Resuscitating the constitutional "Theory" of academic freedom: A search for a standard beyond Pickering and Connick

In 1957, the Supreme Court in Sweety v. New Hampshire for the first rime fo rmally recognized academic freedom as a legal right granted by the Constitu tion. Since then, a handful of Supreme Court decisions have provided enthus iastic rhetoric urging that academic freedom remain "a special concern of t he First Amendment," but have failed to clarify what "academic freedom" act ually protects, where the boundaries of the liberty lie and what standards lower courts should employ to guard the right. Attempting refill this void, lower courts have had to improvise somewhat by frequently clinging to the familiar public employee speech rules outlined in Pickering v. Board of Edu cation and Connick v. Myers when public universities attempt to penalize pr ofessors for instances of speech. Although these lower courts occasionally mention academic freedom in their opinions, use of the Pickering/Connick re st as a crutch is troublesome because the standard demands no academic free dom analysis and adherence to its rules has and will continue to produce aw kward results in academic settings. In this note, Chang provides an overview of Supreme Court jurisprudence reg arding the constitutional "theory" of academic freedom, highlighting its in consistencies and the questions the Court leaves unanswered. She then expla ins how constitutional and professional definitions of academic freedom div erge: each purport to protect different types of expression and the two dis agree on whether academic freedom is an individual or institutional right. Next, she presents the specific problems caused by applying generic public employee speech rules to academic contexts. Finally, Chang offers alternati ve standards lower courts can use in place of the Pickering/Connick rules t o adjudicate academic freedom disputes between professors and their univers ities.