The First Amendment to the U.S. Constitution does not protect individual academic freedom, according to the U.S. Court of Appeals for the Fourth Circuit. In Urofsy v. Gilmore (2000), the Fourth Circuit’s full panel ruled that public employers have broad rights to restrict the speech of their employees in the course of their employment.
In January, the U.S. Supreme Court declined to review the decision. At issue was a Virginia statute that prohibits any state employee from viewing sexually explicit material on computers owned or leased by the state. Exceptions can be made by a state agency head when viewing such materials is required in connection with a bona fide research project or other undertaking.
A group of professors at public universities in Virginia challenged the statute, alleging both that it violated the First Amendment rights of all public employees and that it violated their individual rights to academic freedom.
The Fourth Circuit, overturning a trial court decision in favor of the professors, analogized government-employee speech to government-funded speech, which the Supreme Court has previously ruled may be subject to broad limitations. The court reasoned that the government is entitled to control the content of the speech in both cases “because it has, in a meaningful sense, ‘purchased’ the speech at issue through a grant of funding or payment of a salary.”
The Fourth Circuit also rejected the professors’ argument that they had a constitutionally protected right to academic freedom. The court found that the “right” of academic freedom, if it is protected by the Constitution at all, belongs to the university and not the individual professors. The court’s ruling implies that there is no constitutional barrier preventing public educational institutions from regulating the subjects that professors research. Because the Virginia statute left to the universities the decision about whether to approve individual research projects, the court believed it was not faced with the more problematic situation of the government intruding into the province, and potentially the academic freedom, of universities.
One commentator, who had written an article that the court majority used to support its opinion, has subsequently written that, in his professional view, the opinion “is profoundly wrong as a matter of law, and threatens the freedom of higher education.” J. Peter Byrne, Constitutional Academic Freedom in Scholarship and in Court, Chron. Higher Educ, Jan. 5, 2001, at B13. Two Fourth Circuit judges also wrote separate opinions to express their disapproval of the court’s ruling.
Although the ruling upholds only the challenged Virginia statute prohibiting access to sexually explicit material on state computers, its rationale is likely to have more far-reaching ramifications for the relationship between universities and their faculty.
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