Free speech is a cornerstone of higher education, fostering intellectual debate and academic discovery. However, the rights of professors and students are not identical when it comes to free speech, especially in the context of public universities. Professors face unique legal standards that balance their roles as educators and employees of their institutions. Continue reading and contact the higher education lawyers here at Allen Harris to learn about the distinctions between professors’ and students’ free speech rights and their implications.
How Are Professors’ Free Speech Rights Different From Students’?
While students at public universities enjoy robust First Amendment protections, professors’ free speech rights are shaped by their dual roles as educators and employees. Students are generally free to express their opinions in classrooms, on social media, and in campus protests, provided their speech does not disrupt educational activities or violate institutional policies.
Professors, on the other hand, are subject to additional legal frameworks. The U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006) established that public employees’ speech made pursuant to their official duties is not protected under the First Amendment. Although the Supreme Court explicitly left open the question of whether the Garcetti decision applied to public university professors’ classroom teaching, some lower courts have applied this standard to professors, particularly when their speech relates to their professional responsibilities.
For example, a professor’s statements made during lectures, official emails, or faculty meetings may not be afforded the same protection as speech on matters of public concern expressed outside of their role as an employee. However, while a public university professor’s speech in a faculty meeting may not be protected, a public university professor — like any public employee — cannot be disciplined for speech made as a private citizen on a matter of public concern (such as political commentary made on their personal social media account).
What Is the Role of Academic Freedom in Protecting Professors’ Speech?
Academic freedom is an important principle that grants professors the ability to teach, research, and publish without fear of institutional censorship. While not a legal doctrine, academic freedom is often referenced in policies adopted by universities and in court rulings. In many cases, it supplements First Amendment protections by recognizing the unique role professors play in encouraging academic inquiry. The importance of academic freedom has also led some lower courts to hold that the Supreme Court’s Garcetti decision, which limits public employees’ free speech rights, does not apply in the context of speech related to scholarship and teaching.
However, academic freedom has its limits; courts have ruled that institutions can take action against faculty speech that is disruptive, discriminatory, or inconsistent with professional responsibilities.
Conversely, when professors speak as private citizens on matters of public concern—such as in op-eds, social media posts, or public speeches—their speech is generally protected, even if it is controversial. Courts often balance the interests of the professor as a citizen with the university’s interest in maintaining an efficient and respectful workplace.
Can Professors Face Consequences for Controversial Speech?
Yes, professors can face consequences for speech deemed to violate university policies, disrupt institutional operations, or conflict with their professional obligations. Examples include speech that:
- Harasses or discriminates against students or colleagues.
- Violates university policies on ethics or professionalism.
- Criticizes institutional leadership in a manner that undermines workplace functionality.
At the same time, courts have struck down disciplinary actions against professors whose speech was protected under the First Amendment. In Keyishian v. Board of Regents (1967), the Supreme Court reaffirmed that academic freedom is “a special concern of the First Amendment.” Recent cases have further emphasized the need to protect faculty from censorship based on their personal opinions or research findings.
Ultimately, professors and students share a commitment to free expression, but their rights differ due to the professional responsibilities professors hold. While academic freedom and the First Amendment provide significant protections, these rights are not unlimited.
