How Poorly Written Laws Can Threaten Academic Freedom

How Poorly Written Laws Can Threaten Academic Freedom

The First Amendment, which guarantees Americans the right to free speech, does not directly mention the right to “academic freedom.” However, the United States Supreme Court has expressly held that the academic freedom of educators is protected by the First Amendment. One of the early and pivotal cases on this issue, Keyishian v. Board of Regents of University of State of N. Y. (385 U.S. 589), came before the Supreme Court in 1967 and addressed a number of New York laws with respect to the issue of academic freedom broadly prohibited teachers from making any “utterances” that were considered seditious or treasonable.  The Supreme Court held that these prohibitions were so vague and potentially sweeping in their scope that they would chill the ability of teachers and university professors from engaging in “that free play of the spirit which all teachers ought especially to cultivate and practice . . .”  The Supreme Court stated that 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.”

Conflicts regarding statements made by teachers in high schools and universities are still commonplace today. Indeed, our polarized political environment and “cancel culture” emphasizes the need for strong First Amendment protections.  While schools and universities have a right to set curriculums, teachers do not shed their First Amendment rights when they enter the school or university.  This means they have First Amendment rights to say what they believe, but also the freedom to refrain from saying certain things they do not agree with.  For example, in Meriwether v. Hartop, the federal Sixth Circuit Court of Appeals held that a university could not compel the use of certain pronouns by a professor who did not believe that men can transition into women nor that women can transition into being men.

Cases like Keyishian, which also arose in a highly polarized political environment and teach us much about the importance and application of First Amendment rights.

Conflict Began with Shift from Private to Public Employees

In 1962, the privately owned and operated University of Buffalo was absorbed into the State University of New York system, making it a public university. Employees at the college were now state employees and were subjected to the same policies and requirements as other state employees.

A series of statutes and administrative regulations in place at the time were designed to prevent the appointment or employment of “subversive persons” within the New York state government. This included a requirement for employees to sign an oath stating they were not and had never been members of the Communist party.

These statutes also made the “utterance” by a teacher of any “treasonable” or “seditious” statements grounds for dismissal.  The statutes did not clearly define these terms, and teachers could not determine their scope or how they applied.  For example, would reading or discussing a controversial book or philosopher in class justify the termination of the teacher?

Keyishian and the other teachers sued, and a federal court ruled against them, saying the statutes were constitutional. However, in a 5-4 decision, the Supreme Court reversed the lower court’s ruling and found in favor of the teachers.

Broad, Vague Language Problematic in State’s Law

Justice William J. Brennan Jr., in writing the majority opinion, stated that the language used by the New York statutes and regulations in question were too vague and too broad to effectively define speech or conduct that was prohibited.  This vagueness would cause teachers to avoid sensitive topics and students would not get the benefit of vigorous and open debate:  the “classroom is peculiarly the ‘marketplace of ideas.’  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.”  Further, “[n]o 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.”

Overall, the Court recognized that protecting teachers’ First Amendment rights is not only important to preserving individual freedoms, but it is also necessary for maintaining a free and open educational system. The poorly drafted and overly broad restrictions can have a “chilling effect” which deters teachers from teaching and students from learning by exposure to difficult and controversial ideas. Lawmakers can impose certain limits on the conduct of teachers in the classroom, but these limitations must be clear and be supported by a compelling justification.

When Academic Freedom is Threatened, Help is Available

Justice Abe Fortas wrote in the majority opinion for Tinker v. Des Moines, 393 U.S. 503, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Although those words were written over 50 years ago, conflicts continue to arise over the rights of teachers to free expression inside and outside the classroom.

If you believe your constitutional rights to free expression and free speech are being violated, it’s best to discuss your case with an experienced lawyer. At The Law Offices of George M. Sanders, PC, we are dedicated to fiercely defending our client’s rights. Call us today to request a consultation.