Does the First Amendment Apply to Teachers in the Classroom?

The United States Supreme Court did not decide a significant case with respect to the First Amendment’s Free Speech Clause until 1919. In that unanimous decision, Justice Oliver Wendell Holmes wrote: “The character of every act depends upon the circumstances in which it was done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This case, Schenck v. United States, grew out of the federal government’s security concerns during World War I.

In the same way that the Schenck case grew out of wartime issues, Americans have seen many free speech controversies related to the War on Terror pop up in recent years. From FBI agents potentially subpoenaing bookstores under the aegis of the Patriot Act to someone leaking the name of covert CIA operative Valerie Plame to columnist Robert Novak, the First Amendment has been in the news since 9-11 more than usual.

Not coincidentally, controversial statements about Iraq, the War on Terror and the Bush administration have landed various college professors in the news as well. Much of this has come as a result of Students for Academic Freedom, an organization for college students created by conservative activist David Horowitz. Its web site offers everything from tips on investigating the political biases of professors to form letters for making complaints to academic administrators.

David Horowitz’s legislative solution for the dominance of liberals on American campuses is the Academic Bill of Rights, a statement of rights and privileges for faculty and students with which most anyone can find ample areas of agreement. My state, Colorado, was perhaps the first state in the nation where legislators attempted to translate the principles of the Academic Bill of Rights into policy. Therefore, I have followed the progress of these efforts very closely.

While I have read countless people on both sides of this debate invoke the principles of academic freedom, I have yet to see anyone ask whether liberal professors have a First Amendment right to express their political views in the classroom. In fairness, organizations such as the Foundation for Individual Rights in Education have staunchly defended the rights of professors in and out of the classroom, but its case archive suggests that its work primarily aides conservatives. In fact, both conservatives and liberals need and deserve this kind of assistance.

American workers have few, if any, free speech rights on the job. As Timothy Noah wrote inSlate recently, “Firing a person because you don't like his or her politics runs contrary to just about everything this country stands for, but it is not against the law.” However, the importance of academic freedom makes college professors different from other workers. Even the Academic Bill of Rights acknowledges this; it simply wants to extend the protection that teachers have to their students as well.

Yet, at the same time, there is no doubt that college professors do not have license to say anything they want. We cannot harass students (sexually or otherwise). We cannot just make stuff up (Look what happened to Joseph Ellis and Michael Bellesiles. On many campuses, we are subject to the same speech codes that students are. As Justice Holmes suggested in 1919, nobody’s free speech rights are absolute.

Where, then, should universities draw the line between the rights of students and the right of college teachers to express their informed opinions in the course of doing their jobs? To try to answer this question, let me direct your attention to another part of the Students for Academic Freedom web site: the “Forum on Bias.” This is a place for students who feel they have been wronged by liberal professors to upload their complaints for the world to see.

(I’ll take the students writing here at their word, even though there are serious problems with doing so. For example, every complaint I read on this site was anonymous, so there is no opportunity to cross examine the accusers or hold them accountable for their charges. You can find the instances I’ll quote from below at the Forum on Bias web site, but in the interest of fairness I don’t want to link directly to these complaints since I don’t have responses from the professors involved.)

Just looking at entries from history classes, you can see many instances of students railing against aspects of their classes that they have no right to change. For example, whether you share this opinion or not, it is more than reasonable for someone teaching U.S. History since 1877 to equate the current war in Iraq to the “quagmire” that was Vietnam or to “simplistically and inaccurately put forth the premise that ‘the Soviet Union won [World War II],’ period, essentially minimizing any direct affect [sic] the other allies had in the defeat of the axis powers.” Historians are supposed to interpret events when teaching history. Just because these students don’t like these interpretations doesn’t make them wrong, and it certainly doesn’t make them out of bounds in a college classroom.

However, assuming they are true, you can read about some absolutely unbelievable abuses of power in other entries at this forum. For example, when one conservative student complained in class about a history professor attacking the Republican Party, the teacher, in turn, “made jokes about killing me first if we were in battle, and made a remark implying that I must be rich – because I’m a Republican. He also made a comment about knowing what a young lady was going to get on her exam, because when he asked the class if we thought he was a liberal, she said yes.”

In another instance, a student writes about how, “When I suggested the social programs implemented under FDR did more harm than good, she told me I was ‘naive,’ and ‘too young to know what you’re talking about.’ She also called me a baby. She also said to me ‘I have a degree, and you’re just a student.’” Academic freedom clearly does not protect this kind of behavior.

How, then, can we separate the first category of complaints from the second? What is the best way to differentiate legitimate academic expression on the part of college professors from abuse of students on political grounds? Here, once again, First Amendment jurisprudence can be very helpful.

In an often-quoted dissent from another early First Amendment case, Justice Holmes wrote:

But when men have realized that time has upset many fighting faiths they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by the free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only grounds upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

Academic freedom exists to make sure that unpopular ideas have a home somewhere in American society. Restricting the trade of ideas in classes restricts the trade of ideas in society and is therefore dangerous to democracy. However, at the same time, failing to restrict abuses of power on the part of professors is dangerous to education.

In order to combat both these problems, schools need to distinguish the content of a teacher’s course from the manner in which that content is taught. In the same way the Supreme Court has allowed some restrictions on free speech that are content neutral, we should judge student complaints about liberal professors not on the basis of the politics involved, but on whether the professor in question is serving the ends of education.

To put it simply, expressing liberal ideas is not an abuse of power in the classroom, but bad professors can defend those ideas in abusive ways. As a liberal and a college professor, I find some of the examples that Students for Academic Freedom has collected downright embarrassing on both political and professional grounds. However, it is not the message, but the method that merits punishment.

If David Horowitz were really concerned about education, he’d spend more time worrying about how professors teach than whether they share his conservative agenda. At the same time, those of us in academia have to remember that our rights to free speech inside the classroom are no more important than the rights of our students to be treated fairly and respectfully.

We’ve managed to balance conflicting rights in American society at large for over 200 years now. I see no reason why we can’t continue to do it on our campuses too, no matter what is going on in the world around us.