Why should a professor’s speech outside of class, on a matter totally unrelated to their area of expertise, be protected by academic freedom?
Arizona State University professors Richard Amesbury and Catherine O’Donnell don’t think it should be. In a recent Chronicle Review essay, they argue that the University of Pennsylvania properly disciplined law professor Amy Wax for “unprofessional” extramural comments. Wax has stated quite controversially that Black students have lower average cognitive ability and get worse grades in her classes, and that America would be “better off” with fewer Asians.
Amesbury and O’Donnell argue that the First Amendment principles broadly protecting free speech at public colleges and universities (and at the many private ones like Penn that adopt those principles independently) are fully distinct from academic freedom. So while the Constitution insulates Wax’s extracurricular commentary from government intrusion, academic freedom — which they characterize as protecting “the ability to assess the content of what is said on its merits” — ought not insulate her from faculty-sanctioned discipline.
But Amesbury and O’Donnell are working from a faulty premise. Academic freedom doesn’t work like that.
Courts have repeatedly designated academic freedom an important corollary of the First Amendment, protecting three categories of faculty speech: classroom speech, intramural speech, and extramural speech, that is, speech outside of the classroom. It’s necessary, the courts think, to shield scholars from political interference, allow them to test ideas, and dissent.
As a normative matter, the protection of free expression and academic freedom can’t be separated, either. Both are essential to the ultimate goal of enabling the search for truth in higher education.
This has been settled law for more than half a century.
In the early 1960s, New York’s public universities wanted faculty members to certify they weren’t communists and wouldn’t engage in “seditious” acts. The Supreme Court, in Keyishian v. Board of Regents, found that the state’s mandate was unconstitutional, not just because it violated the professors’ First Amendment right to be free from compelled speech, but because academic freedom requires that faculty members be uniquely at liberty to teach, research, and, yes, speak outside of class.
“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us,” the Court wrote. “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.”
New York’s vague and overbroad regulatory framework made imposing that orthodoxy all too easy, giving administrators practically unfettered discretion to punish all manner of faculty speech.
The wisdom behind the Keyishian holding is steeped in even more foundational ideas about how we sift truth from falsehood and check institutional power in a democracy.
Discussing “the liberty of thought and discussion” in On Liberty, philosopher John Stuart Mill reminds readers that “complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.” This was true for Marxist professors of the 1960s who seemed a threat to a God-fearing, capitalist America, and it is true for Amy Wax today.
Yet having failed to prove a single incident of discrimination by Wax, her opponents have resorted to eliminating her liberty to disagree with them by labeling that disagreement “unprofessional.” In doing so, they eliminate any reason for us to be confident in their own pronouncements. They also fail students by “robbing” them, as Mill put it, of either “the opportunity of exchanging error for truth,” or “what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
Small wonder, then, that the Keyishian Court concluded First Amendment freedoms “need breathing space to survive.” Indeed, keeping the academy fully oxygenated has long been a cornerstone of guidance by the American Association of University Professors — back when the AAUP was a more reliable defender of its founding ideals.
“The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve,” the group wrote in its seminal “1940 Statement of Principles on Academic Freedom and Tenure.” To that end, “extramural utterances rarely bear upon the faculty member’s fitness for continuing service,” and disciplinary decisions stemming from that speech “should take into account the faculty member’s entire record as a teacher and scholar.”
But why is something a faculty member says on their own time, about a subject totally unrelated to their teaching, an academic-freedom matter, rather than one of free speech more generally?
Because by building in protections for the faculty’s broader expressive rights off campus, academic freedom creates the necessary conditions for them to speak their minds on campus, giving them the confidence to inquire into new subjects or share unpopular views without fear of punishment.
Yale law professor and Academic Freedom Alliance leader Keith Whittington has written that academic freedom’s protection of extramural speech specifically is best thought of as a “prophylactic rule,” intended to make it harder to suppress controversial views, thereby keeping the overall speech climate open and vibrant. Whittington asks us to consider “how universities might operate if extramural speech were cast outside the scope of protected speech”:
If faculty members could be dismissed for what they say in public, then the core mission of the university to advance and disseminate knowledge would come under pressure and be subverted. If higher education institutions were to construct a regime to monitor social media for professors making controversial statements or adopt the view that professors could be dismissed if students or alumni objected to statements that a professor made in public, the practical scope of free inquiry on campus would be diminished.
If current trends are any indicator, “diminished” is putting that prospect generously.
Today, with the rapid proliferation of “divisive concepts” laws barring teaching certain views on race and gender, and as colleges routinely cave under pressure campaigns from legislators and other powerful actors to fire faculty members they disagree with, oxygen is being pumped out of higher ed at alarming rates. Accusations of “unprofessionalism” and “incivility,” entirely subjective determinations easily malleable to the political whims of administrators, are now popular tools used to silence controversial professors.
Make no mistake: Discrimination and harassment are also serious threats to campus climates and should be swiftly punished. But a far more reliable metric for doing so is to insist upon the precise definitions in antidiscrimination law, under Titles VI and IX, for example, rather than chipping away at professors’ expressive rights as an end run toward the same goal.
In Wax’s case, Penn sought to prove allegations of actual discrimination — allegations, importantly, that arose only after Penn announced that it was looking for a way to oust her. Even with the slim procedural protections it afforded her, Penn could never prove Wax actually discriminated against any student. Instead, they punished her for “flagrant unprofessionalism.”
But if expressing controversial views alone is enough to cost a professor their job, faculty with any views those in power find unwelcome are at serious risk.
To honor the transcendent value of academic freedom, faculty need breathing space in and out of the classroom. Protecting extramural speech as a core tenet of academic freedom gives it to them.
