BY DAVID M. RABBAN

In the process of writing my recently published book, Academic Freedom:  From Professional Norm to First Amendment Right (Harvard University Press, 2024), I increasingly realized that the AAUP’s treatment of academic freedom as a professional norm provides a revealing counterpart to the judicial development of academic freedom as a First Amendment right.  I eventually concluded that the analysis of academic freedom in AAUP policy documents supplies a convincing First Amendment justification for academic freedom that is missing from the legal decisions themselves.  My research for the book also provided new insights into the extensive AAUP participation in important cases about academic freedom, especially through amicus briefs in the Supreme Court.

The 1915 Declaration of Principles on Academic Freedom and Academic Tenure, adopted soon after the founding of the AAUP, remains by far the most important document establishing academic freedom as a professional norm.  The first chapter of my book discusses the historical background of the 1915 Declaration, its extensive treatment of academic freedom, and the subsequent development of AAUP policy on academic freedom in the 1940 Statement of Principles on Academic Freedom and Tenure and the 1964 Statement on Extramural Utterances.  Throughout the book, I discuss many other AAUP policy statements that inform the professional norm of academic freedom and have implications for the treatment of academic freedom as a First Amendment right.

In developing a First Amendment theory of academic freedom for professors, I rely especially on two central arguments of the 1915 Declaration.  First, academic freedom is necessary for professors to perform their societally valuable function of producing and disseminating knowledge.  It would undermine confidence in the integrity of their work if they could be disciplined for expressing expert views that offend others.  Second, in its major conceptual innovation, the 1915 Declaration emphasized the central role of peer review in evaluating academic freedom.  While recognizing that professors must meet academic standards to justify the protection of academic freedom, it maintained that only other professors are competent to make this determination.  Emphasizing the importance of peer review in its much more recent 2016 report on The History, Uses, and Abuses of Title IX, the AAUP asserted that faculty, rather than administrators, have the expertise to evaluate whether speech alleged to create a hostile environment is protected by academic freedom.  I urge courts to follow this analysis in applying the First Amendment right of academic freedom.

I also rely on AAUP policy in arguing that the First Amendment right of academic freedom should extend beyond teaching and scholarship to intramural expression about university educational policy, an issue about which judges are divided.  The 1966 Statement on Government maintained that the competence of professors extends beyond their specialized fields of expertise to their “more general competence” in matters of “educational policy.”   Recognizing that the 1966 Statement did not directly refer to academic freedom in its discussion of the different roles of faculty, administrators, and trustees in university governance, the 1994 document, On the Relationship of Faculty Governance to Academic Freedom, explicitly stated that professors must have academic freedom to address these issues of educational policy.

On one important issue, however, I disagree with AAUP policy.  Following an extensive internal debate that I uncovered in the archival records of professors who drafted the 1915 Declaration, the final version extended the protection of academic freedom to political expression outside the university and unrelated to academic expertise.  Subsequent statements by the AAUP have reinforced this extension while maintaining that extramural political expression can provide grounds for discipline only in the extraordinarily rare event that it clearly demonstrates unfitness for a faculty position.

I believe that this extension of academic freedom to general political expression is unconvincing as well as inconsistent with the justification for academic freedom in the 1915 Declaration itself.  It also poses a severe threat to the development of a convincing judicial interpretation of academic freedom as a First Amendment right of professors.  The need to protect the professor’s societally valuable function in expressing expert knowledge, the justification for academic freedom in the 1915 Declaration, does not apply to political expression unrelated to expertise.  There is no legitimate basis to give professors different protection than any other citizens for general political expression.

A convincing theory of academic freedom as a First Amendment right of professors depends on differentiating it from general rights of free speech.  The need to protect the expression of expert knowledge justifies a distinctive First Amendment right of academic freedom.  Limiting the First Amendment right of academic freedom to expert expression, moreover, addresses the concern of many judges that granting special First Amendment rights to professors is inconsistent with the fundamental First Amendment principle that freedom of political expression is an equal right in a democracy.  It is important to emphasize that the restriction of academic freedom to expert expression does not deny protection to the general political expression of professors, which is covered by the same First Amendment right of free speech that applies to all citizens.

In contrast to the AAUP, which has defined academic freedom as a right of professors, the Supreme Court has extended the First Amendment right of academic freedom to institutional decisions by universities.  Yet AAUP policy documents are helpful in addressing issues of institutional academic freedom.  Legal decisions have identified faculty bodies as well as administrators and trustees as exercising the institutional academic freedom of universities.  But these decisions have not clarified whether the subject of the institutional decision should affect who should exercise academic freedom on behalf of the university. The 1966 Statement on Government, by focusing on the different roles in university governance of faculty, administrators, and governing boards, provides useful guidance in addressing this legal issue.  It grants “primary responsibility” to the faculty on matters within its academic expertise.  While maintaining that administrators and governing boards should ordinarily concur with faculty judgments on these matters, the 1966 Statement recognized that they should be able to overturn the faculty in exceptional circumstances for compelling reasons.  It also asserted that the governing board has a central role in managing the endowment and obtaining funds, and that the president is largely responsible for many nonacademic activities.  This division of institutional authority in the 1966 Statement could help judges determine whether a university has properly exercised its institutional academic freedom.

The judicial recognition of academic freedom as a First Amendment right of universities as well as professors has generated conflicting academic freedom claims in the same case.  AAUP policy statements can also provide guidance for judges in resolving these conflicts.  Disputes between administrators and faculty over “trigger warnings” and about limitations on external funding for research provide two examples.

Universities can claim that their institutional academic freedom to protect student interests in learning justifies requirements that professors give “trigger warnings” to students about potentially traumatizing material in classroom readings and discussions.  Professors can reply that required trigger warnings violate their own academic freedom to make pedagogical decisions and to express their expert views on the content of class material.  In its 2014 statement, On Trigger Warnings, the AAUP convincingly maintained that trigger warnings stifle expression on controversial subjects and direct attention to the potentially triggering aspects of classroom material rather than to its most important themes.  This reasoning should prompt courts to hold that mandatory trigger warnings violate the First Amendment academic freedom of professors.

University regulation of external funding for research also raises conflicts between institutional and individual academic freedom.  AAUP policy usefully addresses these conflicts by identifying when restrictions do and do not violate the academic freedom of professors.  Committee A disagreed with decisions by faculty committees that urged universities to deny research grants to professors based on the source of the funding.  In reference to grants from a foundation with a history of supporting research that promoted theories of racial inferiority, Committee A stated in 1992:  “Denying a faculty member the opportunity to receive requisite funding improperly curtails the researcher’s academic freedom no less than if the university took direct steps to halt research that it considered unpalatable.”  Reiterating this position in 2003 while responding to grants from the tobacco industry, Committee A added that it would be impossible to develop a principled policy that could differentiate degrees of wrongdoing by external funding sources.  Yet in a comprehensive 2014 document, Recommended Principles to Guide Academic-Industry Relationships, the AAUP identified legitimate university restrictions on external support of faculty research, such as prohibiting contracts that require professors to obtain permission before presenting or publishing their findings.

Since the Supreme Court initially recognized academic freedom as a First Amendment right in the 1950s, the AAUP has frequently filed amicus briefs that attempted to influence the developing law, sometimes successfully, sometimes not.  I examine many of these briefs in my book.  The AAUP’s most significant recent participation as amicus has occurred in cases dealing with the appropriate First Amendment analysis when public employees speak “pursuant to their official duties.”  When the Supreme Court first agreed to hear a case presenting this issue, which was brought by a deputy district attorney, the AAUP filed an amicus brief opposing the denial of First Amendment protection whenever a public employee speaks pursuant to official duties.  The brief added that the denial of protection to professors, whose primary official duties are teaching and scholarship, would undermine the many previous cases recognizing “academic freedom for university professors as a core First Amendment value.”  In a 5-4 decision, the Supreme Court held in 2006 that the First Amendment does not protect public employees when they speak pursuant to official duties.  But, perhaps in response to the AAUP brief, the decision acknowledged the possibility that the official duties test should not apply to “academic scholarship or classroom instruction.”  Subsequent lower court decisions, in which the AAUP has often participated as amicus, have reached mixed results about whether there is an “academic freedom exception” to the “official duties” test.  I hope the AAUP will continue to file amicus briefs in important cases, especially when AAUP policy has implications for analyzing the First Amendment right of academic freedom.

David M. Rabban is Dahr Jamail, Randall Hage Jamail, and Robert Lee Jamail Regents Chair in Law and Distinguished Teaching Professor at the University of Texas at Austin School of Law.  He is a former counsel and general counsel to the AAUP and former chair of AAUP’s Committee A on Academic Freedom and Tenure.  His most recent book is Academic Freedom: From Professional Norm to First Amendment Right.