Amar, Vikram

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A Comparative Analysis of the Academic Freedom of Public University Professors

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FIRST AMENDMENT LAW REVIEWVolume 14 | Issue 2 Article 4May 2018A Comparative Analysis of the Academic Freedomof Public University ProfessorsVikram AmarFollow this and additional works at: http://scholarship.law.unc.edu/falrPart of the First Amendment CommonsThis Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in First AmendmentLaw Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationVikram Amar, A Comparative Analysis of the Academic Freedom of Public University Professors, 14 First Amend. L. Rev. (2018).Available at: http://scholarship.law.unc.edu/falr/vol14/iss2/4A "COMPARATIVE" ANALYSIS OF THE ACADEMICFREEDOM OF PUBLIC UNIVERSITY PROFESSORSVIKRAM AMAR*One of the topics we have been asked to address at this sym-posium is the academic freedom enjoyed by faculty at public univer-sities. Now is a good time to be discussing this topic, and the Univer-sity of North Carolina ("UNC") is a particularly apt place at which tobe discussing it. As would two other places I've spent professionaltime at recently-the University of Illinois at Urbana-Champaign ("Uof I"), where I became the Dean of the College of Law this year, andthe University of California system ("UC"), where I spent my academ-ic career until this fall. Indeed, given the dust-ups here at UNC,' thecontroversy surrounding the (non)hiring of Steven Salaita at the U ofI,2 and the UC Office of the President's guidance concerning, andpossible definitions of, microaggressions,3 it is fair to say these three* Dean and Iwan Foundation Professor of Law, University of Illinois College ofLaw. This Essay is a modified version of remarks delivered at the "Free Speechin Higher Education" Symposium sponsored by the First Amendment Law Re-view of the University of North Carolina at Chapel Hill on October 30, 2015.1 The University and the state's elected leaders have been at odds over a varietyof programs and policies in recent years. For one perspective criticizing the pol-iticians' review of university operations, see Gene Nichol, Gene Nichol's Responseto Recommendation by Board of Governors' Group to Close UNC Poverty Center,NEws & OBSERVER (Feb. 18, 2015), http://www.newsobserver.com/opinion/op-ed/article10876403.html.2 For background on the Steven Salaita controversy (involving the University's2014 decision not to follow through with a tenured appointment for ProfessorSalaita based on controversial tweets and other social media utterances hemade), see Report on the Investigation into the Matter of Steven Salaita, Univ. ofIll., Urbana-Champaign's Comm. on Academic Freedom & Tenure (CAFT),http://www.ais.illinois.edu/documents/CAFTReport.pdf (last visited March 12,2 016) [hereinafter CAFT Report].3 "Microaggressions," which can lead to a legally actionable hostile learning en-vironment, are defined for these purposes as "the everyday verbal, nonverbal,and environmental slights, snubs, or insults, whether intentional or uninten-tional, that communicate hostile, derogatory, or negative messages to targetpersons based solely upon their marginalized group membership." For theFIRST AMENDMENT LAW REVIEWgreat public universities lie at the epicenter of the conflict betweenfreedom of expression and the orderly operation of public highereducation.In my (necessarily) abbreviated contribution on this topic, I'dlike to examine the breadth of so-called "academic freedom" enjoyedby (even fully tenured) faculty at public universities by comparingthe scope of liberties of public professors with relevant counterparts.For these purposes, I focus primarily on the liberties enjoyed by vir-tue of the federal Constitution-freedoms that arise from state con-stitutions or contract law are important to be sure, but they falllargely outside of my remarks today.The first relevant comparison I'd like to draw is betweenpublic university faculty and public university students. It seemsclear that the First Amendment, at least, protects students far morethan it protects faculty. The reason for this is relatively simple-students are regulated individuals (campuses are operated like smallmunicipalities), whereas faculty are government employees. Settled(albeit somewhat vague) First Amendment doctrine gives the gov-ernment far more latitude to regulate the speech of its workers thanthe speech of its citizenry, both because the smooth functioning ofgovernment departments is an interest that is weighed against free-dom of speech, and (in some settings) because government itselfspeaks through the actions of its employees. These basic notions,which find expression at the U.S. Supreme Court in modern cases inthe Pickering/Connick/Garcetti line4 are captured, albeit somewhatflippantly, by the quip of Oliver Wendell Holmes, who (while servingas a state appellate judge at the time) remarked: "[A person] mayguidance the University of California Office of the (System) President (UCOP)had been giving on recognizing microaggressions and the messages they send,see the following chart that UCOP had disseminated:http://academicaffairs.ucsc.edu/events/documents/MicroaggressionsExamples_Arial_2014_11_12.pdf [hereinafter, Microaggression Avoidance Guide].4 The seminal case remains Pickering v. Bd. of Educ., 391 U.S. 563 (1968). TheCourt explained and refined the Pickering doctrinal framework in Connick v.Myers, 461 U.S. 138 (1983) and Garcetti v. Ceballos, 547 U.S. 410 (2006). Takenindividually and together, these rulings (and others in the same line) illustratethe latitude the government has to regulate the expressive activity of its em-ployees in different government employment contexts.[Vol. 14294"COMPARATIVE" ANALYSIShave a constitutional right to talk politics, but he has no constitu-tional right to be a policeman."5We need look back to Holmes's quip to see the basic point.Consider the aforementioned UC's microaggression guidance docu-ment While vague as to the implications of noncompliance, the UCguidance memo certainly intimates that when faculty and staff use aphrase like "America is a melting pot" they are engaging in a micro-aggression that may be creating a legally actionable hostile learningenvironment No public university could even intimate to a student(as opposed to a faculty member) that there could be punishment forusing such a phrase, no matter the context in which that phrase wasinvoked.6 Nor could any public university visit negative conse-quences on any student for posting on social media the intemperate(and in the minds of many people anti-Semitic) things that StevenSalaita tweeted.Let us next compare public professors to professors at pri-vate higher education institutions. Here too, it seems that the publicprofessoriate is entitled to less in the way of First Amendment pro-tections. Again, think about the microaggression memo or the Salaitaaffair: Can anyone imagine government trying to directly sanctionDuke University (to pick a nondescript private school up the road)professors for saying, regardless of context, "I believe the most quali-fied person should get the job" (another specific example of potentialmicroagression according to the UC) or for extreme and offensivetweets about deeds of Israelis? Or, go back a few generations-it isno surprise that the flashpoint over state-imposed loyalty oaths atuniversities tended to occur at public institutions.' Even in the1950's, my guess is that government-mandated loyalty oaths at Har-vard would have been a tough sell. And once more, the reason for thes McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892).6See Microaggression Avoidance Guide, supra note 3.7See supra note 2 and accompanying text.8 See Vikram Amar & Alan Brownstein, Academic Freedom, 9 Green Bag 2d 17,22-23 (2005).2016] 295FIRST AMENDMENT LAW REVIEWasymmetrical treatment is the related doctrines of public-employeespeech and government speech.9Now consider the First Amendment protections of publicprofessors compared to other public employees. At first blush, itwould seem that here, public professors are at least on equal termswith the group (other public employees) to which they are beingcompared. After all, if the employer/employee relationship givesgovernment certain leeway to regulate, that would seem to apply tonon-professorial employees too. True enough, but closer inspectionreveals that under the Pickering/Connick/ Waters line of cases,to pro-fessors may fare more poorly than many other government em-ployees, for two reasons. First, government discrimination concern-ing the content of public professor speech is inevitable andnecessary (in a way that is not true for other public employees). Pub-lic employers (whether they be Boards of Governors or UniversityPresidents or Deans) invariably must make decisions about hiringpromotion, and retention of public professors based on the content(even the viewpoint) of what these professors ay and write. Thequestions asked at hiring and promotion stages-are the professor'sexpressed views scientifically plausible, supported, rigorously rea-soned, adequately attentive to counterargument, etc.-are, at theircore, content-based. Perhaps a line could be drawn between deci-sions based on academic rigor and decisions based on partisan poli-tics, but this is a hard line to hold. For example, many people thinkthat the initial constitutional challenge to Obamacare was weak ana-lytically (even though it ultimately got four votes at the SupremeCourt)." If, five years ago, I (assuming I were at that time a high-level9 Id. Notice that saying private professors enjoy more freedom than public onesdoes not mean that private professors enjoy more freedom than other privateindividuals. It is often asserted that "academic freedom" gives special rights toacademics, but it is far from clear whether judicial doctrine backs that claim up,at least as a First Amendment matter.10 See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Connick v. Myers, 461U.S. 138 (1983); and Garcetti v. Ceballos, 547 U.S. 410 (2006) (illustrating thelatitude the government has to regulate the expressive activity of its employeesin different government employment contexts).11 Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). For one essay(before the court's ruling) explaining the weakness of the plaintiffs' challenge,[Vol. 14296"COMPARATIVE" ANALYSISadministrator) decided not to go forward with someone's tenure be-cause I thought her article laying out what she thought was a forcefulconstitutional challenge to Obamacare was poor scholarship, would Ibe guilty of violating her academic freedom?Some lines can be drawn. For an administrator to attach neg-ative career consequences to a faculty member's political lobbyingefforts against Obamacare undertaken after the workday is a differ-ent matter. A dean cannot punish faculty for giving money to DonaldTrump or to Hillary Clinton. That is private expressive activity, andeven public professors are entitled to it.12But (and this is the second reason that public professors mayenjoy less latitude than other public employees) out-of-schoolspeech can sometimes affect credibility in school, and the Picker-ing/Connick/ Waters line of cases recognizes that government maysometimes take account of "off-the-job" expression in decidingwhether a person is fit to perform a public job.13 If a street cleaner isa leader in the local chapter of the KKK outside of school, he is not(by virtue of his KKK activities alone) incapable of being an effectivestreet cleaner. But if a public university professor is a KKK leader,can he really be effective in teaching black students in a public uni-versity school? Even the report by the University of Illinois Commit-tee on Academic Freedom and Tenure on the Salaita matter (whichcontained significant criticism of the U of I administration) tried todistinguish between "civility," which was too vague a basis on whichto rescind a faculty job offer, and "professional fitness," on which off-the-job and private expressive activities could reasonably bear.14 Ifthis is so, given the inherent nature of a professor's job as having todeal with a wide range of students in settings of mutual trust, publicsee Vikram D. Amar, Reflections on the Doctrinal and Big-Picture Issues Raised bythe Constitutional Challenges to the Patient Protection and Affordable Care Act(Obamacare), 6 FLA. INT'L U. L. REV. 9 (2010).12 Even under the restrictive Hatch Act (which limits certain off-hours politicalactivities of federal employees), campaign contributions are permitted. See Po-litical Activity and the Federal Employee, U.S. Office of Special Counsel,http://www.cdc.gov/about/ethics/pdf/lunch-andlearn/haflyer.pdf (last vi-sited Feb.28, 2016).1s See, e.g., Pereirav. Comm'r of Soc. Servs., 733 N.E.2d 112 (Mass. 2000).14 See CAFT Report, supra note 2, at 2 3-29.2016] 297FIRST AMENDMENT LAW REVIEWprofessors must be more careful than many (or perhaps even most)other public employees in what they say and do, even when they areaway from the worksite.Given the three comparisons I have offered in which publicprofessors fare worse than their counterparts, the very term "aca-demic freedom" as applied to the public professoriate may seem in-apt-usually we think of "freedoms" as especially generous libertiesor licenses, not watered-down versions. Yet, there are at least threeimportant ways in which public professors do enjoy special "aca-demic freedoms" that are worth mentioning before I conclude.First, even within the federal Constitution, there may be pro-tections that arise not from the First Amendment, but from dueprocess/notice principles. Most people talk about academic freedomin terms of a freedom to express, but perhaps the better approach isto think about it as a freedom to know what you can and can't ex-press. Vagueness and notice protections do have special applicabilityto the public education setting (both at universities and at secondaryschools-think about K-12 teachers who get in trouble for teachingcontroversial topics in ways later deemed improper by local authori-ties). Courts do and should make sure that public professors are notmisled into expressing themselves in ways that later could result intheir demise. We need (and the Constitution may require) clear ex-ante standards that eliminate chilling effects for public academics ifthe public academy has any meaningful role to play in democracy.Thus, as Eugene Volokh has pointed out, one of the mosttroubling aspects of the UC's microaggression guidance document(even if the UC can constitutionally define and punish microagres-sions quite broadly) is the chilling effect the inscrutability of thedocument creates.15 Even if government has the authority to controlthe expression of its public professors, it should have to do so clearlyto avoid due process problems and also so that it takes the politicalheat for its censorial decisions. In a related vein, in the Salaita affair,1s See Eugene Volokh, UC Teaching Faculty Members Not to Criticize Race-BasedAffirmative Action, Call America "Melting Pot," and More, Wash. Post (June 16,2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2 015/06/16/uc-teaching-faculty-members-not-to-criticize-race-based-affirmative-action-call-america-melting-pot-and-more/.[Vol. 14298"COMPARATIVE" ANALYSISputting aside the First Amendment, one of Mr. Salaita's strongestclaims may have arisen from implicit promises made in the offer let-ter he received about the extent to which his freedom of expressionwould be allowed.16 There may be a freedom to know the conse-quences of speech even when there is no freedom to speak.Coming back to the actual right of expression, both episodesmay suggest yet another important kind of academic freedom-freedom that is grounded not in free speech or clear notice prin-ciples, but in non-constitutional sources altogether. As I mentionedearlier, state constitutions, contract law, industry practice, and thelike may give rise to legally binding rules that protect public profes-sors, even as the contours of such rules are going to vary by state andby university and perhaps also by campus or even department Aca-demic freedom may be an important idea even apart from any con-stitutional footing it enjoys.Finally, public professors enjoy "free" speech in a very po-werful sense of that term-the speech they undertake is free in thatit is publicly subsidized, and they don't have to pay for it themselves.Most often, when we think about free speech we mean freedom fromgovernment intrusion, not freedom from market pricing (as whenwe refer to a "free lunch"). But, in today's real world, market con-straints are often more meaningful than government limits. This istrue in electoral politics, and also true in academic research and dis-covery. In the latter half of the twentieth century, state governments(and also the federal government through various federal agencies)accounted for a huge share of the necessary financial support for theexpressive work done by America's public universities and colleg-es.17 Alas, that seems to have changed over the last few decades (es-pecially with respect to funding at the state level, where costs havebeen shifted to students and their families)," and if our ultimate goal16 The offer letter could be read to have incorporated academic freedom prin-ciples embodied in the policies of the American Association of University Pro-fessors.17 See National Science Board, Trends and Challenges for Public Research Uni-versities (National Science Foundation 2012),https://www.nsf.gov/nsb/publications/2012/nsbl245.pdf.18 Id.2016] 299300 FIRST AMENDMENT LAW REVIEW [Vol.14is a high volume of creative, provocative and cutting-edge discoveryand expression, the fiscal element is as or more important than theregulatory.

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A Comparative Analysis of the Academic Freedom of Public University Professors

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