11/16/2010 02:05 pm ET | Updated May 25, 2011

Academic Freedom is Not Protected by the First Amendment

There, I said it, right in the title. And however much it hurts I'll say it again: Academic freedom is not protected by the First Amendment. Recognizing this is the first step in defending academic freedom.

We should be clear from the start that academic freedom is not simply a First Amendment right. Academic freedom is intellectual freedom in academic contexts, which is both more and less than the constitutional requirement that the government "make no law... abridging the freedom of speech" (see my "Liberty & Learning: Academic Freedom for Teachers and Students").

For a substantial portion of the 20th century, however, the First Amendment did protect important aspects of academic freedom. Alas, it no longer does. Here's a two-minute summary of the constitutional history:

In West Virginia vs. Barnette (1943), the United States Supreme Court ruled that public schools may not require students to salute the flag and pledge their allegiance. It was a violation of the First Amendment for public education to be used for the purpose of indoctrinating a captive audience.

In Sweezy vs. New Hampshire (1957) the Court recognized the constitutional status of academic freedom in finding for a Marxist economist targeted by McCarthyism. The plurality and concurring opinions disagreed, however, as to whether constitutional academic freedom is primarily a right of individual teachers or a right of colleges as institutions.

In Keyishian vs. Board of Regents (1967), the Court proclaimed: "Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."

In Tinker vs. Des Moines (1969), involving secondary school students wearing black armbands to protest the United States military intervention in Vietnam, the Court reinforced the applicability of the First Amendment in schools at all levels of education. Neither students nor teachers, it insisted, shed their First Amendment rights at the schoolhouse gate.

They shed them, it turned out, at the classroom door. In Hazelwood vs. Kuhlmeier (1988), the Court ruled that because a student newspaper was part of the journalism curriculum it therefore fell largely outside the domain of the First Amendment. Without argument or analysis the Court simply assumed that the First Amendment in schools applies only to speech outside the curriculum.

Federal courts since Hazelwood have been increasingly clear that, in matters of curriculum, school officials have broad latitude to determine the school's message and restrict expression accordingly. Curriculum at all levels of education is a First Amendment-free zone. Teachers are hired to teach whatever they are told to teach and students are there to learn it.

Just as it seemed things couldn't get worse, the Supreme Court determined in Garcetti vs. Ceballos (2006) that public employees in general do not have First Amendment rights when they are doing their jobs. Lower courts have applied this ruling to teachers at all levels of education, thus reinforcing Hazelwood.

By the time of Morse vs. Frederick (2007), it was clear that the First Amendment does not apply within the curriculum and thus provides no constitutional protection for academic freedom. The question was how far around the school the freedom-free zone extends. The Supreme Court found that it extends even across the street if one is holding a sign that says "Bong Hits 4 Jesus."

And so, public education must recognize that the First Amendment will not show up to save the day. But without the First Amendment, how can we defend academic freedom? An organization that has been answering this question since 1988 is the Academic Freedom Coalition of Nebraska, which I will discuss in my next post.