A. Academic Freedom and Free Expression

“Academic Freedom ... is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom ... . 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.”

Supreme Court Justice William Brennan
Keyishian v. Board of Regents (1967)

The law recognizes in academic freedom a principal means of safeguarding free expression throughout society. In Keyishian, Justice Brennan put academic freedom at the very core of First Amendment protections. Two other justices, Felix Frankfurter in Sweezy v. New Hampshire (1957) and Lewis Powell in Regents of the University of California v. Bakke (1978), saw fit to incorporate into their opinions a still more expansive definition of academic freedom, the "Statement of Remonstrance" addressed to the government of South Africa by senior scholars at the Open Universities of Cape Town and Witwaterstrand. "A university ceases to be true to its own nature," they wrote, "if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry, its ideal being that of Socrates -- to follow the argument where it leads... . It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation. It is an atmosphere in which there prevail the four essential freedoms of a university -- 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."

Quite apart from its value to society at large, freedom of expression is the enabling precondition of the academic enterprise, for where people hesitate to speak their mind, critical thinking has no purchase and the university cannot even begin to carry out its mission. That is why academic freedom and its material complement, tenure, have become defining features of university life. But because free expression can be deeply disturbing, none of us, whether inside or outside of the academy, is immune to the temptation to suppress offensive speech by force, censorship, or intimidation. It is accordingly incumbent on each individual associated with the university - whether as student, teacher, administrator or trustee -- to exercise the vigilance and self-restraint without which freedom of expression cannot flourish. In the university, even more than in democratic society at large, the principle of free thought must prevail, not just "free thought for those who agree with us," as Justice Oliver Wendell Holmes Jr. warned in U. S. v. Schwimmer (1928), but "freedom for the thought we hate."Liberating though its influence has been, academic freedom, like other freedoms in civil society, carries with it an implicit burden of self-restraint, not only in responding to the views of others, but also in expressing one's own views. The American Association of University Professors, founded in 1915 specifically to cultivate and defend the rights of academic freedom, has consistently acknowledged the need for restraint. The most authoritative statement of the rights of academic freedom as they exist today is the AAUP's "1940 Statement of Principles." It defines three facets of academic freedom (freedom of inquiry, teaching, and extramural utterance) and explicitly calls attention to the limits of each:

(a) Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary be based upon an understanding with the authorities of the institution.

(b) Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

(c) College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

If freedom of expression is to serve its purpose, and thus the purpose of the university, it should seek to enhance understanding. Shock, hurt, and anger are not consequences to be weighed lightly. No member of the community with a decent respect for others should use, or encourage others to use, slurs and epithets intended to discredit another's race, ethnic group, religion, or sex. [But] it may sometimes be necessary in a university for civility and mutual respect to be superseded by the need to guarantee free expression. The values superseded are nevertheless important, and every member of the university community should consider them in exercising the fundamental right to free expression.... [Still,] if the university's overriding commitment to free expression is to be sustained, secondary social and ethical responsibilities must be left to the informal processes of suasion, example, and argument.

• William Van Alstyne, "Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review," in Freedom and Tenure in the Academy: The 50th Anniversary of the 1940 Statement of Principles, ed. W. Van Alstyne (Durham: Duke University School of Law, 1990).
• "1940 Statement of Principles on Academic Freedom and Tenure," in American Association of University Professors, Policy Documents and Reports, 1995 Edition (Washington DC: AAUP, 1995).
• Report of the Committee on Freedom of Expression at Yale, [Chair, C. Vann Woodward] (New Haven: Yale University, 1975) and the Yale Undergraduate Regulations.