Inaugural Dean’s Lecture to Address Freedom of Speech on College Campuses

Lexington, VA • Monday, October 29, 2007

Dean Rodney Smolla

Please join us on Tuesday, November 27 at 5:00 p.m. in the Millhiser Moot Court Room in Sydney Lewis Hall for the Inaugural Dean's Lecture, to be delivered by Rodney A. Smolla, Dean and Professor at the Washington and Lee University School of Law. The lecture is open to the public and all are encouraged to attend. A reception will follow in the Moot Court Room lobby.

The title of Dean Smolla's lecture will be "Freedom of Expression and Religion on the Modern Campus: Academic Freedom at Public and Private Universities." Dean Smolla will explore the meaning of academic freedom on the modern university campus, organizing the presentation by posing a series of questions.

Is "academic freedom" a term that describes "law," in the sense that courts know law?  Or is it a cultural concept, a loose collection of customs and understandings describing relationships and values in higher education, but not legally binding on government, university trustees, administrators, faculty members, or students?  Or might it be some blend of legally enforceable rights and duties, and academic customs, in which each sphere influences the other? 

Who are the "holders" of academic freedom rights?  Is it the university itself, as a corporate entity, that possesses academic freedom, a right that allows the university to avoid encroachment on its decision-making by government?  If so, is this right limited to private universities, or is it possible that a public university could somehow possess rights that bind the governments that create those universities?  Are individuals on a campus holders of academic freedom rights?  Do university administrators—presidents and provosts and deans and the like—possess academic freedom rights?  Faculty members?  Students?  If universities, administrators, faculty members, and students might all lay some claim to "academic freedom," are these rights in harmonious alignment, or do they at times conflict?  If they conflict, what are the trumping rules?  And what happens if one individual—a university president, for example—is simultaneously in multiple roles (a university trustee, a university chief executive, and a tenured faculty member)? 

If academic freedom rights exist, either as legally enforceable rights or as cultural custom or some blend of both, where do we look to determine the content of those rights?  To what extent are the rights, for example, derived from the explicit guarantees of the First Amendment to the U.S. Constitution, such as freedom of speech or freedom of religion?  Public universities, as creatures of government, are legally bound by the First Amendment.  Are private universities bound as well, through incorporation of "academic freedom" norms in university documents (such as corporate charters, by-laws, regulations, and contracts)?  If so bound, is this "binding" legal, or simply informal, treating the First Amendment as a "guideline" to be followed or not followed within the university's discretion?  May the government at times impose certain academic freedom norms on private universities? 

If First Amendment freedoms do provide a source (formal or informal) for the content of "academic freedom," are we to understand that there is a separate and distinct First Amendment guarantee, a constitutional right to "academic freedom," that has special meaning and enforceability over and above whatever legally enforceable rights inure in the other guarantees of the First Amendment, such as freedom of speech, religion, press, assembly, association, or petition?  Or is it better to think of "academic freedom" as simply the bundle of principles and doctrines emanating from those other First Amendment clauses as applied in the unique context of a university?  What, if anything, might turn on this distinction, and why should we care? 

If we were to think of "academic freedom" on a modern campus as the application of general First Amendment freedoms to the university setting, what, exactly, would the content be?  That is to say, how would we apply such concepts as "freedom of speech" or "freedom of religion" on a modern public or private campus?  Existing First Amendment theory and doctrine does not typically treat these rights as absolute, but as existing in tension with other societal values, and even other constitutional rights. 

We constantly struggle, in First Amendment doctrine, to balance freedom of speech and freedom of religion against such values as racial or gender equality, human dignity, privacy, national security, public safety, or protection of intellectual property, for example.  First Amendment law is also attentive to context.  The same literal expression may be constitutionally protected speech in some contexts but not in others.  A racist statement, a sexually explicit communication, a communication that is vulgar, a proselytizing religious message, a graphic pro-life or pro-choice abortion message, may be permitted in a public square, such as the Washington Mall, but not permitted in other settings, such as a public school classroom. 

What are we to make of the "context" of a university, applying First Amendment norms?  Is it like a public forum, in which, for example, hate speech is constitutionally protected?  Or is it a place set aside for rational and civilized discourse, in which different academic viewpoints on issues such as race are freely permitted, but vulgar and insulting racist insults or attacks (actual "hate speech") may be banned?  Or is a modern university, like society itself, a textured and multi-layered entity for First Amendment purposes, in which our most "wide open" free speech rules apply in certain places, spaces, or programs, and more restricted rules apply in others?  And assuming one could begin to sort out some of these complexities as they might apply as a matter of law to public universities, what freedom should private universities have to deviate from the principles that bind state institutions?   Might a conscientious private university, for example, arrive at a different conception of freedom of speech or freedom of religion than that imposed by the First Amendment?  If so, is this a sacrifice of "academic freedom," or an "improvement" on its meaning? 

What are the consequences, for the identity of public and private universities, and for the quality of our public discourse, of the decisions we reach regarding all of these questions?

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