Phi Beta Cons

Professors’ Academic Freedom and the Seventh Circuit

I’ve been negligent in failing to discuss a recent decision from the Seventh Circuit Court of appeals upholding a college’s punishment of a cosmetology instructor who handed out some rather graphic pamphlets opposed to the homosexual lifestyle.  She gave a student the pamphlets during (or at the conclusion of) an on-the-job training session at a hair salon.  Here’s the key portion of the court’s opinion:


We wrote in Trejo v. Shoben that “the First Amendment protects the right of faculty members to engage in academic debates, pursuits, and inquiries” and to discuss ideas. The idea of some kind of government-sponsored orthodoxy in the classroom is repugnant to our values. On the other hand, we have also recognized that a university’s “ability to set a curriculum is as much an element of academic freedom as any scholar’s right to express a point of view.” We added, in Webb, that “[u]niversities are entitled to insist that members of the faculty (and their administrative aides) devote their energies to promoting goals such as research and teaching.” No college or university is required to allow a chemistry professor to devote extensive classroom time to the teaching of James Joyce’s demanding novel Ulysses, nor must it permit a professor of mathematics to fill her class hours with instruction on the law of torts. Classroom or instructional speech, in short, is inevitably speech that is part of the instructor’s official duties, even though at the same time the instructor’s freedom to express her views on the assigned course is protected.


I have a couple of responses here.  First, it is entirely appropriate for a public university to tell professors to stick to their subjects.  That is an important component of institutional academic freedom to permit a university to set the curriculum and limit teachers to that curriculum, and — obviously — sexuality has little or nothing to do with the techniques of highlighting and curling (I’m kinda bald, so to be honest I really don’t know what happens in beauty salons).  The ability of universities to set curriculum and hire teachers for the purpose of teaching their subjects (and only teach their subjects) is often overlooked in the academic freedom debate.  English (or cosmetology) professors don’t actually have the “freedom” to aggressively pursue and independent political, ideological, or religious agenda in the classroom.  Any decision that reaffirms the rather common sense view that professors are not freelance pundits (at taxpayer expense) is welcome.

And yet . . . Why do I suspect that the school’s beauty shop had previously been a rather free-wheeling forum for speech?  Again, not that I am an expert in beauty shop conduct, but it seems to me that the long hours of braiding, weaving, perming, and highlighting lend themselves to some off-topic discussions.  How many times had other professors discussed a wide variety of issues (including, yes, sexual issues)?  Certainly the cosmetology professor did not have a right to use her government employment to advocate a religious position unrelated to her job, but she also has a right to engage in the same range of speech that it has permitted for other instructors.  For example, a public school may not ignore an English professor who writes “no blood for oil” on the chalkboard while punishing a professor who writes “peace through victory.”
This opinion is a blow for those professors who seek to use their classroom as a platform for their personal political or ideological crusades.  But for the limitation to apply, universities must first enforce that limitation.  And I suspect that enforcement will disproportionately fall on those who are outside the university’s ideological mainstream.


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