The Paradoxical Issue of Defining Academic Freedom in Sweezy V. The State of N.h. by Wyman

Academic freedom presents one of the most heavily litigated issues in higher education. The First Amendment protections offered to both students and educators safeguard the quality of higher education. The paradoxical issue of defining academic freedom began in 1957, when the Supreme Court commingled the “professional ideology” (Byrne, 1987, p. 256), with the constitutional protections offered under the First Amendment. Byrne (1987) states “. . . this paradox should . . . [be] . . . neither collateral nor embarrassing; academic discourse benefits from the tension between the independence of a scholar’s judgment and the university’s evaluation of her professional competence” (p. 258) in Sweezy v. the State of N.H. by Wyman.

In analyzing the procedural history related to both government intrusion, as well as the boundary between academic freedom and institutional authority this paper will create a general roadmap to avoiding violations of academic freedom for a public institution of higher education. Per Kaplin and Lee (2014), “Whether they are employed by public or private institutions of higher education, faculty members as citizens are protected by the First Amendment from governmental censorship and other governmental actions that infringe citizens’ freedoms of speech, press, and association” (p. 275).

Procedural History & Government Intrusion

Sweezy v. the State of N.H. by Wyman, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957), the petitioner was summoned and testified before the Attorney General regarding his suspected affiliation with the communist party. Over the course of several hours, the petitioner refused to answer several questions stating “. . . he would not answer those questions which were not pertinent to the subject under inquiry as well as those which transgress the limitations of the First Amendment” (Id. p. 1206). After refusing to answer the questions, the petitioner was held in contempt. The supreme court recognized an invasion of academic freedom.

Although case law has progressed in the last 59 years, the court continues to praise the value of academic freedom without providing a formal definition. Byrne (1987), suggests “[the] gross imbalance between encomium and rule suggests an extreme reluctance by or difficulty for a court to find any particular, practice to be a violation of academic freedom” (p. 257). “First Amendment guarantee of academic freedom rests on a recognition of the vital role in a democracy that is played by those who guide and train its youth.” 73 A.L.R.6th 281 (Originally published in 2012). Academic freedom spawns from the First Amendment right of free speech, and while this right is abundantly important the balance between institution autonomy and academic freedom must be narrowly defined. Issues surrounding academic freedom range from academic speech to the development of course content, and grading practices.

In Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), faculty members of at the University of the State of New York, filed for declaratory and injunctive relief alleging that administrative regulations violated constitutional guarantees. Here the court emphasized that “(p)recision of regulation must be the touchstone in an area so closely touching our precious freedoms . . . (f)or standards of permissible statutory vagueness are strict in the area of free expression . . . First Amendment freedoms need breathing space to survive, the government may regulate in the area only with narrow specificity” (Id. at 604).

Freedom of Speech, Expression, & Conduct

In Franklin v. Leland Stanford Junior Univ., 172 Cal. App. 3d 322, 218 Cal. Rptr. 228 (Ct. App. 1985), Plaintiff Bruce H. Franklin, a leader in the anti-war movement and a tenured professor at Standford university, filed charges against the University after the university discharged him. Here the court states “[a]ny word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But Our Constitution says we must take this risk. .only expressive conduct which materially disrupts classwork or involves substantial disorder or invasion of the rights of others, which is not protected by the constitutional guarantee of freedom of speech” (Id. at 337).

These statements along with an after-class meeting arranged by Bishop to discuss the “Evidence of God in Human Physiology” (Id. at 1069), which was scheduled during the week of final exams resulted in student complaints. In response to the complaints University counsel drafted a memorandum entitled “Religious Activities in a Public Institution”, which stated “[a]mong those actions that should be discontinued are: 1) the interjection of religious beliefs and/or preferences during instructional time periods and 2) the optional classes where a “Christian Perspective” of an academic topic is delivered . . . I must also remind you that religious beliefs and/or the strength of a belief cannot be utilized in the decisions concerning the recruitment, admission or retention of graduate students” (Id. at 1069).

In this instance, the appeals court recognized the obstacle described as “the first amendment tightrope” the University faced. The court states “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. . . [t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools . . . The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection” (Id. at 1075).

The importance of academic freedom cannot be overlooked, however, the court here recognized the importance of university autonomy stating “[t]his Court should honor the traditional reluctance to trench on the prerogatives of state and local educational institutions” (Id. at 1075). Academic freedom is an important safeguard ensuring that the value of education is not diminished by unnecessary or unreasonable restriction. Here the Court found that based on the nature of the speech and the narrowly defined restrictions the first amendment right of academic freedom had not been breached.

In Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), a substitute teacher at NIU a State University brought a claim under 42 U.S.C. §§ 1983 and 1985 alleging false statements made by the defendants resulted in the Universities decision not to rehire him. Clark, during the term of his temporary employment, pushed the issue of providing sexual education as the party of the healthy survey course. Here the court found that although the right to academic freedom “one of the enumerated rights of the First Amendment . . . [it is] not . . . a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution” (Id. at 931). Here the Court rejected Clark’s allegation, as “legitimate interests of the State may limit a teacher’s right to say what he pleases” (Id. at 931).

Further, the 11th Circuit Court of Appeals, in Bishop v. Aronov, 926 F.2d 1066, showcases the paradoxical phenomenon described Byrne (1987). In Bishop v. Aronov an assistant professor of Physical Education brought an action under 42 U.S.C. § 1983, in the Federal District Court after a University policy was enacted to regulate the flow of religious speech. Phillip Bishop, the plaintiff/appellant was employed from 1984 to 1987 by the University of Alabama in the College of Education, working with both undergraduate and graduate students. Bishop often referred to his religious belief system during lectures, both in a generalized context and providing detailed philosophical explanations.

Bishop is quoted stating “[a]fter giving it considerable thought, I have decided for myself when I die, I would like to leave behind something more important and valuable than a stack of technical papers. I think that people are important and eternal, paper is neither. I want to invest my time mainly in people. I personally believe God came to earth in the form of Jesus Christ and he has something to tell us about life which is crucial to success and happiness” Bishop v. Aronov, 926 F.2d 1066, 1068 (11th Cir. 1991).

In Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989), the plaintiff in this action brought a civil rights action after his contract to teach at Tennessee State University was not renewed. Parate, was appointed as an associate professor for the academic year of 1982 to teach in the Civil Engineering Department. Pirate's teaching credentials included a Bachelors, Masters and Doctoral degree earned in the field of engineering earned at various Universities in Europe and Asia. Pirates position with Tennessee State University was a tenure track annually renewable contract. Parade presented specific grading guidelines to his students, providing students with the opportunity to document extenuating circumstances to raise their earned grade. In his first course, two students requested a grade change.

The first student provided a detailed and documented account of a legal matter, Parate bumped this student from a B to an A. Parate denied the second student due to his false medical reports and Parate personally observing him cheat on the final exam. Upon Parate’s refusal, this student appealed to the Dean of the school of Engineering. Edward I Isibor, served as Dean of the school of Engineering. Isibor and the second student were each Nigerian. Upon the receipt of the student's appeal Isibor forced Parate to meet with him, at which point Parate was informed that he must change his grading scale, allowing a grade of 86 percent to be an A.

Upon Parate’s refusal this Isibor insulted, berated, and threatened Parate stating “it would be difficult to renew Parate’s contract at TSU” (Kaplin & Lee, 2013, p. 269). The next day Parate met with the associate dean who had prepared a memorandum stating that the grades for both students would be changed from B’s to A’s, and that the official grading scale would also reflect the percentage shifts. Parate refused to sign the memorandum as prepared to add a notation that these changes were at “instructions from Dean and Department Head at meeting” (Kaplin & Lee, 2013, p. 269). “Samuchin . . . explained to Parate that there was to be no notation referring to Isibor’s instructions . . . [he] warned Parate that if he failed to sign the retyped memoranda, then Isibor would “mess up” his evaluation”.

Although Parate eventually signed the memoranda as requested, he did so under duress and fear of reprisal. Over the next two academic years Isibor and Samuchin, the associate dean, acted in a retaliatory manner against Parate on multiple occasions. They “challenged Parate’s grading criteria in other courses, sent him a letter critical of his teaching methods; and penalized him with low-performance evaluations . . . [They also refused] Parate’s requests for authorized professional travel and appropriate reimbursements . . . impeded Parate’s research efforts and his presentation of papers at professional conferences . . . and recommended the non-renewal of Parate’s teaching contract” (Kaplin & Lee, 2013, p. 269).

In March of 1985, Parate was informed that his tenure track position would not be renewed. In a meeting with Isibor in September of 1985 he was informed that “. . . if Parate’s performance improved, consideration would be given to the renewal of his teaching contract. Isibor concluded by telling Parate “you must obey and never disobey your Dean”” (Kaplin & Lee, 2013, p. 270). During late September and early October of 1985, several discriminatory actions were taken by Isibor and Samuchin in retaliation after two additional Nigerian students complained about Parate’s grading system. Isibor and Samuchin degraded Parate in front of students, removed him from a teaching position and forced him to attend the course he had previously been teaching. Parate was shortly after informed that his tenure track position would not be renewed. Parate brought this action under 42 U.S.C § 1983, alleging a violation of his right to academic freedom under the First Amendment protections.

Similarly, in Brown v. Armenti, 247 F.3d 69, 78 (3d Cir. 2001), the 3rd Circuit United States Court of Appeals discusses the application of academic freedom to grading practices and procedures. In Brown v. Armenti, the plaintiff Robert Brown, a professor employed as a professor for 28 years at the California University of Pennsylvania, filed suit claiming he was wrongfully discharged after refused to change a grade assigned to one of his students. The plaintiff alleged that the retaliation violated his first amendment right to academic freedom under the First Amendment. Here the court applied the standard adopted in Pickering v. Board of Education, and Tinker v. Des Moines stating “essentially [the] freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation” (id. at 74).

Brown, defines the rights of a professor inside the classroom where the professor is essentially stepping into the shoes of the University “fulfilling one of the functions involved in the universities four essential freedoms choosing who may teach, what may be taught, how it shall be taught, and who may be admitted to study” (Id. at 75). Brown distinguishes itself from Parate, concluding the assignment of student grade did not rise to a level requiring judicial intervention.

Apply Case Law

Government Interference

Academic Freedom is both a right of the university against interference by the government, and a right of the teacher and the student against interference from a university, putting these two rights in direct conflict. Interference by the government falls under the traditional scope of freedom of speech. Why is this important? When statutory guidelines infringe on academic freedom it can put the institution in an awkward position. To avoid unnecessary litigation, it is important for public universities to avoid stepping into the shoes of a government actor. The traditional analysis must review public versus private speech and public concern.

Regarding public versus private concern, this issue relates to the subject matter of the speech. Public speech is that which references an issue of importance to the public, such as political and social concerns. The current political climate serves as a prime example of public speech. Whereas private concerns which are not protected by the First Amendment revolve around personal beliefs and opinions and are not tied to an area of public concern. Here Martin merely believed his class did not show enough effort, this was his personal belief and was unrelated to a public concern.

The areas of public concern are far reaching from concerns over the political atmosphere, economic status, to the status of gender relations in the United States. The important line that an educator must not cross is that of pushing personal belief upon a student. Bringing this political and social issues to light can be a great educational tool when used properly. The First Amendment is not a blanket that protects everything that comes out of an educator’s mouth, whether it be profanity, hate speech or sexual harassment, there are limits to the afforded protections.

Policy Recommendations

A public university must familiarize itself with existing binding case law. This requires a legal analysis of supreme court case law as well as jurisdictional precedent. Current policies and procedures must be reviewed to ensure these are in line with the binding precedent. Policies that require updates must be addressed, this will require time, likely no less than six months to finalize.

The courts have extended first amendment protection to the assignment of a letter grade stating “[b]ecause the assignment of a letter grade is symbolic communication intended to send a specific message to the student, the individual professor’s communicative act is entitled to some measure of First Amendment protection” (Kaplin & Lee, 2013, p. 273). The law here flows from the constitution and binding Supreme Court precedent, making it nearly indisputable. The appeals court held that “the acts of the defendants deserve exacting First Amendment scrutiny” (Kaplin & Lee, 213, p. 275). The act of forcing Parate to personally change the grade when the action could have been accomplished through administrative channels violated these First Amendment protections.

Evaluating student performance, expanding skills and knowledge relates to all aspects of educating from curriculum development to instruction. An educator based on this assessment is protected under the umbrella of academic freedom in decisions related to their personal teaching method. Although an instructor must still comply with “reasonable review” (Kaplin & Lee, 2013, p. 273), this review does not obstruct personal choice. In general, the court recognizes the inherent authority of the institution to make decisions related to curriculum and content while protecting the individual rights of the individual professor. An individual cannot be forced a professor to a grade or grading policy, however, that does not prohibit the action if taken through appropriate administrative procedures.

Creating policy regarding the protection of academic freedom is an overwhelming task. Kaplin & Lee (2014), states “[a] college must avoid restricting creative and engaging teaching, even if some over-sensitive students object to it” (p. 314). Policies expanding academic freedom over class time, classroom material, projects, and grading are those which extend the job duties to that of curriculum development. If an individual professor is tasked with developing the key elements of a program additional protections are extended. However, when a University restricts the job function and duties of prospective instructors, they limit the amount of academic freedom an individual can rely on.

Freedom of expression was an argument referred to in the discussion of this case based on Connick v. Myers (Kaplin & Lee, 2013). This case stated that “when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behaviors” (Kaplin & Lee, 2013, p. 265).

Dissertation Application

Recently I changed the topic of my dissertation to the application of social media in higher education. This course has been uniquely useful in the development of this topic. The First Amendment freedoms of speech and Academic freedom will serve as crucial boundaries in acceptable speech for both faculty and students.