November 1, 2005

Alito and academic freedom

It looks like Samuel Alito's opinions on academic freedom are mixed. In one case, Saxe v. State College Area Sch. Dist., 240 F.3d 200 (2001), Alito wrote an opinion striking down an overly broad anti-harassment policy. So far, so good in terms of protecting expression.

Then there's Edwards v. California Univ. of Pa., 156 F.3d 488 (1998), in which Alito wrote an opinion undermining the claims of a faculty member to individual academic freedom separate from institutional academic freedom. The passage that is most worrisome follows (in the extended entry):

We do not find it necessary to determine whether the district court's instruction adequately defined the "reasonably related to a legitimate educational interest" standard because, as a threshold matter, we conclude that a public university professor does not have a First Amendment right to decide what will be taught in the classroom. This conclusion is compelled by our decision in Bradley v. Pittsburgh Bd. of Educ. , 910 F.2d 1172 (3d Cir. 1990), where we explained that "no court has found that teachers' First Amendment rights extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates." Id . at 1176. Consistent with this observation, we concluded that "[a]lthough a teacher's out-of-class conduct, including her advocacy of particular teaching methods, is protected, her in-class conduct is not." Id . (citation omitted). Therefore, although Edwards has a right to advocate outside of the classroom for the use of certain curriculum materials, he does not have a right to use those materials in the classroom. Accord Boring v. Buncombe County Bd. of Educ. ,

136 F.3d 364, 370 (4th Cir. 1998) (in banc) ("We agree . . . that the school, not the teacher, has the right tofix the curriculum."); Kirkland v. Northside Indep. Sch. Dist. , 890 F.2d 794, 800 (5th Cir. 1989) ("Although the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula."). But see Bishop v. Aronov , 926 F.2d 1066, 1075 (11th Cir. 1991) (finding that a public university's restrictions on a professor's in-class speech "implicate[d] First Amendment freedoms").

Our conclusion that the First Amendment does not place restrictions on a public university's ability to control its curriculum is consistent with the Supreme Court's jurisprudence concerning the state's ability to say what it wishes when it is the speaker. The following passage from Rosenberger v. University of Virginia , 515 U.S. 819 (1995), addresses this issue in the university context:

[W]hen the State is the speaker, it may make content- based choices. When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. . . . It does not follow, however, . . . that viewpoint-based restrictions are proper when the University does not speak itself or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers. A holding that the University may not discriminate based on viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles.

Id . at 833-34. Since the University's actions in the instant case concerned the "content of the education it provides," id . at 833, we find that the University was acting as speaker and was entitled to make content-based choices in restricting Edwards's syllabus.

Edwards's reliance on the principle of academic freedom does not affect our conclusion that the University can make content-based decisions when shaping its curriculum. The Supreme Court has explained that "[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself." Regents of Univ. of Michigan v. Ewing , 474 U.S. 214, 226 n.12 (citations omitted). The "four essential freedoms" that constitute academic freedom have been described as a university's freedom to choose "who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Regents of Univ. of California v. Bakke , 438 U.S. 265, 312 (1978) (opinion of Powell, J.) (quotations omitted). In sum, caselaw from the Supreme Court and this court on academic freedom and the First Amendment compel the conclusion that Edwards does not have a constitutional right to choose curriculum materials in contravention of the University's dictates.

There are two concerns I have here. One is the substantive judgments entailed here, which suggests that the First Amendment only protects an academic's statements outside class. I can't exaggerate how troubling that is. (FIRE staff, what do you think?)

But what is more worrisome is the slippery logic here, conflating all sorts of things: the restrictions on K-12 teachers with university teachers, of speakers with university teachers, and of general public employees with university teachers. There's the acknowledgment that the 11th Circuit had at least somewhat different reasoning (and a sort of balancing test) in Bishop v. Aronov, but no grappling with the reasoning there or with the broader question of when institutions have sway and when university teachers have sway. [Update: After a bit of thought, I should clarify that I don't agree with Bishop v. Aronov. My point is that Alito's reasoning here is brief and apparently untroubled with the possibility that he was essentially wiping out first-amendment protections for university teaching, period.]

Rachel Fugate's 1998 article, Choppy Waters Are Forecast for Academic Free Speech (Florida State University Law Review), is available on-line and explains much of the legal context here. (Thanks to Religion Clause for the case-law references.)

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Posted in Academic freedom on November 1, 2005 3:39 PM |