Despite the importance of free speech in higher education, the number of cases involving academic freedom and/or free speech and the institutional desire to ensure equal access to education by prohibiting hostile environments, relatively few cases have been decided by judicial review.  Shibley (2016) suggests there are many reasons for this.  Colleges and universities usually have considerably more power than individual complainants.  If institutions decide to put sufficient resources into their defenses, they often prevail by default, attrition, and simply wearing down the resolve or depleting the resources of complainants.  However, the cases that have been heard by higher courts in recent history provide reason to be optimistic that our courts will recognize faculty members’ rights to free speech.  In the recent past, courts have been willing, in many circumstances, to intervene when it appears that administrative authorities have ignored or abused academic freedom or Constitutional rights.

Sweezy v. New Hampshire, 354 U.S. 234 (1957)

The University of New Hampshire, a land grant college established in 1866, is now comprised of seven colleges at two locations.  Its annual enrollment of 15,000 students includes approximately 2,500 graduate students.  The events that precipitated this case occurred in the mid-1950s, at the height of Wisconsin Senator Joseph McCarthy’s investigations aimed at exposing and expelling communists from American institutions.  The Supreme Court ruled that the Attorney General of New Hampshire had gone too far in questioning the beliefs and associations of a suspected communist on the New Hampshire faculty, Professor Paul Sweezy. The court’s decision clearly affirmed that academic freedom and the 14^th Amendment’s due process clause were applicable to state as well as federal officials.  Perhaps the clearest expression of the Court’s perspective is revealed by the words of Justice Felix Frankfurter. He supported the court’s conclusion that the state had violated Professor Sweezy’s First Amendment rights and reiterated the importance of academic freedom for university faculty members:

“Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing… with interpenetrating aspects of holistic perplexities… For society’s good – if understanding be an essential need of society – inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible… This means the exclusion of governmental intervention in the intellectual life of a university. It matters little whether such intervention occurs avowedly or through action that inevitably tends to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor… Suffice it to quote the latest expression on this subject…

‘In a university, knowledge is its own end, not merely a means to an end. A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest. A university is characterized by the spirit of free inquiry…`to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.’…

Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge… It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

While this case has been used by some educational institutions to argue against judicial review of internal processes, a closer reading of Justice Frankfurter’s opinions shows that this institutional protection is predicated on institutions being “true to their nature” and providing an atmosphere that vigorously defends scholars’ freedom of inquiry and speech.  As will be shown in the following cases, judicial intervention into areas which might at first appear to be protected by institutional academic freedom have been justified when the institution suppresses or merely fails to protect the academic freedom or Constitutional rights of its faculty members.  

Bonnell v. Lorenzo  US District Court for the Eastern District of Michigan – 81 F. Supp. 2d 777 (E.D. Mich. 1999) August 27, 1999 https://law.justia.com/cases/federal/district-courts/FSupp2/81/777/2420855/

As the Sweezy case was being decided, Macomb County Community College just north of Detroit, Michigan was being founded.  Today, this multi-campus institution serves approximately 25,000 students and focuses on both general education courses and technical skills training and education.  Despite his trigger warning concerning his use of offensive and vulgar language, John Bonnell, an English Professor, became the respondent to a student grievance concerning his profane language.  In response, Professor Bonnell released a redacted copy of her complaint (her name had been removed) with an extensive rebuttal claiming his language was educationally-appropriate and Constitutionally-protected speech.  The court was asked to decide whether these materials (the original complaint as well as the professor’s rebuttal) violated confidentiality and constituted “retaliation” against the student or, alternatively, were “protected speech.” The court decided the release of the student’s complete complaint, attached to Professor Bonnell’s essay, An Apology: Yes, Virginia, there is a Sanity Clause, was protected by the First Amendment and did not breach confidentiality or retaliate against the student complainant.  The administration itself had determined that the profane language did not constitute sexual harassment but had, nonetheless, briefly suspended the professor for his use of unnecessarily foul language.  Here is the portion of the appellate court’s decision most relevant to our review:

“The Court recognizes that colleges are a resource for ideas, free thought, experimentation, and critical thinking. The position of a college English professor includes with it First Amendment protections… When a college gags the professor or censors the students, the free expression of ideas and thoughts as supported by the First Amendment is impinged upon. There is no valid justification in support of MCC’s suspension of Bonnell… a professor does have a constitutional right to teach in an environment free from First Amendment violations… based on Supreme Court authority… even minor infringements of First Amendment rights constitute the irreparable harm necessary for injunctive relief… ” Newsom, 888 F.2d at 378 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (plurality opinion of Brennan, J.)).”

The court went on to opine:

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all… not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom… `The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ The classroom is peculiarly the `marketplace of ideas’. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, (rather) than through any kind of ‘authoritative selection’.”

Harkening back to Justice Holmes’ “marketplace of ideas”, this appellate court emphasized the integral role of free speech in the distinctive educational mission of colleges and universities.  Once again, the court was willing to intervene when administrative actions threatened the Constitutional rights and academic freedoms of a faculty member; their decision favored Bonnell.

Rodriguez v. Maricopa County Community College (2010)

Similar in size to Macomb Community College, Glendale Community College in Arizona, is part of the expansive Maricopa Community College (MCC) system which includes ten institutions serving approximately 220,000 students.  Professor Walter Kehowski, a math teacher at the college, used the Maricopa County Community College’s e-mail listserv, to send three e-mails expressing his views on immigration, the “superiority of Western Civilization,” and other provocative views which were offensive to many of his colleagues and co-workers in October 2003.  Several colleagues complained to administrators, including the president of the college, and governing board about Professor Kehowski’s hostile and discriminatory tone. The Chancellor publicly stated that while Kehowski’s views were “not aligned with the vision of our district,” the district would not discipline him because doing so “could seriously undermine our ability to promote true academic freedom.” 

Faced with the district’s unwillingness to punish Kehowski, six of his Hispanic coworkers filed a complaint against him with the Equal Employment Opportunity Commission (EEOC) followed by a suit in district court alleging the administrative inaction had created a hostile environment based on race and national origin.   In January 2006, a federal district court dismissed the plaintiffs’ Title VII claims against the administrators but allowed the rest of the grievance to proceed. MCC administrators appealed to the Ninth Circuit, asking the appellate court to overrule the district court’s determination that the administrators’ inaction had created a hostile environment.  The court needed to decide whether administrators were required to punish Kehowski for sending his racist e-mails. Title IX requires employers, who are aware of workplace harassment, to end it.  The central question was whether Kehowski’s e-mails amounted to “workplace harassment.”  In a unanimous opinion (joined by retired Associate Supreme Court Justice Sandra Day O’Connor), the Ninth Circuit decided Kehowski’s e-mails, however disagreeable, constituted protected speech and, thus, did not constitute workplace harassment and, thus, were not unlawful.  Here is how the court explained its decision against the plaintiffs in favor of the administration’s refusal to punish Professor Kehowski for creating a hostile environment:

“Plaintiffs, no doubt, feel demeaned by Kehowski’s speech… (But) their objection to Kehowski’s speech is based on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. ‘There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.’ Saxe, 240 F.3d at 204; see also United States v. Stevens, No. 08-769, slip op. at 7 (U.S. April 20, 2010). Indeed, because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate… The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.”

Not only did the court decide that Kehowski’s speech was protected by the First Amendment, it asserted that it is crucially important that this type of speech be protected on college campuses.  Chief Judge Kozinski explained the court’s rationale:

“This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. ‘Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.’ Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)). We have therefore said that ‘[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.’ Adamian v. Jacobsen, 523 F.2d 929, 934” (9th Cir., 1975).

All three of these judicial decisions to intervene and protect faculty members’ Constitutional rights and academic freedoms dealt with actions involving public universities.  Private universities are in a somewhat different situation; they are not a part of the government, and, thus, some have argued private institutions are immune to the Constitutional protections afforded to other citizens.  However, these institutions are expected to protect academic freedom if they do not explicitly claim exemptions to it prior to faculty employment and student enrollment.  In fact, nearly all private college’s and universities make direct, affirmative claims about their protection of full academic freedom and freedom of speech.  As the Foundation for Individual Rights in Education (FIRE) (Silvergate, et al. 2005) states: “If a university has stated a policy in writing, a court will require the university to adhere to that policy, at least in broad terms (p. 61).”  Thus, Constitutional rights and academic freedoms usually become a matter of contractual obligation at private colleges.  This is the issue addressed by the court in the very recent McAdams case. 

McAdams v. Marquette University (2018).

Marquette University is a private Catholic, Jesuit university in Milwaukee, Wisconsin.  It includes 11 colleges and schools and serves 8,400 students, of which 3,200 are graduate students.  As is often the case, many of the undergraduate courses are taught by graduate students.  Professor of Political Science at Marquette University, John McAdams was known for his fiery conservative blogs and strong opinions about education as well as politics.  In one such blog, he berated a graduate student instructor by name who refused to permit debate about gay marriage in her class, claiming any opposition was inherently hostile and homophobic and would not be permitted. The administration, as well as most faculty members, was outraged by McAdams’ public criticism and sought to censure him for his abusive blog. Claiming he posed a danger to others, the administration suspended McAdams and banned him from campus.  From McAdams’ perspective, this treatment violated his contract with the university concerning academic freedom as well as his right to administrative due process and protections afforded by his tenure status.  Marquette attempted to terminate McAdams.

The university convened a “hearing committee” but failed to ensure McAdams contractual due process rights such as having his case considered by unbiased committee members and the right to access the university’s evidence and witnesses. After a weeklong hearing, the faculty committee issued a convoluted report that created new rules and charged McAdams with having violated them. The committee did not recommend termination but did recommend the administration suspend McAdams without pay.  Not fully satisfied with this recommendation, Marquette President Michael Lovell demanded that McAdams also proffer an admission of wrongdoing or be fired. McAdams refused the president’s demand and was indefinitely suspended without pay (viz., “fired”) shortly thereafter. 

McAdams sued Marquette for breach of contract.  His claim challenged both his summary suspension and his subsequent administrative hearing as violations of administrative due process.  The trial court ruled in favor of Marquette, concluding that it had to defer to the faculty hearing committee and adopt all its findings of fact and conclusions of law, despite McAdams showing that Marquette had withheld key information from the committee. Bypassing the court of appeals, the Wisconsin Supreme Court agreed to consider the case.  By a 4-2 vote, the Supreme Court ruled that Marquette had breached its contract with McAdams by punishing him for behavior that should have been protected by McAdams’ academic freedom. Marquette was ordered to immediately reinstate McAdams with his full rights and privileges as a tenured professor.  Throughout higher education, pundits hailed the decision as a victory for free speech and the protection of conservative professors on progressive campuses.

Gibson Bakery vs Oberlin College (2019)

Summary

It is worth noting the many ways this decision extended faculty members’ academic freedoms and revealed a state’ Supreme Court’s willingness to look inside administrative processes in making personnel decisions.  Marquette is a private rather than a public institution, but this did not inhibit judicial review.  McAdams had released the name and contact information concerning the graduate student with whom he disagreed.  It may be important that he was disputing her performance as a fellow faculty member and not as a graduate student which might have involved Family Education Rights and Privacy (FERPA) issues.  The court was particularly critical of the administration’s involvement in the hearing process, expressing concern with its apparently unapologetic bias.  The faculty committee itself was criticized for pre-existing biases of members and willingness to let what appeared to be a pre-determined conclusion guide its analysis of the claims and available evidence.  Although the court’s opinion did not cite “the heckler’s veto”, this principle seems to have influenced the court’s decision.  The court indicated that the university got caught up in the post hoc ergo propter hoc fallacy (p. 76).  This involves mistakenly assuming something that happens after an event was caused by a preceeding event.  The court insisted that the faculty committee must conduct its analyses in the “correct direction”:

“With the benefit of hindsight, the University reverse engineered its conclusions that Dr. McAdams is plainly unfit because of an unknown third-party reaction to the blog post” (McAdams v. Marquette, 2018, p.72).  The court also recognized and enforced faculty members’ tenure status from encroachment by even the college trustees noting that their decisions served to: ‘demote tenure from a substantive right to a matter of mere procedure’” (McAdams v. Marquette, 2018, p. 54).

Wisconsin Supreme Court Justice Rebecca Bradley concurred and added even stronger support for the academic freedom of faculty members (McAdams v. Marquette, 2018, para. 97-137).  She suggested that this case put the basic concept of academic freedom itself on trial.  She then provided many strong arguments as to why academic freedom and freedom of speech are essential to modern higher education.  Justice Bradley asserts that institutions that do not fulfill their obligation to protect academic freedom and freedom of speech lose their claim to their own freedom of action and protection from judicial scrutiny and correction.

Gibson Baker v. Oberlin College (2019)

Oberlin College, established in 1833, became the oldest co-educational college in the United States with its admission of four women in 1837. Two years earlier, the college had opened its doors to African American students. Today it houses nearly 3,000 students and has a reputation for its progressive social and political activism. Nonetheless, trouble started when an underage African American student, attempted to purchase wine at a local grocery, Gibson Bakery. The student subsequently plead guilty to a misdemeanor charge and offered a public statement that the incident was unrelated to his race.

Nonetheless, incensed students took to the streets to protest what they assumed to be blatant racial profiling and discrimination. With what appeared to be support from college administrators, students protested in front of the building, distributed flyers accusing the store of racial discrimination and encouraging potential patrons to take their business elsewhere. The college briefly suspended its longtime business relationship with the bakery. Gibson Bakery nearly went out of business and suffered widespread local condemnation. Consequently, it sued the college. In June of 2019, a jury recommended the college pay $44 million in compensatory and punitive damages (Bamforth, 2019). While the final settlement including the appropriate amount of punitive damages remains unclear, the compensatory damages of $11 million reflect the jury’s belief that the evidence showed that the administration’s support for students defamatory messages caused significant harm. The courts do not, and never have, considered freedom of speech to be absolute. Speech that poses “a clear and present danger” of physical harm to persons or property is not protected as Justice Oliver Wendell Holmes observed in his famous decent to the Supreme Court’s decision in Schenk. Likewise, speech that is untrue and defamatory is excluded from protection. In its eagerness to support students, the administration appears to have failed in its responsibility to ensure due process and establish the validity of the claims being made against the bakery.

Summary

Considered together these five cases appear to show an initial reticence on the part of the courts to get involved in academic matters.  However, as issues involving freedom of speech and academic freedom have come to the fore, courts have become increasingly willing to consider the internal administrative process – even when they relate to decidedly academic issues.  The court’s jurisdiction has expanded over the last several decades. Initially restricted to only public universities, the McAdams v. Marquette decision showed the courts willingness to consider private universities s well. In the Gibson v. Oberlin case, not only did the court consider the internal administrative decisions of a private institution, it was willing to consider external harm caused by the over-extension of claims of freedom of speech. The court opinions themselves reflect an in-depth consideration and serious concern with the educational purpose and processes of contemporary colleges and universities.

Bamforth, E. (2019) Oberlin College president claims Gibson’s Bakery case could have a ‘profound chilling’ effect on free speech. Cleveland.com. (June 28). https://www.cleveland.com/news/2019/06/oberlin-college-president-claims-gibsons-bakery-case-could-have-profound-chilling-effect-on-free-speech.html