Review of David M. Rabban, Academic Freedom From Professional Norm to First Amendment Right. Cambridge, MA: Harvard University Press, 2024.
This book is an indispensable guide for scholars of the First Amendment, for lawyers involved in litigation involving academic freedom, for faculty members and higher educational administrators who must navigate issues involving such academic freedom, and even for college and university students who want to know their rights.
David M. Rabban is a professor at the University of Texas School of Law and one-time general counsel of the American Association of University Professors (AAUP).
Rabban traces evolution of academic freedom
As the subtitle of his book suggests, he traces the evolution of the idea of academic freedom from the 1915 Declaration of Principles by the AAUP through the myriad of cases and controversies that have subsequently sought to define the boundaries of such freedom.
He approvingly cites Albert Centlivres’ definition of academic freedom as the “the freedom to decide what to teach, whom to teach, how to teach and who should teach” (p. 70). Rabban further suggests that academic freedom is a subset of the freedoms of expression in the First Amendment and should be treated as such.
Rabban acknowledges that academic freedom is highly context specific. Most notably, although private higher educational institutions, especially those that were established to transit religious views, might choose to recognize academic freedom, as private actors, they have greater flexibility in regulating such freedoms than do public colleges and universities. Indeed, Rabban traces the private-public distinction back to the Supreme Court’s historic decision in Dartmouth College v. Woodward (1819), which was, however, based on contract rights rather than the First Amendment.
Rabban believes that governments have greater rights to proscribe curricula (as in requiring courses in civics), regulate entrance requirements, and otherwise exercise control over public than over private institutions.
Academic freedom of professors and other employees
Rabban believes there is a connection between the right of academicians and other public employees, and often cites the Pickering Connick test, which focuses on whether employees have spoken on a matter of public concerns and the degree to which it disrupts the workplace.
Although Rabban suggests that the free expression rights of professors are generally wider within their classrooms and on matters involving their particular areas of expertise, he observes that “Classroom speech is limited by the subject of the course and is evaluated by academic standards of quality that do not apply to interactions in dormitories, cafeterias, extra-curricular activities, and elsewhere on campus” (p. 234).
Rabban observes that Justice William O. Douglas’s dissent in Adler v. Board of Education (1952), dealing with a state law designed to exclude members of subversive organizations from faculty posts, was the first to refer specifically to academic freedom.
Supreme Court recognizes academic freedom in 1952
Similarly, Sweezy v. New Hampshire (1957), which dealt with state investigations of professors thought to be engaged in subversive behavior, was the first case in which the Supreme Court “recognized academic freedom as a First Amendment right” (p. 57).
In these and other cases, from both the U.S. Supreme Court and lower federal and state courts, Rabban not only articulates rival approaches by the justices, but also ties them to debates outside the courtroom among scholars and scholarly organizations about academic freedom.
Faculty, universities and students have evoked academic freedom
Rabban observes that academic freedom has at least three dimensions. It is probably most frequently evoked by faculty members, but it may also be asserted by educational institutions (which may be at odds with faculty members), and by students.
He discusses academic cases that seek to identify whether speech takes place in a public forum, a limited public forum, or a nonpublic forum; cases that rest upon reasonable time, place, and manner restrictions; cases that ascertain whether regulations are content and viewpoint neutral; and related First Amendment doctrines.
Rabban believes there is a limited role for judicial review, particularly in cases where the reasons that institutions offer for restricting or punishing disfavored expression, appear to be pretextual and/or to have violated procedural due process rights. When it comes to deciding whether faculty have abused their rights and whether they should or should not be promoted and/or granted tenure, he stresses reliance on peer review within the institution.
Rabban is particularly suspicious of decisions by administrators who did not themselves rise through faculty ranks and who may or may not be familiar with academic standards in the academic disciplines of faculty members whom they are reviewing.
Rabban carefully distinguishes his own views of the limits of such freedom from decisions that courts have rendered on the subject. He believes that some campus speech codes are appropriately applied in face-to-face verbal disputes that are more emotive than rational and again suggests that faculty are generally the best positioned to sort out such issues. Although he does not think that they are necessarily unconstitutional, he is wary of rules requiring trigger warnings, of requirements that professors must embrace diversity initiatives, and of tenure and promotion decisions based on them.
Student speech might be described as ‘right to learn’
Given the limited academic expertise of most students, Rabban suggests that student speech might better be described as a “right to learn” rather than as academic freedom, but he thinks the right is important.
He observes that “Indoctrination, harassment, expression that reflects incompetence, and other unprofessional speech that interferes with the ability of students to learn is subject to university discipline” (283).
Rabban makes solid case for classifying academic freedom as First Amendment right
In this reviewer’s judgment, Rabban makes a solid case for classifying academic freedom as a specific subset of First Amendment rights, which will advance knowledge and inquiry that will prove valuable not just for students, faculty, or administrators, but for society as a whole.
In a concluding chapter, Rabban expresses the hope for further research on “the application of the First Amendment to other professional employees, and the legal protection of academic freedom without reliance on the First Amendment,” most notably through “the potential of contract law, collective bargaining agreements, and statutory law” (p. 301). In the meantime, his account of First Amendment law on academic freedom is likely to remain the gold standard.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.