forbidding Piarowski to display the windows anywhere on campus, but it may have been great enough to justify

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ordering them moved to another gallery in the same building.35 We see from here, with regard to the UC Hastings Conference, that there would not have been grounds to stop the conference altogether. Yet, if the interests of the university were greater than the individuals interests, then the school did have the right to do the equivalent of relocating the artwork. Using the an alysis above it could be suggested that this may include allowing for the conference to remain on campus, but not advertising for it, not sending any of the administration to speak or introduce the conference, taking the universitys name off the conference, and possibly taking away university funding from the event. Yet, funding is a more difficult issue. If taking away funding is the equivalent of shutting down the conference then this action may not be warranted. In Piarowski, however, the university did not fund the professors artwork, meaning that Hastings didnt necessarily have to contribute funding to the conference, either. In two cases, Parate v. Isibor and Edwards v. California University of Pennsylvania, the decisions by the court make clear that an untenured professor does not have a right to teach a certain class, does not have the right to be free from the supervision of university officials,36 and does not have the right to decide what is taught in the classroom (this is the universitys decision).37 Although these cases discuss a classroom and not an extracurricular event, the idea that a university has the right to control its curriculum and the way in which it promotes its mission comes out strongly in these cases. Interestingly, these cases were both in public universities, but one could assume that the ruling would extend to private schools, as well. Additionally, according to the decision in Stastny v. Central Washington University, academic freedom does not encompass activities which are internally destructive to the proper function of the university or disruptive to the education process.38 If the UC Hastings College of the Law felt that the conference was not an event they wanted as
35 36 37 38

See Piarowski v. Illinois Community College, supra note 28. See Parate v. Isibir, supra note 10. See Edwards v. California University of Pennsylvania 156 F.3d 488 (3rd Cir. 1998). Stastny v. Central Washington University, supra note 19.

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part of their curriculum or mission and could be destructive to the education process, then, combined with the public relations interest, the institution could have done almost anything short of shutting down the conference. Additionally, the Declaration of Principles from the AAUP, cited above, demands that no argument be left one-sided. When it comes to controversial issues in the classroom, there is a need to explain both sides of an issue. Although the conference is not equivalent to a classroom, the professors presenting still bear that same special status of influence over the attendees. Although technically there may not be grounds to require representation from the other side of the issue, within the spirit of academic freedom there are grounds for the university to strongly advise that course of action.

B. Intramural and Extramural SpeechKevin MacDonald

After previously dealing with a case outside the classroom, it is here helpful to examine activity within the classroom, and the activities of a professor. The case of Kevin MacDonald raises the question of what a university can do if one of its professors utilizes rhetoric that is blatantly and publicly anti-Semitic. There are two possible courses of action for a university. If one is to assume that Professor MacDonald did instill anti-Semitic ideas in the classroom, the case becomes simpler. There is little doubt that almost any Jewish student sitting in his class would feel direct hostility in the classroom. This is a basis the university can easily use to take action, based on Bonnell v. Lorenzo. In addition, it is doubtful that blatant anti-Semitism or racism taught in the classroom would be protected under the pall of orthodoxy standard. Therefore, if a school feels that those theories should not be taught, it can most likely prohibit a professor from teaching them. However, when a professors opinions are expressed solely outside the classroom, it becomes more complicated. According to the AAUP 1940 statement, if a professor is speaking or writing as a citizen, the professor must be free from censorship or discipline. However, the individual must be accurate, respect the opinions of others, and must make it clear that any

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expressed opinions do not reflect those of the university. In the 1970 interpretive comments to the 1940 statement, it is explained that a professors opinion does not constitute grounds for dismissal unless it shows that he or she is unfit for the position. Based on this revision alone, there may be space to argue that a professor who believes in such racist theories is unfit to teach. Yet, the revisions continue to say that the decision to dismiss a professor should take into account the individuals entire record as a teacher and scholar. This seems to imply that even if the professor is unfit to teach because of his or her racist views, if he or she has an impeccable record and is a world renowned scholar in a field then there would not be grounds to fire the individual. From a legal perspective, the most important case that sheds light on this situation is Pickering v. Board of Education. In that case it was concluded that without proof that a teacher knowingly made false statements, the teacher had the right to express his opinions on matters of public concern without being fired.39 Two questions arise when applying this ruling to MacDonald. This first asks whether anti-Semitic statements like Jews are a hostile elite who are aggressive and are an invasion of western society are considered false. The answer, most likely, is no. Though an inappropriate statement, it is most likely considered an opinion that Jews have those characteristics and therefore is not determined by such a question. The second question posits whether MacDonald was discussing an issue of public concern. There are two cases that offer different conclusions on this point. One is Jeffries v. Harleston, which brought to light Professor Leonard Jeffries, of City University of New York (CUNY), who gave a speech about racial bias in the New York public school system and made some anti-Semitic statements in the process. The university consequentially took away Jeffries position as head of the Black Studies department, but he was allowed to stay on as a professor. Here, the Second Circuit ruled that the school could not take away Jeffries position as department chair as his speech substantially

39

See, e.g., Pickering v. Board of Education, supra note 28.

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involved a matter of public concern,40 and therefore was protected. The second case was Dambrot v. Central Michigan University, where a coach used the n-word to motivate his players and was subsequently fired because of it. Here, the court ruled that motivating players was not an issue of public concern, and therefore the university rightly fired the coach. In the case of MacDonald, the question comes down to the content of his articles. If he wrote an article about the economic recession, it would probably be considered an issue of public concern, and MacDonald would be protected to say whatever he wanted. However, if MacDonald were writing an article about how the Jews managed to take control of the media, there would be a greater likelihood that his speech would not be protected, and a university would be able to take action.

III. HOW FREE IS FREE?

It is universally understood that the general goal of a university is to educate and conduct research in order to broaden the general base of knowledge of the university and of the world. Yet, there are varying ideas as to the more specific goals of a university. Some academics believe that the goal is to find truths.41 This goal of finding truths is one that Jonathan R. Cole, the John Mitchell Mason Professor of the University and Provost and Dean of Faculties, Emeritus at Columbia University, believes is fundamental to the well being of the nation.42 One way to explore these truths is by examining ideas through debate and inquiry. Professor Cole contended that any failure to defend dissenting voices on the campus places at risk the greatest engine for the creation of new ideas and scientific innovation the world has ever known.43 Some, however, view the goal of the university in a more existential way. Benno Schmidt, former President of Yale Universityin the context of his concern about freedom of
40 41 42 43

Jeffries v. Harleston, 21 F.3d 1238 (2d Cir.1994). See Rabban, supra note 7, at 237. Id. at 6. Jonathan R Cole, Academic Freedom Under Fire 6 (2d ed. 2005).

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expression on college campusesexplained that there is an incorrect assumption that the purpose of education is to induce correct opinion rather than to search for wisdom and to liberate the mind.44 Instead of focusing on truth, he focuses on an individuals growth with wisdom and expanding the boundaries of the mind. There are also the academics that fall in between the two schools of thought. One such academic is New York University President John Sexton, who wrote, Our universities are modern sanctuaries, the sacred spaces sustaining scholarship, creativity and learning. What makes these sanctuaries special is the core commitment to free, unbridled and ideologically unconstrained discourse in which claims of knowledge are examined, confirmed, deepened or replaced.45 Nevertheless, the underlying notion in all three views is that there is a certain freedom necessary to achieve the goals of a university. Many people attribute the fact that the United States has eighty percent of the twenty most distinguished research universities, and about seventy percent of the top fifty [universities]46 to the countys protection of academic freedom. However, every freedom has its limits. While the United States attributes many of its successes to its broad freedoms of institutions like those of speech and religion, the country also has limits to ensure that no freedom is absolute. Checks and balances are an integral part of the United States Constitution, which is exemplified by the limitations placed on many of the freedoms outlined in the Bill of Rights. Regardless of its constitutional standing and protection, academic freedom should not be an exception to this system of checks and balances. This thought process is illuminated by the tension between a Professors academic freedom and a universitys academic freedom and how they interact. As indicated previously, a universitys interests oftentimes override an individuals interest. This means that if
44 Issues: Academic Excellence, American Council for Trustees and Alumni, http://www.goacta.org/issues/academicfreedom.cfm?CFID=997056&CFTOKEN=6383752ae72340eb-47C17121-CE2A-B02D8DA780989BD9C327 (last visited April 11, 2013). 45 Joel Seligman, Academic Freedom, Remarks at the Jewish Community Center, 9 (2008), http://www.rochester.edu/president/memos/2008/academic_freedom.pdf. 46 Id. at 6.

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there is a dispute between the university and a professor in terms of, for example, what to include in a curriculum, the university has the ability to make the final decision. Although this may seem like a breach in academic freedom, it is actually an expansion of the academic freedom powers of a university. Another circumstance in which academic freedom may need to be monitored is when controversial, offensive, or inaccurate material is brought into the classroom. In the 1915 general Declaration of Principles released by the AAUP, and in the general guidelines released in 1940, there are instructions on how to deal with such matters in a classroom. The General Principles explain that [t]he university teacher, in giving instruction upon controversial matters, while he is under no obligation to hide his own opinion should, in dealing with such subjects, set forth justly, without suppression or innuendo, the divergent opinions of other investigators.47 In truth, this statement is an expansion of academic freedom, demanding that a professor always give both sides of an argument. However, this statement highlights the fact that students are highly influenced by a professors presentation, and if that presentation is one sided, the students may not receive a complete understanding on the subject matter. Jonathan Cole points out that professors are in positions of authority to coerce and cow students into conforming to their own point of view.48 With this sensitivity of the unique influence of a professor in mind, the 1940 guidelines ask that a professor not bring up controversial matter that has no relation to the subject being taught.49 There is an understanding that without expertise in an area and without the balance of different viewpoints, there is no merit to discussing it in the classroom. From here we see that academic freedom does not seem to allow for uninformed ideological discussion in a classroom setting. In a classroom setting, a professor must be sensitive to his student body and to their backgrounds. There have been incidents of professors berating students for their opinions and allegiances.
47 48 49

Seligman, supra note 1. Cole, supra note 43. See 1940 Statement of Principles on academic freedom and Tenure, supra note 2.

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This is unacceptable by anyones standards. In a Sixth Circuit case about verbal sexual harassment in the classroom (Bonnell v. Lorenzo), the court pointed out that students have the right to learn in a hostile-free environment.50 This right overrides a professors rights to academic freedom.51 The decision was based on the idea that a professor has a certain power over his students that must be used properly. A professor is entitled to his beliefs just like anyone else, but when these beliefs are expressed in a way that criticizes students or is an exhibition of [s]peech that rises to the level of harassmentwhether based on sex, race, ethnicity, or other invidious premiseand which creates a hostile learning environment that ultimately thwarts the academic process, that is something that the institution has a strong interest in preventing.52 As Lisa M. Woodward wrote in the Capital University Law Review:
Academic freedom does not mean that professors are immune from all consequences of whatever they say or do. Colleges and universities have an independent legal duty and an overriding interest in providing a classroom learning environment free fromharassmentWhen other moral values more important than academic freedom are violated, society can place appropriate limits on itProfessors who violate the duties of professional competence or ethical conduct cannot claim the protection of academic freedom; in those instances, the institution has a 53 right to impose appropriate discipline.

This strong language clearly outlines the limits a professor has in his teaching. It is important to understand that academic freedom can be trumped. This does not mean that a professor should not dictate his or her opinions, but it does provide limits for this expression. Unfortunately there are teachers who do not abide by these guidelines. This likely stems from an incorrect understanding of academic freedom. There is nothing wrong with the belief that the mission of a university is to challenge prevailing values,
Bonnell v. Lorenzo, supra note 31. Id. Bonnell v. Lorenzo, supra note 31. Lisa M. Woodward, Comment: Collision in the Classroom: Is Academic Freedom a License for Sexual Harassment?, 27 Cap. U. L. Rev. 667, 668 (1999).
50 51 52 53

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policies, beliefs and institutions and that a college should be a place that pushes at the walls of orthodoxy and rejects politically correct thinking.54 However, these beliefs can lead to issues like hostile and unproductive exchanges in the classroom. Most writing about academic freedom discusses the protections professors gain. Instead of understanding academic freedom as a privilege given to professors and researchers to explore the world of academia with virtually free reign, however, some professors are prone to understanding it as a way to protect them from harm and misuse academic freedom as a shield to hide behind. This is a subtle, yet important difference. If academic freedom was presented as something unique to the field of education, and as a privilege granted to researchers and educators to expand their knowledge and the knowledge of others, teachers would not abuse it. The problem is that teachers see it as their right, and therefore fail to accept or understand when it is curtailed. The decisions of the courts that imply it is a constitutional right have changed academic freedom from a value emphasized by the AAUP to a legal right. However, abuse of this right by those in academic positions must be penalized in order to attain the uniquely positive contributions that academic freedom provides.

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Id.