Welcome to Academic Freedom

1
Welcome to Academic Freedom

• New Faculty Orientation
• August 11, 2009
• Prof. Peter B. Bayer,
• Boyd School of Law, UNLV

2
Important Sources to Determine Scope and Limits
of Academic Freedom

• The First Amendment of the United States
  Constitution.
• Nevada System of Higher Education Code, Regents
  Handbook, UNLV Bylaws.
• Professional Associations such as AAUP
• Good judgment good sense.

3

• The Logic of Academic Freedom
• Academic freedom creates the space for
  questions, takes some of the risk out of
  experimentation, and protects unpopular ideas
  until they find their own place in the spectrum
  of whats thinkableor until they disappear of
  their own accord.
• Association of American University Professors
  (AAUP), Academic Freedom and Freedom of
  Expression, an AAUP Position Paper (June 2003)

4
NSHE Code, Title 2, Chap.2, sec. 2.1.1

• 2.1.1   Higher Education and the Common Good.
• Institutions of higher education are conducted
  for the common good and not to further the
  interest of either the individual member of the
  faculty or the institution. The continued
  existence of the common good depends upon the
  free search for truth and knowledge and their
  free exposition.
• (borrowed from AAUP 1940 Statement of Principles
  on Academic Freedom and Tenure)

5
NSHE Code, Title 2, Chap.2, sec. 2.1.2

• 2.1.2  Academic Freedom. Academic freedom is
  essential to these purposes and is applicable to
  both teaching and research. Freedom in teaching
  is fundamental for the protection of the rights
  of the teacher in teaching and of the student in
  learning. Freedom in research is fundamental to
  the advancement of truth and knowledge. A member
  of the faculty has freedom and an obligation, in
  the classroom or in research, to discuss and
  pursue the faculty member's subject with candor
  and integrity, even when the subject requires
  consideration of topics which may be politically,
  socially or scientifically controversial.
  (Emphasis added.)

6
NSHE Code, Title 2, Chap.2, sec. 2.1.2, cond.

• In order to insure the freedom to seek and
  profess truth and knowledge the faculty member
  shall not be subjected to censorship or
  discipline by the Nevada System of Higher
  Education on grounds that the faculty member has
  expressed opinions or views which are
  controversial, unpopular or contrary to the
  attitudes of the Nevada System of Higher
  Education or the community. (B/R 4/02)

7
Academic Freedom in the Library

• UNLVs Lied Library has a number of policies
  related to the vigorous protection of
  researchers academic freedom, including not
  filtering internet access, internet usage record
  retention policies, and such.

8
First Amendment, U.S. Const.

• In a public university, academic freedom is a
  special category of 1st Amendment-protected free
  speech, based on a fundamental 1st Amendment
  value
• the search for truth, or creation of knowledge,
  is best undertaken within a free marketplace of
  ideas.

9
More on the First Amendment

• The First Amendment is never absolute
• Interests in free expression are always balanced
  against competing interests
• e.g., crying fire in a crowded theatre?
• Falsely yelling fire in a theater (and causing
  a panic) has no protection because safety may
  trump free expression if the threat is dire
  enough and the expression creates a clear and
  present danger of imminent harm
• What other countervailing interests limit
  academic freedom?

10
Employment Matters Vs. Free Speech

• Professing to the public, to the profession and
  to the classroom clearly are protected by the
  First Amendment.
• But, what about memoranda, discussions at faculty
  and other meetings and similar expressions of
  opinion or dissent as part of contexts internal
  to the government employer?

11
Government As Employer

• Some federal courts have ruled that faculty
  opinions regarding hiring, curriculum and similar
  subjects expressed during the course of private
  faculty meetings or in internal memoranda, are
  not necessarily protected as academic freedom
  under the U.S. Constitution

12
Pending Proposals of the Academic Freedom
Ethics Committee

• (1) the Senate should both recommend an amendment
  to the HESC Code and enact bylaws revisions
  clarifying that academic freedom includes all
  expression of opinions regarding all academic
  matters including hiring, retention and other
  employment issues, regardless whether the
  expressions of opinion are made publically or in
  contexts such as faculty meetings which are
  outside of immediate public review

13
AFEs Proposed Code Provision on Arbitrariness

• The following conduct, being incompatible with
  the purposes of an academic community, is
  prohibited any adverse employment action not
  based on good cause, including, but not limited
  to, any adverse employment action that is
  arbitrary, capricious, retaliatory, vindictive,
  contrary to the principles of an academic
  community or otherwise is based on reasons
  unrelated to cause or to legitimate business
  needs

14
AFEs Proposal Re Contracts

• The Senate should urge that the foregoing
  protections be incorporated into employment
  contracts.
• (AFEs analyses and proposals do not and are not
  intended to constitute legal opinion.)

15
In Sum

• The First Amendment, Nevada-specific codes and
  regulations, and good judgment all use the same
  analytical framework
• academic freedom
• is balanced against
• academic responsibility

16
Academic Responsibility

• According to
• -- the First Amendment cases
• -- the Nevada System of Higher Education Code
• -- much of the writing about academic freedom
  and -- good sense
• the competing interest is the academics
  responsibility to maintain professional standards
  of teaching and scholarship.

17
Academic Freedom Responsibility, NSHE Code.,
Title 2, Chapter 2, Section 2

• Section 2.1 Declaration of Policy  
• 2.1.1 Higher Education and the Common Good  
• 2.1.2 Academic Freedom  
• 2.1.3 Academic Responsibility  
• 2.1.4 Acts Interfering with Academic Freedom  
• Section 2.2 Applicability  
• Section 2.3 Freedoms and Responsibility  
• 2.3.1 Freedom in Research  
• 2.3.2 Freedom to Publish  
• 2.3.3 Freedom in the Classroom  
• 2.3.4 Faculty as Citizens  
• 2.3.5 Obligations and Responsibilities

18
NSHE, Title 2, Chap. 2, sec. 2.1.3

• Academic Responsibility . The concept of
  academic freedom is accompanied by the equally
  demanding concept of academic responsibility. A
  member of the faculty is responsible for the
  maintenance of appropriate standards of
  scholarship and instruction.

19
The Limits on Academic Freedom

• Our interests in free expression are balanced
  against our interests in appropriate standards
  of scholarship and instruction
• What are appropriate standards of scholarship
  and instruction?
• Perhaps best analogized to time, place and
  manner regulation under the 1st Amendment.

20
Academic Responsibility Professionalism in
General

• Academic responsibility requires professors to
  submit their knowledge and claims to rigorous and
  public review by peers who are experts in the
  subject matter under consideration to ground
  their arguments in the best available evidence
  and to work together to foster the education of
  students.
• (Association of American Colleges Universities,
  Board of Directors' Statement, Jan. 6, 2006, at 1)

21
Appropriate Standards of Teaching (Academic
Responsibility)

• 2.3.3  Freedom in the Classroom . A member of the
  faculty is entitled to freedom in the classroom
  in discussing a subject, but the faculty member
  should be careful not to persist in discussing
  matters, which have no relation to the subject
  taught. (NSHE Code sec. 2.3.3, emphasis added)

22
Appropriate Standards of Teaching (Academic
Responsibility)

• The Nevada System of Higher Education Code tells
  us explicitly Do not persist in discussion of
  unrelated subjects
• (e.g., persistent discussion of gay rights in
  math class is not protected by academic freedom)

23
Appropriate Standards of Teaching (Academic
Responsibility)

• Do not discriminate on the basis of race, color,
  religion, gender, national origin, ancestry, age
  disability, veteran status, or sexual
  orientation
• -- whatever you say or do about race, gender,
  sexual orientation, religion, and the like,
  should be based on sound academic pedagogical
  goals
• -- creating a hostile learning environment can be
  considered discrimination and otherwise may
  disrupt learning /or intimidate students

24
A General Guiding Rule

• The more clearly your comments to students
  reflect support sound educational goals, the
  more likely they are protected by academic
  freedom.

25

• e.g., comments about a students sexual
  attractiveness are not likely to be protected
  under academic freedom. (What is the educational
  purpose? Sexual harassment is not protected by
  academic freedom.)
• e.g., comments about racial differences are
  appropriate when based on expertise and relevant
  to the subject, but can create a prohibited,
  hostile environment if not based on expertise or
  not relevant.

26
One Important Aspect of Higher Education

• It is inevitable that students will encounter
  ideas, books, and people that challenge their
  preconceived ideas and beliefs.
• (Association of American Colleges
  Universities, Board of Directors' Statement, Jan.
  6, 2006)

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• Students do not have a right to remain free from
  encountering unwelcome or inconvenient
  questions, in the words of Max Weber. Students
  who accept the literal truth of creation
  narratives do not have a right to avoid the study
  of the science of evolution in a biology course
  anti-Semites do not have a right to a history
  course based on the premise that the Holocaust
  did not happen.
• (Association of American Colleges Universities,
  Board of Directors' Statement, Jan. 6, 2006)

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• Students do have a right to hear and examine
  diverse opinions, but within the frameworks that
  knowledgeable scholarsthemselves subject to
  rigorous standards of peer reviewhave determined
  to be reliable and accurate.
• (Association of American Colleges
  Universities, Board of Directors' Statement, Jan.
  6, 2006)

29
Recap of Appropriate Standards of Teaching
(Academic Responsibility)

• Persistent discussion of unrelated topics is not
  protected by academic freedom
• Harassment (e.g., racial, sexual, tormenting
  students) is not protected by academic freedom
• Words or conduct that create a discriminatory,
  hostile, or intimidating learning environment are
  not protected by academic freedom
• Lack of professional competence in your subject
  area is not protected by academic freedom.

30
Faculty as Public Citizens

• 2.3.4   Faculty as Citizens . A member of the
  faculty is a citizen of the community, a member
  of a learned profession and an employee of an
  educational institution. A faculty member
  speaking, writing or acting as a citizen shall be
  free from institutional censorship or discipline.
  (NSHE Code, Title 2, Chap. 2, sec. 2.3.4.)

31
Faculty as Public Citizens, cond.

• 2.3.5. Obligations and Responsibilities .
• The special position of a member of the faculty
  imposes special obligations and responsibilities.
  As a person of learning and an employee of an
  educational institution, a faculty member should
  remember that the public may judge the profession
  and the institution by the faculty member's
  utterances and acts. NSHE Code, sec. 2.3.5.

32
Faculty as Public Citizens, cond.

• 2.3.5 Obligations and Responsibilities (NSHE
  Code)
• Therefore, a faculty member should at all times
  be accurate, should exercise appropriate
  restraint, should show respect for the opinions
  of others and should indicate clearly that the
  faculty member is not an institutional
  spokesperson. NSHE Code, sec. 2.3.5 (B/R 4/02)

33
Faculty as Public Citizens

• University policies prohibit the use of campus
  facilities, including mail and email, for
  partisan political purposes
• Faculty should not use the classroom for partisan
  political campaigning.

34
Faculty As University Citizens

• Not all business conducted by faculty or
  administrators of a public university is
  protected by the 1st Amendment.
• Acting as would a citizen is Constitutionally
  protected. (E.g., writing letters to authorities
  concerning matters of true public concern.)
• Routine conduct of business even vital business
  such as hiring/promotion/tenure -- may not be
  protected by the 1st Amendment.

35
Academic Freedom Resources

• 1. For complete NSHE Code, UNLV Bylaws, use
  Faculty Senate website http//facultysenate.unlv
  .edu/
• The Faculty Senate also has a Standing Committee
  on Academic Freedom and Ethics
• American Association of University Professors
  (AAUP) Academic Freedom materials at www.aaup.org
  
• 4. Association of American Colleges
  Universities, Board of Directors' Statement, Jan.
  6, 2006 can be found athttp//www.aacu.org/about/
  statements/academic_freedom.cfm