Academic Freedom’s Inflection Point

Academic freedom faces an existential crisis. The Trump administration, building on a movement that began in the states, is seeking ideological conquest of higher education. Some universities have already surrendered. Others fight on, facing an endless barrage of assaults on their institutional autonomy. Faculty too have chosen to resist, relying on their free expression rights. One of the most potent weapons in higher education’s arsenal is the constitutional academic freedom doctrine, a First Amendment protection that safeguards faculty’s academic expression and universities’ academic judgments. But the Supreme Court’s embrace of history and tradition as a focal point of its individual rights jurisprudence draws into question this doctrine’s vitality.
This Article explores where academic freedom stands in an increasingly traditionalist order. Examining three defining events in America’s free speech tradition—the Sedition Act of 1798, the suppression of antislavery speech during the antebellum period, and segregationists’ attempts to silence the Civil Rights Movement—I find four free speech principles that persisted across time. First, laws discriminating against speech based on the speaker’s opinion are unconstitutional. Second, the First Amendment vigorously protects discussion of matters of public concern. Third, the First Amendment safeguards the processes that produce knowledge and discover truth—namely, free inquiry and discussion. Fourth, the purpose of free speech is to guarantee a republican form of government, which requires the people be able to freely investigate public measures and men and communicate their findings. These enduring principles also happen to be well represented in speech doctrine, including its protection of academic freedom.
Furthermore, assessing the traditional functions of education in a republic offers insights into the purpose of academic freedom. James Madison, Thomas Jefferson, and their contemporaries believed education to be integral to diffusing knowledge and instilling republican values, which protected liberty and enabled the people to carry out their duties of citizenship. Antislavery Republicans shared this belief in the close connection between education, citizenship, freedom, and republicanism—making education a major part of their Reconstruction agenda. The constitutional academic freedom doctrine is a legacy of this history, synthesizing free speech principles to the end of guaranteeing a republican education. As the Trump administration’s campaign of ideological conquest makes its way before the judiciary, courts should lean on academic freedom to promote the First Amendment’s and education’s traditional values.