What Is Academic Freedom? Statement That Alarmed Professors at U. of Texas Sets Off Debate

U. of Texas at Austin

Who gets academic freedom at the University of Texas at Austin? In a court filing on Monday, three professors at the state’s flagship argued that it depends on whom you ask — and in what context.

Lawyers representing UT-Austin as part of a campus-carry lawsuit argued in January that academic freedom, if it exists, belongs to the institution and not to individual professors. In response to recent inquiries, the flagship’s president, Gregory L. Fenves, affirmed to faculty leaders that the principle of freedom remained central to the campus.

But the debate continued this week. A lawyer representing the professors — Jennifer Glass, Lisa L. Moore, and Mia Carter — wrote on Monday that the two positions were “inconsistent.” A lawyer representing the state and the university fired back on Tuesday, saying academic freedom was a “workplace policy,” not a First Amendment right.

The statements suggest that there may be a line beyond which a pledge to support academic freedom doesn’t matter, some supporters of the professors say. The lawsuit was initially dismissed, and for its appeal, lawyers for the state are representing Fenves; Ken Paxton, attorney general of Texas; and the UT regents.

Renea Hicks, a lawyer for the faculty members, said if Fenves disagrees with the brief, he must tell UT’s legal team to change their tune. The president’s letter doesn’t offer much protection, he said.

“If he isn’t going to assert himself more strongly with the AG, what good does it do?” Hicks said on Tuesday. The letter “just makes Fenves look nice.”

Gary Susswein, a university spokesman, declined to comment on the litigation. Jason R. LaFond, an assistant solicitor general who submitted Tuesday’s brief, did not immediately respond to a call seeking comment.

Case law supporting academic freedom for individual faculty members is clear, said Risa L. Lieberwitz, general counsel at the American Association of University Professors. So it was striking, she said, to see the opposite position argued in briefs representing a university.

“It says to faculty that UT is not respecting the full scope of academic freedom that exists both as a matter of policy and as a constitutional matter,” she said.

The three professors sued the Texas attorney general, Fenves, and the regents in 2016, arguing that the state’s campus-carry law would chill academic debate in the classroom, particularly as it relates to sensitive topics.

A federal district court dismissed the case in 2017, but the faculty members appealed to the U.S. Court of Appeals for the Fifth Circuit, which will decide whether the professors have the legal standing to pursue their case.

Lawyers representing the university, the regents, and the AG questioned the professors’ right to academic freedom in the January brief filed for that appeal.

“The right to academic freedom, if it exists, belongs to the institution, not the individual professor,” the brief argued. “Assuming a right to academic freedom exists, it cannot help plaintiffs, because it is not their right to assert.”

Fenves’s email to faculty leaders came after faculty-council chairs inquired into the university’s position, said Steven Hoelscher, one of those chairs.

“The academic freedom of our faculty to express, learn, teach, and discover is at the very foundation of the University of Texas at Austin’s mission,” Fenves wrote. “Faculty members’ rights to academic freedom are well established in higher education, and the rights that we recognize at UT-Austin are consistent with those norms, including AAUP’s statement on academic freedom.”

Hoelscher said the brief filed on behalf of UT was initially “shocking.” But he said he feels confident in the president’s commitment to academic freedom.

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In 2016, lawyers for UT defendants filed a brief separate from the attorney general’s office, in which they referenced the professors’ “First Amendment right to academic freedom.” In the appeal, one brief was filed on behalf of Fenves, the regents, and Paxton.

Faculty members, working on books and papers over the summer months, have not widely reacted to the brief or the letter, Hoelscher added.

Moore, a plaintiff who is an English and women’s-studies professor, first saw Fenves’s letter when colleagues forwarded it to her. She read it initially as an attempt to create distance between the university and the state’s position, even though they are represented by the same lawyer.

“I don’t think it was successful,” she said.

Lindsay Ellis is a staff reporter. Follow her on Twitter @lindsayaellis, or email her at lindsay.ellis@chronicle.com.