Sunday, February 18, 2007

"Academic" Freedom for All

In response to Paul's interesting post on the distinctive characteristics of universities, I'd like to register a vote for their non-distinctiveness. My point has both a constitutional dimension and a policy dimension.

As a matter of constitutional law, I think it would be very difficult to make an argument that an institution denominated a university, or the faculty thereof, is entitled to First Amendment protection for academic freedom beyond the freedom from government censorship enjoyed by all speakers. In general, First Amendment doctrine rejects such institution-specific protection. Thus, the Supreme Court has (essentially) rejected any constitutionally obligatory privilege of reporters to protect sources, and while the decision so holding, Branzburg v. Hayes, may have been subject to legitimate criticism when it was handed down in 1972, it seems more correct today, when millions of people can call themselves journalists in virtue of blogging. Any attempt to provide a distinctive shield to the institutional press would necessitate speaker-based distinctions that would be constitutionally dubious themselves.

To be sure, the Supreme Court has suggested that universities have some special status, most prominently in dicta in Rust v. Sullivan, the 1991 case upholding the "gag rule" that forbade doctors receiving federal Title X funds from even mentioning abortion to their patients. In response to the worry that the ruling would permit a state to fund its universities only on the condition that they teach or research from a particular perspective, the Court invoked a still-earlier decision for the proposition that the First Amendment places special limits on the ability of government to condition funding of universities on sacrifices of academic freedom.

As a professional academic, I'm grateful for the special protection the Court purports to afford me and my employer, but as a constitutional lawyer, I don't think it justified. Nearly every enterprise would benefit from a rule of law that forbade employers or the state from stifling free expression. And conversely, as Paul's post notes, some universities may choose to define themselves in ways that limit traditionally protected academic freedom where the special mission of the university or its subdivision--be it religious, military or philosophical--demands agreement on some principles.

Does this mean that the state can, for example, insist that biology professors only teach and write from the perspective of "intelligent design?" No. But the reason is not that university faculty have a special First Amendment right. The reason must be that the First Amendment limits certain coercive uses of the funding power. Universities can, and in my view should, provide their faculty and students with a measure of academic freedom beyond what the First Amendment alone provides, and in doing so they can create obligations that are binding as a matter of contract law. But employees of other sorts of entities would also benefit enormously from a right to speak their minds on matters both related and unrelated to the workplace, and any attempt to carve out "universities" strikes me as arbitrary. Non-academics also should have "academic" freedom.