A Special Kind of “Right”: The Supreme Court’s Affirmation of Academic Freedom

Abstract

Debates surrounding the free speech rights of academics both inside and outside the classroom date back to the introduction of colleges and universities in the United States. That one gives up his or her right to free speech, at least in certain cases, when he or she chooses to associate with an institution of higher learning was, for a number of decades, a fairly uncontroversial stance for some. Others, however, believed that limiting the free expression of the professoriate was in the best interest of the institutions they represented and the students they influenced. During World War I and the years following, particularly draconian rules were implemented across the United States to assure that academics hostile to the war effort and/or sympathetic toward the enemy would not have access to a pulpit from which to indoctrinate the impressionable young men and women who looked up to them. The relationship between free speech and academic freedom was discussed with some regularity in the mainstream media during that time period but the legal community, especially the highest court in the land, paid sparse attention to that tense relationship; that disinterest changed during the Red Scare following World War II. The Red Scare and McCarthyism of the mid-1900s have a lengthy and complicated legal history. Multiple pieces of legislation were passed to stem the tide of communism, some with suspect constitutional support. The House Un-American Activities Committee tested the limits of the legislative branch along with the meaning of the Fifth Amendment. Free speech, the foundation of the Bill of Rights, stared down challenge after challenge on both the state and federal level. Academic freedom was an active participant in this new legal landscape. The various laws and oaths put in place to wrestle communists from higher education often infringed upon the rights of college and university faculty. For that reason, it was only a matter of time before the Supreme Court was forced to address academic freedom’s place in the American legal landscape.