Public university classes and avoiding controversial to

[LoAndEd]

In its most recent dictum on the question, in footnote 6 of EEOC v. Univ. of
Pa., the Court suggested that, notions of "academic freedom" notwithstanding,
the state university has quite significant control over the content of
classroom teaching, since such teaching is, in some significant respect,
government speech (or analogous to government speech).  The court cited
Scalia's opinion on the DC Circuit in Meese v. Keene, in which he opined that
the First Amendment imposes virtually no restrictions on the government's own
speech (a conclusion that the Court later adopted, albeit in dicta, in
Rosenberger).  (The Court apparently is not aware of (or not persuaded by)
Steve Shiffrin's and Mark Yudof's careful work on this question!)  If I recall
correctly, many were surprised (and chagrined) that the Court reached out in
EEOC to opine on academic freedom in this way, since that precise question was
not at issue and the parties had not briefed it in any detail.  (I'm also told
that, at oral argument, the Court expressed surprising skepticism about the
extent to which "academic freedom" protects the in-class expression of state
university professors.)  I'm curious about which lower-court cases Eugene
thinks support a broader view of academic freedom.  As far as I'm aware, in
recent years cases such as Dambrot v. CMU and Bishop v. Aronov cut the other
way.

By the way, in the high-school setting, the en banc Fourth Circuit recently
ruled (Boring v. Buncombe County) that high-school teachers have *no* academic
freedom right to control curricula at all, not even (as the plaintiff had
urged) the extremely limited rights that students have under Hazelwood.
Accordingly, the court upheld a school's discipline of an award-winning drama
teacher because of her choice of which play her students would perform.  The
teacher had not acted in derogation of any school-board-dictated curricular
decision, nor had she disobeyed any commands not to produce the play in
question.  Rather, only *after* the students already had performed the play in
a state competition did some parents begin to object to its content.  In
response to such objections, the school principal for the first time reviewed
the play, found it inappropriate, and (it is alleged) transferred the teacher
to a less desirable school.  The substantial question in the case is really
whether "academic freedom," or some notion of due process, protects a teacher
from discipline where the teacher had no *notice* that her curricular choices
were (or would be) subject to the school officials' disapproval.

Marty Lederman -- DoJ Office of Legal Counsel
(as always, writing in my personal capacity -- the views expressed are not
necessarily those of OLC or the Department of Justice)


Eugene writes:

>   Sweezy and Keyishian do provide support for Robert's position, but
>  only somewhat tangential support.  As I recall, neither case actually
>  confronted the question whether the government may control curriculum
>  in its universities.  Certainly there's at least a plausible claim
>  that when the government is hiring people to teach in its own
>  classrooms -- peopled by students who pay money for an education to
>  the government, not the teacher -- the government retains the right
>  to dictate curriculum.
>
>      This is especially so when the rules are set by the institution;
>  presumably UCLA can at least tell me that in Con Law I they expect me
>  to teach separation of powers and federalism, rather than equal
>  protection and substantive due process (as I've generally done in the
>  past).  But there's also at least a plausible claim that the rule may
>  even be set by the legislature, which after all is in most states
>  (but perhaps not in California, given UC's separate status under the
>  state constitution) the ultimate supervisor of the university.
>
>      In any event, I don't want to overstate my case -- even more
>  significantly than Sweezy and Keyishian, there are some on-point
>  circuit cases that to some extent support Robert's point -- but I
>  think it's important to recognize that the right of a public
>  university professor to control the content of his class is *not*
>  firmly and unambiguously established, and that even where it has been
>  recognized, the right has been (and necessarily must be) quite
>  limited.