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What free speech rights do college students and faculty have in the classroom?
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Where are the lines drawn between students’ free speech rights, professors’ academic freedom, and administrators’ interest in meeting institutional goals?
Who decides what can be said in a college classroom? For the most part, faculty, due to academic freedom.
Academic freedom is the freedom college instructors have to teach, research, and speak about matters of public concern without being punished. So if they want to teach a subject using a particular — even controversial — text, that choice is theirs. And faculty can ask students not to speak if they’re disrupting the lesson, or compel speech by calling on students to answer questions about the reading.
Academic freedom isn’t limitless, though, and students don’t lose all free speech rights at the schoolhouse gate.
What is academic freedom?
Academic freedom has been recognized by the Supreme Court of the United States as a corollary of First Amendment rights.
In the 1957 case Sweezy v. New Hampshire, the Supreme Court ruled that the government should be “extremely reticent to tread” in areas of academic freedom rights and political expression. Chief Justice Earl Warren even warned of the impact restricting academic freedom would have on our society, saying students and faculty “must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”
Indeed, colleges must not restrict ideas from classroom discussion merely because they are controversial.
Ten years later in Keyishian v. Board of Regents, the Supreme Court called academic freedom “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
And most colleges — even private institutions — maintain policies committing to specific academic freedom protections.
The prevailing standard of academic freedom
A July 2020 report from the American Association of University Professors examined policies maintained by the 1,170 four-year institutions in the Integrated Postsecondary Education Data System that offer tenure to faculty. The report found that the majority of those colleges — 73% — maintain an academic freedom statement modeled on the AAUP’s “1940 Statement of Principles on Academic Freedom and Tenure.” (And an additional 24% of institutions maintain some sort of academic freedom statement, albeit not based on the “1940 Statement.”)
So to see what’s provided for at most colleges, the 1940 Statement includes the following three provisions on academic freedom:
1. Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.
2. Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.
3. College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
In 1969, a joint committee of the AAUP and the Association of American Colleges met to reevaluate the statement. Rather than revising it, they decided to add interpretative comments based on what they had learned over the past few decades of its application.
Most relevant to classroom speech, the interpretive comments note with regard to the second provision: “The intent of this statement is not to discourage what is ‘controversial.’ Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster. The passage serves to underscore the need for teachers to avoid persistently intruding material which has no relation to their subject” (emphasis added).
Indeed, colleges must not restrict ideas from classroom discussion merely because they are controversial. And faculty are free to speak on matters of public concern in the classroom. They can even share personal opinions germane to the topic at hand or shared so briefly that they don’t rise to the level of the sort of persistent intrusion the AAUP’s interpretive comment describes.
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Why is academic freedom important? Because educational institutions, professors, and other scholars must pursue knowledge without interference from the government.
The AAUP’s 2014 “Freedom to Teach Statement” further expounds on what is included in faculty members’ academic freedom rights:
The freedom to teach includes the right of the faculty to select the materials, determine the approach to the subject, make the assignments, and assess student academic performance in teaching activities for which faculty members are individually responsible, without having their decisions subject to the veto of a department chair, dean, or other administrative officer.
When colleges adopt policy statements on academic freedom, such as the AAUP’s Statement of Principles, other AAUP statements, or the institution’s own academic freedom guidelines, they form a contract, making academic freedom the legal right of faculty. As a result, most college faculty members — even at private institutions — have the freedom to research and publish in their fields, teach their subject how they wish, and speak and write as citizens.
Faculty speech in the classroom
So what are the boundaries of faculty members’ rights in the classroom?
Taking a step back to look at public employees’ speech rights more generally: In 2006, the Supreme Court held in Garcetti v. Ceballos that the First Amendment did not protect a public employee’s on-the-job speech because it occurred pursuant to the employee’s “official duties.”
However, the Court expressly singled out “speech related to scholarship or teaching” as one type of expression that the Garcetti decision may not cover. In doing so, the Court indicated that the lack of protection for the speech of public employees might not apply to one category of those employees: college faculty. And since Garcetti, each federal court of appeals that has considered the issue — the Second, Fourth, Fifth, Sixth, and Ninth Circuits — has ruled in favor of strong academic freedom protections for faculty.
Wandering in the Garcetti desert: FIREfiles brief urging the Supreme Court to protect academic freedom
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FIREfiled an amicus brief asking the Supreme Court to clarify that limitations to public employee speech put in place after Garcetti v. Ceballos do not apply to university faculty.
Under these decisions, faculty speech in the classroom is analyzed under the test developed by the Supreme Court in Pickering v. Board of Education and Connick v. Myers, which balances the interests of the employee speaking on matters of public concern against the interests of the government as an employer.
For example, in Demers v. Austin, Washington State University faculty member David Demers claimed the school retaliated against him for distributing a pamphlet he had written describing a plan for improving WSU’s communications programs. The Ninth Circuit rejected the district court’s application of Garcetti and found Demers’ pamphlet “made broad proposals to change the direction and focus of the School” and addressed issues that administrators had already been discussing among themselves, making Demers’ proposals a matter of public concern.
For another example, in Meriwether v. Hartop, the Sixth Circuit applied the Pickering/Connick framework to find a professor was expressing a view on a matter of public concern by refusing to comply with the university’s pronoun policy. The Sixth Circuit further found that the Pickering balance weighed in the professor’s favor based on the importance of academic freedom to our democracy and judicial reluctance to compel speech.
That being said, faculty can’t discriminate against students, create a hostile educational environment, or, again, persistently intrude material that is unrelated to the subject matter at hand. Further, academic freedom doesn’t entitle faculty to teach something that their academic peers judge is invalid per the subject matter of the course (e.g., teaching creationism in an evolutionary biology class). However, faculty generally have the right to select course materials and determine how to approach the subject.
And, importantly, government attempts to prevent faculty from expressing particular viewpoints in the classroom are unconstitutional. For example, Florida’s “Stop WOKE Act” prohibits “instruction” on eight specific “concepts” related to “race, color, national origin, or sex” that may run counter to government officials’ notions of “freedom.” This includes restrictions on discussions of advantages or disadvantages of a particular race or sex, whether individuals are unconsciously biased based on race or sex, and whether certain virtues — including “merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness” — are racist.
Just as Florida can’t force faculty to refrain from teaching concepts like sex and race in a way that conflicts with the government’s views, California can’t force faculty to teach the state’s viewpoints.
In September 2022, FIREfiled a lawsuit challenging the act, arguing the First Amendment doesn’t allow Florida to declare which concepts are too challenging for students and faculty to discuss in a college classroom. In November 2022, a federal court halted enforcement of key parts of the act in the state’s public universities, declaring that it violates the First Amendment rights of students and faculty.
Likewise, government attempts to force faculty to espouse certain viewpoints are unconstitutional. In August 2023, FIREfiled a lawsuit on behalf of six California community college professors to halt new, systemwide regulations forcing professors to teach politicized conceptions of “diversity, equity, and inclusion.” Under the new regulations, all of the more-than-54,000 professors who teach in the California Community Colleges system must incorporate “anti-racist” viewpoints into classroom teaching.
Just as Florida can’t force faculty to refrain from teaching concepts like sex and race in a way that conflicts with the government’s views, California can’t force faculty to teach the state’s viewpoints.
Student speech in the classroom
Though students do not shed their free speech rights upon entering the classroom, traditions of academic freedom afford faculty members a great degree of deference in how they govern their classrooms and shape discussions. That means faculty can restrict and compel student speech — actions that typically run counter to free speech principles.
First, academic freedom protects faculty members’ right to suppress student speech that would otherwise be protected outside the classroom environment.
For example, while a student can certainly discuss climate change as much as they want outside on the campus quad, a faculty member teaching a course on Shakespeare can ask the student to stop bringing up such an irrelevant topic during class discussion. Otherwise, students eager to learn more about Hamlet would be denied that lesson time.
For another example, while a student can’t be disciplined over speech on the quad merely because a faculty member deems it disrespectful, a faculty member can enforce certain standards of decorum in the classroom to eliminate disruptions and facilitate class discussion — and they don’t have to tolerate interruptions to their instruction merely because that same speech would be permitted in other contexts. ֭ fights against civility codes that apply broadly across the campus, as administrators can’t shut down speech at a protest just because someone else finds it to be rude. But if a student is levying ad hominem attacks at other students during a class discussion, preventing the class from reaching the educational objectives of that discussion, the faculty member can ask the student to stop.
Second, academic freedom protects faculty members’ right to compel certain student speech as well. The government is not typically permitted to compel speech, for example, by asking students to pledge allegiance to particular political beliefs. But a faculty member is well within their rights to ask a student to demonstrate knowledge of a subject area. Indeed, law professors often employ the Socratic method in their teaching, which involves the professor walking the class through a case by asking an individual student direct questions and expecting a response, rather than lecturing or seeking volunteers. This sort of pedagogical choice is protected by the faculty member’s right to academic freedom, and the student who refuses to speak in this context may end up with a low grade.
Academic freedom is necessary for the advancement of knowledge
In sum, academic freedom is integral to the central mission of higher education: the advancement of knowledge.
However, knowledge cannot advance if faculty are allowed to persistently introduce ideas that are irrelevant to a class’s subject matter. Likewise, though students’ free speech rights allow them to explore controversial ideas, the advancement of knowledge would be hindered if students interrupted lessons or insisted on discussing topics unrelated to the subject at hand.
So, academic freedom is not limitless. But without it, the advancement of knowledge would likewise be made impossible. It enables faculty to share thoughts inside and outside of the classroom without fear their unpopularity with authorities will result in punishment. This allows faculty to explore ideas and advance knowledge without the threat of censorship.
When colleges and universities infringe on faculty and student free speech rights, FIREis there to remind them where these important lines are drawn.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIREtoday. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).
Last updated Aug. 22, 2024