Amicus Curiae Brief — Edwards v. California University of Pennsylvania

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| JAN 18 1999

No. 98-964 06 THB PLERB

IN THE

Supreme Court of the United States

October Term, 1998

DILAWAR M. EDWARDS, Ph.D..,

Petitioner,

Vv.

CALIFORNIA UNIVERSITY OF PENNSYLVANIA;

JOHN PIFRCE WATKINS, Ph.D., President;

NANCY Z. NELSON, Ed.D., Vice President for Academic

Aftairs; WILLIAM BENEDETTI, Ed.D., Dean in their

official capacities; DAVID CAMPBELL, Chairperson,

Educational Studies Dept.,

Respondents.

On Petition For Writ Of Certiorari To The United States

Court Of Ap, ‘als For The Third Circuit

BRIEF OF AMICUS CURIAE

INTERCOLLEGIATE STUDIES INSTITUTE

IN SUPPORT OF PETITIONER

Kelly Shackelford*

Byron K. Henry

Liberty Legal Institute

903 East 18", Suite 230

Plano, TX 75074

(972) 423-8889

* Counsel of Record

Balmar Legal Publishing Services, Washington, DC (202) 682-9800

QUESTIONS PRESENTED

Does the First Amendment permit a government

university to censor a tenured professor’s in-class

comments and suggested reading materials offered in the

course of interacting with university-approved

curriculum based solely upon their viewpoint?

Does a professor at a public university, which operates

under a collective bargaining agreement that guarantees

academic freedom, to its faculty, speak as the

government or as an individual when making in-class

comments and offering suggested out-of-class reading

material while interacting with university-approved

curriculum?

TABLE OF CONTENTS

SPR PRGN-E WUREORS MRMEEEES CID sos cccsectcprsvsssscocsececoosecioerconccecesces

ANN A 5 50 pedal sons ansicvs'van chads ceseccrsnsencccaroevsss i

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SUMMARY OF THE ARGUMENT...................ccccccccecceees

Eo yA OS HERB DES SIE ABER TING C 3

I. THE FIRST AMENDMENT DOES Not PERMIT

A GOVERNMENT UNIVERSITY TO SUPPRESS

SPEECH MADE By ITS PROFESSORS IN THE

COURSE OF INTERACTING WITH STUDENTS

AND CURRICULUM BASED SOLELY UPON

THE VIEWPOINT OF THE SPEECH...................... 3

A. The Third Circuit was incorrect in

holding that any academic freedom

rights protected by the First Amendment

are exclusively enjoyed by _ the

C_ERSORRETEE ESE 22 Saleen oy Pane RRR 2

B. The Court should grant the petition in

order to distinguish between a govern-

ment university’s right to choose

courses and shape curriculum, and a

professor's freedom to interact with

students and curriculum within § the

guidelines set by the University ................ 6

C. Alternatively, even if a university could

regulate a professor's in-class speech

and suggested reading materials on

university-approved topics, it may not

do so solely on the basis of viewpoint......... 9

Il. THE IN-CLASS COMMENTS AND SUGGESTED

LITERATURE OF A PROFESSOR AT A

PUBLIC UNIVERSITY CANNOT BE CON-

STRUED AS GOVERNMENT SPEECH WHEN

lil

THE SPEECH IS MADE AND LITERATURE

OFFERED WHILE INTERACTING WITH

STUDENTS AND UNIVERSITY-APPROVED

CURRICULUM, AND THE UNIVERSITY HAS

(GUARANTEED ACADEMIC FREEDOM To ITS

FACULTY UNDER A COLLECTIVE BAR-

CoATPTING FAC oekndassscdsvids cccdbecsce cdptsscecinins 12

A. The University policy, as expressed by

the collective bargaining agreement,

makes clear that a professor does not

speak as the University when making

in-class comments or — utilizing

supplemental teaching aids relevant to

topics within —university-approved

OMIT aia. bs scsuanicetanscth cas ieetitacaoteoes ietehecrneas 12

B. The University, through its adoption of

the collective bargaining agreement,

grants broad discretion to professors to

express viewpoints and _— utilize

supplemental materials on matters

SCRE VER: 90) CEE CONTRO os ccctccidintensacsctvoovsnseneres 16

C. When a public university grants broad

academic freedom rights to its faculty, it

may not selectively revoke that grant

based upon the viewpoint being

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CR FEW Becht RI «cbesca ine daedebacnarsiisecsetaniatebhabaneassabebianautaotedcauin 20

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iV

TABLE OF AUTHORITIES

Cases Page

Barenblatt v. United States, 360 U.S. 109 (1959)... 6

Bishop v. Arnov, 926 F.2d 1066 (11" Cir 1991),

COTE: GIO, Fare haan AA CET eassiwicstesasaei deca Sociesionhaccs 4

Board of Educ. v. Mergens, 496 U.S. 226 (1990) ..0....ccece eee. 14

Board of Educ., Island Trees Union Free Sch. Dist.,

VFO, SSF Weis GOS TAPE cecciicnkshctpicctibcapeciivkiess 11,19

Cohen v. San Bernardino Valley College, 92 F.3d

968 (9° Cir. 1996), cert. denied, 117 S.Ct. 1290

8 be 1 Petter ibe nee ter rm cele SP ALS ON ED CER a TIE 4

Edwards v. Aguilard, 482 U.S. 578 (1987)................2...... 5, 20

Griswold v. Connecticut, 381 U.S. 479 (1965) voce ceeeeeeeee 1]

FEGRSY ¥. FREE, DFG TE, FOF CURB D iscesnaksscnsetisceccs vessorcnupeizecs 3

Kevishian v. Board of Regents, 385 U.S. 589 (1967)..... passim

Kirkland v. Northside Indep. Sch. Dist., 890 F.2d

ONE Kee AM BN irda suisiciachc ie lage ga tsa Sainspcscceloeess 4

McConnell v. Howard Univ., 818 F.2d 58 (D.C.

GE 5 POE RE aa ED AE IID: 65 SA te yO Ra PODER 9

Minnesota Higher Educ. Facilities Auth. v. Hawk,

had Fa FE ivi an ctide ckececadesiliinuade 17

Piarowski v. Illinois Community College Dist. 515,

759 F.2d 675 (7" Cir.), cert. denied, 474

rr aN CI sends ek baa ica aee akon: 6

Police Dep’t. of Chicago v. Mosely, 408 U.S. 92 (1972)... 1]

R.A. ¥. ¥. City of St: Paul, SOS US. STF (AGG? ban cvviissecideres 10

Regents of the Univ. of Mich. v. Ewing, 474

Dont Bk LO a eee hiciahsat carmen na nebpieasiadtacied taisesaaencdincaint 4.8

Page

Roemer v. Board of Public Works of Md.,

4 fig A SRE SSL eS REPRE REA ENN ea Ree ERC RS IIL oP PEELS 17

Rosenberger v. Rector and Visitors of the Univ.

OF Pa Ee Ried EO CED peas costnnnntsccincecopinncsnsiudieccns passim

ene W. SOeeE Oh. CE rca, Be CEE 8B esikessidssaksenicsectnunasouinntos 14

Shelton v. Tucker, 364 U.S. 479 (1960) ............ccccossceccocesecoe 16

Silano v. Sag Harbour, 42 F.3d 719 (2d Cir. 1994).........00..... 4

Sweezy v. New Hampshire, 354 U.S. 234 (1957).......... 4,5, 12

Terminello v. City of Chicago, 337 U.S. 1 (1949) wo. 17

Tilton v. Richardson, 403 U.S. 672 (1971) oo... eee cece eee 17

Tinker v. Des Moines Indep. Sch. Dist.,

ee en EE HTD vistinas Posuaktcedcalstesinix oticdss eas cab Fouaes 4.17

Turner Broad. Sys., Inc. v. FCC, 512

Rosie MRA AOE cies ss ii areccaicledd socabsyieacielakbciglushdatsedauiiiainebees 10

Ward v. Hickey, 996 F.2d 448 (1° Cir. 1993).............cceseeseeeee 4

Weiman v. Updegraff, 344 U.S. 183 (1952)... eee 4.5

Widmary. Vincent, 454 U.S. 263 (L981) ou... ce cceceeeeeeeeees 14

Other Authorities

The Academy and the Courts: A Symposium = On

Academic Freedom, 16 U.C. DAVIS L. REV. 693 (June

PP Dacia cations vietankallnn inp ediccesaiadhcnssush naatneniealisaapeeuiaa asunder 18

AMERICAN ASSOC. OF UNIV. PROFESSORS, Policy

Documents and Reports (1990) ............cccessccsessssssssesnseess 9, 13

Ray Bradbury, FAHRENHEIT 451 (Ballantine Books 1979)

EF ected esisiviseccieccitantessileslippimnbalonsnssuuneueiamionaesekieupheedadbies sabouenkaivas 20

J. Peter Byrne, Academic Freedom: A Special Concern

of the First Amendment, 99 Y ALE L.J. 251 (1989).............. 7

v1

Page

Gregory Clarick, Public School Teachers and the First

Amendment: Protecting the Right To Teach, 65

Pee ARs Bu Be Pe CU FO kets acctuhcccatsiece he cekien 18

Matthew Finkin, /ntramural Speech, Academic Freedom

and the First Amendment, 66 TEX. L. REV. 1323

i. |). eee ssp neclaaee i pond vasied alltel badela bab sdid docdanikac aks 12

Freedom and Tenure in the Academy: The Fiftieth

Anniversary of the 1940 Statement of Principles.

William Van Alstyne, ed.. LAW & CONTEMP. PROBS..,

SMM SI TIE 2 x Soha ercitcdinvdidh ney sd cha badedawinnecunddcchda 13

Rachel E. Fugate, Comment, Choppy Waters Are Ahead

For Free Speech, 26 FLA. ST. L. REV. 187, (Fall

eg RIE RR ee ae OPES REY ONGC OL ROR A ne i ie SS Qg

Nathan Glazer. Academic Freedom in the 1990s. 22? WM.

ee ss a 18

Lowell, A. Lawrence Lowell on Academic Freedom in

Wartime, in 2 AMERICAN HIGHER EDUCATION: A

DOCUMENTARY HISTORY 879 (R. Hofstader & W.

NN SEE Bile ate a 15

Elizabeth Mertz, The Burden of Proof and Academic

Freedom: Protection for Institution or Individual, 82

UE AEs hans Sen vA AE WEY gah cdi tocadaa nebg sedsodsteaexiictdcrndn: 4

Irwin H. Polishook, Academic Freedom and Academic

COmrexte, £5 FACE bi. EV, BE CEG a ivivnicccsrscceedsichacenccncce 9

Donna Prokop, Controversial Teacher Speech: Striking a

Balance Between First Amendment Rights and

INTERESTS OF AMICUS CURIAE'

The Intercollegiate Studies Institute (ISI) is a non-profit,

non-partisan, tax-exempt educational organization whose

purpose is to convey to successive generations of college youth a

better understanding of the values and institutions that sustain a

free society. This purpose is advanced by a recognition that

college campuses must be free from ideological discrimination.

To that end, ISI articulates and defends the ideas of a free

society, in particular the concept of academic freedom, on

America’s college campuses. Through an integrated program of

lectures, conferences, publications, and fellowships, the ISI

annually works with hundreds of thousands of students and

faculty from coast to coast.

ISI is concerned that the lower court’s opinion retards the

evolution of traditional academic freedom. ISI believes that this

represents a threat to our aims and to our respected institutions of

higher education. Most importantly, it threatens the students

who, as leaders of the next generation, must be adequately

equipped to deal with the innumerable challenges they will face.

ISI is convinced that the shaping of these minds must continue to

take place in a forum open to an extensive collection of

viewpoints.

ISI requests this Court to grant the Petition For Writ Of

Certiorari and examine the standard enunciated by the court of

appeals. Upon review, ISI urges the Court to reverse the deci-

sion of the appeals court, and restore academic freedom the pro-

tection it has traditionally enjoyed under the First Amendment.

SUMMARY OF THE ARGUMENT

Amici strongly endorse the concept of academic freedom

put forth in the petition for certiorari. Amici are concerned.

Pursuant to Rule 37.6 of this Court, amicus hereby states that this briet

was authored entirely by counsel for Amicus Curiae Intercollegiate Studies

Institute. No person or entity other than amicus curiae made a contribution to

the preparation or submission of this brief. Pursuant to Rule37.3(a). both

parties have consented to the filing of this brief. The parties’ letters of consent

have been filed with the Clerk of the Court.

2

however, with the test applied by the Third Circuit to Peti-

tioner’s in-class comments and suggested extracurricular reading

materials. The test adopted by the court of appeals lowers indi-

vidual speech in the classroom, and by extension the concept of

academic freedom, to an unprecedented level. While amici ac-

knowledge the need for universities to retain discretion in cur-

riculum decisions, the protections advanced by Petitioner does

not infringe upon, nor implicate a university's right to determine

the contours of the curriculum, or the methods by which it is

taught.

This case presents an opportunity for this Court to answer

two distinct, yet interrelated, questions regarding academic free-

dom at the University level. First, amici contend that, while a

university has broad discretion in hiring decisions, what classes

will be offered, reviewing syllabi of courses, and monitoring

teaching methods, this discretion does not extend to censoring a

professor's comments and supplemental reading materials on

topics that the professor and the University have deemed not

only relevant, but also integral to the course.

Such a regime flies in the face of both the First Amendment

and the concept of academic freedom that this Court has es-

poused. Guidance is necessary for the courts below in order to

clarify that while the government may determine the contours of

curriculum, a professor's interaction with the curriculum within

those contours is protected under the First Amendment.

Alternatively, this case provides an opportunity for this

Court to determine whether a professor's in-class speech and

suggested reading is government speech when the University

has adopted a collective bargaining agreement which specifi-

cally guarantees that each professor is “entitled to freedom in the

classroom in discussing their subject.” and “should make every

effort to indicate that they are not speaking for the university.”

Amici contends the collective bargaining agreement clarifies the

nature of the classroom and the status of the speaker as under the

protective umbrella of the First Amendment.

Based upon the University’s clear intent to promote a

diversity of views, and its specific policy as expressed in the

a .

3

collective bargaining agreement that professors do not speak for

the university, this Court need only decide that when public uni-

versities have clear policies establishing the freedom of profes-

sors teaching their subject, the professor enjoys First

Amendment protection for in-class curriculum-related com-

ments and suggested supplemental out-of-class reading materi-

als.

If American universities are to continue as the preeminent

marketplaces of ideas, professors must be free to interact with

students and curriculum without fear that expression of a

disfavored viewpoint may result in sanction or dismissal. The

theory of academic freedom envisioned by the Respondent and

validated by the Third Circuit would permit the government to

cast a “pall of orthodoxy” over university classrooms, and in the

process, inflict grave injury to the marketplace of ideas.

ARGUMENT

I. THE FIRST AMENDMENT DOES Not PERMIT A

GOVERNMENT UNIVERSITY TO SUPPRESS A_ PRO-

FESSOR’S SPEECH MADE IN THE COURSE OF INTER-

ACTING WITH STUDENTS AND CURRICULUM BASED

SOLELY UPON THE VIEWPOINT OF THE SPEECH.

A. The Third Circuit was incorrect in its holding thai any

academic freedom rights protected by the First

Amendment are exclusively enjoyed by the

University.

This Court has held that academic freedom is a “special

concern of the First Amendment.” Keyishian vy. Board of

Regents, 385 U.S. 589, 603 (1967). According to the Third

Circuit, however, the First Amendment does not apply to a

professor's in-class comments or suggested reading materials

relevant to topics within university-approved curriculum.’ If this

~ Throughout this brief amici refer to Dr. Edwards’ “in-class comments”

and “suggested reading materials” offered within “university-approved

curriculum.” There is nothing in the record to argue that the comments made

by Petitioner were not relevant to the course or that the subject matter being

discussed was “in contravention of school policy or dictates.” See Petition for

4

view is correct, the concept of academic freedom only extends to

the institution and not to individual professors.’ Under this

approach academic freedom under the First Amendment is only

concerned with the government's right to control curriculum,

including the right to micro-manage classroom discussion on

topics the University has deemed relevant. This is contrary to

numerous opinions of this Court and lower courts. See

Keyishian, 385 U.S. at 589; Sweezy v. New Hampshire, 354 U.S.

234 (1957); Weiman v. Updegraff, 344 U.S. 183 (1952); Cohen

y. San Bernardino Valley College, 92 F.3d 968 (9" Cir. 1996),

cert. denied, 117 S.Ct. 1290 (1997); Silano v. Sag Harbour, 42

F.3d 719 (2d Cir. 1994); Ward v. Hickey, 996 F.2d 448 (1° Cir.

1993); Bishop v. Arnoy, 926 F.2d 1066 (1 1" Cir. 1991), cert.

denied, 505 U.S. 1218 (1992); Kirkland v. Northside Indep. Sch.

Dist., 890 F.2d 794 (5" Cir. 1989).’

Writ of Cert. at A-6. To the contrary, the record is replete with testimony that

the subject was appropriate. The syllabus for the course was reviewed by

expert witnesses at trial. In addition, Dr. Edwards had previously been praised

by Respondent and his department head for his syllabus. See Petition for Writ

of Cert. at 2 n.}, 3.n.2 & 5 n4. Further, the suggested reading list offered by

Dr. Edwards was aot mandatory. Dr. Edwards ordered the books so that

students could review the material outside of class at their discretion to

facilitate discussion in the classroom on Unit IIL (Bias and Censorship). See

id. at4 & App. D

For a thorough discussion of the conflicting interests at stake in academic

treedom cases see Elizabeth Mertz, The Burden of Proof and Academic

Freedom: Protection for Institution or Individual?, 82 Nw. L. Rev. 492

(1988).

' These cases reflect a well-settled proposition that curriculum-related

speech by teachers does implicate the First Amendment. While they do not

command a particular result in this case, they stand in direct contradiction to

the Third Circuit's “per se” rule that professor has no First Amendment rights

relating to in-class, curriculum-related speech. See Petition For Writ of Cert.

at A-6. For a discussion on the numerous conflicting tests employed by the

courts of appeals see id. at 16-21.

This Court has recognized that the academic freedom rights of the

institution are not absolute when in conflict with the free speech rights of

students. See Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503

(1969). See also Regents of University of Michigan v. Ewing, 474 U.S.

214 (1985). There is no doubt that courts can and should review decisions

5

The Third Circuit was unambiguous in its definition of

academic freedom when it held that the “four essential

freedoms’ that constitute academic freedom have been described

as a university’s freedom to choose ‘who may teach, what may

be taught, how it shall be taught, and who may be admitted to

study.” Petition for Writ of Cert. at A-8. Unfortunately, this

definition recognizes only one of many components that

comprise the concept of academic freedom. The court of

appeals’ reliance solely on the “university’s freedom” is

misplaced. This Court has stated that academic freedom has

been commonly understood as “the principle that individual

instructors are at liberty to teach that which they deem to be

appropriate in the exercise of their professional judgment.”

Edwards v. Aguilard, 482 U.S. 578, 585 n.6 (1987) (emphasis

added).’ Thus, at the very least, it can be argued that academic

freedom includes the right of both universities and professors to

be free from laws or policies that “cast a pall of orthodoxy over

the classroom.” Keyishian, 385 U.S. at 603.°

of universities to ensure that accepted academic norms are followed and

professional judgment is exercised. See id. at 225. This Court has never

determined that a university has unbridled discretion with regard to

decisions affecting students or professors. To the contrary, this Court has

held that academic freedom does apply to individual professors. See

Healy v. James, 408 U.S. 169 (1972). See also Kevishian, 385 U.S. at

589: Sweezy. 354 U.S. at 234: Wieman, 344 U.S. at 185.

In Eawards the Court affirmed the use of this definition as conclusive

evidence that the purpose underlying the act in question was a sham. 482

U.S. at 584-5. The tact that Edwards was in a secondary school setting even

bolsters the point. Academic freedom has always been more limited in

public secondary schools than in colleges and universities. See id. Thus. if

the Court endorsed this definition of academic freedom applicable at the

secondary school level, a definition appropriate at the University level must

be at least as protective.

¢t

The Seventh Circuit has noted the conflicting uses of the term

“academic freedom” by stating:

“It [academic freedom] is used to denote both the freedom of the

academy to pursue its end without interference from the government. . .

and the freedom of the teacher . . . to pursue his ends without

interference from the academy: and these two freedoms are in conflict.”

6

Amici implore this Court to reject-the newly discovered

narrow version of academic freedom put forth by the court of

appeals and seize this opportunity to restore the traditional

concept of academic freedom by striking a balance between the

rights of the university and individual. This result will preserve

the University as a genuine marketplace of ideas, which is the

purpose for which the concept of academic freedom was

originally designed to secure.”

B. The Court should grant the petition in order to

distinguish between the University’s right to choose

courses and shape curriculum, and the professor's

freedom to interact with students and the curriculum

within the general guidelines set by the University.

The chief purpose of academic freedom and the “special

concern of the First Amendment,” Keyishian, 385 U.S. at 603, is

that a robust exchange of ideas occurs in the classroom.’ Thus,

Piarowski v. Illinois Community College Dist. 515, 759 F.2d 625, 629 (7th

Cir.). cert. denied, 474 U.S. 1007 (1985).

In Piarowski, the court of appeals wrestled with the conflict between the

institution and individual. The court ruled in favor of the University. At no

point, however, did the Seventh Circuit entertain the idea that as a threshold

matter, the institution’s academic freedom rights were absolute. To the

contrary, the court of appeals spent its opinion attempting to strike a balance

between the rights of the University and the professor.

By calling on this Court to “strike a balance.” amici do not imply that a

balancing test is necessary to accomplish this goal. On the contrary, amici

urge that the Court find a balance by recognizing a bright-line separating areas

within the scope of university regulation, and areas subject to the professional

judgment of the professor. See infra, note 13. See also Donna Prokop,

Controversial Teacher Speech: Striking a Balance Between First Amendment

Rights and Educational Interests, 66 S. CAL. L. REV. 2533 (1993).

* The Court has described the University as “peculiarly the marketplace of

ideas.” See Kevishian, 385 U.S. at 603. See also Barenblatt v. United States.

360 U.S. 109, 112 (1959) (*[Wyhen academic freedom and its corollary

learning-treedom, so essential to the well-being of the Nation, are claimed,

this Court will always be on the alert against intrusion by Congress into this

constitutionally protected domain.”).

u

For academic freedom to have any substance, speech in the classroom

must at minimum implicate the First Amendment. Sec J. Peter Byrne.

j

when a university invokes academic freedom as recognized by

the First Amendment, it is essential that it be for the purpose of

promoting a diversity of viewpoints. When a university invokes

academic freedom as a pretext for censoring a disfavored

viewpoint, it reaffirms the necessity for a standard of academic

freedom that guarantees professors discretion when exploring

topics within the subject matter of their courses.

The crux of the conflict between the Petitioner and

Respondent lies in the wording of the Third Circuit's holding

that a professor “does not have a First Amendment right to

decide what will be taught in the classroom.” Petition for Writ

of Cert. at A-6. This language is misleading for two reasons.

First, the dispute between the Petitioner and Respondent is not

over what will be taught. The subject being taught was

obviously approved by the University." Further, it is undisputed

that the topics of bias and censorship were relevant to the course.

See id. at 2 n.1,5n.4 & D-2. The University did not object to the

subject-matter being taught by Petitioner. The only objection

made by Respondent was to Dr. Edwards’ use of “doctrinaire

material” “of a religious sort” in connection with the unit on bias

and censorship. /d. at 3.

The record does not indicate that the University had any

policy prohibiting professors from offering suggested reading

materials on topics that are integral to a course. To the contrary,

to the extent that any policy was in effect, it was exactly the

opposite. The official University position stated that “[a] faculty

member ts entitled to freedom in the classroom in discussing

his/her subject,” and “faculty members are entitled to freedom in

the selection of textbooks, audio/visual aids and other teaching

aids.” Petition for Writ of Cert at 3. The contention that Dr.

Academic Freedom: A “Special Concern” of the First Amendment, 99

YALE LJ. 251 (1989) (discussing reasons why First Amendment

protection is indispensable to genuine academic freedom).

~ Dr. Edwards regularly taught Introduction to Educational Media.

which has been offered by the University since at least 1980. See Petition

for Writ of Cert. at D-1.

8

Edwards’ actions were in “contravention of school policy” is

without merit. See id. at A-6.

Second, the Third Circuit opinion implies that Dr. Edwards

is claiming a First Amendment right to usurp the University’s

undisputed authority to make administrative decisions regarding

the content of curriculum. See id. at A-6 (“A public university

professor does not have a First Amendment right to decide what

will be taught in the classroom.) (emphasis added). This is

simply not the case. There are numerous academic decisions

that must be made in order to assemble information and ideas

and deliver them to students in a proficient manner. These

decisions range from very broad (whether to offer a course) to

very narrow (what questions to ask on the final exam). The

simple question posed by this case is whether at some point

between the extremes the government relinquishes authority to

the individual professor.

For a professor to enjoy genuine academic freedom, some

freedom must be retained at the classroom level. And, if the

professor retains any academic freedom in the classroom, it must

encompass the right to freely interact with students while

discussing his subject, which includes suggesting outside

reading materials relevant to his course. If this is not the case,

then the Third Circuit was correct in its holding that the

University may exercise absolute control of the content of each

course at every level.’ This would include the power to review

and censor everything that is said or read both inside or outside

- Amici suggest that in order for academic freedom to remain beneficial in

practice the First Amendment must require the University to relinquish

authority to the professor at some point. Fortunately for Petitioner, and

this Court, in the present case Respondent has voluntarily chosen that point by

voluntarily granting broad authority to its faculty in the classroom.

By “level.” amici mean “decision-making level” ranging from who to

hire to what questions to ask on a final exam. Arguably, the University could

assign a committee to review grades given by the professor and adjust them

without regard to the professor's professional judgment. This scheme would

certainly violate traditional academic norms. See Regents of the Univ. of

Mich.. 474 U.S. at 225.

9

of the classroom by the professor and conceivably even the

students.

Amici contend that the Third Circuit was mistaken. This

Case presents an excellent opportunity for the Court to clarify the

First Amendment principle of academic freedom that, while

reinforcing the University’s traditional role as guardian of the

marketplace of ideas, will foster a free exchange of ideas and

viewpoints in the classroom. Amici implore the Court to take

this opportunity to reject the change in law proposed by the

Third Circuit and continue to protect both the institution’s right

to determine what will be taught, and the instructor’s freedom to

interact within those parameters.

C. Alternatively, even if a university could regulate a

professor's in-class comments and supplemental

reading materials on university-approved topics, it

may not do so solely on the basis of viewpoint.

Even if a court concluded that a university can regulate the

content of a professor's comments and the selection of suggested

reading materials relevant to his course, the First Amendment

could not permit the public university to do so based upon

viewpoint. “Discrimination against speech because of its

~ Amici do advocate any specific test. But see Rachel E. Fugate.

Comment, Choppy Waters Are Forecast For Free Speech, 26 PLA. ST. L.

REV. 187, 215 (Fall 1998) (proposing a new test to be used in academic

freedom cases). Amici do suggest that traditional academic norms, including

policies and definitions set forth in the 1940 Statement On Academic Freedom

and Tenure, |hereinatter 1940 Statement| would be a solid foundation on

which to construct a principled standard. See McConncii v. Howard Unw..

818 F.2d 58, 64 n.7 (D.C. Cir. 1987) (citing nuinerous cases that rely

significantly on the 1940 Statement). See also Irwin H. Polishook, Academic

Freedom and Acedemic Contexts, 15 PACE L. REV. 141 (1994) (noting that

academic freedom is recognized in university manuals and faculty handbooks

and incerporated into union contracts for academic faculty throughout the

country ).

‘ Respondent's approach is tantamount to a university deciding to offer a

course on the Fourteenth Amendment, approving a syllabus which includes a

section on privacy rights, allowing a professor to devote a lecture to Griswold

v. Connecticut, then prohibiting the professor trom discussing the dissenting

Opinions written in that case.

10

message is presumed to be unconstitutional.” Rosenberger vy.

Rectors and Visitors of the Univ. of Va., 515 U.S. 819, 828-29

(1995) (ctting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

635 (1994)).”

The Court in Rosenberger held that a university’s decision

to deny funds to a student newspaper with religious content

while approving funds for newspapers with dissimilar

viewpoints violated the First Amendment. See 515 U.S. at 837.

The dissest argued that so long as many viewpoints were

silenced, no viewpoint discrimination was committed and, thus

the First Amendment was not violated. See Rosenberger, 515

U.S. at 863 (Souter, J., dissenting). Respondent’s actions in this

case fail to meet either standard. The University did not instruct

Dr. Edwards to “cease and desist” from discussing a variety of

viewpoints concerning bias and censorship. Respondent simply

ordered him to refrain from discussing his subject from a

religious viewpoint.

The University went one step further. In addition to the

ban on in-class comments from a religious perspective, it

prohibited Dr. Edwards from suggesting outside reading

materials written from a religious viewpoint. Respondent even

canceled Dr. Edwards order for all books written from the

’ Even if the University could exclude general subject matter from a

course regardless of its relevance or importance it may not approve

inclusion of a topic and then suppress particular viewpoints. “When the

government targets not subject matter but particular views taken by

speakers on a subject. the violation is all the more blatant” Rosenberger.

S15 U.S. at 829 (citing R. A. V. v. City of St. Paul, 505 U.S. 377. 391

(1992)). The holding in Rosenberger narrows the inquiry to two

questions: Does the professor speak as the University or as a private

speaker?: and, did the University commit viewpoint-based discrimination?

See 515 U.S. at 834.

Here. the University would have to argue that its written policy did not

intend to promote a diversity of viewpoints in its classes. and thus the

University acted as “government speaker” when it censored Dr. Edwards’ use

of extra-curricular materials based upon one particular viewpoint. Both

traditional academic norms and the University’s own academic freedom

policy demonstrates that the opposite is true in both instances.

1]

disfavored viewpoint. Thus, the University’s nution of academic

freedom encompasses the absolute right to censor a professor's

curriculum-related comments inside the classroom, as well as

which viewpoints are appropriate for students to survey outside

the classroom.

The Court has made it clear in the case of public secondary

schools that, even when an institution has broad discretion over

what is read or taught in the classroom, it may not limit the

sphere of information available outside the classroom. See

Board of Educ., Island Trees Union Free Sch. Dist. v. Pico 457

U.S. 853 (1982). See also Griswold v. Connecticut, 381 U.S.

479, 482 (“[T]he State may not, consistent with the spirit of the

First Amendment, contract the spectrum of available

knowledge.) If middle and high school aged children have the

right to access to a variety of viewpoints (even over the

objections of parents and the school board), then certainly

college-aged adults of much more maturity have the right to

access materials representing a variety of viewpoints on topics

the University has deemed relevant to a course it voluntarily

chose to offer.“

By restricting Dr. Edwards’ comments solely because of

their alleged religious viewpoint, Respondent’s actions

transgress the most fundamental principle of the First

Amendment. “[A]bove all else, the First Amendment means

that government has no power to restrict expression because

of its message, its ideas, its subject matter or its content.”

Police Dep't of Chicago v. Mosely, 408 U.S. 92, 95 (1972).

The Court has recognized that a public university is a

“traditional sphere of free expression.” Keyishian, 385 U.S.

~ Amici do not intend to suggest that a university must supply students

with materials from all available viewpoints. However, if the common

practice 1s to acquiesce to faculty requests when purchasing supplemental

reading materials, it cannot violate that practice simply because it disfavors a

particular viewpoint. Certainly, a university may make an administrative

decision not to purchase certain books for its library based on a variety of

reasons that comport with the Constitution. However. amici believe this case

more closely resembles a removal of books than an initial decision not to

purchase them

12

_

at 605. the University classroom should be regarded as the

core of free expression on college campuses.’ Since the

Court refers to universities as “peculiarly the marketplace of

ideas”, the University classroom should not be stripped of its

all-important status because “[t]o impose any strait jacket

upon the intellectual leaders in our colleges and universities

would imperil the future of our nation.” Sweezy, 354 U.S. at

250."

Il. THE IN-CLASS COMMENTS AND~ SUGGESTED LIT-

ERATURE OF A PROFESSOR AT A PUBLIC UNIVERSITY

CANNOT BE CONSTRUED AS GOVERNMENT SPEECH

WHEN THE SPEECH IS MADE AND LITERATURE IS

OFFERED WHILE INTERACTING WITH STUDENTS AND

UNIVERSITY-APPROVED CURRICULUM, AND THE

UNIVERSITY HAS GUARANTEED ACADEMIC FREEDOM TO

Its FACULTY UNDER A COLLECTIVE BARGAINING

AGREEMENT

A. The University, as expressed by the collective

bargaining agreement, makes clear that a professor

Amici do not attempt to downplay the value of free speech on college

campuses outside the classroom. On the contrary. the academic freedom of

institutions, professors, and students in all facets of university life 1s

indispensable to a healthy marketplace of ideas. Still, the term “academic

freedom” by its very definition refers to the academic process which occurs

for the most part in the classroom. See Matthew Finkin, /ntramural Speech,

Academic Freedom and the First Amendment, 66 TEX. L. REV. 1323 (1988).

* This Court’s admonishment in Rosenberger is ominously appropriate

in this case:

Vital First Amendment principles are at stake here. The first

danger to liberty lies in granting the State the power to examine

publications to determine whether or not they are based upon

some ultimate idea and if so for the State to classify them. The

second, and corollary, danger is to speech from the chilling of

individual thought and expression. That danger is especially real

in the University setting, where the State acts against a

background and tradition of thought and experiment that is at the

center of our intellectual and philosophic tradition.

515 U.S.. at 835.

;

i

13

does not speak for the university when making in-

class comments or utilizing supplemental teaching

aids relevant to topics within university-approved

curriculum.

The Third Circuit incorrectly concluded that Dr. Edwards’

in-class speech and selection of extracurricular reading materials

was attributable to the University. The Respondent specifically

contradicted that position when it declared in writing that when

professors teach “they are not speaking for the university.”

AMERICAN ASSOC. OF UNIVERSITY PROFESSORS (AAUP), 1940

Statement on Academic Freedom and Tenure in AAUP, Policy

Documents and Reports 3, 4 (1990) [hereinafter 1940 State-

ment]. As the basis for its conclusion, the Third Circuit relied on

a passage from Rosenberger which reads: “{W]hen the State is

the speaker, it may make content-based choices. When the

University determines the content of the education it provides, it

is the University speaking . . . .” 515 U.S. at 833-34. The Court

went on to state in Rosenberger, however, that when a university

“expends funds to encourage a diversity of viewpoints” it may

not discriminate based upon viewpoint. /d.

For the Third Circuit’s holding to pass muster it must

follow that a professor's in-class speech and suggested reading

lists should be taken as directly and deliberately representative of

the school. This conclusion is inconsistent with the University’s

stated policy, as well as the premises and traditions of American

higher education. Respondent acknowledged that it is governed

by a written collective bargaining agreement (CBA) adopting the

1940 Statement. See Petition for Writ of Cert. at 3.

Respondent's adherence to the CBA clearly demonstrates the

nature of the speaker. The CBA, adopting the 1940 Statement,

states: “[B]ecause the public may judge their profession and

their institution by their utterances the college cr university

For a thorough discussion of the 1940 Statement see Freedom and

Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of

Principles, William W. Van Alstyne, ed.. LAW & CONTEMP. PROBS

Summer 1990, at 1. (includes nine articles on academic freedom with

emphasis on AAUP policy).

14

teacher should . . .make every effort to indicate that they are not

speaking for the university.” 1940 Statement at 3. Thus,

whatever argument that could be made that a professor speaks

for the University in these circumstances is obliterated by the

University’s own specific written policy. See Petition for Writ

of Cert. at 3.”

It is also important to note that students understand that

professors are not expected to read from university-approved

scripts. Professors must be able to express viewpoints on topics

relevant to their courses as well as respond to viewpoints

expressed by students. Professors must also answer questions

extemporaneously. Under the Respondent’s concept of academic

freedom, it would be acceptable to require professors to submit

class notes and lecture materials for approval from the

University or require students to submit questions to professors

before class in order for the professor to prepare a response and

gain approval from the University before being allowed to

answer.

" The Court has wisely recognized that college students are sufficiently

mature to disassociate the speech of individuals from the position of the

university. See Widmar v. Vincent 454 U.S. 263, 274 n.14 (1981), Tilton v.

Richardson, 403 U.S. 672, 686 (1971). Cf. Board of Educ. v. Mergens, 496

U.S. 226 (1990) (same factors also true of high school students). Although the

Third Circuit disagrees, the University policy regarding the freedom of its

faculty demonstrates that it does not view them as “mere government actors

paid to articulate a specific government position” as in Rust v. Sullivan, 500

U.S. 173 (1991). Petition for Writ of Cert. at 26. To the contrary. the

University went out of its way to voluntarily grant virtually unbridled

discretion in all areas of instruction. See id. at 3-7. Clearly, the University

intended to promote a “diversity of views” within the classroom and among its

faculty, and adopted policies to that end. See id. at 26.

“ Further, if a university can censor a professor's in-class comments

relating to his subject. and suggested reading lists outside of class, what about

discussions with students in his office during office hours? Outside of office

hours? It is obvious that the Third Circuit's holding is incompatible with

academic freedom as it has been traditionally defined, as well as the First

Amendment. See Keyishian, 385 U.S. at 603 (“Our Nation is deeply

committed to safeguarding academic freedom. which is of transcendent value

to all of us. That freedom is therefore a special concern of the First

plies:

as

Moreover, the court of appeals’ reasoning and _ result

ultimately would place universities themselves under immense

pressure. If professors are deemed to speak for the University,

and the University fails to censor what is said on its behalf, then

the University could be held to have endorsed the speech. If this

is the case, not only do universities endorse a wide variety of

sometimes incompatible positions on various issues, they can

expect constant pressure from within and without to engage in

viewpoint censorship in a host of individual cases. As President

Lowell of Harvard University stated in a famous speech during

World War I, resisting pressure from alumni to dismiss a pro-

German professor:

If a university or college censors what its professors may

say, if it restrains them from uttering something that it does

not approve, it thereby assumes responsibility for that

which it permits them to say. This is logical and inevitable,

but it is a responsibility which an institution of learning

would be very unwise in assuming.

Lowell, A Lawrence Lowell on Academic Freedom in Wartime,

in 2 AMERICAN HIGHER EDUCATION: A DOCUMENTARY

HISTORY 879 (R. Hofstader & W. Smith eds. 1961).

Even absent an established policy guaranteeing academic

freedom to its professors, the court of appeals’ conclusion that a

professor speaks as the university when making in-class

comments or suggesting out-of-class reference materials relating

to university-approved topics evaporates under the most minimal

scrutiny. Students understand that professors have individual

viewpoints on matters relating to their subjects. Fellow

professors are aware that each individual fellow faculty member

is not a mouthpiece for the University’s official position. In this

case, according to the CBA, the University is unambiguous in its

expectation that its professors make clear that they do not speak

for the University.

Amendment, which does not tolerate laws that cast a shadow of orthodoxy

over the classroom.”)

16

It seems the court of appeals is the only group under the

mistaken impression that a professor's interaction with approved

curriculum through in-class comments and_ supplemental

teaching aids is government speech. The — traditional

understanding of a professors’ academic freedom in_ the

classroom, and the specific written policy of the University

dictates otherwise. The court of appeals should be corrected in

this case because “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).

B. The University, through it adoption of the collective

bargaining agreement, grants broad discretion to its

faculty to express viewpoints and utilize supplemental

materials on matters relevant to their courses.

Even if, under normal circumstances, a university reserves

the right to put content-based or viewpoint-based restrictions on

a professor’s in-class speech and suggested reference materials,

Respondent has waived that nght by adopting a collective

bargaining agreement that guarantees academic freedom to its

faculty. At the heart of the dispute between Dr. Edwards and the

University is the portion of the CBA which states in pertinent

part: “Teachers are entitled to freedom in the classroom in

discussing their subject, but they should be careful not to

introduce into their teaching controversial matter which has no

relation to their subject.” Petition for Writ of Cert. at 3. As

discussed earlier, Respondent did not contend that the comments

or materials had no relation to the subject. See id. at 3. It is

conceivable, however unlikely, that due to the single complaint

lodged by one student. who did not testify at trial, Respondent

might argue that the material was “controversial.” But even so,

under the CBA, the material must bear “no relation to [the]

subject” before a professor is expected to refrain from including

it. See id. at A-3.

Furthermore, to even suggest that avoiding controversy is a

sufficient interest to justify viewpoint-based discrimination

strains credulity. For “school officials to justify prohibition of a

particular expression of opinion, [the school] must be able to

17

show that its action was caused by something more than a mere

desire to avoid the discomfort and unpleasantness that always

accompanies an unpopular viewpoint.” Tinker v. Des Moines

Indep. Community Sch. Dist., 393 U.S. 503, 509 (1969).” To

hold as the court of appeals did, that a viewpoint may be singled

out because it alone has produced a student complaint, strikes at

the very heart of the First Amendment.

It is unclear why the Third Circuit failed to even mention

the CBA in its opinion.” See Petition for Writ of Cert. at 3 n.2.

Despite this conspicuous omission, amici suggest that the CBA

states the University’s unequivocal intention as to the nature of

the classroom and the speaker. The University could not have

been more clear when it declared that faculty members have

“extraordinary latitude” in decisions regarding whether certain

materials are relevant to a course. See id. at 3. It stands to

~ This Court has made it clear that the First Amendment will not

countenance a “heckler’s veto”:

[A] function of free speech under our system of government is to

invite dispute. It may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with conditions

as they are, or even stirs people to anger. Speech is often

provocative and challenging. It may strike at prejudices and

preconceptions and have profound unsettling affects as it presses for

acceptance of an idea... . There is no room under our Constitution

for a more restrictive view. For the alternative would lead to a

standardization of ideas.

Terminello vy. City of Chicago, 337 U.S. 1, 4 (1949).

‘ The University’s adoption of the CBA undoubtedly has a transforming

effect. This Court has noted that adoption of the 1940 Statement by a

sectarian institution supports the conclusion that the school was “characterized

by an atmosphere of academic freedom rather than religious indoctrination.”

Tilton v. Richardson, 403 U.S. 672, 681-2 (1971). And the fact that “feJach

college subscribes to, and abides by. the 1940 Statement . . .“” demonstrates

that the Catholic colleges receiving an annual state subsidy were not

pervasively sectarian. Roemer v. Board of Public Works of Md., 462 US.

736, 756 (1976). See also Minnesota Higher Educ. Facilities Auth. v. Hawk,

232 N.W.2d 106, 109 (Minn. 1975) (holding that private colleges benefitting

from tax-exempt revenue were non-sectarian because “the colleges all adhere

to the 1940 Statement . . .>)

18

reason that students enjoy at least as much “freedom in learning”

as professors do “freedom in teaching” as espoused in the CBA.

Thus, the University has unavowedly declared its classrooms an

arena intended for the open exchange of viewpoints between

professors and students.

The Third Circuit’s opinion omitting any reference to the

University’s defiance of the CBA warrants review and reversal.

C. When a public university grants broad academic

freedom rights to its faculty, it may not selectively

revoke that grant based upon the viewpoint being

expressed.

While there is considerable scholarship on the subject of

academic freedom, both in theory, and under the Constitution,

there appears to be little or no scholarship discussing a public

university's selective revocation of a prior delegation of

academic freedom. ~ Admittedly, there is some debate regarding

whether a university must delegate some authority over

academic decisions to its faculty. It does not follow, however,

that if a university is not required to delegate, it has absolute

discretion in revoking any delegations made prior. See Petition

for Writ of Cert. at 27.

The University’s actions in this case are analogous to the

school board’s actions in Pico. 457 U.S. at 853. While the

books at issue in this case had not yet been purchased, nor

placed in the library, they had been ordered. See Petition for

Writ of Cert. at 5. The University had a longstanding policy of

granting the requests of facuity members for supplemental Class

materials. See id. In addition, the CBA states that “faculty

members are entitled to freedom in the selection of textbooks,

audio/visual aids and other teaching aids.” /d. at 3.

' See e.g., Nathan Glazer, Academic Freedom in the 1990's, 22 WM.

MITCHELL L. REV. 479 (1996): Gregory A. Clarick, Public School Teachers

and The First Amendment: Protecting The Right To Teach. 65 N.Y .U. L. REV.

693 (June 1990); The Academy and the Courts: A Symposium On Academic

Freedom, 16 U.C. Davis L. REV. (Summer 1983) (compilation of

seven articles each addressing a different aspect of academic freedom).

——

19

Nevertheless, upon receipt of a single complaint by one

student, who did not testify at trial, the University ordered Dr.

Edwards to “cease and desist” from employing twenty-four titles

of “suspect materials” in the teaching of his class. Petition for

Writ of Cert. at 4. The Court held in Pico that despite the

significant interests of parents and the school board, the school

board was prohibited from removing the books. 457 U.S. at 853.

While the University may be free to approve or disapprove

which books it buys for its library or what materials it orders for

its bookstore, this administrative authority, necessitated by a

scarcity of resources, does not include the power to restrict Dr.

Edwards from offering a list of books as suggested reading on

the topic of bias and censorship because of their viewpoint.”

The only conclusion one can draw from the University’s

actions is that it revoked the academic freedom it had delegated

to Dr. Edwards through the CBA. There is no other evidence

that the University intended to terminate its adherence to the

CBA as to any other professor. Therefore, it can be deduced that

the University intended to continue its adherence to the CBA

except as to Petitioner. Like the University in Rosenberger.

Respondent defied its specific written policy in order to suppress

one viewpoint from one speaker. 515 U.S. at 819. The only

explanation for this selective discrimination was that the

Respondent wished to censor one of the viewpoints being

expressed in Dr. Edwards’ class. See Petition for Writ of Cert. at

3-6.

A government ban of books based upon a single objection

by an alleged student to the viewpoint of the books is

inconsistent with the First Amendment and harmful to the

intellectual freedom necessary to sustain a free society.

~ Respondent did not simply invoke its administrative authority and

refuse to allocate resources for Dr. Edwards’ book order (though this

acuion would also be suspect under the First Amendment if done solely

on the basis of viewpoint). Respondent also prohibited Dr. Edwards

from utilizing or suggesting any of the materials in discussing his subject

even, arguably. if he purchased the books himself and placed copies on

reserve in the library for student examination.

20

Freedom is abridged by those who object to a_ particular

viewpoint “each ripping a page from this book, then that, until

the day came when the books-were empty and the minds were

shut and the libraries closed forever.” RAY BRADBURY,

FAHRENHEIT 451 149 (Ballantine Books 1979) (1953).

Selective academic freedom is an oxymoron. If the

University reserves the right to revoke the CBA at will, and only

as to one professor or one viewpoint, then academic freedom

under the CBA is a sham. See Edwards v. Aguilard 482 U.S.

578 (1987) (holding that statute that limited a_ teacher's

discretion was antithetical to the statute’s stated purpose of

academic freedom). The University’s own “primary guiding

document” belies its arguments in the lower courts.

Accordingly, amici strongly urge this Court to reaffirm the

Constitution, more specifically the First Amendment, as the

“primary guiding document” to carry out its most basic

function- to guarantee an unrestricted marketplace of ideas-

and restore academic freedom to a position worthy of the

American system of higher education.

CONCLUSION

For the foregoing reasons the Court should grant the

Petition For Writ Of Certiorari.

Respectfully Submitted.

Kelly Shackelford*

Byron K. Henry

Liberty Legal Institute

9()3 East 18", Suite 230

Plano, TX 75074

(972) 423-8889

*Counsel of Record

January 13, 1999 Attorneys tor Amicus Curiae

Intercollegiate Studies Institute