On this page:
Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972)
A nontenured teacher was not rehired after he counseled a number of students instead of referring them to the university's professional counselors; overemphasized sex in a health course; counseled students with his office door closed; and belittled other staff members in discussions with students. The court found that the teacher's disputes with colleagues about course content were not matters of public concern, and his disputes involved him as a teacher, not as a private citizen. The university's interest as an employer overcame any free speech interest the teacher may have had. The court held that "we do not conceive academic freedom to be a license for uncontrolled expression at variance with established curricular contents and internally destructive of the proper functioning of the institution." The court further held that "[c]ertain legitimate interest of the state may limit a teacher's right to say what he pleases: for example, (1) the need to maintain discipline or harmony among coworkers; (2) the need for confidentiality; (3) the need to curtail conduct which impedes the teacher's proper and competent performance of his daily duties; and (4) the need to encourage a close and personal relationship between the employer and his superiors, where that relationship calls for loyalty and confidence."
Clark v. Holmes is distinguished by Lindsey v. Board of Regents of University System of Georgia, 607 F.2d 672 (6th Cir. 1979)
University of Georgia faculty created a questionnaire to be filled out regarding different aspects of the University of Georgia. The questionnaire contained no information showing its source but posted where the anonymous questionnaire should be sent. When the school found out about the questionnaire, the police investigated whether university facilities had been used in violation of law in printing the document. One of the professors responsible for creating and administering the questionnaire was terminated. The court held that a professor distributing a questionnaire to solicit views of faculty on broad range of issues constituted protected speech under First Amendment, noting that the issues were matters of public concern.
Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973)
A faculty member in the 1970s told her freshmen students, "I am an unwed mother" and also discussed the Vietnam War and military draft. After her contract was not renewed, she sued the university, alleging an infringement on her First Amendment rights. The court found that the university based it decision not on the faculty member's statements, but because "it considered her teaching philosophy to be incompatible with the pedagogical aims of the university." The court further held that academic freedom "does not encompass the right of a nontenured teacher to have her teaching style insulated from review by her superiors . . . just because her methods and philosophy are considered acceptable somewhere in the teaching profession."
Hetrick v. Martin is distinguished by Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001)
A professor at a community college presented a lecture on language and social constructivism, where the students examined how language is used to marginalize minorities and other oppressed groups in society. One African-American student objected to the in-class use of the words “nigger” and “bitch,” and complained to Hardy and his superiors. As result of the ensuing fall-out, the professor was never asked to teach the class again and complained that the school had retaliated against him for exercising his rights of free speech and academic freedom when teaching the class. The Court of Appeals held that: (1) the discussion of the terms involved matters of public concern, and was protected by First Amendment and (2) instructor's interest in use of speech was not outweighed by interest of college officials in regulating his speech. The court noted that “Hetrick v. Martin is easily distinguishable [from this case] because the district court had made significant findings of fact related to the administration's dissatisfaction with Hetrick's teaching methods and ability. Numerous students had complained about “their inability to comprehend what she was attempting to teach them or what was expected of them.”
Martin v. Parrish, 805 F.2d 583 (5th Cir. 1986)
The court upheld the dismissal of an economics instructor, holding that his use of profane language in a college classroom did not fall within the scope of First Amendment protection because it did not constitute speech on matters of public concern, and the language in question "was not germane to the subject matter in his class and had no educational function." In addition, the language was not protected because "it was a deliberate, superfluous attack on a 'captive audience' with no academic purpose or justification."
Lovelace v. Southeastern Massachusetts University, 793 F.2d 419 (1st Cir. 1986)
The court rejected the free speech claim of a faculty member whose contract was not renewed after he rejected administration requests to lower the academic standards he applied to his students, concluding that universities must have the freedom to set their own standards on "matters such as course content, homework load, and grading policy" and that "the first amendment does not require that each nontenured professor be made a sovereign unto himself."
Wirsing v. Board of Regents of the University of Colorado, 739 F. Supp. 551 (D. Colo. 1990), affirmed without opin., 945 F.2d 412 (10th Cir. 1991)
Tenured professor of education told her students "that teaching and learning cannot be evaluated by any standardized test" and refused to administer the university's standardized course evaluation forms for her classes. After being denied a pay increase because of this refusal, the professor argued that by forcing her to use the evaluation forms, the university interfered arbitrarily with her classroom method, compelled her speech, and violated her right to academic freedom. The court held that although the professor "may have a constitutionally protected right under the First Amendment to disagree with the University's policies, she has no right to evidence her disagreement by failing to perform the duty imposed upon her as a condition of employment."
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
Several high school students were suspended for wearing black armbands to protest the Vietnam War. Although this case arose at a public high school, it is likewise applicable to public institutions of higher education. The Court held that students at public schools do not leave their First Amendment rights at the schoolhouse gate and can express opinions orally and in writing, as well as symbolically, as long as it does not "materially and substantially" disrupt classes or other school activities. The Court held that "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teacher and students," and students "are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state."
Healy v. James, 408 U.S. 169 (1972)
"State colleges and universities are not enclaves immune from the sweep of the First Amendment. . . . [T]he precedents of this Court leave no room for the view that . . . First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." (Shelton v. Tucker, 364 U.S. 479, 487 (1960)). The college classroom with its surrounding environs is peculiarly the "marketplace of ideas," and we break no new constitutional ground in reaffirming this nation's dedication to safeguarding academic freedom."
Morse v. Frederick, 127 S.Ct. 2618 (2007)
Students at a class trip unfurled a 14–foot banner bearing the phrase “BONG HiTS 4 JESUS,” which was easily readable. One student did not comply when asked to take down the banner and was suspended by the principal. The suspension was upheld by the school’s Superintendent. The Supreme Court held that principal did not violate the student's right to free speech by confiscating banner she reasonably viewed as promoting illegal drug use. The court noted that “the ‘special characteristics of the school environment,’ and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of ‘undifferentiated fear or apprehension of disturbance’ or ‘a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.’ The danger [of drug abuse] is far more serious and palpable.”
Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991)
An exercise physiology professor referred to his religious beliefs during instructional time. The university requested that he discontinue this practice, and he challenged the action as violating his freedoms of speech and religion. The court held that the university's actions of exercising editorial control over style and content of speech in school-sponsored expressive activities were permissible, so long as the university's "actions are reasonably related to legitimate pedagogical concerns." The court further ruled that academic freedom is not an independent First Amendment right, and refused to substitute its discretion for that of the university. The court rejected the free exercise of religion claim, holding that the professor "made no true suggestion, much less demonstration, that any proscribed conduct of his impedes the practice of religion."
Edwards v. California University of Pennsylvania 156 F.3d 488 (3rd Cir. 1998)
A professor who was suspended with pay for advancing his religious beliefs through his lectures sued the university for violating several of his constitutional rights. The court rejected his claim, relying on its conclusion that a public university professors' First Amendment rights do not extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates. The court also reasoned that a university, as well as a professor, has certain academic freedoms, and therefore, a university can make content-based decisions when shaping its curriculum.
Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989)
After an administrator ordered a professor to change the final grade of one of his students, the professor sued, claiming violation of his First Amendment academic freedom. The court held that under the free speech clause, "[b]ecause the assignment of a letter grade is symbolic communication intended to send a specific message to the student, the individual professor's communicative act is entitled to some measure of First Amendment protection." The court also held, however, that the university administrators could have changed the student's grade themselves; the unconstitutional act was compelling the professor to change the grade.
Brown v. Armenti, 247 F.3d 69 (3rd Cir. 2001) is a pretty famous recent case
At the conclusion of a semester, a tenured professor assigned an “F,” or “failing,” grade to one of his students in a practicum course because the student had attended only three of fifteen class sessions. The university president ordered that the grade be changed to “Incomplete,” but the professor refused. The professor was suspended from teaching the course and eventually terminated. The Court of Appeals held that the professor had no First Amendment right to expression regarding grade assignment.
- UNC Charlotte Free Speech Website
- Sample university policies providing guidance on religious accommodation:
University of Wisconsin Board of Regents Policy
"It is the policy of the board of regents that students' sincerely held religious beliefs shall be reasonably accommodated with respect to all examinations and other academic requirements. The board of regents adopts this chapter in order to ensure that all institutions of the university of Wisconsin system have in place appropriate mechanisms for ensuring the reasonable accommodation of students' sincerely held religious beliefs, and for appeals related to these matters."
University of Arizona Policy
"Administrators and faculty members are expected to reasonably accommodate individual religious practices. A refusal to accommodate is justified only when undue hardship would result from each available alternative of reasonable accommodation."