Education Law

Published: 30-05-2011, 07:34

Academic freedom



The concept of academic freedom, based on First Amendment freedom of speech, applies generally to all levels of education. As the Fifth Circuit wrote in Edwards v. Aguillard (1985), a case that eventually made its way to the Supreme Court on the issue of creation science, academic freedom is “the principle that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional judgment (p. 1257).”
Disputes over classroom content and methodology typically pit a teacher’s claim of academic freedom against an educational institution’s clearly established, though not absolute, authority to prescribe the curriculum in its schools. Such struggles to determine what will be taught, and in what manner it will be presented, turn school districts, colleges, and universities into battlegrounds between competing viewpoints and agendas.
Educators imagine that academic freedom provides greater protection of their classroom actions than case law supports. Courts consistently, but not unanimously, side with school boards, colleges, and universities when educators refuse to follow curriculum and reasonable administrative commands, teach with unapproved or administratively rejected materials, and in public schools use or allow objectionable language in the classroom, as discussed in this entry. Particularly in light of the ongoing attempts by individual educators and various interest groups to use educational institutions as forums to promote their ideological positions, one can anticipate claims of academic freedom will continue as educators and their schools battle over the right to determine school curriculum.

Elementary and Secondary Public Education


Initial litigation involving claims of academic freedom at the public school level saw several teachers prevail in the first half of the 1970s, when they refused to recite the Pledge of Allegiance, used a particular teaching method of which some educators disapproved, and made controversial statements and discussed sensitive topics in civics classes. Since then, courts have generally supported school officials in disputes over curricular content and instructional methods. Most case law falls into two categories: teachers using or permitting profane and offensive language in the classroom, sometimes allegedly within the context of the curricular lesson; and teachers designing classroom curriculum and using materials and methods to which their administrators and school boards are opposed.

Objectionable Language


Courts consistently side with school boards that discipline educators for using or allowing profane or objectionable language in their classrooms, even if allegedly as part of instructional techniques. For example, one case from New York, In re Bernstein (2001), rejected the academic freedom claim of an English teacher who used explicit, although not profane, terms to describe human sexual organs within a curricular lesson on literary technique. Similarly, the Eighth Circuit, in Lacks v. Ferguson Reorganized School District R-2 (1998), found that academic freedom did not shield an English teacher who allowed students to use profanity and sexually and racially derogatory language in performing student-written plays in a junior English class. Nor did a federal trial court in Erskine v. Board of Education (2002) recognize a First Amendment right of teachers to use terminology of their own preference in curricular disputes over language (the use of the word “Negro” in a lesson on the Spanish words for colors).

Controversial Curriculum


Disputes over curricular content and instructional methodology, compared to conflicts involving offensive language, might appear to present classroom educators with a stronger claim of academic freedom. With few exceptions, courts have upheld the authority of school boards to set curricular standards while disciplining educators who refuse to comply with curricular policies and administrative directives, even when the teachers claim a right of academic freedom to design curricular activities in their classrooms. Examples include the prohibiting of an educator’s use of a classroom management technique, the dismissal of teachers who showed R-rated movies to their high school students, and the censuring of a board member who, as a volunteer lecturer, showed a film clip of two bare-breasted women.
Other educators lost legal battles with school boards when they attempted to have acting students perform a play of controversial content in an annual statewide competition, persisted in teaching politics in an economics class, tried to use supplemental reading materials without prior approval as required by board regulations, disagreed with a principal’s directive to remove a banned book pamphlet posted on the classroom door, and challenged the board’s cancellation of a Toleration Day program that would have included a gay speaker.
Rarely have educators prevailed in disputes over curriculum and instructional approaches. One 1972 federal trial court order, Sterzing v. Fort Bend Independent School District, found that a board violated the free speech rights of a civics teacher who was arbitrarily discharged for comments about sensitive political (antiwar) and social (interracial marriage) issues. More recently, the Sixth Circuit in Cockrel v. Shelby County School District (2001) remanded, for further consideration under the Mt. Healthy test, the dismissal of a fifth grade teacher in Kentucky who invited actor Woody Harrelson to discuss the environmental benefits of industrial hemp (an illegal substance in that state) and allowed hemp seeds to be passed around her classroom during Harrelson’s presentation. (In Mt. Healthy City Board of Education v. Doyle, the Court explained that if a teacher who is subject to dismissal can demonstrate that protected conduct about a school matter was a substantial or motivating factor in a board’s action, then officials must have the chance to show that they would have reached the same result even if the individual had not engaged in the protected free speech).

Criticism of Employers


Claims of academic freedom and freedom of speech often surface when school boards discipline outspoken educators. Educators who publicly oppose their boards and administrators on curricular issues and later find themselves facing discipline may claim protection of the First Amendment through the Mt. Healthy test. Employees must first establish that their expression was constitutionally protected because it dealt with a matter of public concern, did not excessively disrupt the operation and harmony of the school, and was a motivating factor in board decisions subjecting them to punishment. Boards then have the burden of showing that they would have disciplined the employee even if the protected expression had not occurred. If employees prevail under the Mt. Healthy test, the First Amendment shields the protected expression, regardless of how disturbing it may be to the administration and the board.
A recent example of an educator’s allegation of reprisal for controversial but protected expression is found in the Tenth Circuit’s judgment in Greenshields v. Independent School District No. I-1016 of Payne County, Oklahoma (2006). An elementary teacher repeatedly refused to follow her board’s elementary science curriculum, because she felt the required learning modules were inferior to the traditional methods and materials she used. The court found that the board, rather than retaliating against the teacher for her criticism of the science curriculum, the public controversy she generated, and her litigation against the board, had refused to renew her contract because of willful neglect of duty, incompetence, and unsatisfactory teaching performance based on her refusal to follow its curriculum, policies, and administrative directives.

Higher Education


The concept of academic freedom, though not absolute, is more clearly established at the collegiate level than in public elementary and secondary education. While the right of faculty members in higher education to determine the curricular content and instructional methods in their courses is generally recognized, courts disagree over whether the concept of academic freedom applies to situations involving profane or offensive language in the classroom.
Early court rulings involving academic freedom in higher education dealt with McCarthyist concerns of subversion and disloyalty in public positions after World War II. Mixed Supreme Court decisions resulted when states attempted to require faculty to sign loyalty oaths, disclose personal memberships in organizations, swear that they were not Communist Party members or advocates of overthrowing the government, and testify as to the content of classroom lectures.
Federal appellate courts more recently have divided over the issue of whether faculty members have a protected right to use or permit derogatory or profane language in their classrooms. The Sixth Circuit twice ruled in favor of educational institutions, once in Dambrot v. Central Michigan University (1995), where it held that academic freedom did not shield a basketball coach who used the word “nigger” in a locker room session, although allegedly in a positive, reinforcing manner (hard-nosed, tough, and fearless, according to the coach). The same court, in Bonnell v. Lorenzo (2001), again found no First Amendment protection for an English professor who used profane terms for sexual intercourse and female reproductive organs, despite his claim that he used such terms in class to demonstrate an academic point.
Yet, in other cases, the Sixth and Tenth Circuits sided with faculty members who used crude and offensive language. In Hardy v. Jefferson Community College (2001), the Sixth Circuit found that the First Amendment protected a faculty member’s use of the terms “nigger” and “bitch” in an academic discussion, not gratuitously in an abusive manner, in a class partly devoted to interpersonal communication. Additionally, in an emerging free speech issue involving technology, the Fourth and Tenth Circuits refused to recognize faculty First Amendment rights to access or view, on state owned or leased computers, sexually explicit materials or news servers that carry such material.
Ralph Sharp

See also First Amendment; Keyishian v. Board of Regents; Loyalty Oaths; Mt. Healthy City Board of Education v. Doyle; Teacher Rights
Legal Citations
Aguillard v. Edwards, 765 F.2d 1251 (5th Cir. 1985).
Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001).
Cockrel v. Shelby County School District, 270 F.3d 1036 (6th Cir. 2001).
Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995).
Erskine v. Board of Education, 207 F. Supp. 2d 407 (D.Md. 2002), aff’d, 56 Fed. Appx. 615 (4th Cir. 2003).
Greenshields v. Independent School District I-1016 of Payne County, Oklahoma, 174 Fed. Appx. 426 (10th Cir. 2006).
Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001).
In re Bernstein, 726 N.Y.S.2d 474 (N.Y. App. Div. 2001).
Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998).
Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977).
Sterzing v. Fort Bend Independent School District, 376 F. Supp. 657 (S.D. Tex. 1972).
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