Faculty Rights in the Classroom

The teaching environment in many college and university classrooms is more fraught with peril today than it was a few short years ago. Faculty members face challenges to their teaching methods and threats to their independence, and some students are taking a more confrontational tone in the classroom. Many of these challenges are not new; they are variations of issues confronted by the profession—and addressed by the AAUP—in decades past. AAUP statements, university policies and collective bargaining agreements, and the First Amendment of the US Constitution all can provide guidance and protection to faculty in navigating these difficult waters.

AAUP Policy

The professional standard of academic freedom is defined by the 1940 Statement of Principles on Academic Freedom and Tenure, which was developed by the AAUP and the Association of American Colleges (now the Association of American Colleges and Universities) and has been endorsed by more than 250 scholarly and professional organizations. The 1940 Statement generally holds that “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,” and that they “are entitled to freedom in the classroom in discussing their subject.” Courts have relied on the 1940 Statement’s definition of academic freedom in various rulings, including in the US Supreme Court’s rulings in Tilton v. Richardson (1971) and Roemer v. Board of Public Works of Maryland (1976).

The AAUP has long recognized the primacy of the faculty in determining what is taught in the classroom. According to the AAUP’s Statement on Government of Colleges and Universities, “The faculty has primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction, research, faculty status, and those aspects of student life which relate to the educational process.” Similarly, in the 2007 report Freedom in the Classroom, the AAUP states that, “although instructors are ethically obligated to follow approved curricular guidelines, ‘freedom in the classroom’ affords instructors wide latitude to decide how to approach a subject, how best to present and explore the material, and so forth.”

Tenure is vital to protecting academic freedom in the classroom, both because it provides job security to faculty members (thereby protecting them from pressure to teach or not to teach certain things) and because due-process procedures surrounding the removal of a faculty member with tenure involve the faculty. Unfortunately, most faculty members today do not have tenure. However, the 1970 Interpretive Comments to the 1940 Statement recognize that “the protection of academic freedom and the requirements of academic responsibility apply not only to the full-time probationary and the tenured teacher, but also to all others, such as part-time faculty and teaching assistants, who exercise teaching responsibilities.” All faculty members must stand up for and support the academic freedom of their non-tenure-track colleagues, who are much more vulnerable to administrative retaliation.

While AAUP statements define the norms of the profession, the standards set forth in those statements must be formally adopted by a university in order to be legally binding.

Policies and Agreements

Fortunately, many colleges and universities have adopted, either in whole or in substantial part, AAUP policies on academic freedom, tenure, and governance in faculty handbooks, faculty contracts, or collective bargaining agreements. The adoption of these AAUP policies often creates a legally enforceable contractual right to the protections established by AAUP statements.

Even if the AAUP policies are not explicitly adopted, many university policies or collective bargaining agreements address the AAUP’s core principles of academic freedom and tenure. University policies and agreements can extend to faculty members important protections, such as substantive rights for faculty speech and procedural rights or standards protecting faculty members against improper discipline or other retaliation. In these instances, AAUP policies and statements can provide evidence regarding the standards, rights, and obligations generally applicable to members of the profession.

Faculty familiarity with their institution’s policies and agreements, and the state law that governs them, is vital to understanding the protections available to faculty members engaging in classroom speech.

First Amendment Protections

Classroom speech of faculty members at public-sector institutions can also be protected by the First Amendment to the US Constitution. As the Supreme Court held in Keyishian v. Board of Regents (1967), “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. 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 First Amendment protects faculty members from punishment by the government for their exercise of freedom of speech. In 2006, however, the Supreme Court weakened this core protection in its ruling in Garcetti v. Ceballos, which held that certain speech arising from an individual’s “official duties” as an employee of the government does not warrant First Amendment protection. As the Court explained, “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” At the same time, the Court recognized that speech related to scholarship or teaching might be treated differently, observing, “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by the Court’s decision.” Therefore, the Court concluded that it was not deciding whether its core analysis—the “official duties” inquiry—“would apply in the same manner to a case involving speech related to scholarship or teaching.” Because the Court did not provide an answer to this question, the extent of First Amendment protection to classroom speech remains uncertain.

Since the Supreme Court’s Garcetti decision, the lower courts have been inconsistent in their rulings on the protection of faculty speech. Some courts have found that professorial speech in the classroom, or as part of scholarship, is protected by the First Amendment; others have found that such speech is not so protected. Further, some states have constitutional or statutory provisions concerning academic freedom, which may add protections to those provided by the First Amendment. The Washington constitution, for example, provides that “every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” New Jersey’s constitution contains almost identical language, as do the constitutions of Wisconsin and New York.

In response to the Garcetti decision, the AAUP launched a campaign, Protecting an Independent Faculty Voice, to urge colleges and universities to adopt policies clearly protecting the free speech of faculty members, both inside and outside of the classroom. Many such policies were passed. Even if classroom speech is protected by the First Amendment or by AAUP or institutional policy, however, it may lose protection if the speech is not germane to the subject or unduly disrupts the workplace.

Freedom in the Classroom

The protections provided by AAUP policy statements, by faculty handbooks or contracts, and by the First Amendment are crucial in the current environment. And as professors increasingly find their actions under scrutiny, their freedom to discuss controversial subjects in the classroom has taken on renewed importance.

The 1940 Statement, which states that faculty members “are entitled to freedom in the classroom in discussing their subject,” also explained that they “should be careful not to introduce into their teaching controversial matter that has no relation to their subject.” An Interpretive Comment added in 1970 clarified this passage: “The intent of this statement is not to discourage what is ‘controversial.’ Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster.” The 1940 Statement, as the 1970 Interpretive Comments made clear, should not be interpreted as excluding controversial matter from the classroom; any such exclusion would be contrary to the essence of higher education. Rather, the statement should be interpreted as excluding “irrelevant” matter, whether controversial or not.

How should the relevance of material introduced into classroom discussion be determined? The AAUP’s Freedom in the Classroom report concludes that “so long as an instructor’s allusions provoke genuine debate and learning that is germane to the subject matter of a course, they are protected by ‘freedom in the classroom.’” The report emphasizes that the definition of whether speech is germane is an expansive and deferential one: “How an instructor approaches the material in classroom exposition is, absent breach of professional ethics, a matter of personal style, influenced, as it must be, by the pedagogical goals and classroom dynamics of a particular course, as well as by the larger educational objective of instilling in students the capacity for critical and independent thought.”

The increased scrutiny of course content has been accompanied by resurgent demands for “balance” or “neutrality” in the classroom. A decade ago, states considered, and almost unanimously rejected, so-called Academic Bill of Rights legislation that would have required “balance” in teaching. Now some states are considering “Campus Free Speech” legislation, which often seeks to impose a requirement of academic “neutrality.” The AAUP’s guidance a decade ago in its Freedom in the Classroom report still holds true today:

The ideal of balance makes sense only in light of an instructor’s obligation to present all aspects of a subject matter that professional standards would require to be presented. If a professor of molecular biology has an idiosyncratic theory that AIDS is not caused by a retrovirus, professional standards may require that the dominant contrary perspective be presented. Understood in this way, the ideal of balance does not depend on a generic notion of neutrality, but instead on how particular ideas are embedded in specific disciplines. This is a coherent idea of balance, and it suggests that balance is not a principle that can be invoked in the abstract but is instead a standard whose content must be determined within a specific field of relevant disciplinary knowledge.

Disruptive Conduct

In the wake of the 2016 election, it has become increasingly common for students to express racist, xenophobic, homophobic, or misogynistic views in the classroom. Addressing such views while maintaining free and open discussion requires faculty members to strike a difficult balance. To fulfill their missions, colleges and universities must ensure that all members of their communities may seek knowledge freely: faculty members and students must have the freedom to express controversial views, but the classroom must also be free from conduct that interferes with the educational mission. In its 1992 statement On Freedom of Expression and Campus Speech Codes, the AAUP maintained, “On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” At public institutions, under the First Amendment, speech cannot be restricted simply because it is offensive or even intentionally inflammatory. However, as Freedom in the Classroom also states, it “is neither harassment nor discriminatory treatment of a student to hold up to close criticism an idea or viewpoint the student has posited or advanced.”

Similarly, faculty members should insist that due respect for others be paid in the expression of such views in an academic setting. As the AAUP stated in On Freedom of Expression and Campus Speech Codes, “Members of the faculty have a major role in dealing with incivility, intolerance, offensive speech, and harassing behavior.” If a topic raised by a student is not germane to the class, the faculty member may ask that discussion of the topic cease. Further, if the method by which the student addresses the class is unduly disruptive—yelling, for example—the faculty member may ask the student to cease this conduct, and if the conduct does not cease, the faculty member may use the techniques normally available to address the behavior of a disruptive student.

Not all forms of conduct can be protected as expressions of ideas, of course. The AAUP maintains in On Freedom of Expression and Campus Speech Codes that “institutions should adopt and invoke a range of measures that penalize conduct and behavior, rather than speech—such as rules against defacing property, physical intimidation or harassment, or disruption of campus activities.” Criminal conduct (such as physical assault or destruction or defacement of property), unlawful discriminatory conduct (such as excluding a student from employment because of race), and threats to commit acts of violence can all be restricted. Under federal, state, or local antidiscrimination statutes, certain “unlawful harassment” can be restricted as well, but the focus again is on conduct. The Department of Education’s Office for Civil Rights, in its 1997 guidance on sexual harassment, explained this distinction with respect to sex discrimination as follows: “Title IX is intended to protect students from sex discrimination, not to regulate the content of speech. . . . Offensiveness of particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX. In order to establish a violation of Title IX, the harassment must be sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program or to create a hostile or abusive educational environment.”

Faculty members should not be silent bystanders in the face of acts intimidation, threats, or violence on campus. If the threats involve potential violence or damage to persons or property, faculty members should immediately report them to the appropriate law enforcement authorities. Threats, harassment, discrimination, or violations of university codes of conduct can be reported to the office of student affairs or the office of diversity. Finally, if the university knowingly fails to protect students from unlawful harassment, it may violate federal, state, and local statutes.

Conclusion

The challenges faced by faculty members in today’s classrooms are not unprecedented, but combined they create a situation more dangerous than any that faculty have faced since the McCarthy era. Faculty members must stand up to these challenges. To do so forcefully, they should understand the legal and institutional rights and obligations applicable on their individual campuses. More important, all faculty members—tenured, tenure-track, and non-tenure-track alike—should join together, as members of the AAUP, as the cohesive voice of the profession. Academic freedom can survive only if it is protected by a unified faculty.

Aaron Nisenson is senior counsel at the AAUP.

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