Does the Constitution really protect a right to "academic freedom"?

The law, lawyers, and the court.
June 1 2010 6:19 PM

Jefferson v. Cuccinelli

Does the Constitution really protect a right to "academic freedom"?

Last week the University of Virginia decided to fight a sweeping subpoena served upon the institution in late April. State Attorney General Ken Cuccinelli subpoenaed documents in connection with five grants awarded to Michael Mann—a former UVA climate-change scientist who now teaches at Penn State. Cuccinelli is using a state fraud statute to demand thousands of e-mails between Mann and climate-change scientists around the world. The request was both broad and unprecedented. So the university filed a petition to quash the subpoena on various grounds. Academics across the country have raised alarms, signing petitions and urging Cuccinelli to back off, claiming that this novel use of prosecutorial power to investigate climate science in the academy constitutes a threat to free inquiry. (Disclosure: Richard Schragger was the principal author of such a letter from the UVA law faculty.) These letters and petitions often invoke the First Amendment and quote the U.S. Supreme Court to assert that the Constitution protects "academic freedom."

Does it? What precisely is "academic freedom," and why would the Constitution protect it? Who can assert "academic freedom"—individual faculty members or the university as a whole? What is the scope of the right, and does it apply to faculty at state universities or those who receive government grants? The Supreme Court has never really answered these questions. UVA v. Cuccinelli would be a good time to do so—if the case ever gets that far.

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We can start with what we do know. First, the phrase "academic freedom" appears nowhere in the Constitution. The First Amendment mentions speech, assembly, petitioning, press, and religion but not universities. Still, the Supreme Court has alluded to the special role of universities time and time again. In perhaps the most important academic-freedom case, Sweezy v. New Hampshire, decided in 1957, the high court stated that "the essentiality of freedom in the community of American universities is almost self-evident." In 1967, in Keyishian v. Board of Regents, the court declared that "the university is a traditional sphere of free expression ... fundamental to the function of society." Writing for the court, Justice William Brennan stated, "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. * That freedom is therefore a special concern of the First Amendment. ..."

Second, despite the court's rhetoric, it has never pinned down exactly what academic freedom means. Much to the frustration of scholars and academics, the decisions that invoke academic freedom range widely. Some cases relate to the Red Scare of the 1950s, when teachers were required to take loyalty oaths, or professors (like Paul Sweezy) were investigated for "subversive activities." Other cases involved the rights of state employees—again often primary- or secondary-school teachers—to associate with others on their own time, or comment on matters of "public concern" outside the classroom. Yet another group of cases concern whether the government can control the speech of public employees, organizations, or agencies that receive government funding.

But none of these cases was resolved on the basis of academic freedom directly. In some cases, the court invoked the due-process clause or freedom of speech and association. In other cases, the court upheld a government regulation but observed that the regulation did not implicate the "special" role of the university. As one legal scholar has written, "Lacking definition or a guiding principle, the doctrine [of academic freedom] floats in the law, picking up decisions as a hull does barnacles."

In other words, the assertion of "academic freedom" raises more questions than it resolves. For example, who is protected under the umbrella of academic freedom? In Sweezy, Justice Frankfurter, writing for himself and Justice Harlan, emphasized "the four essential freedoms of the university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Frankfurter's concept of academic freedom seems to protect the university (but not individual faculty members) from outside government interference. But there are also hints of an individual right sprinkled throughout the court's decisions.

On the other hand, it can't be true that the university or its faculty employees can do absolutely anything they want. Universities are subject to federal and state laws, including employment and nondiscrimination laws. A faculty member can't steal from the university or make false statements to government officials or embezzle funds. The Supreme Court has held, for example, that a university can be required to turn over documents related to a faculty member's tenure denial and her charge that she was the subject of discrimination.

The situation gets still messier when you're dealing with public universities, where faculty are "employees" of the state, or receive state funding. The Cuccinelli subpoena actually raises both issues, since he claims to be investigating "fraud" in government grants at a state university. Does being a state employee or receiving government funds give the government the authority to dictate or regulate academic behavior? Cuccinelli certainly thinks so—he argues that he is well within his rights to challenge the misuse of state monies. And surely the university (and by extension, Virginia) can condition professors' employment on the professors acting and performing in certain ways—can't it?

Here is where the Supreme Court's notion of academic freedom starts to have some actual bite—despite its conceptual messiness. While a state university can adopt policies that must be followed by its academic employees, the governments' regulation must have limits. If the faculty members are just state employees—just like any other state employees—everything they do or say or produce would be "owned" by the state, would essentially be the "speech" of the state, and would be under the state's legitimate control. Virtually no one believes faculty employees are just like every other state employee. Most of us would agree that they engage in a particular enterprise; one that can serve its important public function only by being independent of the government.

J. Harvie Wilkinson, on the Court of Appeals for the 4th Circuit, whose chambers are just down the street from UVA, made this very observation in a case challenging a law prohibiting state employees from accessing sexually explicit material on state-owned computers. Wilkinson observed that faculty at a state university are certainly "state employees," but "these particular employees are hired for the very purpose of inquiring into, reflecting upon, and speaking out on matters of public concern. A faculty is employed professionally to test ideas and propose solutions, to deepen knowledge and refresh perspectives. ... In research and writing university professors are not state mouthpieces—they speak mainly for themselves."

In other words, the core and central enterprise of academic faculty in the university is to exercise First Amendment rights—rights guaranteed to everyone by the Constitution. Academic faculty happen to be exercising those rights as part of their job, but that does not make those rights any less worthy of protection. In performing their core functions, faculty are always engaged in the process of free inquiry. And free inquiry is the central project of the university—the university can't exist without it, as Thomas Jefferson well understood when he founded the University of Virginia.

Whatever the judicial doctrine of academic freedom may mean, at its heart it must protect those exercising core First Amendment rights—like researching, writing, speaking, and teaching. If government officials are allowed to dictate how the faculty exercises those rights, they are surely impinging on free speech. Indeed, the government impinges most directly on free speech by threatening to prosecute faculty for academic work that is wrong, shoddy, incomplete, mistaken, or fraudulent.

And this is precisely what Cuccinelli has asserted. He says he issued the subpoena because he wants to explore allegations that Michael Mann falsified data in his scholarship. Despite the fact that multiple academic inquiries into Mann's research have vindicated him, it's important to understand what the attorney general seeks to do here: Cuccinelli is not alleging fiscal fraud—he isn't saying Mann used state funds to buy a Mercedes or finance trips to Aruba. Instead, Cuccinelli is investigating the scientific scholarship to make sure it meets his standard of academic integrity.

Using the threat of criminal or civil sanction to pursue "academic fraud" is the paradigm First Amendment case. Academic fraud is essentially what the authorities charged Galileo with—when he dared question the conventional religious wisdom that the sun revolved around the earth. It is what prosecutors alleged when they threatened academics during the Red Scare. And it is exactly what Cuccinelli is alleging here. The UVA subpoena violates both the individual rights of academics engaged in the exercise of speech rights on matters of public concern and the autonomy rights of the university to act independently from the government, as Frankfurter described in Sweezy.

"Academic fraud" is too easily used to suppress ideas that the authorities do not want to hear—in one case, the earth revolves around the sun; in another case, the earth is warming. It may be that what academics say is wrong, it may be that their methodologies are faulty, it may even be that they are twisting the evidence or making stuff up. But the government, through its prosecutors, cannot say anything about that. The First Amendment requires that we tolerate lots of speech that is plain wrong or mistaken—the university itself is designed to permit, even encourage, that kind of speech.

UVA v. Cuccinelli is in its opening stages—right now it consists of a petition filed in state court to set aside a civil investigative demand. Nevertheless, the Supreme Court might someday take this case and clarify the core meaning of academic freedom once and for all.

It probably won't, and the reason it won't only illustrates how off-base Cuccinelli's subpoena is. Cuccinelli chose to seek the Mann documents under the Virginia Fraud Against Taxpayers Act (FATA), but as UVA's lawyers pointed out last week in opposing the subpoena, Cuccinelli never explained (as required under the law) why he was seeking these documents. The act requires a fraud on Virginia citizens, yet all but one grant that Cuccinelli seeks to investigate are federal. Worse still, the state grant was made before the Virginia FATA became effective. This is not the first time Cuccinelli's hasty lawyering leads one to wonder whether he seeks legal outcomes or political ones.

The Virginia fraud statute is clearly the wrong vehicle for prosecuting science, and it's likely a court will deem the subpoena invalid before anyone gets near the big issue of academic freedom. That's too bad. Because a judicial decision in this case could finally clarify that basic scholarly inquiry is at the core of the First Amendment. And it would put a constitutional cherry on top of Thomas Jefferson's lifelong ideal of free inquiry. In the matter of Jefferson vs. Cuccinelli, we'd put our money on Mr. J. any day.

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Correction, June 2, 2010: This article originally misquoted Justice Brennan's opinion as stating that academic freedom is of "transcendent freedom"; the phrase Brennan used was "transcendent value."  (Return to the corrected sentence.)

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Richard C. Schragger is Perre Bowen Professor and Barron F. Black Research Professor of Law at the University of Virginia School of Law.

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