Crossing the Line: The Challenges of Addressing University Faculty Free Speech

Political speech in the United States is generally unfettered, with historically strong legal protections. Contrast that with the broader limitations that public colleges and universities may place on the expression of non-faculty employees, especially in the workplace. Sitting somewhere in between political speech and the limitations on employee speech is the freedom of expression rights of faculty members as encompassed by academic freedom, particularly in the classroom. 

Historically, the classroom has been the domain of the faculty member, providing them a pulpit to impart information and knowledge to students, often through provocative stories or language. However, a faculty member’s right to engage in expression that may be offensive or even provoke anger or discomfort is not without boundaries. In fact, there are multiple and often conflicting standards that address acceptable in-classroom expression.

Faculty members will frequently assert their rights to freedom of expression in their classroom under the American Association of University Professors (AAUP) Declaration of Principles (1915). This Declaration was modified in 1940 to state that, “Teachers are entitled to full freedom of research and in the publication of the results…”, and “Freedom in the classroom in discussing their subject .” However, this “Statement of Principles on Academic Freedom and Tenure” (1940) further cautioned that, “[teachers] should be careful not to introduce into the teaching controversial matter which has no other relation to their subject.” The U.S. Supreme Court has never fully accepted the term academic freedom as defined by the AAUP as a legal right. In fact, the landmark Supreme Court decision, Sweezy v. New Hampshire (354 U.S. 263, 1957), recognizes academic freedom as a First Amendment right of the institution, not of the individual faculty member.

The legal philosophy of in loco parentis gave administrators and faculty broad latitude to “act in the place of a parent.” Since the courts started to shift away from in loco parentis in the 1970s, the concept of academic freedom held solely by a faculty member in the classroom has been challenged by students more frequently. 

Recent classroom-based issues raise the question of whether “faculty speech [is] becoming more provocative and challenging or, are social norms shifting and creating a new level of acceptable speech?”

For example:

• Recently a TNG Consulting client reported that at their public institution a faculty member, teaching a class on race and the literary arts in the 20^th century, persisted in using the “N” word in class and encouraged students to also use the offensive term. Is this acceptable?

• Of course, the recent election provided a ripe opportunity for extreme expressions. At Collin College in Texas, a faculty member tweeted that Mike Pence should “shut his little demon mouth up”.  This resulted in national attention and a public outcry for her termination, including pressure from state legislators. The college responded by issuing a statement that the faculty member’s post was “hateful, vile and ill-considered”.  Further, the college apologized for “the offense her comments created” and further distanced themselves from her statements by saying her views were not consistent with the values of the college, particularly those of dignity and respect. Now, the College has decided to not renew her teaching contract. Is this an appropriate response for a school to make? Did the faculty member cross a line with this outside-the-classroom speech?

• Following former President Trump’s order forbidding anti-bias programming on campuses, an Iowa professor sent a mass mailing to students and faculty members condemning the order. A student responded challenging why the University would not follow the guidelines of the executive order, asking if the University planned to use race/sex stereotyping or scapegoating in its training. The student’s speech was viewed as a potential violation of the University’s code of conduct. The University ultimately backed down from punishing this speech, but it raises the question of who holds the academic freedom rights to expression?

• A professor at Oxnard College in California berated a hard-of-hearing student by accusing her of not paying attention because the student relied on a translator before being able to answer. The faculty member stated to the class, “she not trying” and ended the conversation with “whatever.” Is this protected speech? Is this a hostile environment?

• At Pacific University in Oregon, a faculty member was told to resign or be found responsible under Title IX for making controversial comments about gender in his class by sharing a story about how the mind works using negative ethnicity and gender descriptions as an example. What standard should be applied to provocative speech in the classroom?

Academic freedom remains an important protection for faculty and for students. While limitations on faculty expression in the public university classroom are few, the expression may not create a hostile learning environment that is severe, pervasive, and objectively offensive; the speech or expression must be germane to the subject matter being taught, have a nexus to the course material, and advance a legitimate academic purpose. 

An institution should apply the following guidelines when challenged by concerns about classroom expression:

1. Does the challenged expression undermine the legitimate goal or mission of the institution?
2. Does the challenged expression conflict with institutional policies and/or standards for professional conduct?
3. Is the challenged expression germane to the subject matter of the course or the faculty member’s field of expertise, or does it touch on a matter of public concern?

While offensive, provocative speech in the academic setting will likely always be a challenge to institutions, they must strive to balance the rights of free speech with the school’s interest in preserving a vigorous learning environment. In many cases, the institution feels compelled to react because of outcry about the speech, but the initial inclination often comes off as overreaction, at least legally.

Response frameworks can probably be reduced to a five-option rubric:

• Do nothing (sometimes the uproar dies down, other times silence feeds the outrage)
• Publicly condemn the speech as offensive but likely protected, or suggest that you’re undertaking an assessment of whether the speech is protected (this can buy time, as well)
• Publicly back the speech as protected speech, even if unpopular, and reinforce the academy as the marketplace of ideas.
• Refer the speech for discipline if it is outside the protections of the law and academic freedom
• Facilitate an opportunity for the community to debate the speech, confront the challenges it represents, and further civil dialogue

To calibrate the appropriate response, it will often make sense to consult general counsel, or outside counsel with specific free speech expertise, such as TNG. For further reading on free speech in the higher educations setting, you may be interested in our previous blog post.