Judith C. Areen, Georgetown University Law Center, has posted Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, which is forthcoming in volume 97 (2009) of the Georgetown Law Journal. It includes original interpretations of the American Association of University Professors's Declaration of Principles on Academic Freedom and Academic Tenure. Here is the abstract:In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that statements made pursuant to the official duties of public employees are not shielded by the First Amendment from employer discipline, despite a warning from three dissenting justices that the holding could "imperil First Amendment protection of academic freedom in public college and universities." This article responds to the invitation in Garcetti to identify constitutional interests that support academic freedom and that are not fully accounted for by public-employee speech jurisprudence. It also argues that, contrary to common understanding, academic freedom is about more than faculty research and speech in the classroom; academic freedom is also about the freedom of faculties to govern their institutions in a way that accords with academic values. Part I traces the emergence of the governance dimension of academic freedom from 1915, when the American Association of University Professors (AAUP) credited the German ideal of academic freedom as the inspiration for its Declaration of Principles on Academic Freedom and Academic Tenure. Part II examines the development beginning in the 1950s of constitutional protection for academic freedom. It documents how the constitutional understanding of academic freedom has been compromised by its failure to encompass governance as at the heart of the ideal. Part III uses the broad understanding of academic freedom to reconceptualize academic freedom within the First Amendment. Because academic freedom was never justified as a benefit for faculty, but for its value to the First Amendment and to the nation, there is no basis for carving out an exception to Garcetti for faculty. There are good reasons, however, to develop a jurisprudence for the role of government-as-educator, and to distinguish that role from the roles of either government-as-sovereign and government-as-employer. Because of the distinctive nature of the academic workplace, constitutional academic freedom should protect not only a professor's speech, but her power, as a member of a governing faculty, to be the architect of a place of study and learning that can facilitate the core university tasks of producing and disseminating new knowledge.
Update.
An earlier draft of Areen's article has just been cited by the U.S. Court of Appeals for the District of Columbia in a challenge to the recently tightened restrictions on educational programs offered in Cuba. The case is Emergency Coalition to Defend Educational Travel v. U.S. Department of the Treasury, 2008 WL 4776773 (D.C. Cir., November 4, 2008). Unfortunately the court did not have the benefit of her fuller argument in this SSRN paper with the position that academic freedom is an institutional rather than an individual right.
