First Amendment Does Not Protect Individual Academic Freedom
March 22, 2001
The First Amendment to the U.S. Constitution
does not protect individual academic freedom, according to the U.S. Court of
Appeals for the Fourth Circuit. In Urofsy v. Gilmore (2000), the Fourth
Circuit’s full panel ruled that public employers have broad rights to
restrict the speech of their employees in the course of their employment.
In January, the U.S. Supreme Court declined to
review the decision. At issue was a Virginia statute that prohibits any state
employee from viewing sexually explicit material on computers owned or leased
by the state. Exceptions can be made by a state agency head when viewing
such materials is required in connection with a bona fide research project or
other undertaking.
A group of professors at public universities
in Virginia challenged the statute, alleging both that it violated the First
Amendment rights of all public employees and that it violated their individual
rights to academic freedom.
The Fourth Circuit, overturning a trial court
decision in favor of the professors, analogized government-employee speech to
government-funded speech, which the Supreme Court has previously ruled may be
subject to broad limitations. The court reasoned that the government is
entitled to control the content of the speech in both cases “because it has,
in a meaningful sense, ‘purchased’ the speech at issue through a grant of
funding or payment of a salary.”
The Fourth Circuit also rejected the professors’ argument that they had a
constitutionally protected right to academic freedom. The court found
that the “right” of academic freedom, if it is protected by the
Constitution at all, belongs to the university and not the individual
professors. The court’s ruling implies that there is no constitutional
barrier preventing public educational institutions from regulating the
subjects that professors research. Because the Virginia statute left to
the universities the decision about whether to approve individual research
projects, the court believed it was not faced with the more problematic
situation of the government intruding into the province, and potentially the
academic freedom, of universities.
One commentator, who had written an article
that the court majority used to support its opinion, has subsequently written
that, in his professional view, the opinion “is profoundly wrong as a matter
of law, and threatens the freedom of higher education.” J. Peter
Byrne, Constitutional Academic Freedom in Scholarship and in Court, Chron.
Higher Educ, Jan. 5, 2001, at B13. Two Fourth Circuit judges also wrote
separate opinions to express their disapproval of the court’s ruling.
Although the ruling upholds only the
challenged Virginia statute prohibiting access to sexually explicit material
on state computers, its rationale is likely to have more far-reaching
ramifications for the relationship between universities and their faculty.
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