[**] Staff Attorney, Capital Collateral Counsel--Northern Region. J.D., Florida State University College of Law, 1998. The author would like to thank Professor Steven G. Gey for his invaluable insight and advice from the inception of this Comment to its completion. The author would also like to thank Larry L. Fugate, whose assistance is a necessity in every endeavor. Return to text.

[1] See Dow Chem. Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982) (quoting T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 594 (1970)); see also William Van Alstyne, The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, in THE CONCEPT OF ACADEMIC FREEDOM 59, 71 (Edmund L. Pincoffs ed., 1975). Professor Van Alstyne defined academic freedom as follows:

"[A]cademic freedom" is characterized by a personal liberty to pursue the investigation, research, teaching, and publication of any subject as a matter of professional interest without vocational jeopardy or threat of other sanction, save only upon adequate demonstration of an inexcusable breach of professional ethics in the exercise of that freedom. Specifically, that which sets academic freedom apart as a distinct freedom is its vocational claim of special and limited accountability in respect to all academically related pursuits of the teacher-scholar: an accountability not to any institutional or societal standard of economic benefit, acceptable interest, right thinking, or socially constructive theory, but solely to a fiduciary standard of professional integrity. To condition the employment or personal freedom of the teacher-scholar upon the institutional or societal approval of his academic investigations or utterances, or to qualify either even by the immediate impact of his professional endeavors upon the economic well-being or good will of the very institution that employs him, is to abridge his academic freedom.
Id. Return to text.

[2] See Irwin H. Polishook, Academic Freedom and Academic Contexts, 15 PACE L. REV. 141, 146-47 (1994) (noting that academic freedom is recognized in faculty manuals at universities and incorporated in union contracts for academic faculty throughout the country). Return to text.

[3] See infra Parts IV-V. Return to text.

[4] See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (stating that public school teachers do not lose their free speech rights merely because they are government employees). Return to text.

[5] See infra Part III.B. Return to text.

[6] See Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66 TEX. L. REV. 1265, 1266 (1988). Return to text.

[7] See infra Part II.B. Return to text.

[8] Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (holding unconstitutional the university's requirement that faculty members certify that they were not members of the Communist Party and recognizing a commitment to protect academic freedom). Return to text.

[9] See Metzger, supra note 6, at 1268 (stating that "the Darwinian controversies of the 1870s and 1880s and the populist [turmoil] of the 1890s" fueled this situation). Return to text.

[10] Id. Return to text.

[11] See id. at 1267 (citing AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, THE 1915 DECLARATION OF PRINCIPLES, reprinted in ACADEMIC FREEDOM AND TENURE, A HANDBOOK OF THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS 155 (Louis Joughin ed., 1967) (1915)). Return to text.

[12] See Metzger, supra note 6, at 1272. Return to text.

[13] See id. at 1269. According to Metzger, thousands of American college graduates moved to Germany for graduate education, and elated by their achievements in Germany, they wished to bring the German concept of academic freedom back to the states. See id. Return to text.

[14] See id. Return to text.

[15] See id. Lehrfreiheit "protected the restiveness of academic intellect from the obedience norms of hierarchy." Id. Return to text.

[16] See id. at 1270. Return to text.

[17] See id. at 1270-71. Return to text.

[18] See id. at 1277. Return to text.

[19] AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, THE 1915 DECLARATION OF PRINCIPLES, reprinted in ACADEMIC FREEDOM AND TENURE, A HANDBOOK OF THE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS 163 (Louis Joughin ed., 1967) (1915) [hereinafter 1915 DECLARATION]. Return to text.

[20] Id. at 164. Return to text.

[21] Id. at 165. Return to text.

[22] See Metzger, supra note 6, at 1274. Return to text.

[23] See id. at 1275 ("Academic freedom, [the committee] declared, contains not two but three components: not just freedom to teach and to inquire . . . but also 'extramural freedom . . . .'" (quoting 1915 DECLARATION, supra note 19, at 172)). Return to text.

[24] Id. (quoting 1915 DECLARATION, supra note 19, at 172). Return to text.

[25] See id. at 1278. Return to text.

[26] 1915 DECLARATION, supra note 19, at 167-68. Return to text.

[27] Id. at 159. Return to text.

[28] Metzger, supra note 6, at 1284. Return to text.

[29] See, e.g., William W. Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review, LAW & CONTEMP. PROBS., Summer 1990, at 79, 79 [hereinafter Van Alstyne, Historical Review]. The 1915 Declaration evolved into the 1940 Statement of Principles on Academic Freedom and Tenure (1940 Statement), which was sponsored by both the AAUP and the Association of American Colleges (AAC). See William W. Van Alstyne, Forward, Freedom and Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of Principles, LAW & CONTEMP. PROBS., Summer 1990, at 1, 1. Return to text.

[30] See Van Alstyne, Historical Review, supra note 29, at 79 (referring to the 1940 Statement). Return to text.

[31] See id. Return to text.

[32] See id. Return to text.

[33] Metzger, supra note 6, at 1285 (quoting Kay v. Board of Higher Educ., 18 N.Y.S.2d 821, 829 (N.Y. Sup. Ct. 1940)) (explaining that Kay was the only case recognizing constitutionally protected academic freedom prior to the late 1940s). Return to text.

[34] See David M. Rabban, A Functional Analysis of "Individual" and "Institutional" Academic Freedom Under the First Amendment, LAW & CONTEMP. PROBS., Summer 1990, at 227, 235. Return to text.

[35] See Metzger, supra note 6, at 1285. Return to text.

[36] See Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) ("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. . . . 'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'" (quoting Shelton v. Tucker, 364 U.S. 479. 487 (1960))). Return to text.

[37] See Rabban, supra note 34, at 238. Return to text.

[38] See id. Return to text.

[39] See id. Return to text.

[40] 342 U.S. 485 (1952), overruled by Keyishian v. Board of Regents, 385 U.S. 589 (1967). Return to text.

[41] See id. at 490. Return to text.

[42] See id. at 493. Return to text.

[43] See id. at 508 (Douglas, J., dissenting). Return to text.

[44] See Van Alstyne, Historical Review, supra note 29, at 107. Return to text.

[45] Adler, 342 U.S. at 508 (Douglas, J. dissenting). Justice Douglas stressed the result the Feinberg Law would have on academic freedom:

What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment.
Id. at 510. Return to text.

[46] See Wieman v. Updegraff, 344 U.S. 183, 191 (1952). Return to text.

[47] See id. at 185. Return to text.

[48] See id. at 191. Return to text.

[49] Id. at 196 (Frankfurter, J., concurring). Return to text.

[50] 354 U.S. 234 (1957). Return to text.

[51] See id. at 236-38. Return to text.

[52] See id. at 238. Questions included inquiry as to whether Sweezy advocated Marxism, whether he indicated that socialism was an inevitability in the United States, and whether he ever "espoused the theory of dialectical materialism." Id. at 244. Return to text.

[53] See id. at 250. Return to text.

[54] Id. Return to text.

[55] See id. Justice Frankfurter wrote: "A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates--'to follow the argument where it leads.' . . . It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation." Id. at 262-63 (Frankfurter, J., concurring) (quoting Conference of Representatives of the Univ. of Cape Town and the Univ. of Witwatersrand, THE OPEN UNIVERSITIES OF SOUTH AFRICA 10-12 (1957)). Return to text.

[56] 385 U.S. 589 (1967). Return to text.

[57] Id. at 603. Return to text.

[58] See id. at 592. Return to text.

[59] See id. at 609. Return to text.

[60] Id. at 603 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)). Return to text.

[61] Metzger, supra note 6, at 1285 (quoting Kay v. Board of Higher Educ., 18 N.Y.S.2d 821, 829 (N.Y. Sup. Ct. 1940)). Return to text.

[62] Keyishian, 385 U.S. at 603. Return to text.

[63] See, e.g., Van Alstyne, Historical Review, supra note 29, at 83 (explaining that employers were not constitutionally restricted from requiring, as a condition of employment, an employee to suspend his freedom of speech, as long as the employee had notice of the condition prior to accepting employment). Return to text.

[64] McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517-18 (Mass. 1892) (noting that although a public employee may be expected to temper his speech, the courts might intervene if the restrictions are extremely unreasonable). Return to text.

[65] See Pickering v. Board of Educ., 391 U.S. 563 (1968). Return to text.

[66] 391 U.S. 563 (1968). Return to text.

[67] See id. at 564. Return to text.

[68] See id. Return to text.

[69] See id. at 574 (holding that a teacher may not be dismissed from public employment for exercising his right to speak on public issues). Return to text.

[70] See id. at 568. Return to text.

[71] See id. Return to text.

[72] See id. at 571-73. Return to text.

[73] See id. at 568-70. Return to text.

[74] Id. at 568. Return to text.

[75] 429 U.S. 274 (1977). Return to text.

[76] See id. at 282. Return to text.

[77] See id. at 283-84. Return to text.

[78] See id. at 287. Return to text.

[79] See id. Return to text.

[80] See id. at 286. Return to text.

[81] See id. at 287. Return to text.

[82] See id. Return to text.

[83] See id. at 286-87. Return to text.

[84] 439 U.S. 410 (1979). Return to text.

[85] See id. at 415. Return to text.

[86] See id. at 411-12. Return to text.

[87] See id. at 414-16. Return to text.

[88] See, e.g., Pickering v. Board of Educ., 391 U.S. 563 (1968) (involving a letter published in a local newspaper). Return to text.

[89] Givhan, 439 U.S. at 414. Return to text.

[90] See id. Return to text.

[91] 461 U.S. 138 (1983). Return to text.

[92] See Donna Prokop, Controversial Teacher Speech: Striking a Balance Between First Amendment Rights and Educational Interests, 66 S. CAL. L. REV. 2533, 2542 (1993). Return to text.

[93] See Connick, 461 U.S. at 140. Return to text.

[94] See id. Return to text.

[95] See id. at 140-41. Return to text.

[96] See id. at 146. Return to text.

[97] See id. Return to text.

[98] See id. at 147-48. Return to text.

[99] See id. at 149. Return to text.

[100] See id. Return to text.

[101] See id. at 150-54. The question the Court found related to a matter of public concern was whether the attorneys in the office "ever feel pressured to work in political campaigns on behalf of office supported candidates." Id. at 149. Return to text.

[102] See id. at 152 ("[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action."). Return to text.

[103] See id. at 150-54. Return to text.

[104] Id. at 154. Return to text.

[105] See id. at 146. Return to text.

[106] See id. Return to text.

[107] See id. at 152 (cautioning that "a stronger showing [by the employer] may be necessary if the employee's speech more substantially involved matters of public concern"). Return to text.

[108] Richard H. Hiers, New Restrictions on Academic Free Speech: Jeffries v. Harleston II, 22 J.C. & U.L. 217, 240 (1995). Return to text.

[109] 483 U.S. 378 (1987). Return to text.

[110] Id. at 380-81. Return to text.

[111] See id. at 381-82. Return to text.

[112] See id. at 388-89. Return to text.

[113] See id. at 392. Return to text.

[114] See Hiers, supra note 108, at 241-42. Return to text.

[115] See Connick v. Myers, 461 U.S. 138, 146-47 (1983). Return to text.

[116] See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). Return to text.

[117] See Mount Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Return to text.

[118] See id. at 287. Return to text.

[119] This test includes Pickering and the subsequent decisions that modified and limited the test. See supra Part III. Return to text.

[120] Pickering, 391 U.S. at 568. Return to text.

[121] See, e.g., Burnham v. Ianni, 119 F.3d 668, 677-80 (8th Cir. 1997). Return to text.

[122] See, e.g., id. (requiring a showing of disruption). But see Scallet v. Rosenblum, 911 F. Supp. 999, 1016 (W.D. Va. 1996), aff'd, 106 F.3d 391 (4th Cir. 1997), cert. denied, 117 S. Ct. 2482 (1997) (stating that potential or threatened disruption is sufficient). Return to text.

[123] 119 F.3d 668 (8th Cir. 1997). Return to text.

[124] See id. at 670-72. The university history club placed the pictures in the display case in an effort to publicize the areas of expertise and interest of some of the history department faculty. See id. at 670-71. The professors who participated in the project posed for pictures with props relating to their fields of interest, supplied information about their fields, academic background, historical heroes, and provided quotations for display with the photographs. See id. Return to text.

[125] Id. at 679; accord Grantham v. Trickey, 21 F.3d 289, 294 (8th Cir. 1994) (stating that "it is critical to determine whether the [employers] have put the Pickering balancing test at issue by producing evidence that the speech activity had an adverse effect on the efficiency of the . . . employer's operations"). Return to text.

[126] Burnham, 119 F.3d at 680. The court stated that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. at 679 (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969)). Return to text.

[127] See id. at 680 n.19. The court stated that underlying its decision was "the recognition of the professors' academic freedom--'a special concern of the First Amendment.'" Id. (quoting University of Cal. Regents v. Bakke, 438 U.S. 265, 312 (1978)). Return to text.

[128] See id. at 679. Return to text.

[129] Trotman v. Board of Trustees, 635 F.2d 216, 230 (3d Cir. 1980) (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 509 (1969)). Trotman arose after a dispute between the university faculty and the administration regarding the administration's suppression of the faculty's criticism of university policy. See id. at 219. Return to text.

[130] Adamian v. Jacobsen, 523 F.2d 929, 934 (9th Cir. 1975) (holding that when a university's regulation threatened a professor's First Amendment right to free speech because of the regulation's vagueness, the court must require specificity before attempting to rule on its validity). Return to text.

[131] 918 F. Supp. 1475 (D. Wyo. 1996). Return to text.

[132] See id. at 1480-81. Return to text.

[133] See id. at 1489. Return to text.

[134] See id. at 1491. Return to text.

[135] Id. at 1493. Return to text.

[136] See id. Return to text.

[137] 933 F. Supp. 1425 (C.D. Ill. 1996). Return to text.

[138] Id. at 1433. Return to text.

[139] See id. Return to text.

[140] Id. Return to text.

[141] See id. at 1444. The court did not balance the interest of the professor against that of the university because the court found that the professor's speech was not on a matter of public concern. See id. Return to text.

[142] See generally Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), cert. denied, Beeman v. Cohen, 117 S. Ct. 1290 (1997) (recognizing that neither the Ninth Circuit nor the Supreme Court have defined the extent of First Amendment protection enjoyed by professors regarding in-class speech); Scallet v. Rosenblum, 911 F. Supp. 999 (W.D. Va. 1996), aff'd, 106 F.3d 391 (4th Cir. 1997), cert. denied, 117 S. Ct. 2482 (1997) (applying the Pickering balancing test to determine the scope of protection given to professors' speech). Return to text.

[143] See Cohen, 92 F.3d at 971-72 (declining to define the parameters of First Amendment protection afforded classroom speech because the college's policy threatening to deter Cohen's right to free speech was unconstitutionally vague); see also Rubin v. Ikenberry, 933 F. Supp. 1425, 1442 (C.D. Ill. 1996) ("The Court does not aim to suggest guidelines for the relationship between a professor's classroom conduct and a university's response."). Return to text.

[144] See generally Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993) (failure to rehire a teacher because of in-class statements); Miles v. Denver Pub. Sch., 944 F.2d 773 (10th Cir. 1991) (discipline for teacher's in-class speech); Zykan v. Warsaw Community Sch. Corp., 631 F.2d 1300 (7th Cir. 1980) (students' speech); James v. Board of Educ., 461 F.2d 566 (2d Cir. 1972) (teacher discharged for wearing a black armband in class). Return to text.

[145] 944 F.2d 773 (10th Cir. 1991). Return to text.

[146] 484 U.S. 260 (1988) (holding that schools can place restrictions on speech if the restrictions are "reasonably related to legitimate pedagogical concerns"). Return to text.

[147] See Miles, 944 F.2d at 775 (requiring a court to first ask whether the forum for speech is public in determining whether the speech is protected by the First Amendment). During class, Miles stated that the quality of the school had declined. See id. at 774. In response to a student's request for examples of this decline, Miles stated, "I don't think in 1967 you would have seen two students making out on the tennis court." Id. He also said there would not have been as many soda cans lying around. See id. Return to text.

[148] See id. at 775. The court declined to use the Pickering balancing test because the test did not take into account the interests of the state as an educator. See id. at 777. It is interesting to note that the standard the Tenth Circuit adopted may actually be more protective of speech because the court must weigh several factors, including the age and sophistication of the students and the educational objective. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). In this way, classroom speech of college professors would probably be given more protection than the ninth grade teacher in Miles. Furthermore, unlike teachers at the elementary, junior, and high school levels, college professors are not faced with the task of inculcating values. Return to text.

[149] See, e.g., Prokop, supra note 92, at 2538-40. Return to text.

[150] 926 F.2d 1066 (11th Cir. 1991). In Bishop, a university required a professor to stop discussing his religious beliefs during instructional time periods. See id. at 1069. Return to text.

[151] See id. at 1074. Return to text.

[152] See id. (noting that classroom speech could appear as if the university endorsed the speech). Return to text.

[153] See id. at 1075. Return to text.

[154] See id. at 1076. Return to text.

[155] The Bishop court stated:

While a student's expression can be more readily identified as a thing independent of the school, a teacher's speech can be taken as directly and deliberately representative of the school. Hence, where the in-class speech of a teacher is concerned, the school has an interest not only in preventing interference with the day-to-day operation of its classrooms as in Tinker, but also in scrutinizing expressions that "the public might reasonably perceive to bear [its] imprimatur . . . ."
Id. at 1073 (citation omitted) (alterations in original). Return to text.

[156] See id. at 1075. Return to text.

[157] See id. at 1077; see also Scallet v. Rosenblum, 911 F. Supp. 999, 1011 n.13 (W.D. Va. 1996), aff'd, 106 F.3d 391 (4th Cir. 1997), cert. denied, 117 S. Ct. 2482 (1997) (declining to rely on Bishop because the instant case did not confront Establishment Clause issues). Return to text.

[158] 911 F. Supp. 999 (W.D. Va. 1996). Return to text.

[159] Id. at 1011. Return to text.

[160] See id. Return to text.

[161] See id. Return to text.

[162] Id. Return to text.

[163] See id. Return to text.

[164] 511 U.S. 661 (1994). Return to text.

[165] See id. at 664-66. Return to text.

[166] See id. at 665-66. Return to text.

[167] See id. at 666. Others who overheard the conversation corroborated Churchill's version of the facts. See id. Return to text.

[168] See id. at 667. Return to text.

[169] See Churchill v. Waters, 977 F.2d 1114, 1116 (7th Cir. 1992). Return to text.

[170] See id. at 1127. Return to text.

[171] See Waters v. Churchill, 511 U.S. 661, 668 (1994). Return to text.

[172] See id. Return to text.

[173] See id. Return to text.

[174] See id. at 676-77 ("Government employees should be allowed to use personnel procedures that differ from the evidentiary rules used by the court without fear that these differences will lead to liability."). Return to text.

[175] Id. at 675. Return to text.

[176] See id. Return to text.

[177] See id. at 677. Return to text.

[178] See id. ("It is necessary that the decisionmaker reach its conclusion about what was said in good faith, rather than as a pretext; but it does not follow that good faith is sufficient."). Return to text.

[179] See id. at 677-78. Return to text.

[180] The Court indicated that it would be unreasonable for an employer to act on no evidence at all, or for an employer to act on weak evidence when faced with strong evidence to the contrary. See id. at 677. The Court implied that some investigation would be required on the part of the employer but did not elaborate on what procedural protections would be sufficient. See id. at 677-78. Return to text.

[181] See id. at 679-80. Return to text.

[182] Id. at 680 (emphasis added). The Court noted that Churchill's statements "dampened" another employee's interest in working in obstetrics. See id. Further, the Court stated that Churchill's co-worker described Churchill's statements about her supervisor as unkind and inappropriate and stated that the hospital should not tolerate such negative attitudes. See id. Thus, the Court found that Churchill's statements could undermine her supervisor's authority in her co-workers' eyes. See id. at 680-81. In addition, the Court concluded that Churchill's statement that she could not "wipe the slate clean" could make the hospital doubt Churchill's future effectiveness. Id. at 681. Return to text.

[183] See id. at 681-82. It was not settled whether the Mount Healthy standard had been met--that the speech was a motivating or substantial factor in the employment decision. See id. Return to text.

[184] See id. at 684-85 (Souter, J., concurring) (explaining that an objectively reasonable investigation that reveals the employee's speech was not on a matter of public concern and was not disruptive would not shield the employer from liability absent the employer's reasonable belief regarding what was said). Return to text.

[185] See id. at 689-92 (Scalia, J., concurring). Justice Scalia found the reasonableness standard confusing. He criticized the majority because it placed an unnecessary burden on public employers to conduct some kind of investigation. See id. at 688. He also stated that because the required procedure was not defined, employers were subjected to "intolerable legal uncertainty." Id. at 692. Justice Scalia's approach would be less protective of speech because he disagreed with the procedural requirements the Court imposed. See id. at 686-89. Justice Scalia stated that a "pretext" analysis would be sufficient to protect the constitutional interest at stake. See id. at 690. Under a pretext analysis, speech restrictions would be upheld unless the restrictions were a pretext for preventing free speech, effectively eliminating procedural requirements. See id. at 691. Return to text.

[186] Id. at 694. Return to text.

[187] Id. at 694 (Stevens, J., dissenting). Return to text.

[188] See id. at 695. Return to text.

[189] See id. at 698. Return to text.

[190] Edward J. Velazquez, Note, Waters v. Churchill: Government-Employer Efficiency, Judicial Deference, and the Abandonment of Public-Employee Free Speech by the Supreme Court, 61 BROOK. L. REV. 1055, 1094 (1995). Return to text.

[191] See Waters, 511 U.S. at 692. Return to text.

[192] See, e.g., Jeffries v. Harleston, 21 F.3d 1238 (2d Cir. 1994) (Jeffries I), vacated, 513 U.S. 996 (1994). Return to text.

[193] 21 F.3d 1238 (2d Cir. 1994). Return to text.

[194] See id. Return to text.

[195] See id. at 1241. Return to text.

[196] See id. at 1242. Return to text.

[197] See id. Return to text.

[198] See id. at 1241. Return to text.

[199] Id. at 1245. Return to text.

[200] See Jeffries v. Harleston, 513 U.S. 996, 996 (1994). Return to text.

[201] See id. Return to text.

[202] See Jeffries v. Harleston, 52 F.3d 9, 12 (2d Cir. 1995) (Jeffries II). Return to text.

[203] See id. Return to text.

[204] See id. Return to text.

[205] 52 F.3d 9 (2d Cir. 1995). Return to text.

[206] See id. at 12. Return to text.

[207] See Scruggs v. Keen, 900 F. Supp. 821, 829 (W.D. Va. 1995). The court stated that "[a]t least in those cases in which the content of the employee's speech is disputed, Waters marks a significant new approach in the law." Id. at 828. In Howze v. Virginia Polytechnic, 901 F. Supp. 1091 (W.D. Va. 1995), the same district court declined to apply Waters because the court assumed that the speech at issue was undisputed, and a Waters analysis, therefore, was unnecessary. See id. at 1099. The district court assumed that all of the alleged facts were true because Howze was before the court on the university's motion to dismiss. See id. Return to text.

[208] See Jeffries II, 52 F.3d 9, 13 (2d Cir. 1995). Return to text.

[209] Id. Return to text.

[210] See id. Return to text.

[211] See id. Return to text.

[212] See id. at 10. Return to text.

[213] See id. at 13-14. Return to text.

[214] Id. at 13. Return to text.

[215] The Supreme Court stated that in some instances, a public employee "may have a strong, legitimate interest in speaking out on public matters." Waters v. Churchill, 511 U.S. 661, 674 (1994). In such instances, the Court explained, "the government may have to make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished." Id. (citations omitted). However, the Court did not explain what such a showing would entail, or identify the speech that would trigger a more substantial showing. See id. Return to text.

[216] See supra Part IV.A. Return to text.

[217] Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (declaring that academic freedom is of transcendent value and a "special concern of the First Amendment"). Return to text.

[218] 119 F.3d 668 (8th Cir. 1997). Return to text.

[219] See id. at 680 (citing Waters v. Churchill, 511 U.S. 661, 673 (1994)). Return to text.

[220] See Jeffries II, 52 F.3d 9, 14 (2d Cir. 1995). Return to text.

[221] Id. Return to text.

[222] See id. Return to text.

[223] See id. at 14-15 (explaining that Jeffries' academic freedom was not violated because he was still a tenured professor at the university). Return to text.

[224] Id. Return to text.

[225] Hiers, supra note 108, at 264. Return to text.

[226] Id. at 265. Return to text.

[227] See Matthew W. Finkin, Intramural Speech, Academic Freedom, and the First Amendment, 66 TEX. L. REV. 1323, 1332 (1988). Return to text.

[228] See Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) ("The concern of its scholars is not merely to add and revise facts in relation to an accepted framework, but to be ever examining and modifying the framework itself.") Return to text.

[229] See Burton M. Leiser, Threats to Academic Freedom and Tenure, 15 PACE L. REV. 15, 60 (1994). Return to text.

[230] Id. Return to text.

[231] See id. Return to text.

[232] See id. at 59. Return to text.

[233] Id. Return to text.

[234] See id. Return to text.

[235] See Finkin, supra note 227, at 1343. Return to text.

[236] See Nathan Glazer, Academic Freedom in the 1990s, 22 WM. MITCHELL L. REV. 479, 481 (1996). Return to text.

[237] "Difficult as the 'chilling effect' often is to document in first amendment litigation, it is richly documented in the annals of AAUP investigations." Finkin, supra note 229, at 1343 (citing Academic Freedom and Tenure: Winthrop College, 28 AAUP BULL. 173, 190 (1942)). Return to text.

[238] Rita J. Simon, What Should Professors Do?, 22 WM. MITCHELL L. REV. 573, 574 (1996). Return to text.

[239] See Glazer, supra note 236, at 481. Return to text.

[240] David Rosenberg, Note, Racist Speech, The First Amendment, and Public Universities: Taking a Stand on Neutrality, 76 CORNELL L. REV. 549, 563 (1991) (referring to Sweezy and Keyishian). Return to text.

[241] Finkin, supra note 227, at 1343. Return to text.

[242] Leiser, supra note 229, at 62. Return to text.

[243] See id. Return to text.

[244] Id. at 63-64. Return to text.

[245] 385 U.S. 589, 603 (1967). Return to text.

[246] See 1915 DECLARATION, supra note 19, at 165. Return to text.

[247] See supra Part IV.B. Return to text.

[248] See Scallet v. Rosenblum, 911 F. Supp. 999, 1011 (W.D. Va. 1996), aff'd, 106 F.3d 391 (4th Cir. 1997), cert. denied, 117 S. Ct. 2482 (1997) (recognizing the "robust tradition" of academic freedom in higher education and that the pedagogical interest in restricting speech in an elementary school or secondary school is stronger than at the college level). Return to text.

[249] See id. at 1009. Return to text.

[250] See supra Part IV.B. Return to text.

[251] See Burnham v. Ianni, 119 F.3d 668, 679 (8th Cir. 1997). The court stated that "[t]he government employer must make a substantial showing that the speech is, in fact, disruptive before the speech may be punished." Id. at 680. This statement seems to ignore the mandate in Waters that the potential for disruption is enough to outweigh the free speech interests of a public employee. Return to text.

[252] See id. at 680 n.19. The court stated that underlying its decision was "the recognition of the professors' academic freedom--a special concern of the First Amendment.'" Id. (quoting University of Cal. Regents v. Bakke, 438 U.S. 265, 312 (1978)). Return to text.

[253] 485 U.S. 312 (1988) Return to text.

[254] See id. at 320. Content-based regulations on speech are generally impermissible. However, a restriction may be categorized as content neutral if the target of the regulation is not the content of the speech but the secondary effects that the speech produces. See id.

[S]econdary effects . . . refer[ ] to regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech. So long as the justifications for regulation have nothing to do with content, i.e., the desire to suppress crime has nothing to do with the actual films being shown inside adult movie theaters, we concluded that the regulation was properly analyzed as content neutral.
Id. Return to text.

[255] See id. at 321. Return to text.

[256] See id. at 320-21. Return to text.

[257] For example, a clerk of court may have to look at evidence in an obscenity case. This speech may offend the clerk and, in other work contexts, could create legitimate secondary effects that could be regulated. However, the secondary effects must be gauged by the nature of the job. A clerk legitimately expects to be exposed to this kind of material during an obscenity case. Thus, based on the expectations of the clerk, the speech would not produce any secondary effects capable of regulation. Return to text.

[258] See Rosenberg, supra note 240, at 563. Return to text.

[259] Louis L. Brandeis, What Publicity Can Do, HARPER'S WEEKLY, Dec. 20, 1913, at 10, cited in Federal Election Comm'n v. Political Contribution Data, Inc., 943 F.2d 190, 191 (2d Cir. 1991). Return to text.

[260] Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). Return to text.