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By L. Keith Yohn, D.D.S, M.S. Associate Professor
In these days of inflated grades and social promotions, academic freedom becomes an important tool for maintaining high standards and excellence in the academic programs of the University.
In October 1999, a panel of four professors in the School of Dentistry reported F grades for an examination performed by two students in academic difficulty. The schools administration rejected the grades submitted by the professors. Without authorization from the executive committee, without a legitimate reason, and in violation of the School of Dentistrys written statement for scholarship and promotion, the students were allowed to perform another examination. The students were awarded grades of C and C+ and were promoted into the third year of the dental schools predoctoral program.
Several informal discussions were held with the Dean of the School of Dentistry, and a complaint was filed with the schools grievance procedures without a resolution. On Dec. 15, 1999, Prof. Yohn filed a lawsuit in U.S. District Court for the Eastern District of Michigan for redress of the matter.
The following is a series of quotations of opinions discovered by Prof. Yohn during his research for the lawsuit. They help define the meaning and significance of academic freedom, and they help explain why it is necessary to defend it.
In striking a balance between the University and its professors, U.S. Supreme Court Justice Frankfurter said:
The four essential freedoms of a universityto determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. Regents of the Univ. of Cal. v Bakke, 438 U.S. 265, 312 (1978): Sweezy v New Hampshire, 354 U.S. 234, 263 (1957).
In a monograph titled The Constitutional Rights of Teachers and Professors Duke law professor William Van Alatyne stated:
Students compelled by law to attend classes constitute a wholly captive audience neither free to depart if offended by, or in disagreement with, the teachers utterances nor free even genuinely to offer dissenting views against the authority of the teacher, armed with his command of sanctions over classroom decorum, the awarding of grades, and the dispensing of personal recommendations. The teacher receives a salary for his hired service, he is employed for a specific task, and he is insulated within his classroom even from the immediate competition of different views held by others equally steeped in the same academic discipline. The Constitutional Rights of Teachers and Professors, Duke Law Journal, volume 1970, No. 5 page 856 (October 1970).
In a lineage of U.S. Supreme Court cases in chronological order, the court said:
The 14th Amendment, as now applied to the states, protects the citizen against the state itself and all of its creaturesboards of education not excepted. These have, of course, important, delicate and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its course and teach youth to discount important principles of our government as mere platitudes. West Virginia v Barnette, 319 U.S. 624, 637 (1943).
The process of education has naturally enough been the basis of hope for the perdurance of our democracy on the part of all our great leaders, from Thomas Jefferson onward. To regard teachersin our entire education system, from the primary grades to the universityas the priests of our democracy is therefore not to indulge in hyperbole. It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom, to assure which the freedoms of thought, of speech, of inquiry, of worship are guaranteed by the Constitution of the United States against infraction by National or State government. Wieman v Updegraff, 344 U.S. 183, 196 (1952).
The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. By limiting the power of the states to interfere with freedom of speech and freedom of inquiry and freedom of association, the 14th Amendment protects all persons, no manner their calling. But, in view of the nature of the teachers relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the 14th Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers. Wieman v Updegraff, 344 U.S. 183, 195 (1952); Shelton v Tucker, 364 U.S. 479, 487 (1960).
These are rights which are safeguarded by the Bill of Rights and the 14th Amendment. We believe that there unquestionably was invasion of petitioners liberties in the areas of academic freedom and political expressionareas in which government should be extremely reticent to tread. The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation. Scholarship must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. Sweezy v New Hampshire, 354 U.S. 234, 250 (1957).
Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Keyishian v Board of Regents, 385 U.S. 589, 603-04 (1966).
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this court for almost 50 years. Tinker v Des Moines School Dist., 393 U.S. 503, 506 (1968).
Like the decision of an individual professor as to the proper grade for a student in his course, the determination of whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decision making. The court concluded that the professor should retain wide discretion in this evaluation of the academic performance of his students. University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation. Board of Curators of the Univ. of Mo. v Horowitz, 435 U.S. 78, 90-92, 96 (1978).
Although faculties have been subject to external control in the United States since colonial times, traditions of collegiality continue to play a significant role at many universities, including Yeshiva. For these reasons, the board has recognized that principles developed for use in the industrial setting cannot be imposed blindly on the academic world. Professors are sometimes spoken of as working for the college. They are the college. Faculty authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies and matriculation standards. They effectively decide which students will be admitted, retained and graduated. NLRB v Yeshiva University, 444 U.S. 672, 680-81, 686 (1979).
The business of a university is education, and its vitality ultimately must depend on academic policies that largely are formulated and generally are implemented by faculty governance decisions. It may appear that the professor performing governance functions is less accountable for departures from institutional policy than a middle-level industrial manager whose discretion is more confined. Moreover, traditional systems of collegiality and tenure insulate the professor from some of the sanctions applied to an industrial manager who fails to adhere to company policy. But the analogy of the university to industry need not, and indeed cannot, be complete. It is clear that Yeshiva and like universities must rely on their faculties to participate in the making and implementation of their policies. NLRB v Yeshiva University, 444 U.S. 672, 688-89 (1979).
When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the facultys professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Regents of the University of Michigan v Ewing, 474 U.S. 214, 225 (1985).
Both the U.S. Circuit Courts of Appeals and U.S. District Courts use the preceding U.S. Supreme Court cases as authority to resolve academic disputes that come before the courts. In a case involving a professor who was the subject of an investigation for sexual harassment, the court said:
Academic freedom falls within the parameters of the First Amendment and is a special concern of the First Amendment. University of Pa. v E.E.O.C., 493 U.S. 182 (1990); Regents of University of Michigan v Ewing, 474 U.S. 214 (1985); Regents of Univ. of Cal. v Bakke, 438 U.S. 265 (1978); Keyishian v Board of Regents, 385 U.S. 589 (1967).
As a type of speech, academic freedom receives some protection from governmental abridgment by the First Amendment. Deference to this right is appropriate. Knight v State of Ala., 14 F3d 1434 (11th Cir. 1994). Academic freedom refers to the freedom of individual teachers to not suffer interference by the administrators of the university. Piarowski v Illinois Community College Dist. 515, 759 F2d 625 (7th Cir. 1985); Keen v Penson, 970 F2d 252 (7th Cir. 1992); Rubin v Ikenberry, 933 Fsupp 1425 (C.D. Ill. 1996).
In a case involving a teacher who gave a 0 grade to a student on a writing assignment, the court related:
Like judges, teachers should not punish or reward people on the basis of inadmissible factorsrace, religion, gender, political ideologybut teachers, like judges, must daily decide which arguments are relevant, which computations are correct, which analogies are good or bad, and when it is time to stop writing or talking. Grades must be given by teachers in the classroom; and to this end teachers, like judges, must direct the content of speech. Teachers therefore must be given broad discretion to give grades and conduct class discussion based on the content of speech. Stettle v Dickson County School Board, 53 F3d 152, 155-56 (6th Cir. 1995).
In a case involving a nontenured professor who was ordered by the dean to change a students grade from a B to an A, the court said:
Because the assignment of a letter grade is symbolic communication intended to send a specific message to the student, the individual professors communicative act is entitled to some measure of First Amendment protection. The freedom of the university professor to assign grades according to his own professional judgment is of substantial importance to that professor. To effectively teach her students, the professor must initially evaluate their relative skills, abilities and knowledge. The professor must then determine whether students have absorbed the course material; whether a new, more advanced topic should be introduced; or whether a review of the previous material must be undertaken. Thus, the professors evaluation of her students and assignment of their grades is central to the professors teaching method. Parate v Isibor, 868 F2d 821, 827, 828 (6th Cir. 1989).
On Nov. 25, 1952, Robert Hutchins, associate director of the Ford Foundation, testifying before the House Select Committee, stated: Now, a university is a place that is established and will function for the benefit of society, provided it is a center of independent thought. It is a center of independent thought and criticism that is created in the interest of the progress of society, and the one reason that we know that every totalitarian government must fail is that no totalitarian government is prepared to face the consequences of creating free universities. Education is a kind of continuing dialogue, and a dialogue assumes, in the nature of the case, different points of view. A university, then, is a kind of continuing Socratic conversation on the highest level for the very best people you can think of, you can bring together, about the most important questions, and the thing that you must do to the uttermost possible limits is to guarantee those men the freedom to think and to express themselves.
Prof. Yohns lawsuit is pending in the U.S. District Court. Because of the paucity of case law authority, the case may have to be decided ultimately by the U.S. Court of Appeals for the Sixth Circuit and the U.S. Supreme Court.