Academia

Academic Freedom Is On the Decline, and Here's the Data to Prove It

An analysis of 50 years of U.S. court cases shows professors seldom win in speech battles with school administrators, and it's only getting worse.

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An analysis of 50 years worth of academic-freedom cases finds that faculty don't fare well when fighting against public colleges and universities. In fact, professors and instructors up against these entities are likely to lose nearly three-quarters of the time. 

The study, published in the Journal of College and University Law, was conducted by University of Illinois law professor Michael LeRoy. It analyzed American disputes over the speech rights of academics that took place between 1964 and 2014 and involved a public college or university—a total of 214 (state and federal) cases.

In 73 percent of them, the school administration won. 

"If you look at the trend lines, the speech rights of public employees are narrowing—and, coincidentally, this is occurring when public speech via social media has become so much more prevalent," LeRoy said. Not coincidentally, the number of wins for schools picked up in the wake of several specific U.S. Supreme Court decisions. 

Per the 1968 Supreme Court ruling in Pickering v. Board of Education, courts were instructed to weight "the competing interests of public employees and employers on a case-by-case basis," noted LeRoy. The court held that "public employees do not relinquish their First Amendment rights on the job," but "a government employer [can] regulate the speech of its employees differently from citizens." This was the first tipping point toward broader permissability for censoring academic speech.

"As the data from my study show, courts usually weigh those interests in favor of universities and colleges," LeRoy said.

Then, in 1994, the Supreme Court ruled that school administrators could limit student or staff speech that they deem "disruptive" (Waters v. Churchill). "In the first court rulings after Waters, the faculty win-rate plummeted from 22.6 percent to 13.1 percent, and in appellate rulings, the rate dropped even more precipitously, from 14.5 percent to 3.3 percent," according to LeRoy's analysis.  

Some federal appeals courts have been better than others at protecting professors' speech rights. The U.S. Court of Appeals for the 2nd Circuit—an area that includes New York, Connecticut, and Vermont—ruled in favor of schools in just 63.6 percent of its cases. Meanwhile, the Illinois, Indiana, and Wisconsin-spanning 7th Circuit sided with colleges or universities 88.9 percent of the time. 

LeRoy thinks the study shows the need for higher-education faculty to push for contractual assurances of free expression and passing institution-wide academic bills of rights. "If nothing else," he said, "my research shows that the alternative to these proactive measures are court rulings that treat higher education more like a government agency" than "a laboratory of thought, experimentation and speech."

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  1. Per the 1968 Supreme Court ruling in Pickering v. Board of Education, courts were instructed to weight “the competing interests of public employees and employers on a case-by-case basis,” noted LeRoy. The court held that “public employees do not relinquish their First Amendment rights on the job,” but “a government employer [can] regulate the speech of its employees differently from citizens.” This was the first tipping point toward broader permissability for censoring academic speech.

    The only sign of that in my job is the rule “You can’t do political campaigning on the state’s time”. But that rule would probably exist without the precedent.

  2. Question:
    Does academic freedom include the right to be so ridiculously wrong that it embarrasses the entire institution?

    Melissa Click, Ward Churchill, etc etc.

    1. Click is a bad example, as she was pilloried and fired for her actions not the laughable “scholarship” she was doing into Twilight and Fifty Shades of Gray.

    2. Triggly Puff

      1. “Stop treating us like children!” *throws temper tantrum*

        /memetic feminist.

        1. Fuck You! Fuck you! I am the reasonable one!

      2. She’s all out of stamina.

        1. Trigglypuff tried to use Tantrum, but her fitness was too low…

      3. I wasn’t familiar with that term, so I just googled it. Good. Fucking. God.

    3. Yes, as long as you don’t point it out, you’re pointing it out would fall under micro aggression.

  3. Picture is of a statue of an aggressively nude cis white male. That’s not OK, ENB.

    1. I am also confused and aroused.

    2. Where is that thing? It’s no doubt making people feel unsafe and afraid. It must be torn down immediately! Just throw it in the pit with all the rebel flag stuff!

    3. HEY HEY! HO HO! THIS PENIS PARTY’S GOT TO GO!

        1. I am disappointed that that was not a link to the Great Castration of Pius IX.

      1. REPLACE WITH STEVE SMITH STATUE! OR WITH REAL THING. BRING RAPESQUATCH CULTURE TO CAMPUS.

        1. *stares in awe*

  4. I would think that no one here needs more convincing on this subject.

    1. No one here needs data or arguments to convince them on any subject.

      1. Speak for yourself. I’m always open to sound arguments. What I don’t accept are cheap sentimentalities and appeals to societal well-being.

  5. Live by the government largess, die by the government largess.

    Why should anyone here be surprised that government control of something leads to fewer freedoms? That’s a definitional truth, government is the negation of liberty.

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  7. An analysis of 50 years worth of academic-freedom cases finds that faculty don’t fare well when fighting against public colleges and universities.

    Can’t fight City Hall College.

  8. My perspective as one of those university administrators is that it is impossible to take any kind of disciplinary action against faculty unless you have an airtight case. The low success rate in court could be at least partly due to the fact that HR and General Counsels have become extremely loath to support any kind of action unless the situation has become so terrible that they have no choice. The few times they do allow anything to be done is after three years and a foot-thick file of complaints and investigation reports has accumulated, and the evidence is overwhelming.

    Too many faculty use academic freedom–which is a real and valuable thing–as an excuse to act like a two-year-old, to insult and slander their colleagues, to drag students into departmental politics, to turn the classroom into a platform for airing personal grievances, and to generally make life miserable for everyone who has to work with them. The AAUP’s statement, which is a standard, strikes a good balance between academic freedom and academic obligation, and its terms would surprise a lot of people if they actually bothered to read it.

    1. My sense is that they act like two year-olds and the rest because this is just their level of emotional maturity.

  9. “My own sense is that private institutions have been more proactive about defining academic freedom and faculty rights pertaining to them. We have an ironic situation in which private universities are not protected and, knowing that, have provided more robust protections for faculty speech and academic freedom.”

    More of typical unintended consequence of govt intervention than irony, I’d say.

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  11. LeRoy thinks the study shows the need for higher-education faculty to push for contractual assurances of free expression and passing institution-wide academic bills of rights.

    The idea that employees at public universities should be able to say and do whatever they want is ludicrous; if anything, as government employees, they should be more restricted in what they can say and do.

    The real “need” is for public universities to be replaced by private ones. Then this discussion will go away.

  12. “Weight”?

    Really?

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