Running head: COMMENTARY 1

EDLD 8431

Commentary

Laura Kelley

Georgia Southern University

COMMENTARY 2

Academic Freedom
The concept of academic freedom has fluctuated over the decades, while the topic has
only increased. The role of the professor has varied in regards to academic freedom depending
on the political context of the time. The academic freedom of the professor has been under strict
scrutiny of many including kings, clergy, presidents, politicians, presidents and provosts. As
higher education moved away from the control of the clergy, politicians appeared to assert
control based on the political climate. The contributions of academia to research and
development are crucial to the wellness of the public, as well as, contributions to research and
teaching.
One of the most notable instances of the deprivation of academic freedom was during the
Cold War hysteria, which involved witch hunts over actual and created thoughts of Communism
invading the college campus. Professors were stripped of their due process and forced to sign
anti-Communism loyalty oaths. If professors chose not to sign these oaths, they were
automatically deemed to be a Communist sympathizer and dismissed from the university, ruining
job prospects and reputations. As mentioned by Alexander & Alexander (2017) regarding
Connell v. Higgenbotham, in 1971 the Supreme Court indicated that a teacher cannot be
summarily dismissed from public employment for not signing a loyalty oath that specified
verbatim that the faculty member did not believe in the overthrow of the government (p. 365).
Loyalty oaths signed by faculty at a public university is commonly accepted, however, the oath
cannot contain content associated with the beliefs in the overthrow of government. Any state
statute that allowed individuals to be subject to capricious interpretation by government
officials would also violate the constitutional right of free speech, expression and association
under the First Amendment (2017, p. 366).
Academic freedom, although very important and one of significant conversations
regarding higher education, is not constitutionally protected. It is imperative to point out that
academic freedom in the United States will continue to remain different from that of universities
in Europe. Alexander & Alexander (2017) remind us that individual freedoms in the United
States, supported by the Constitution that guarantee personal freedom of speech and expression,
are the key differences between our nation and everyone else (p. 335). The concepts of
COMMENTARY 3

Lernfreiheit and Lehrfreiheit in Germany protect students rights to learn and professors rights
to teach (2017, p. 335). In the 2000 case of Urofsky v. Gilmore, the appellees argued that their
restrictions imposed by the state to access sexually explicit content on state-owned devices
violated their constitutional rights and their academic freedom was also in question (2017, p.
348). This case are reminds us that government employees do not lose their constitutional rights,
but may be scrutinized at a higher level. This higher level of scrutiny is due to the idea of an
individual, not as a citizen, but rather as an employee of the government and that public
officials are not constitutionally required to permit public dissent by their subordinates (2017, p.
463). The case of Pickering v. the Board of Education set an important guideline in that a state
must show a compelling state interest in order to overcome a teachers right to speak out on
issues of public concern (2017, p. 464).
Elaborating on the outcome of the Pickering v. the Board of Education case in 1965, the
Supreme Court encouraged the Cox test and the Connick Test (Connick v. Myers) to determine if
the matter discussed by the employee that was of public concern, whether discussing the matter
was beneficial to be discussed in the environment, and if the accusation by the state would
impinge on the constitutional rights of the employee (Alexander & Alexander, 2017, pp. 466-
469). It is noteworthy to mention the case of Garcetti v. Ceballos that further legitimized the
extent of government reach into the speech of government employees regarding concern of
public matters that is made publicly. In Garcetti, the courts supported the utilization of tests to
validate the interests of the state, reminding government employees that the First Amendment
free speech was not meant to be a sanctuary of sorts when applied to official government duties.
The Supreme Court after Garcetti emphasized that these cases would still not apply to classroom
instruction and therefore, the courts should not make decisions relating to speech in the
classroom or for scholarship purposes (p. 481).
Based on these prior cases, it may appear that it has yet to be decided the extent to which
a teacher in a classroom can discuss matters not related to instruction or content. It would be
contentious to say that these past cases could be applied to speech within the classroom. The
cases mentioned thus far have only relied on content made by government officials regarding
public matter in public and not in the classroom. While public employees do not lose all
constitutional rights, it could be argued (compelled) by the state that content discussed within a
classroom is not beneficial to a students right to learn and would not be relevant to the content
COMMENTARY 4

of the course. It is a legitimate and legal possibility that the state can control academic freedom
by means of the content of the course. As it currently stands, based on the case of Edwards v.
California University of Pennsylvania, Edwards attempted to say that the University did not have
a legal right to control the content of his lectures in the classroom based on his First Amendment
rights. Edwards had changed the content of the course by adding his religious viewpoints rather
than what the university wanted to cover in the content of the course. The courts in this case
reminded Edwards that the First Amendment does not cover speech when the individual is
speaking or acting for their employer (the state) regarding the content of coursework in the
classroom. The courts state the case of Rosenberger v. Rector and Visitors of University of
Virginia saying, When the State is the speaker, it may make content-based choices, but that the
state cannot restrict viewpoints of public speakers when opened to the public or withhold funds
to encourage specific viewpoints (Alexander & Alexander, 2017, pp. 356-357).
In conclusion it is essential to note the comments of the Supreme Court regarding
academic freedom in the case of Edwards v. California University of Pennsylvania that,
Academic freedom thrives not only on the independent and uninhibited exchange of ideas
among teachers and students, but also, and somewhat inconsistently, on autonomous decision
making by the academy itself and that The four essential freedoms that constitute academic
freedom have been described as a universitys freedom to choose who may teach, what may be
taught, how it shall be taught, and who may be admitted to study (Alexander & Alexander,
2017, p. 357). In all considerations of the cases presented, it could be presumed that a public
university has ultimate control over the content delivered in the classroom in order to align with
the mission of the university in teaching and research. Academic freedom continues to allow
teachers to utilize their own expertise to control the content of the specific subject matter being
delivered in the classroom. However, First Amendment rights will not extend to a deviation of
the content by the professor for the majority of the course when speaking for the university.
COMMENTARY 5

References
Alexander, K.W., & Alexander K. (2017). Higher education law policy and perspectives (2nd
ed.). New York, NY: Routledge.
COMMENTARY 6

References

Lucas, C. J. (2006). American Higher Education (2nd ed.). New York, NY: Palgrave MacMillan.

Thelin, J. R. (2011). A history of american higher education (2nd ed.). Baltimore, MD: The John

Hopkins University Press.