Reclaiming Academic Freedom

Michael Meranze reviews David M. Rabban’s “Academic Freedom: From Professional Norm to First Amendment Right.”

By Michael MeranzeJanuary 8, 2025

• Education

• Politics

• Remaking the University

DURING THE LATE 19TH and early 20th centuries, insurgent faculty developed the American structure of academic freedom, alongside the creation of research universities and the professionalization of academic disciplines. Scholars, confronted with efforts to limit inquiry into controversial social and scientific subjects, resisted the power of donors, trustees, and public opinion to intervene in and control teaching and scholarship in higher education. As articulated by the new American Association of University Professors (founded in 1915), the American notion of academic freedom linked together the idea that universities—as both teaching and research institutions—existed for the common good, that the common good could only be achieved when the scholarly community had the power to determine scholarly standards and evaluate contributions to knowledge, and that the capacity of self-regulation could only exist when faculty were, in the words of the 1915 Declaration of Principles on Academic Freedom and Academic Tenure, “the appointees, but not in any proper sense the employees,” of the trustees. Likening the relationship between trustee and faculty to that of a president and a judge “so far as the university teacher’s independence of thought and utterance is concerned,” the AAUP aimed to establish not only professional authority but also the centrality of the faculty in educational decisions.

These claims were, to be sure, simply claims, and they faced constant resistance across the 20th century. The McCarthy era stands out for its widespread effort to suppress faculty speech and autonomy, but one would be hard-pressed to find a decade when efforts were not being made to reduce academic freedom, the faculty’s role in university governance, or the system of labor protections known as tenure. By the 1960s, however, faculty, administrators, and governing boards seemed to have achieved a stable understanding that acknowledged academic freedom, the importance of tenure, and of the faculty’s preeminent role in educational matters. This apparent agreement did not last long. Beginning in the 1970s and increasing across the latter part of the 20th century, new neoliberal and managerial impulses (rooted often in declining public support for higher education) began to strip away faculty autonomy and especially faculty’s collective rights to shared governance and job security.

Still, the last decade has witnessed a new, arguably unprecedented, attack on academic freedom, shared governance, and tenure. Although global in nature, this attack has taken its most quintessential form in the United States. State legislators from Florida to Georgia, from Ohio to Texas, and from Wisconsin to North Carolina have aimed to impose new ideological restrictions on teaching and research at public institutions, moved to undermine tenure, reduced the autonomy of higher education institutions, and sought to increase partisan control over governing boards. Moreover, and especially in the aftermath of October 7, 2023, donors, politicians, and provocateurs have used the issue of antisemitism to undermine the claims for academic freedom and free speech on college and university campuses. University administrators, perhaps frightened by the twin spectacle of Florida’s attempt to turn higher education into a tool of the DeSantis administration and the House Education & Workforce Committee’s efforts to demonize universities and their leadership, have taken to denying rather than defending the rights of their faculty and students to speak out in controversial ways. To make matters worse, arguments that conflate academic freedom and free speech undermine both the specific functions of the university and the authority of scholarly knowledge. The incoming Trump administration promises, if anything, to deepen these attacks as it seeks to reduce the autonomy of knowledge production and the possibility of dissent.

Although not written especially for this moment, David M. Rabban’s Academic Freedom: From Professional Norm to First Amendment Right (2024) is a welcome arrival. Rabban is a major scholar of the history of both free speech and academic freedom. He has served as general counsel and chair of Committee A on Academic Freedom and Tenure at the AAUP. His book is the result of decades of scholarship and practice. It will not persuade everyone (in important ways, it didn’t persuade me), but it provides a careful and precise accounting of the state of the relationship between academic freedom and the First Amendment as well as provocative arguments about the proper relationship between the two. Whatever your response to his claims, the book will provide an essential tool for engaging in the current debates and struggles to define and defend academic freedom in higher education.

Academic Freedom proceeds on at least three levels. First, it offers a historical account of the development of the idea and practice of academic freedom as well as an analysis of the changing ways that courts have brought the Constitution to bear on higher education. Second, it offers an extensive, if sometimes bewildering, treatment of the complex and often contradictory First Amendment jurisprudence on academic freedom. Third, it seeks to make sense out of both history and the law in order to articulate a specific theory of academic freedom as a First Amendment right, a theory that Rabban hopes can guide the law and place academic freedom on a solid footing. Although these different argumentative levels build upon each other, they don’t actually depend on each other. For reasons I hope to clarify below, that is all to the good.

As Rabban shows, the academic freedom of professors became a topic of First Amendment jurisprudence only during the 1950s, under the rulings of the Warren Court. Prior to that time, constitutional questions surrounding higher education tended to be focused on the contracts clause (as in the famous 1819 Dartmouth College case), while academic freedom had developed, as Rabban puts it, as a “professional norm.” But in the context of the Cold War and then the protests over Vietnam, the Warren Court, in cases that extended from Sweezy v. New Hampshire (1957) to Keyishian v. Board of Regents (1967), began to consider academic freedom “a special concern of the First Amendment,” in the words of Justice William Brennan. But it is important to recognize not only that this position was contested at the time (Keyishian was decided 5–4) but also that becoming a “special concern” did not clarify either the limits or the nature of the relationship of academic freedom to the First Amendment. On one hand, the First Amendment status of academic freedom competed (in the case of public institutions) with an emerging “public employee speech” jurisprudence; on the other hand, its relationship to private colleges and universities was unclear. The result, as Rabban shows in a dizzying analysis of case law since Keyishian, is that the specific meaning of academic freedom as a First Amendment right has never been clear. Indeed, as he points out, although the Supreme Court has gestured toward the academic freedom of professors as a First Amendment right, they have rarely if ever based their decisions upon that First Amendment claim.

This problem was further complicated when, in the 1970s and ’80s, courts began to grant First Amendment coverage to colleges and universities. Beginning with Regents of the University of California v. Bakke (1978), the Court carved out an area of institutional academic freedom as long as colleges and universities could argue persuasively that decisions were made for justifiable educational reasons. Exactly what this meant was hardly clear, and, as in the case of professorial academic freedom, the expansion of First Amendment coverage to institutions triggered a never-ending and often contradictory stream of court decisions. At levels lower than the Supreme Court, judges intervened repeatedly in evaluating whether colleges and universities were reasonably affirming their own First Amendment rights or effectively violating the rights of faculty or students. As the changing jurisprudence on affirmative action reveals, the First Amendment meant different things at different moments in the Supreme Court’s history. Rabban is deeply aware of this confusion. Indeed, his reconstruction of the contradictory history of courts’ treatment of academic freedom in relation to the First Amendment is a prelude to developing his theory of academic freedom as a First Amendment right. Unlike groups such as the Foundation for Individual Rights and Expression or the Academic Freedom Alliance, which appear to treat academic freedom as simply a form of free speech, Rabban recognizes that any serious consideration of academic freedom as a First Amendment right must grapple with its particularity and with the specific social purposes of higher education.

Taking inspiration from William Van Alstyne’s classic 1972 essay “The Specific Theory of Academic Freedom and the General Issue of Civil Liberty,” Rabban roots his arguments in a reconsideration of the AAUP’s 1915 Declaration. Van Alstyne argued that, for academic freedom to have First Amendment protection, it must be related in some way to general First Amendment concerns. However, he continued, academic freedom was not simply another case of “civil liberty” but a specific practice in need of specific protections. In order to defend those protections, it required a “specific theory” or justification. That justification, both Van Alstyne and Rabban agree, lies in the importance of producing expert academic knowledge for society. But both also agree that the freedom granted to faculty is a specific one within specific contexts. Central to this claim is the idea of peer review. As Rabban puts it:

I rely especially on two central arguments of the 1915 Declaration. First, professors cannot perform their distinctive societal function in producing and disseminating expert knowledge unless they are protected from discipline for the honest expression of their academic views. Any indication that professors could be disciplined based on disagreement with their scholarly views would undermine confidence in the integrity of their work. Second, peer review by other professors is essential to determining whether speech by a professor meets the academic standards that justify the protection of academic freedom.

Rabban thus argues that academic freedom pertains to the scholarly activities of the scholar. It is not a simple case of free speech but is subject to collective rules (articulated by scholarly disciplines) governing the work of scholars who engage in debates based on evidence. No simple marketplace of ideas here. Moreover, this emphasis on peer review points to a second difference between Rabban’s position and those who simply conflate academic freedom and free speech. Academic freedom is a form of governance, not only of the scholarly community but also of colleges and universities. It regulates, or should regulate, the practices of colleges and universities through its system of rights and obligations. Although we can debate specific forms and procedures, higher education cannot serve its social purposes if the scholarly community is not self-governing.

If Rabban’s argument demonstrates that you should not conflate scholarship and teaching with free speech nor treat academic freedom as an individual free speech right, it also seeks to change the way we think about what has become known as “extramural speech.” Conventionally, proponents of academic freedom have seen speech in the public realm as protected by academic freedom except in those rare cases when “it clearly demonstrates the faculty member’s unfitness to serve.” Rabban disagrees. If, as he argues, scholarship and teaching must be judged according to scholarly standards, then extramural speech would need to meet the same standards to claim the protection of academic freedom. In a world of social media and op-eds, he thinks that is unrealistic. So, instead of claiming the specific right of academic freedom, he argues that extramural speech should be treated under the general protections offered to citizens under the First Amendment.

Here, though, we begin to see the limits of Rabban’s approach. The First Amendment, after all, is a restriction on the state. Although it might provide faculty at private universities with protections against governmental intrusion, it would provide them with no protection against the actions of their administrators or governing boards—the actors most likely to violate academic freedom in individual cases in the 21st century. But it was in the context of actions by administrators and trustees that faculty developed the American idea of academic freedom in the first place. Rabban’s account provides little in the way of protection for faculty at private colleges and universities—at least within the realm of constitutional law. Rabban does offer guidelines to courts for adjudicating conflicting academic freedom claims between universities and faculty. But it is difficult to see how they are rooted in the First Amendment rather than in other legal areas like contracts or labor law.

There is one other aspect of Academic Freedom that I can’t help but note. The book as a whole is based on a wager: that the law proceeds through the deep and careful argumentation Rabban provides. But it is unclear if either his history or current law supports that hope. Rabban’s account sidelines the question of the politics of the courts and their jurisprudence. Indeed, the emergence of academic freedom as a First Amendment concern in the 1950s and ’60s offers a crucial reminder that the makeup of the judiciary is essential to people’s ability to claim rights. As Rabban demonstrates through a meticulous reconstruction of a series of decisions, the Supreme Court dramatically transformed its thinking between 1952—when, in Adler v. Board of Education, it upheld a New York state law that allowed the firing of teachers who were found to have taught or advocated the illegal overthrow of the government or had joined an organization that did—and 1967, when, in Keyishian v. Board of Regents, they overturned the legal structure they had allowed in Adler. Academic freedom was established as a concern of First Amendment jurisprudence when the Warren Court decided it was one. Had John Roberts been chief justice instead of Earl Warren, it is doubtful that the faculty’s First Amendment rights would have been vindicated.

Admittedly, this is not Rabban’s conclusion but my own. It seems to me, however, that it follows from his historical analysis. Before the Warren Court, academic freedom was defended insofar as there was professional and political mobilization for it. After the Warren Court, agitation for academic freedom continued (after all, it was activists who brought the cases), but as academic freedom was brought under the First Amendment, it increasingly relied on the protection of the courts. I am not suggesting that faculty and students (or institutions, for that matter) should give up on asserting their First Amendment rights but that the law, including constitutional law, is shaped by politics just as politics is shaped by law. We live in a moment when the judiciary is willing to overthrow precedent and reach for conclusions to serve very specific partisan goals. As Rabban shows, there is a deep reservoir of debate—and power—embedded in the idea of academic freedom as a First Amendment right. But that right is not sufficient to face the demands of today. Instead, we need continually to assert academic freedom, not just as a free speech right but also as a professional norm, as a defense of the value of knowledge, and as the only acceptable form of the scholarly community’s self-governance.