Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2008 Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance Judith C. Areen Georgetown University Law Center, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 1291922 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/443 http://ssrn.com/abstract=1291922 97 Geo. L.J. 945-1000 (2009) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, and the Education Law Commons GEORGETOWN LAW Faculty Publications Georgetown Public Law and Legal Theory Research Paper No. 1291922 October 2010 Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance 97 Geo. L.J. 945-1000 (2009) Judith C. Areen Paul Regis Dean Professor of Law Georgetown University Law Center [email protected] This paper can be downloaded without charge from: Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/443/ SSRN: http://ssrn.com/abstract=1291922 Posted with permission of the author ARTICLES Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance JUDITH AREEN* “[O]nly scholars can pass judgment on scholars as such....” –Immanuel Kant1 TABLE OF CONTENTS I. THE PROFESSIONAL STANDARD OF ACADEMIC FREEDOM .......... 949 A. THE CHALLENGE POSED TO ACADEMIC FREEDOM BY LAY GOVERNING BOARDS ............................... 949 1. Modern Academic Freedom and the Kantian University . 949 2. The Origin of Lay Governing Boards ............... 951 B. THE PROFESSION EXPANDS AMERICAN ACADEMIC FREEDOM TO INCLUDE SHARED GOVERNANCE ........................ 953 1. The 1915 AAUP Declaration Defends Shared Governance ................................. 953 2. The 1940 Statement Codifies the 1915 Declaration ..... 962 3. The 1966 Statement on Government ............... 962 4. The Challenge of Shared Governance .............. 964 II. THE CONSTITUTIONAL STANDARD OF ACADEMIC FREEDOM ........ 967 A. EARLY COURT DECISIONS ADDRESS EXTERNAL THREATS ........ 967 B. PUBLIC-EMPLOYEE SPEECH CASES LIMIT FACULTY ACADEMIC FREEDOM ....................................... 974 * Paul Regis Dean Professor of Law, Georgetown Law. © 2009, Judith Areen. I am grateful to J. Peter Byrne, Jonathan Cooper, Richard Cooper, Wayne Davis, Heidi Feldman, Michael Gottesman, Vicki Jackson, David Luban, Robert O’Neil, Kathy Olesko, Michael Olivas, Robert Post, David Rabban, L. Michael Seidman, David Skover, Marc Spindelman, Mark Tushnet, and Robin West for their very helpful comments on earlier drafts of this Article, and to Matthew Berns for his outstanding research assistance. 1. IMMANUEL KANT,THE CONFLICT OF THE FACULTIES 23 (Mary J. Gregor trans., Univ. of Neb. Press 1992) (1798). 945 946THE GEORGETOWN LAW JOURNAL [Vol. 97:945 C. POST-PICKERING DECISIONS EMBRACE ACADEMIC GOVERNANCE AS PART OF ACADEMIC FREEDOM ......................... 976 D. THE COURT AND SHARED GOVERNANCE ................... 982 III. TOWARD A NEW UNDERSTANDING OF FIRST AMENDMENT PROTECTION OF ACADEMIC FREEDOM ................................ 985 A. PARTIAL CONVERGENCE OF THE PROFESSIONAL AND CONSTITUTIONAL STANDARDS OF ACADEMIC FREEDOM ......... 985 B. GOVERNMENT AS EDUCATOR .......................... 988 1. Distinguishing Government as Educator from Government as Employer ....................... 990 2. Distinguishing Government as Educator from Government as Speaker ........................ 991 3. Distinguishing Government as Educator from Government as Sovereign ....................... 992 C. THE JURISPRUDENCE OF GOVERNMENT AS EDUCATOR .......... 994 CONCLUSION ............................................ 999 More than fifty years have passed since Chief Justice Earl Warren pro- nounced the value of academic freedom “self-evident,” and warned that “[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”2 Within a decade, a majority of the Supreme Court had declared academic freedom “a special concern of the First Amendment.”3 Despite this auspicious beginning, the Court has not developed a coherent theory to guide constitutional protection of academic freedom, and recently, in Garcetti v. Ceballos,4 it placed the protec- tion, itself, in doubt. In Garcetti, a closely divided Court rejected the free-expression claim of a state prosecutor on the ground that statements made pursuant to the “profes- sional duties” of public employees are not shielded from employer discipline.5 Justice Souter, in a dissent joined by Justices Stevens and Ginsburg, warned that the decision could “imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”6 In response, the majority agreed to leave unde- 2. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion). 3. Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967). 4. 547 U.S. 410 (2006). 5. Id. at 426. 6. Id. at 438 (Souter, J., dissenting) (internal citation omitted). 2009]FIRST AMENDMENT PROTECTION OF ACADEMIC FREEDOM 947 cided for now whether Garcetti signals the end of constitutional protection for academic freedom.7 This Article responds to the invitation in Garcetti to identify constitutional interests that support academic freedom and that are not fully accounted for by public-employee speech jurisprudence. It first argues that, contrary to common understanding, academic freedom is about much more than faculty speech— more than simply the university professor’s analog to the citizen’s right of free speech. Rather, academic freedom is central to the functioning and governance of colleges and universities. Louis Menand recognized this broader role when he called academic freedom a “key legitimating concept” of academic life, one that explains a wide array of issues, from why departments have the authority to hire and fire their own members to why the football coach is not allowed to influence the quarterback’s grade in a course.8 Academic freedom, properly understood, has what I will call a “governance dimension.” It is not only about faculty research and teaching; it is also about the freedom of faculties to govern their institutions in a way that accords with academic values whether they are approving the curriculum, hiring faculty, or establishing graduation require- ments for students. The governance dimension of academic freedom has been overlooked by most legal scholars who have written on the First Amendment’s application to academic freedom,9 or reduced to a right that belongs only to the governing 7. Id. at 425 (“We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”). 8. Louis Menand, The Limits of Academic Freedom, in THE FUTURE OF ACADEMIC FREEDOM 3, 4 (Louis Menand ed., 1996). 9. See, e.g., Alan K. Chen, Bureaucracy and Distrust: Germaneness and the Paradoxes of the Academic Freedom Doctrine,77U.COLO.L.REV. 955 (2006); Rebecca Gose Lynch, Pawns of the State or Priests of Democracy? Analyzing Professors’ Academic Freedom Rights Within the State’s Manage- rial Realm,91CAL.L.REV. 1061 (2003); Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative,77FORDHAM L. REV. 33 (2008); Larry D. Spurgeon, A Transcendent Value: The Quest To Safeguard Academic Freedom, 34 J.C. & U.L. 111 (2007); William W. Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review,LAW &CONTEMP.PROBS., Summer 1990, at 79. Walter Metzger criticized the American Association of University Professors (AAUP) for failing to insist that faculty be put in charge of their colleges and universities, but overlooked the Declaration’s embrace of shared governance. Walter Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America,66 TEX.L.REV. 1265, 1276–77 (1988). Professor David Rabban is one of the few scholars to mention the governance dimension of academic freedom, but he did not otherwise analyze its role. See David M. Rabban, A Functional Analysis of “Individual” and “Institutional” Academic Freedom Under the First Amendment,LAW &CONTEMP. PROBS., Summer 1990, at 227, 295 (“Claims of administrative abuse of the peer review process and disagreements over curricular and other educational policy issues seem sufficiently linked to critical inquiry to come within the specific theory of academic freedom.”); see also WILLIAM A. KAPLIN & BARBARA A. LEE,1THE LAW OF HIGHER EDUCATION 663, 666 (4th ed. 2006) (“[A faculty claim] may properly be characterized as an academic freedom claim . if the opinions and ideas that the faculty member expresses implicate the academic operations of a program, department, or school.”); Neal Kumar Katyal, The Promise and Precondition of Educational Autonomy,31HASTINGS CONST. L.Q. 557, 566 (2003) (“If educational autonomy becomes a license for university administrators to admit who they want when they want without faculty oversight, it’s not part of academic freedom at all.”). 948THE GEORGETOWN LAW JOURNAL [Vol. 97:945 board or administration of a college or university.10