The Legal Status of Academic Freedom for Faculty

I attended an audio conference today on the the legal status of academic freedom. The speaker, Gary Pavela, addressed student, faculty and institutional rights to academic freedom. What I learned was that at this particular moment, the rights of faculty in higher education are being whittled away while rights of students are expanding.

In Urofsky v. Gilmore (4th Circuit, No. 98-1481, June 23, 2000), the court argued:

Appellees ask us to recognize a First Amendment right of academic freedom that belongs to the professor as an individual. 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.

What Pavela argued was that (a) all our our federal circuit courts are headed in the direction of the very conservative 4th Circuit, (b) hence we are facing a situation where our academic freedom is likely to disappear. One avenue of staving off this inevitabilty, according to Pavela, is to set up some sort of "code of ethics." akin to what lawyers and physicians have. Pavela also argues that faculty rights to academic freedom can come from contracts they establish with their academic institution.

I am wondering what others think of the "code of ethics" route. Yehudster, who was also present for the conference, pointed out that this code of ethics can bite us in the ass too. Students will have grounds for suing faculty if they perceive a failure to uphold the code of ethics.

This means that faculty are open to lawsuits on two fronts now: if the ABOR passes, students are given legal remedies from state legislatures and if you pass a code of ethics, you give students are right to sue if you breach this code.

I think one outcome of these restrictions on faculty is that students will be harmed. I brought the whole issue of academic freedom up in my Ancient Philosophy class today because we are discussing Plato's Euthyphro. The students' were discussing whether a case, like the one brought against Socrates ("corrupting the youth or disowning the gods") would come forward today. So, I took this opening for introducing to them to these current legal issues around academic freedom.

One of my brightest students, who I am pretty sure is rather conservative, said: "If they limit your academic freedom, then they are limiting my academic freedom."