By Gary Pavela

(Reprinted with the permission of the author from The Chronicle of Higher Education Review, Volume 51, Issue 38, Page B8.)

Gary Pavela, University of Maryland

In recent years, the actual or perceived abuse of professors’ authority has spawned claims of classroom indoctrination and a political movement to create a nationwide “academic bill of rights” to protect students. Yet legislative mandates would not be necessary if people recognized that courts have long held that academic freedom is shared by both professors and students and, in fact, that academic freedom for students has ancient roots in scholarly life. For too long, the student interest has been poorly understood or ignored, sometimes creating the impression that professors rule like absolute monarchs in their classrooms.

A 2004 ruling from the Department of Education’s Office for Civil Rights to the University of North Carolina contains an example of the abuses that can arise. It notes the “intentional discrimination and harassment” encountered by a student who was lambasted by a professor, in an e-mail message to the class, for “heterosexist comments” and a failure to recognize his “white, heterosexual, christian [sic], male … privilege.” (The university avoided an adverse OCR finding because, in part, it provided “additional guidance to its teachers and students as to appropriate classroom discussion.”)

Although the idea of student academic freedom may seem surprising to many faculty members, the Supreme Court recognized the concept almost 50 years ago in Sweezy v. New Hampshire (1957). The court observed that “teachers and students” (not just teachers alone) “must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

The court upheld a similar view in 1995 in Rosenberger v. the Rector and Board of Visitors of the University of Virginia, issuing a ringing defense of freedom of expression and association at public colleges. Many observers have viewed the ruling as an affirmation that academic freedom is a “special concern” of the First Amendment, but what has received insufficient attention is that the court was defining and promoting student academic freedom.

Writing for the majority, Justice Anthony M. Kennedy declared that:

In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. … For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.

Justice Kennedy rightly identified “ancient Athens” as a place where students were seen as integral partners in academic life. Teaching in Plato’s Academy was a form of soul-craft, based on friendship in pursuit of truth. The late philosopher Sir Bernard Williams explored the linguistic roots of that phenomenon in Truth and Truthfulness (Princeton UP, 2002), observing that “truth, and specifically the virtues of truth, are connected with trust … the word ‘truth’ and its ancestors in Early and Middle English originally meant fidelity, loyalty, or reliability.”

Indeed, the center of Raphael’s fresco “The School of Athens” shows Plato, the teacher, pointing up to the heavens to a vision of eternal harmony and perfect forms, while Aristotle, many years younger and the student, seeks to bring him down to earth to explore and understand the world as it is. Raphael’s image depicts what Aristotle describes in his Nicomachean Ethics as an enduring friendship – even as the two disagreed about fundamental philosophical issues.

The association among truth, trust, and the teacher-student relationship in Plato’s Academy was reflected in its reliance on dialogue, as distinguished from rhetoric. Rhetoric normally seeks to overpower the listener with an assurance of certitude, while dialogue thrives on mutual questioning – premised on a belief that no conception of truth should be immune to refutation. In the Socratic tradition, one asserts a belief or hypothesis to invite refutation. The teacher may have superior knowledge and experience but encourages students to raise doubts and fresh perspectives to define truth anew – a method rooted in a synthesis of free inquiry and collaboration that could be regarded as the beginning of the scientific method.

The Supreme Court has elaborated on that theme in several other opinions. Notably, in Keyishian v. Board of Regents of New York (1967), Justice William Brennan, writing for the court, stressed that “the classroom is peculiarly the ‘marketplace of ideas’” and that “the Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection’.” Justice Brennan was blending a pedagogical perspective with a legal conclusion. His analysis was premised on the belief that the best learning occurs in a setting where students are genuine participants of shared inquiry.

That Socratic conception of teaching is also ingrained in the earliest formulations of academic freedom by the American Association of University Professors. The association’s 1915 “General Declaration of Principles” stated that academic freedom had two applications: The freedom to teach (Lehrfreiheit) and the freedom to learn (Lernfreiheit). According to the declaration, honoring the freedom to learn means that teachers should not “provide … students with ready-made conclusions, but to train them to think for themselves.” The idea that students should be seen as partners in academic inquiry was also embraced in the “Joint Statement on Rights and Freedoms of Students,” endorsed by 10 higher-education associations, and codified by the AAUP in 1967.

Being “free to learn” means being free from indoctrination. Most faculty members want to avoid that, but drawing lines between impassioned argument and indoctrination can be difficult. Is it “indoctrination” for a professor to express a strong point of view in the classroom? Do colleges “indoctrinate” students when they require study of the language and literature of specific cultures?

To those questions, standing alone, the answer is no. Great teachers can be extravagantly opinionated, and some of the best courses are required. Yet in neither context do most students feel “indoctrinated.” Why not? Because, at heart, students can sense a difference between teaching that serves as a catalyst to independent thought and teaching that serves to stifle it.

The latter usually comes prepackaged in humorless certitude, grounded in the view that the teacher has an absolute hold on truth. In that context, the student is often perceived as the proverbial infidel, having been diverted from the one true faith by ignorant parents or a degenerate culture. A soul has to be saved, not an intellect formed. In contrast, the professor with strong views who seeks to foster independent thinking will assert theories primarily to make students think anew about topics and issues – and even become disappointed if students agree too readily. Thus, ultimately, the aims of a professor will define the tone and substance of what occurs in each class and whether students’ academic-freedom rights have been infringed upon.

Where conflicts arise between students’ and professors’ academic freedom, courts will balance the competing interests involved, generally deferring to teachers’ authority and expertise. A good example is Salehpour v. University of Tennessee (1998), where a 43-year-old dental student insisted on violating two professors’ rules barring first-year students from sitting in the last row of their classrooms. The student’s rationale was that he was “advancing and pursuing” a “power struggle” with the university. The court sided with the institution (and the teachers) in that “struggle,” concluding that “where the expression appears to have no intellectual content or even discernable purpose, and amounts to nothing more than expression of a personal proclivity designed to disrupt the educational process, such expression is not protected and does violence to the spirit and purpose of the First Amendment.”

As that holding indicates, the idea of “student academic freedom” is not a license for classroom mayhem. The classroom should not be a place where everyone can do whatever they like, or even assert without penalty whatever they wish to be true. Teachers are entitled and expected to determine which subjects are relevant, how class time will be used, and how well students have performed. It is when such authority is abused – usually to intimidate and silence students who wish to explore or express contrary views – that the “freedom to learn” is violated.

The full scope of student academic freedom should be defined by the collaborative efforts of students and teachers. At a conference on legal issues in higher education at the University of Vermont, William A. Kaplin, a law professor at Catholic University of America, urged attendees to recognize the long history of student and teacher collaboration and to resist the trend “to turn every dispute or disagreement into a legal problem.” When it comes to current controversies about bias in the classroom, we would do well to look to the classical roots of higher education rather than courts and legislatures.

Gary Pavela

Gary Pavela teaches in the Honors Program at the University of Maryland and writes law and policy newsletters to which over 1,000 colleges and universities subscribe. In 2006 he was designated the University of Maryland’s “Outstanding Faculty Educator” by the Maryland Parents’ Association. He has taught at the Federal Judicial Center in Washington, D.C. (the training arm of the United States Courts), is a Fellow of the National Association of College and University Attorneys, and serves on the Board of the Kenan Ethics Institute at Duke University. He spoke to Virginia Tech faculty and staff at the July 2007 “Symposium for Managing At-risk Students” (sponsored by the U.S. Department of Education) and was a consultant to the Governor's Task Force on Campus Safety for the state of Wisconsin. Gary Pavela has appeared on the CNN, FOX, PBS, and CNBC networks. His work has been cited in the New York Times, the Washington Post, the Wall Street Journal, the Chronicle of Higher Education, the National Law Journal, Business Week, Time, Newsweek, and U.S. and News and World Report, among many others. For the Chronicle of Higher Education interview about Gary Pavela’s 2006 book, Questions and Answers on College Student Suicide: A Law and Policy Perspective, go to: <>. [email protected]