In defending its policy allowing the concealed carry of handguns in classrooms, the University of Texas has taken a surprising position in a federal appeals court — that individual professors do not have academic freedom.
“The right to academic freedom, if it exists, belongs to the institution, not the individual professor,” says a brief filed by the state’s lawyers on behalf of UT President Gregory L. Fenves, several current and former UT System regents and Attorney General Ken Paxton.
But, in a further twist, Fenves and the UT System say they don’t really buy that argument.
The argument that faculty members lack academic freedom seems to fly in the face of a core principle of higher education in the U.S., which holds that the unfettered search for truth, and its free expression, are fundamental to teaching and research.
As the U.S. Supreme Court put it in a 1967 case: “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.”
Three UT faculty members — Jennifer Lynn Glass, Lisa Moore and Mia Carter — have cited academic freedom in their lawsuit challenging the university’s concealed carry policy. They contend that the potential presence of concealed handguns in their classrooms has a chilling effect on discussion of controversial topics.
“We want the option to say we do not want you to bring guns into our classroom and you may not bring guns into our classroom,” their lawyer, Renea Hicks, told a three-judge panel of the 5th U.S. Circuit Court of Appeals during oral arguments last week.
After the American-Statesman began asking questions about UT’s legal stance in the case, Fenves sent a letter Wednesday to faculty leaders seeking to reassure them.
“Because of the importance of faculty members’ rights, I want to be clear that the academic freedom of our faculty to express, learn, teach, and discover is at the very foundation of the University of Texas at Austin’s mission,” Fenves wrote. He added that he is “unable to address any specific legal questions.”
Karen Adler, a spokeswoman for the UT System, referred the Statesman to a Board of Regents rule that says faculty members at the system’s 14 campuses are free to conduct and publish research and to discuss their subjects in the classroom. “The UT System stands by this policy,” Adler said.
The rule notes that professors “are expected not to introduce into their teaching controversial matter that has no relation” to their subjects. It adds that a faculty member who speaks as a citizen “should be free from institutional censorship or discipline, but should make it plain that the faculty member is not an institutional spokesperson.”
Fenves has said that handguns have no place on a college campus, declaring them “contrary to our mission of education and research, which is based on inquiry, free speech, and debate.” But he also has said he is duty-bound to comply with the state’s 2015 campus carry law, and in drafting rules for the Austin flagship he concluded that banning guns from classrooms would have the effect of generally prohibiting them on campus, in violation of that law.
Fenves and the regents didn’t challenge the notion of academic freedom when they initially responded to the professors’ lawsuit. Indeed, the arguments that lawyers in Paxton’s office filed in U.S. District Court in Austin two years ago on behalf of the UT defendants seemed to acknowledge that professors have academic freedom, such as in this reference to the campus carry policy: “It therefore does not implicate Plaintiffs’ First Amendment right to academic freedom.”
A separate brief filed for Paxton in January argued otherwise: “Plaintiffs have no individual right to academic freedom, because the right to academic freedom is held by their institution.”
U.S. District Judge Lee Yeakel said he found no precedent for the professors’ argument that they have a right of academic freedom under the First Amendment so broad that it overrides decisions of the Legislature and the university that employs them. In July 2017, he dismissed the case, ruling that the plaintiffs lack standing to assert their constitutional claims.
The professors appealed to the 5th Circuit. At that point, the legal arguments filed on behalf of Paxton, Fenves and the regents were consolidated into a single brief that included the claim that individual faculty members lack academic freedom. Under state law, the attorney general is entitled to decide what legal arguments to make on behalf of state agencies and universities.
“There’s a difference between privileges a university uses its discretion to give and legal rights a person can sue over,” said Marc Rylander, a spokesman for Gov. Greg Abbott. “Academic freedom is a privilege the University of Texas System, like so many universities, has given to its faculty. But the courts have not recognized academic freedom as a legal right an individual can sue over — and certainly not a right like here, where a handful of professors want to weaponize academic freedom to conform a campus to their own image.”
Alberto A. Martinez, a professor of history at UT, said state laws and university policies should be obeyed. “But it is appalling that in order to litigate the issue of guns on campus, the attorney general of Texas has needlessly chosen to argue that individual professors don’t have academic freedom,” he said.
Alan Friedman, a professor of English and secretary of UT’s Faculty Council, said he was surprised and dismayed by the university’s legal posture, noting that it contradicts a statement of principles dating back to 1940 adopted by the American Association of University Professors and the Association of American Colleges & Universities. “As far as I know, all institutions of higher education worthy of the name adhere to that statement because it is the gold standard on the issue of academic freedom,” he said.
Robert Post, a law professor at Yale University and the author of “Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State,” said academic freedom can be a confusing subject for courts and litigators alike and is best thought of as “the protections extended to the university community so it can do its job of discovering and disseminating knowledge.”
Risa Lieberwitz, general counsel for the American Association of University Professors and a professor of labor and employment law at Cornell University, said courts have recognized academic freedom. But faculty members at private colleges and universities do not have the constitutional right to academic freedom that their counterparts at state schools enjoy, she said. That’s because a First Amendment right to academic freedom must be asserted against the government; as a public university, UT is an arm of the state. Private schools typically assure faculty members of academic freedom through contracts and school rules.
The right to academic freedom is not unlimited, said Lynn Pasquerella, president of the Association of American Colleges & Universities. For example, a professor can’t use a classroom as a platform to espouse political or religious views wholly unrelated to the subject she or he is teaching.
“We strongly believe that academic freedom is a right of individual faculty members and that there is a responsibility that accrues to that right,” Pasquerella said.
It’s not clear how large a role the debate about academic freedom will play in the appellate judges’ review of the case. The court has not been asked to decide the merits of the lawsuit but whether it should be revived and sent back to Yeakel for further consideration of the professors’ claims, including that carrying guns in Texas is not well regulated under the Second Amendment and that equal protection rights under the 14th Amendment were impinged by an irrational campus carry policy.
“It’s an important case, and we’ll give it our close attention,” Judge Leslie Southwick, a graduate of UT’s School of Law, said at the conclusion of last week’s oral arguments.