Testing 'Academic Freedom'

Kevin MacDonald is not the only college professor to come under fire for racist and anti-Semitic views. In the early 1990s, faculty and students at the City University of New York called for the ouster of Professor Leonard Jefferies Jr., the chairman of the Afro-American Studies Department, for his anti-Semitic statements and for teaching that blacks are intellectually superior to whites. More recently, Florida State University professor Glayde Whitney came under attack by his colleagues and state legislators for writing the preface to the autobiography of the notorious ex-Klan leader, David Duke. In all of these cases, the hotly debated issue is the same: What are the limits on academic freedom of speech?

First Amendment Protections

The answer is not a simple one. The First Amendment to the United States Constitution protects the right of all Americans to free speech, including university professors at public institutions. (Because the First Amendment is only a curb on governmental power, it does not protect speech by employees of a wholly private university.) The United States Supreme Court has long recognized that, because classrooms are a "marketplace of ideas," "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us." Keyishian v. Bd. of Regents, 385 U.S. 589 (1967). "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, 364 U.S. 479 (1960).

The right to academic free speech is not, however, absolute. Academic freedom does not cover statements that threaten to excessively hamper the mission of the university, or that do not specifically address a public concern. Academic speech that calls the competency of the professor into question because it expresses ideas that are clearly untrue may not be protected; a science professor who teaches that the world is flat would not be protected. Likewise, speech that is not germane to the subject being taught — such as the gratuitous use of racial slurs — is typically not protected.

In recent years, there has been a gradual shift in the courts away from protecting academic speech. Last year, in a ruling that may be extended to the academic setting, the Supreme Court sharply curtailed the protections given to public employees' speech by ruling that statements made "pursuant to official duties" now fall beyond First Amendment safeguards; only public statements made in a government employee's role "as a citizen" remain protected. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). If this case is applied to academic speech, it could spell the death of protection for any statements made by teachers in the classroom.

Academic Freedom

In addition to their legal First Amendment protections, university professors enjoy a right to "academic freedom" that is enshrined in the by-laws of many colleges and universities. The concept of academic freedom began in this country in the late nineteenth century, when professors teaching Darwin's theory of evolution were being fired from academic institutions. Then, in 1900, Stanford University fired an economics professor for criticizing the use of Chinese laborers to build railroads; the university was named for Leland Stanford, a railroad magnate. The uproar over the firing led to the creation of the American Association of University Professors (AAUP), which defined academic freedom for the first time.

The AAUP's academic freedom principles, which are accepted by most universities, state that a professor's speech is protected by academic freedom "unless his methods are found by qualified bodies of his own profession to be clearly incompetent or contrary to professional ethics." Although the AAUP principles recognize that there are valid restrictions on speech in the classroom, they maintain that teachers should be free to speak as citizens outside of the classroom without fear of reprisal, so long as their remarks do not bear on their professional competence.

An example of the protections afforded by modern principles of academic freedom is the case of Arthur Butz, a Northwestern University engineering professor who for decades has claimed in public speeches that the Holocaust never occurred. The university has resisted pressure to fire him, given that he has never taught his anti-Semitic and factually incorrect views in the classroom. But even though his remarks were made outside the classroom, his professional competence might have been questioned had he taught history rather than engineering.

Psychology professor Kevin MacDonald's publications containing his anti-Semitic theories fall within the academic subfield that he claims to be an expert in: evolutionary psychology. Many experts in evolutionary psychology, including the founders of the field, have condemned his work as unscientific. But it's unknown whether MacDonald has taught these theories within his classroom because the psychology department at Cal State doesn't allow in-class reviews. If he has, McDonald may not enjoy legal protection for any anti-Semitic and unscientific statements made in the classroom.