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Lesson 61 - Free Speech 22:

ACADEMIC FREEDOM - TEACHING

2.TEACHING. If anything, the problem is even harder for in-class speech by the teacher. Here, the best formal analogy is probably the Government As Speaker -- the teacher is in a sense speaking on the government's behalf, and the government can argue that it should be able to dictate his message.

If a European History history teaches that the Holocaust didn't occur, the university might reasonably demand that its students are entitled to learn the historical facts, and not fiction. It could, of course, bring in another teacher to teach the opposite views and turn the class into an investigation of what "historical fact" means, but there are only so many hours in a semester and so many dollars in the department budget. The university should be entitled to say "This is a class in which we want to convey certain facts to students, so please be so kind as to teach those facts."

Similarly, if the professor's speech alienates students to the point that they have a harder time learning from him -- for instance, if the professor says things that are rude or dismissive, or even expresses political views in a way that many students find offputting -- the university might well want to replace him with a more effective teacher. The students are paying good money to be taught, and a university can be understandably concerned that they get their money's worth.

On the other hand, a university dictating what professors say and how they say it seems like the imposition of an orthodoxy that is quite contrary to the notions of free speech and free inquiry. This is especially so if the rules are sufficiently unclear that a professor risks losing his job without any advance notice.

Because of this, many lower appellate courts have put some -- rather vague -- restraints on the government's power to dictate in-class speech by professors. It's really hard to tell what the rule is, though, and the Supreme Court has never definitively ruled on it.

authors:
Larry LessigDavid PostEugene Volokh



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