Academic Freedom

External Attempts to Regulate Faculty

The initial stage of academic freedom litigation occurred during the 1950s and 1960s and arose from McCarthyist concerns of subversion and disloyalty. A series of U.S. Supreme Court cases reviewed governmental attempts to impose loyalty requirements in education, often at the university level. The Court issued mixed rulings on academic freedom in the 1950s, with some judgments upholding loyalty oaths and governmental restrictions. However, by the end of the 1960s, the Court clearly recognized the constitutional status of academic freedom, largely based on First Amendment freedom of speech and association, and generally rejected external attempts to limit faculty members' freedom of expression.

In Keyishian v. Board of Regents of University of State of New York (1967), educators refused to sign a Feinberg Certificate affirming that they were not Communists and that if they had ever been Communists, they had so informed the SUNY president. In ruling for the faculty members, the Court built on its defense of educators' freedom of thought in Shelton v. Tucker (1960), acknowledging that academic freedom is a “special concern of the First Amendment” (p. 603).

Attempts at external control of expression on college campuses have resurfaced in the past decade, as interest groups use educational institutions as forums to promote their ideological viewpoints and agendas. Challenges brought by community members and students against the content of first-year student orientation reading assignments and student plays performed as course assignments have generally failed. Further issues concerning academic freedom were raised in Urofsky v. Gilmore (2000). In this case, the Fourth Circuit upheld statutory restrictions on the rights of faculty members and other public employees to visit sites containing sexually explicit material on publicly owned or leased computers. Thus, this case raises questions [Page 8]about the boundaries of academic freedom in the cyber age and the rights of academicians to choose for themselves, without state interference, the topics of their research and teaching.

Internal Conflicts over Faculty Actions

After Keyishian, the primary focus of academic freedom litigation shifted from external attempts at control to internal conflicts. The Supreme Court has recognized that academic freedom, at times, involves a somewhat inconsistent and fundamental tension between educators who desire uninhibited, independent freedom in teaching and institutions that want autonomous decision making over their educational programs and campus activities. Over four decades, higher education has witnessed numerous legal disputes between institutional and faculty academic freedom over who has the authority to control activities within a course, language used within a classroom, and grading.

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