Stetson University College of Law

STETSON UNIVERSITY COLLEGE OF LAW

22ND ANNUAL NATIONAL

CONFERENCE ON LAW AND HIGHER EDUCATION

Clearwater Beach, Florida

February 18-20, 2001

PROFESSORIAL SPEECH AND ACADEMIC FREEDOM: Implications of the

Fourth Circuit's decision in Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)

(cert. denied, 2001)

or

THE DEMISE OF ACADEMIC FREEDOM

Steven Glenn Olswang, J.D., Ph.D.

Vice Provost

Professor, Educational Leadership & Policy Studies

University of Washington

Seattle, Washington

1

THE DEMISE OF ACADEMIC FREEDOM: UROFSKY V. GILMORE

Academic freedom...applies to both teaching and research....The teacher is entitled to full freedom in research and the publication of the results….The teacher is entitled to freedom in the classroom in discussing his subject….The college or university teacher is a citizen, a member of a learned profession, and an officer of an educational institution. When he speaks or writes as a citizen, he should be free from institutional censorship or discipline…

AAUP, 1940 Statement

In 1890, the mother of Leland Stanford, Jr., Jane Stanford, directed David Starr Jordan, President of her son's namesake university, to terminate Professor Ross. Professor Ross was a respected scholar and economist at Stanford University who believed in socialism and defended those in the U.S. labor movement. President Jordan, one of many of the "despotic" presidents of the time, followed the directions of his principal benefactor and terminated Professor Ross. As a result of that action, several additional faculty members from Stanford University resigned in protest. Arthur Lovejoy, one of those faculty members, together with John Dewey from New York and others, became central players in the creation of what we now know as the American Association of University Professors (AAUP). Hofstadter and Metzger, The Development of Academic Freedom in the United States. New York: Columbia University Press (1955). Metzger, The American Concept of Academic Freedom in Formation. New York: Arno Press (1977). Menard, The Future of Academic Freedom. Chicago: The University of Chicago Press (1996).

The AAUP is credited with developing and publishing the first policy statement codifying academic freedom and tenure. Academic freedom, borrowing the principles from nineteenth century German universities of lehrfreiheit and lernfreiheit, the freedom of inquiry and freedom of teaching, was a principled statement of norms, i.e., that faculty members in U.S. universities should be able to exercise their intellectual curiosity and expression and pursue new lines of inquiry without fear of retribution or punishment from their employers. Tenure was thus created to protect academic freedom as a legally enforceable contract structure, which, by court decision, was later elevated to a protected property interest in public universities with attendant due process requirements under the Fourteenth Amendment to the Constitution of the United States. Board of Regents v. Roth, 408 U.S. 564 (1972). Perry v. Sindermann, 408 U.S. 593 (1972). Lee and Olswang, Legal Parameters of the Faculty Employment Relationship. In Smart, Higher Education: Handbook of Theory and Research. Vol. 1, New York: Agathon Press (1985).

The primary basis for declaring the importance of a faculty member's intellectual independence and autonomy from employer control stemmed from the responsibility faculty had to the "public" and "profession," rather than to their institutional boards of trustees:

University teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of trustees than are judges subject to the control of the President with respect to their decisions; while, of course, for the same reasons, trustees are no more responsible for, or to be presumed to agree with, the opinions or utterances of professors, than the President can be assumed to approve of all the legal reasonings by the courts. AAUP, General Report of the Committee on Academic Freedom and Academic Tenure, 1915. 1 AAUP Bulletin 17, 26 (1916).

See also, Ambrose, Academic Freedom in American Public Colleges and Universities.

14:1 Review of Higher Education 5 (Fall 1990); Poch, Academic Freedom in American

Higher Education. 1993 ASHE-ERIC Higher Education Reports; Metzger, Professional and Legal Limits to Academic Freedom. 20 Journal of College and University Law 1 (1993);

Hamilton, Zealotry and Academic Freedom: A Legal and Historical Perspective. St. Paul,

Minn.: Transaction Publishers (1995).

For almost a century, faculty in institutions of higher education have believed that they have academic freedom to independently pursue research topics of their choosing, unfettered by employer constraints. Indeed, for decades, the highest court of the United States has voiced its recognition of academic freedom as critical to allowing faculty to pursue inquiry into virtually every field.

The essentiality of freedom in the community of American universities is almost self-evident....No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made....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. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

Our nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and 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. Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).

THE VIRGINIA STATUTE

In 1996, the Virginia legislature adopted Sections 2.1-804 to 806, Restrictions on State Employee Access to Information Infrastructure. That statute provides:

Except to the extent required in conjunction with a bona fide, agency-approved research project or other agency-approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information, infrastructure files or services having sexually explicit content. Such agency approval shall be given in writing by agency heads, and any such approval shall be available to the public under the provisions of the Virginia Freedom of Information Act.

Information infrastructure is defined to include: "telecommunications, cable, and computer networks and includes the Internet, the World Wide Web, Usenet, bulletin board systems, on-line systems, and telephone networks." Agency is defined to include an institution of higher education. This law was promulgated as a result of concerns by legislators over some publicized instances of sexual harassment by state employees using state email systems.

Six faculty members from various Virginia colleges and universities filed a lawsuit attempting to overturn the law as unconstitutionally overbroad or, in the alternative, unconstitutional as applied to them since it limited their right to academic freedom. Professor Melvin Urofsky, the lead plaintiff, claimed the Act precluded him from assigning to his students certain online projects on indecency law, as he would be unable to review his students' work by utilizing resources on the Internet. Another plaintiff, Professor Paul Smith, conducts research in the area of gender roles and sexuality, and believed that the restrictions of the statute precluded him from using research sites available to him on the World Wide Web. Professor Terry Meyers was concerned about his ability to access the Commonwealth's own database of sexually explicit poetry to continue his research on the "fleshly schools" of Victorian poets. Other faculty member plaintiffs alleged similar infringements on their abilities to fulfill their teaching and research obligations. The district court supported the plaintiffs' concerns and held the statute unconstitutional. "We cannot find the Commonwealth's justification for the Act outweighs the interests of thousands of state employees and the public in expression on sexually explicit topics." Urofsky v. Allen, 995 F. Supp. 634, 643 (E.D. Va. 1998).

The Commonwealth of Virginia appealed the district court's ruling. A three-judge panel of the Court of Appeals for the Fourth Circuit unanimously reversed the district court's decision. Holding that "the Act does not regulate the speech of the citizenry in general but rather speech of state employees in their capacity of employees," the court determined that no First Amendment infringement occurred. Urofsky v. Gilmore, 167 F. 3d 191, 196 (4th Cir. 1999).

It is important to note that as a result of the district court decision, in part finding the law to be overbroad, the Attorney General of the Commonwealth of Virginia recommended that the state legislature revise the Act to restrict only sexually explicit content having lascivious meaning. This recommendation went forward despite the appeal to the Fourth Circuit. The Act was amended on March 24, 1999, to include the following definition:

"Sexually explicit content" means content having as a dominant theme (i) any lascivious description of or (ii) any lascivious picture, photograph, drawing, motion picture film, digital image or similar visual representation depicting sexual bestiality, a lewd exhibition of nudity, as nudity is defined in Section 18.2-390, sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in Section 18.2-390, coprophilia, urophilia, or fetishism.

See Hancock, The Fourth Circuit's Narrow Definition of "Matters of Public Concern" Denies State-Employed Academics Their Say: Urofsky v. Gilmore. 6 Rich. J.L. & Tech 11 (Fall 1999); Hancock, Postscript: Why Urofsky v. Gilmore Still Fails to Satisfy. 6 Rich. J.L. & Tech 14 (Winter 1999).

A majority of the active Fourth Circuit judges thereafter voted to hear the appeal en banc. The En Banc Court held that limiting state employees' access to sexually explicit material on computers owned and leased by the state was not a violation of their First Amendment rights. Urofsky v. Gilmore, 216 F. 3d 401 (4th Cir. 2000). With the Supreme Court of the United States denying certiorari on Monday, January 8, 2001, the law of the Commonwealth of Virginia remains intact. Urofsky v. Gilmore, _____ U.S. _____, 2001 LEXIS 134 (2001). The Court's decision not to review the Fourth Circuit's ruling significantly affects the historical understanding of faculty of their right to academic freedom and their ability independently to carry out their teaching, research, and service.

THE EN BANC DECISION

The en banc decision of the Fourth Circuit Court of Appeals in Urofsky v. Gilmore, upholding the constitutionality of the Virginia statute, effectively restricts over 100,000 state employees free access to the resources found on the Internet. That decision will be forever cited for two primary elements: the limitation on the definition of "what is a matter of public concern" when employees speak in the workplace, and the transfer from faculty to the university of academic freedom. While the first element deserves substantial mention, the latter point is the one most critical to faculty and academic history.

As this court stated: "It is well settled that citizens do not relinquish all of their First Amendment rights by virtue of accepting public employment." Urofsky, 216 F. 3d at 406, citing United States v. National Treasury Employees Union, 513 U.S. 454 (1995) and Pickering v. Board of Education, 391 U.S. 563 (1968). "Nevertheless, the state, as employer, undoubtedly possesses greater authority to restrict the speech of its employees than it has as a sovereign to restrict the speech of citizenry as a whole." Urofsky, 216 F. 3d at 406, citing Waters v. Churchill, 511 U.S. 661 (1994).

To determine whether or not the state is regulating the speech of a citizen as an employee or as a member of the public at large, a balancing test is applied. This balancing test involves an inquiry, first, into whether the speech at issue was that of a public employee speaking on a matter of public concern, and, second, if so, whether the public employee's interest in expression outweighed the public employer's interest in the smooth operation of the workplace. Pickering v. Board of Education, 391 U.S. 563 (1968); Connick v. Meyers, 461 U.S. 138 (1983). If a public employee's speech does not touch on a matter of public concern, the state as employer may regulate it without infringing any First Amendment right. In making this analysis, the court must examine the "context and form of the speech at issue." Connick, 461 U.S. at 147. The speech must be unrelated to the employment duties. NTEU, 513 U.S. at 465.

In this instance, the court easily determined that the speech at issue, "access to certain materials using computers owned or leased by the state for the purpose of carrying on employment duties" was solely in the role of an employee. Urofsky, 216 F. 3d at 409. The court did not have to balance the public employer's interests in the workplace since the speech at issue never transgressed the "matter of public concern" threshold. "It cannot be doubted that in order to pursue its legitimate goals effectively, the state must retain the ability to control the manner in which its employees discharge their duties and to direct its employees to undertake the responsibilities of their positions in a specified way." Urofsky, 216 F. 3d at 409. See also Waters v. Churchill, 511 U.S. 661 (1994).

INSTITUTIONAL ACADEMIC FREEDOM

The faculty members who challenged the Virginia statute argued that even if the Act is valid as to other state employees, it violates the academic freedom rights specially given to professors at state colleges and universities. It was these faculty members' view that requiring them to obtain prior university approval before accessing Internet information they deemed relevant for their research and teaching interferes with their individual right of academic freedom. The court responded to their argument by holding that faculty members do not possess any special right of academic freedom beyond that given to every state employee under the First Amendment. Indeed, the court goes even further:

. . . to the extent the Constitution recognizes any right of "academic freedom" above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the university, not in individual professors . . . 216 F. 3d at 410.

The court noted that academic freedom, while in terminology often used by federal courts, is little explained. "Lacking definition or guiding principle, the doctrine of academic freedom floats in the law picking up decisions as a hull does barnacles." 216 F. 3d at 210, citing Byrne, Academic Freedom: A Special Concern of the First Amendment, 99 Yale L.J. 251, 253 (1989). Rejecting the notion that academic freedom had special constitutional protection, the court reviewed the history of academic freedom through court decision. "The Supreme Court, to the extent it has constitutionalized a right of academic freedom at all, appears to have recognized only an institutional right of self-governance in academic affairs." 216 F. 3d at 28. Focusing on Justice Frankfurter's decision in Sweezy v. New Hampshire, 354 U.S. 234 (1957), wherein the four essential freedoms of a university are enunciated--"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"--(354 U.S. at 262-263) the Fourth Circuit redefines academic freedom from being individual to institutional.

The Fourth Circuit acknowledges that early Court decisions, such as Whitehill v. Elkins, 389 U.S. 54 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); and Wieman v. Updegraff, 344 U.S. 183 (1952) could be said to have established an enhanced constitutional right of academic freedom in public school teachers, but it finds that right had been subsequently overruled by other decisions of the Court. See Adler v. Board of Education, 342 U.S. 485 (1952); Slochower v. Board of Higher Education, 350 U.S. 551 (1956). "Therefore, to the extent that Whitehill, Shelton and Wieman may have held that a publicly employed teacher may not be disciplined for the exercise of First Amendment rights of a private citizen, that holding has been subsumed by later cases extending the same protection to all employees." Urofsky 216 F. 2d at 414. It is the Fourth Circuit's view that while it might be true that college faculty members and school teachers were the first public employees to be afforded protection against dismissal for the exercise of First Amendment rights on matters of public concern, that Supreme Court jurisprudence has extended that protection to all public employees. Thus, no favored First Amendment academic freedom rights remain for faculty.

Fitting Academic Freedom within the rebus of the First Amendment is in many respects an extremely difficult challenge. The term "academic freedom" in obvious contrast to "freedom of the press" is nowhere mentioned in the text of the First Amendment. It is inconceivable that those who debated and ratified the First Amendment thought about academic freedom. Rabban, Functional Analysis of "Individual" and "Institutional" Academic Freedom under the First Amendment. 53 Law & Contemp. Probs. 227, 237 (1990).

Limitations placed by the Virginia legislature on access to computer infrastructure

by state employees, including university faculty, restrict only workplace speech. Such restrictions are within the authority of an employer to impose, and do not infringe the First Amendment. Teaching and research in a public university is not a matter of public concern. And, of course, faculty members can get approval to use the Internet to do their research, so there is no infringement on their academic freedom, which faculty members do not possess anyway beyond that of any other public employees' First Amendment protections.

ACADEMIC FREEDOM, RESEARCH, AND THE INTERNET

The Virginia Act defines the "information infrastructure" to include computer networks such as the Internet, World Wide Web, Usenet, bulletin boards, and on-line systems. The Internet has been variously described as an internal network of interconnected computers, a uniquely and wholly new medium of worldwide human communication. The Internet is a decentralized, self-maintaining information and retrieval system. See Conn and Zirkel, Legal Aspects of Internet Accessibility and Use in K-12 Public Schools, 146 Ed. L. Rptr. 1 (Sept. 28, 2000).

The Internet has become a fundamental tool to examine and retrieve information. In effect, it has become a new form of the library. The Act, then, could be said to preclude university faculty members accessing materials stored in a university library unless they receive permission from their employers to check out the book. Furthermore, the employer--in this case the college head or president--cannot grant permission except when the request is in relation to a "bona fide agency-approved research project or other agency-approved undertaking." Thus, the president of the college or university needs to declare in writing that a specific research topic to be investigated through Internet access to sexually explicit material is a legitimate, university-approved activity. That written approval becomes a matter of public record under the Virginia Freedom of Information Act. This process presents three issues: (1) Is it an infringement of academic freedom for the state to limit its employees' access to knowledge? (2) Is it an infringement of a faculty member's academic freedom for a college president to monitor and decide what areas the faculty member is officially allowed to research? (3) Doesn't the public notice of a faculty member's research inquiry create a chilling effect on free speech?