Does the First Amendment Apply to Teachers in the Classroom?


Mr. Rees is Associate Professor of History at Colorado State University - Pueblo. He is the author of Managing the Mills: Labor Policy in the American Steel Industry During the Nonunion Era (University Press of America, 2004) and co-editor of THE Voice of the People: Primary Sources on the History of American Labor, Industrial Relations and Working-Class Culture (Harlan Davidson, 2004).

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.

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John H. Lederer - 11/26/2004

I don't think a purge is necessary<g>

I think we have to look at the hiring/tenure decision processes,

Jonathan Dresner - 11/25/2004

You're right. And there's some really interesting discussions to be had about the tension between depth and breadth, textbooks v. monographs, primary v. secondary sources.

But I'm not talking about borderline issues, really: this is beyond "tension" and well into "breakdown." I'm talking about 20th century courses that never get past 1920; I'm talking about survey courses that lag half a dozen chapters or more until the last week of the semester; I'm talking about a pattern of fixation on certain subjects to the exclusion of most others.

Jonathan Dresner - 11/25/2004

I haven't yet worked at a university that did anything about tenure/retirement. Frankly, many of the more egregious cases are extremely popular with their students, being undemanding and relaxed....

And it's questionable whether many of the ones I'm aware of, all older males (just the ones I'm aware of, like I said), would be hireable or promotable by today's standards.

I entirely agree about the productive use of visual materials: honestly, it's something I struggle with and would like to improve about my presentations and historical practice. But I am not complaining about one-film-a-semester levels; I was told this instructor showed four different dramatizations of one historic personage in a single course, without even a token attempt at historiographical contrast.

Andrew D. Todd - 11/25/2004

Mr. Lederer:

In pre-9/11 terms, I would consider myself fairly conservative. I'm an engineer, among other things, and surely you have some idea of what that means. I tend to have at least as much common ground with the local ROTC commandant as with some members of the history department.

However, what would you suggest as a replacement for the present system? A general purging every four or eight years? Or a system in which the working scholars all had to have independent means, a la Henry Adams?

How do you propose to run graduate schools under your system? Law school, for example, is not remotely comparable in rigor to a Ph.D. program. We all know any number of graduate school dropouts who went and got law degrees. By comparison, a law degree is basically a masters program with an extra year of electives. Come to that, the class sizes are much too big for rigor. There's no such thing as a graduate course with a hundred students enrolled-- the class size forces the professor to lecture, and forces the students into an essentially passive mode. In a bona fide graduate course, the students do the lecturing by rotation, and it is impossible to conduct such a course with more than twenty students.

There has to be a certain continuity for a graduate school to work. If a graduate student is given a list of a couple of hundred books to read for comps, which will take at least three years, he has to have some reasonable assurance that when he finally gets done, the people who assigned the books will still be there, and that they will not have been replaced by a different lot of people who want him to read a couple of hundred different books. That is much more important than whether the books are idiotic or not.

John H. Lederer - 11/25/2004

I find it ironic that in a week in which two studies suggest a monotony of political leanings among professors in leading universities, professors here agree that they should determine what they teach, free of any demands by their students for other viewpoints.

A while back on this site, someone made the assertion that all history is relative and dependent on the viewpoint of the historian. Many seemed to agree. If true, does that not mean that, ipso facto, the lack of political balance in historians necessarily means a lack of balance in what they teach?

mark safranski - 11/25/2004


Query: How do your universities deal with " failure to perform" issues with tenured faculty ? From the prof who retires while still on the job to the one who uses their post as the homebase for outside empire-building while neglecting core teaching/research obligations ?

The case of Lawrence Summers and Cornell West is well-known when the former insisted on minimal traditional productivity from the latter but I was wondering how things are handled in your bailwicks.

There's nothing wrong with the occasional film clip to make a point for a teachable moment or ( in modern history courses) having students look at documentary footage of an event they studying. There's about a million miles of WWII film in USG archives for example but showing films to a college class in place of a lecture as a regular practice is wrong. Universities are not Blockbuster Video. Presumably, college students are all capable readers - they should be engaging in the deep reading in order to prepare themselves for their Prof's discussion or lecture.

Ralph, perhaps your colleague should start placing his required texts on a scale. Heavier would indicate better.

Where do these ppl come from ? How do they get advanced degrees much less tenure-track jobs ?

Ralph E. Luker - 11/24/2004

I think Jonathan is essentially correct here. Having said that, failure to perform is a really difficult issue. I once had a colleague who was pre-occupied by the "coverage" issue in text books. He would count the pages devoted, say, to the Federalist era and pronounce on whether the "coverage" was adequate. He paid little attention to what was actually said within those pages -- it was the "coverage" page count that mattered. It gave him an objective measurement, he thought. That seemed to me a really poor standard for judging the usefulness of a book. Better, the rest of us thought, have students read books that were clearly worth reading, in themselves, than to require them to trudge through a set number of pages to make sure that they'd gotten "coverage." I think that same point can be made with respect to the use of time in class.

Jonathan Dresner - 11/24/2004

Propoganda and politicization is not the only issue here. I've had colleagues (well, one in particular) who routinely covered only a very small part of the material on his syllabi, who spent all his classroom time and energy on one subject and who showed lots of videos (historical films, not documentaries) in his upper-division classes.

Is this a first amendment issue? In a sense. But it's a performance issue first and foremost. Likewise the example you describe is best handled as a failure to perform rather than a "free speech" issue.

N. Friedman - 11/23/2004


The reason that Horowitz challenges certain types on campus is that he believes that such types are engaged in a war, in confederation with - but not necessarily, or at least not always, a conspiracy with - the Islamists, to destroy the US and also Israel. You might try reading his main web site, www.frontpagemag.com which, while rather conservative, publishes a wide divergence of views including dissenting views. If you read the site for a sufficient time, you will see some first class articles (along with lots of fluff articles), articles critiquing prior articles and articles by professors rebutting prior articles and, in addition, articles by leading scholars in certain fields. Which is to say, while rather conservative, he publishes a first class news and intellectual magazine. For that, he is to be commended.

Lisa Kazmier - 11/23/2004

Nice comments, Don. Horowitz and his kind are troublemakers who think that this "Bill of Rights" makes the classroom a democracy. It isn't. This isn't necessarily anything knew, though the pugnacious quality of the "whining" is. I remember some ROTC types arguing against Professor Michael Sherry owing to the fact that his lecture on Vietman deemed the conflict, "The Impotence of Omnipotence." That is, the US wasn't well equipped to fight that type of war, a war which he criticized in a fairly tame way, really. It was as if these students suddenly "knew better" and hadn't figured out that EVERY lecture from Sherry was the same, be it his take on Reconstruction, WWI or whatever.

The concept Horowitz seems to promote is that if these students have the "right" opinion it is at least as valuable if not moreso than the professor. Well, I'm finishing my PhD and I take offense to the idea that some youngster who watches so-and-so or has read one book by X know more than I do. You know what I mean. You've forgotten more than most of your students will ever know about your field.

Have you seen the Chronicle of Higher Education today? I just saw some piece on a campaign against some professor who taped her lecture to protect herself against some kind of "gotcha" campaign.

This isn't "diversity" of opinion; that's a disguise. This campaign seems to be about harassment and intimidation of someone they wish to denigrate to "prove" how right they are. It looks like a coordinated campaign, too. I don't care who this professor is or what her opinions are about anything. The fact that these whiners are being heeded and coddled to any extent is appalling. They need a time out because their accusations are probably more self-discriptive than anything else and I doubt I would handle myself in a better way that this person.

I have been a student at a fairly conservative grad school and one at a liberal one. I seemed to be to the left of the former and to the right of the latter. The latter was far more friendly to diversity than the former.

mark safranski - 11/23/2004

An interesting article, to be sure. Well-written and argued to boot.

Here's a real-life experience from a friend of mine, an attorney, who worked for the Clinton administration in a lower level policy position and as an appellate litigator for a couple of Federal agencies. He's pretty liberal politically and active in a number of causes. He's writing here about a well known radical law professor at one of the nation's more respectable law schools, whom he had years ago:

"I took a "class" in International Law from this fellow. In my opinion, he was an exceedingly poor professor (although I must admit, very bright)... It often appeared that he only gave good grades to those who voiced agreement with his positions in class. His final exams were essays designed to address issues his current clients were facing. That way, he had the potential of appropriating theories created by his students in answering the essays and using them in representing his clients (e.g., members of the military who refused to participate in the Gulf war). He did not cover all the material on his syllabus. Instead, he “lectured” on whatever news of the day pissed him off..."

Did this professor have first amendment rights ? Of course. Was it reasonable for him to express personal opinions in his class in context with what he was supposed to be teaching ? Yes. Undergradute and graduate students are adults, not captive audience minors in a public school.

The problem begins when university courses are misused as forums for one-sided political indoctrination complete with grading based on political views or when a professor's politics becomes the center of the course in a classic " bait and switch " manuver that defies the course description. Economic history classes should not revolve primarily around "Queer theory", Gender-feminism or the minutia of radical politics in the Mideast unless such esoteric theoretical perspectives are part of the course description. How many students would sign up for such things if given a free choice is an open question.

Students are not merely being propagandized in such instances - they are being defrauded by not getting to learn those topics for which they have paid good money to the university on the reasonable expectation that course descriptions bear some relation to the content. It becomes a contractual as well as an ethical breach, which is probably actionable as well as being plain wrong.

N. Friedman - 11/23/2004


1. If it isn;t fighting words, blatant lies or misrepresentations, or slander it is allowable."

The author's effort to create a sliding scale of constitutional rights is, I think, misplaced as your nearly absolutist interpretation.

Teachers are part and parcel of an institution but are connected to that institution, not by citizenship, but instead by contract. Which is to say, the free speech of the professor must, impliedly if not, depending on the contrac, expressly, somehow show some fidelity with the aims of an institution of learning.

I note that your second comment discusses how you view the relationship of professor to the community and I address it below.

2. "Other people imposing their ideological perceptions that have no basis in logic or rationality on the teachings of others has no place in a country that supposedly believes in free speech."

Teachers, nearly as a rule, attempt to impose their ideological perceptions on students. Some teachers do so rather expressly and are viewed as intolerant (e.g. by browbeating those expressing dissenting views) while others do so less directly (e.g. by selecting lists of books or by criticizing dissenting, but not the professor's, views). Occassionally, there is a professor who wants students to see multiple sides of a subject but, quite certainly, such a professor is relatively unusual.

The notion, however, that logic or reason have much to do with what professors say is, I think, disingenuous. Logic and reason by what standards? Who decides what is reasonable? Is existentialism, which rejects logic and reason, outside of what a professor should teach? And, are we not, deep down, motivated by irrational forces? If so, why should we exclude the irrational since it, in fact, has something to teach?

3. "When will people learn to keep their blind faith out of everything except their own little twisted realities? It does not matter whether the faith is in a non-existent invisible man or a philosophy that denies human rights and peace...if it is not able to be legally, rationally, and logically defended...it is blind faith that should not be imposed on me or anyone else."

What makes you think that rather inhumane philosophies cannot be defended by logic and reason? You will note that the rather infamous- at least in the West - Islamist thinker Sayyid Qutb taught in favor of violent Jihad. He favored the imposition of the dhimma contract (which involves the radical supression of non-Muslim people of the book who live in the Muslim dominated part of the world). Yet, he was a brilliant man.

The trouble here is that you mistake a technique - one among many - for substance.

Don McArthur-Self - 11/22/2004

I want to thank Mr. Rees for his piece. Students really have no business whining about WHAT their professors teach, but it is altogether reasonable for them to expect to be treated respectfully in the course of debate.

I would hope that no professor would expect to be insulted or berated by his students who disagree with him, and that similarly no professor would do that to his charges.

For comparison, I am a conservative and a public high school teacher. I work in an excellent department where I am vastly ideologically outnumbered. What makes this department so outstanding, aside from our general academic competence, is that regardless of our particular points of view we treat each other and our students with respect. That doesn't mean that we don't disagree - even passionately - but there are lines of personal attack and denigration that we do not cross. Certainly, although most of us enjoy tenure protection, we have more theoretical restrictions on our classroom interactions than a university professor. Still, we have great freedom, in part because we don't abuse it. I have excellent relationships with students whose political and social views are diametrically opposed to mine - because I respect them and they respect me.

The problem is not unique to academia - the inability to carry on respectful debate is obvious throughout our society, and I think it is seriously destructive. Mr. Pettit's comment, above, essentially dismisses me as irrelevant and undeserving of respect because I do not meet his definition of "reason." Yet I assume he would want me to treat him as though he were entirely "reasonable" and worth listening to - and whether he expects it, or desires it, or not, I would do so because I believe it is the right thing to do.

In closing, I want to thank the outstanding professors at DePauw University and Northern Illinois University who taught me how to conduct an intense discussion in a decent, respectful way. I doubt any of them will make it onto Mr. Horowitz's web page - not because of their politics, which were mostly liberal, but because they never denigrated their students.

John H. Lederer - 11/22/2004

I know it is a bit insulting to suggest that a teacher is an employee, but such is the case.

May a movie director require an actor to say lines from the script and not those he makes up? May a newspaper editor require a reporter not to refer to poor people as "trailer trash"? May a school system require that the teacher of a German class teach German and not Latin?

Can a university professor contract with a university to allow him complete freedom in what he teaches? Yes. But conversely the university can contract to have the professor teach a detailed curriculum word by word. What is the contract?

If you are suggesting that a university professor by virtue of his profession has a unique right to speech that overrides his contract, the answer is that this is unlikely. If you are suggesting that some large number of university professors have contracts,written or implied, that gives them a certain degree of freedom in how they teach, the answer is quite possibly.

A state owned or financed university, arguably has different limitations than a privately owned one. An interesting question is whether a state financed university, can operate a system that effectively excludes from professorship people of a certain political belief. Though a hiring committee may not seem like such at first glance, it is, in the case of a state university, an agent of the state.

chris l pettit - 11/22/2004

If it isn;t fighting words, blatant lies or misrepresentations, or slander it is allowable.

Other people imposing their ideological perceptions that have no basis in logic or rationality on the teachings of others has no place in a country that supposedly believes in free speech. When will people learn to keep their blind faith out of everything except their own little twisted realities? It does not matter whether the faith is in a non-existent invisible man or a philosophy that denies human rights and peace...if it is not able to be legally, rationally, and logically defended...it is blind faith that should not be imposed on me or anyone else.