Every so often, the Court says some kind things about "academic freedom." It's hard to tell, though, what this means, or whether such a doctrine really exists -- whether the freedom of speech provides any extra protection in the academic context, or whether the free speech rights of university professors are the same as for any other employees. (The free speech rights of university students, at least outside of classrooms, assignments, and government projects, are already quite broad.)
On the one hand, the professor here is a government employee, whose speech is protected unless (1) it's on a matter of private concern *or* (2) its disruptiveness to the school outweighs the professor's free speech interest. The private concern point is probably not relevant here; most scholarship is on a matter of public concern. But how do we weigh the disruptiveness against the free speech interest? (Examples of disruptiveness: An article that says that race X is inferior to race Y might lead to loss of enrollment or grants for the professor's department, or might make it harder for the professor to be an effective teacher, if students believe the professor dislikes them or will treat them unfairly.)
On the other hand, the professor is also in a sense like the student who's being graded: Universities are *supposed* to look at the content of a professor's scholarship in determining whether to retain him or give him tenure. And of course this evaluation of "quality" is often very hard to separate from political judgment. A court would certainly have a hard time telling whether the university fired the teacher because it simply disagreed with his views or because it thought his views were silly and inadequately supported (and thus "bad scholarship").
Next time: Academic freedom in the classroom.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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