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Balancing Student and Faculty Academic

Freedom and Responsibility

Ann McLane Kuster and Lucy HodderRath, Young and Pignatelli

December 6, 2006

www.rathlaw.com

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Thomas Jefferson wrote:

“Whenever the people are well-informed, they can be

trusted with their owngovernment.”

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First Amendment

Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof;or abridging the freedom of speech, or

of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

United States ConstitutionBill of Rights

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Free Speech in the News

Newt Gingrich speaking at the Nackey Loeb First Amendment Award Dinner:

“The country will be forced to reexamine rules of free speech to meet the threat of terrorism.”

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Freedom to Offend?

Actor Michael Richards use of the word “nigger” at a Los Angeles comedy club

NCAA Guidelines for sport team mascots

University of North Dakota Hockey Team the “Fighting Sioux” invited to Dartmouth

Hockey Tournament

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Free Speech on College Campuses

“University students are not blank slates. They are capable of assessing the value of a professor’s teachings.”

-President Richard L. Judd, Central Connecticut State University, defending a Middle-Eastern Study Seminar

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Academic Freedom and Responsibility

The right of scholars to pursue research, to teach, and to publish without control or restraint from the institutions that employ them.

Defined by the American Association of University Professors’ in 1940

“Statement of Principles on Academic Freedom and Tenure”

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State Law – Academic Bill of Rights

Created by Conservative David Horowitz, President of the Center for the Study of Popular Culture in 2004

“To remove partisan politics from the classroom” and to ensure that “no faculty should be hired, fired or denied promotion or tenure on the basis of his or her religious or political beliefs.”

Legislation introduced in 21 states - yet no state has passed the Academic Bill of Rights

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Defining Academic Content?

“Faculty and instructors shall not infringe upon the academic freedom and quality of education of their students by persistently introducing controversial matter into the classroom or coursework that has no relation to their subject of study and that serves no legitimate pedagogical purpose.”

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American Council of Trustees and Alumni – founded by Lynne Cheney

“Rarely did professors publicly mention heroism, rarely did they discuss the difference between good and evil, the nature of Western political order or the virtue of a free society. Indeed, the message of many in academe was clear: BLAME AMERICA FIRST.”- Defending Civilization: How Our Universities Are Failing America and What Can Be Done About It

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Federal Law – The Patriot Act

Increased Government observation via wiretaps and surveillance orders

The concern in University communities is that these laws limit the freedom of inquiry and open access to research

“This involves a fundamental clash of virtues between University openness and security interests in clamping down.”Eugene Skolnikoff-MIT Professor Emeritus of Political Science

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Bioterrorism Provision

The first paragraph of a 166 page law “gave rise to a veritable Frankenstein of federal regulation and subsequent laws and policy.”

Bottom line: “chilling effect on the ability to do research freely and publish results”

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Restrictions on Foreign Students

Stricter review of foreign students and more difficult to obtain a visa SEVIS Program: monitoring system for

foreign students in the U.S. Restricted access to sensitive research

has been extended into the biological sciences

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Bioterrorism Preparedness Act

Higher level of scrutiny of anyone having access to bio-hazard materials

Attempts to balance research freedom and community protection

• Background checks for anyone working with select list of pathogens

• Restricted access of nationals from Cuba, Iran, North Korea, Sudan, and Syria.

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Academic Freedom of Speech

Climate of fear ~ willingness to override some freedom of speech rights out of fear of prosecution under federal law

“If academic freedom is going to prevail it is important that institutions defend the rights of individuals to speak out on politically unpopular subjects.”Cynthia Vroom at the Academic Freedom Forum, June 11, 2003

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Patriot Act Section 215

Allows the FBI to get a special court order asking for any type of document from any institution relating to a terrorism investigation or a person suspected of being a terrorist

Librarians concerned about ramifications Section 215 was set to expire December

31, 2005, but was reauthorized twice, most recently on March 10, 2006

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Dr. Sami Al-Arian University of Southern Florida

Accused and indicted of conspiracy to provide services for the benefit of the Palestinian Islamic Jihad

Accused of using the University of Southern Florida as a cover for Islamic Jihad fundraising

Terminated for using the University of Southern Florida name and resources for

“illegal and improper purposes”

“This is not about academic freedom. It’s not about tenure. It’s not about free speech. It’s about disruption and safety.”- Judy Genshaft, President of the University of Southern Florida

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Dr. William WoodwardUniversity of New Hampshire

Member of Scholars for 9/11 Truth U.S. Senator Judd Gregg “In my view, there are

limitations to academic freedom and freedom of speech. I believe it is inappropriate for someone at a public university which is supported with taxpayer dollars to take positions that are generally an affront to the sensibility of most all Americans.

Former Governor Walter Peterson, said the tenured professor should not be fired:“I don’t think trustees should be trying to influence professors and what they say, but if it gets too bizarre, the chairman of the department, should have a chat with him.”

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Speakers on College Campuses University administrators withdrew invitations

before 2004 elections, e.g. filmmaker Michael Moore, a critic of the Bush Administration

“Because academic freedom requires liberty to learn as well as to teach, colleges and universities should respect prerogatives of campus organizations to select outside speakers whom they wish to hear.”

American Association of University Professors

1967 Statement of Principles

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American Association of University Professors 1940 Standards for Tenure

Ensures that private college and university faculty have “contractual safeguards” that address the primary components of Academic Freedom

“A faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position. Extramural utterances rarely bear upon the faculty member’s fitness for the position. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.”

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Constitutional Protection

“Academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxoy over the classroom.”

Keyishian v. Board of Regents (1967)

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1996 Solomon Amendment

Colleges and Universities that accept federal funds must allow military recruiters on campus, despite objections to the Pentagon’s “don’t ask, don’t tell” military policy on gender orientation

The United States Supreme Court upheld the Constitutionality of the Solomon Amendment, saying that First Amendment free speech rights were not violated because faculty and students are “free to voice their concerns” over the policy

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FAIR v. Rumsfeld (2006)

In a case brought by the Forum for Academic and Individual Rights (FAIR), the United States Supreme Court upheld the constitutionality of the Solomon Amendment, saying that First Amendment free speech rights were not violated because faculty and students were “free to voice their concerns” over the “don’t ask, don’t tell” military policy

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New Hampshire State Law

Silva v. University of New Hampshire (1994)

U.S. District Court ruled that the University must reinstate Donald Silva to his position as a tenured professor after he claimed that UNH had violated his academic freedom and right to free speech by suspending him from teaching when he made comments many students deemed to be “sexual harassment”

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SB 623 Defeated in NH Legislature

Protection of Freedom of Speech on College Campuses

“The governing body of any public postsecondary institution shall not make or enforce any rule which subjects any student, professor, teacher, administrator or other employee to disciplinary sanctions solely on the basis of speech that, when engaged in outside of a campus of such institution is protected from governmental restriction by the First Amendment to the U.S. Constitution …”

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Bibliography

American Association of University Professorswww.aaup.org

“The Patriot Act and Academic Freedom”, by Cynthia Vroom, presented at the Academic Freedom Forum, June 11, 2003

“Defending Civilization: How Our Universities are Failing America and What Can Be Done About It,”

American Council of Trustees and Alumni, 2002“Academic Freedom in the USA,” Ronald B. Standler www.rbs2.com “Higher Education Issues After the USA Patriot Act,” Division

of Legal Affairs, Office of the President, University of North Carolina.