Academic freedom is under attack across the United States, but nowhere more so than in Florida.
Later that month, the Florida Department of Education announced it would not permit a new Advanced Placement course on African American studies to be offered in the state’s public schools because it violates Florida’s “Stop WOKE Act” enacted last year. This came as Lt. Gov. Jeanette Nuñez (R-Fla.) announced the state’s intention to “curb” diversity, equity and inclusion efforts at Florida’s public colleges and universities.
But the gravest threat to academic freedom comes from a legal argument Florida has advanced in defense of the Stop WOKE Act. The legislation is part of a wave of “educational gag orders” banning the teaching of “divisive concepts.” Violations can trigger disciplinary action against faculty and enormous fines for their universities. In a brief filed in federal court, Florida’s lawyers contend that faculty at public universities are government employees, in-classroom speech is “government speech” and the state “has simply chosen to regulate its own speech” with the Stop WOKE Act.
Calling Florida’s argument “positively dystopian,” and noting it would give Florida “unfettered authority to muzzle its professors,” the district court temporarily barred enforcement of the statute. But Florida has appealed, and the ultimate outcome of the case is uncertain.
If deemed constitutional, Florida's statute would overturn more than a century of progress in the development of academic freedom, which has helped American universities achieve global preeminence.
The concept began to emerge in the United States in the aftermath of the Civil War, when breakthroughs in science, medicine and other academic disciplines spurred the rise of research universities dedicated to the discovery and dissemination of new knowledge. At the same time, faculty members began to conceive of themselves as members of a learned profession with distinctive standards. They adapted concepts of freedom of teaching, inquiry and learning from their German counterparts.
But academic freedom did not immediately take hold. In the early 1900s, most American universities were still, in the words of scholar Robert C. Post, “owned and operated by churches, by private proprietary owners or by the state.” Faculty were seen as employees who could be dismissed for embarrassing their institution, offending trustees or alienating donors. In 1900, for example, Jane Stanford, the widow of Leland Stanford and Stanford University’s sole trustee, directed its president to dismiss a prominent economist, Edward A. Ross, because he advocated abandoning the gold standard and restricting immigration in ways that were both racist and inconsistent with Leland Stanford’s past railroad interests.
Partly in response, some of the country’s leading educators formed the American Association of University Professors, which promptly issued the 1915 Declaration of Principles on Academic Freedom and Tenure.
The declaration rejected “the conception of a university as an ordinary business venture,” insisting instead that institutions of higher education served American society through research, teaching and the training of experts. To perform these essential functions, faculty needed to be free to pursue and transmit knowledge “without fear or favor.”
Accordingly, professors should not be treated as employees, but as “appointees,” whose primary responsibility was not to administrators and the trustees who “hired” them, but to the public itself and “the judgment of [their] own profession.”
The academic freedom envisioned by the declaration had significant limitations. Freedom of teaching was owed only to those “who carry on their work in the temper of the scientific inquirer.” And in their extramural speech, faculty were expected to “refrain from intemperate or sensational modes of expression.” Nonetheless, the report insisted, disciplinary action should be taken only by academic bodies, who alone had the competence to judge academic work.
Demonstrating the narrowness of their vision, as patriotic fervor swept the country during World War I, the AAUP declared opponents of U.S. participation in the war to be “enemies of the state” and supported dismissing faculty who engaged in “propaganda” or urged others to resist compulsory service.
During the interwar years, fears of radical socialism led President Warren G. Harding’s commissioner of education to claim that he would “joyfully” execute purveyors of “dangerous un-American doctrines.” In 1940, British scholar Bertrand Russell was barred from teaching at the City College of New York because of his supposedly immoral views on issues such as same-sex relationships. His case helped spur the AAUP to adopt its 1940 Statement of Principles on Academic Freedom and Tenure, which remains the leading source for university academic freedom policies.
The statement held that faculty are entitled to: “full freedom in research and the publication of the results”; “freedom in the classroom in discussing their subject” (provided they avoid introducing unrelated “controversial matter[s]”); and freedom from “institutional censorship or discipline” when they “speak or write as citizens,” with the admonition that they should be accurate, restrained and respectful of “the opinions of others.”
Despite this statement, during the McCarthy Era of the early 1950s, academic freedom was swept aside on the theory that the Communist Party “demanded blind allegiance” incompatible with the independence essential to a scholar’s role. Many faculty were censured or fired. And, as Robert Hutchins, the president of the University of Chicago, pointed out, those sanctions had a chilling effect on the much larger number who “think they might be.”
The excesses of the McCarthy era prompted Supreme Court decisions expanding free speech protections in the late 1950s and 1960s. In 1967, in Keyishian v. Board of Regents, the court recognized academic freedom, at least for public institutions, as a “special concern” of the First Amendment, “which does not tolerate laws that cast a pall of orthodoxy over the classroom.”
Similarly, AAUP statements in 1964 and 1970 strengthened the organization’s recommended protections for extramural faculty speech, enhanced due process protections for tenure-line faculty subject to discipline, and included part-time faculty and teaching assistants in the protections of academic freedom.
In the ensuing decades, the contours of academic freedom have continued to evolve, and despite frequent challenges from both the left and the right, academic freedom has been widely recognized as a core value in American colleges and universities.
Florida, however, seems intent on rolling the clock back to a time when professors were seen as mere employees, subject to control by their employers. Florida’s argument rests primarily on a 2006 Supreme Court case, Garcetti v. Ceballos, in which a deputy district attorney was disciplined for criticizing a local sheriff. In a 5-4 decision, the court held that “when public employees make statements pursuant to their official duties,” the First Amendment “does not insulate their communications from employer discipline.”
Although the court expressly declined “to decide whether [its] analysis … would apply … to a case involving speech related to scholarship or teaching,” Justice David Souter warned in his dissent that the majority’s opinion might “imperil the First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”
The U.S. Court of Appeals for the 4th, 5th, 6th and 9th circuits have recognized an academic exception to Garcetti, but other circuit courts have yet to weigh in, and the Supreme Court has shifted sharply to the right since 2006. If Florida ultimately prevails, academic freedom in public university classrooms — and perhaps elsewhere — will be history.
