No, it could not. In fact, trying to couch academic freedom in First Amendment terms seriously weakens the underpinnings of the compact.
It’s actually quite simple: a right has to apply to everyone, or to all and, by extension, to clearly delineated groups representing individuals in ways directly relating to the right. Freedom of religion, for example, applies to both the individual and his or her decisions about faith and to the religious institutions that represent that faith. However, question of who the individual is never causes much problem (it is everyone), but question of what makes the institution coverable is much more complex. What makes a church, a synagogue, a mosque, a temple a legitimate religious institution? Sometimes, it is quite difficult to distinguish between an organization bent on fraud and a “real” church (the Church of Scientology comes to mind). But one never finds a church that wants to opt out of freedom of religion.
Similarly, freedom of the press, originally seen as a right of the individual, also extends to the institutions through which it is practiced. Special governmental consideration is given to news venues because they allow utilization of the right expressed through the First Amendment. Here, again, the right applies to all individuals—but gets a little sticky when government entities try to decide which institutions should be recognized as embodiments of that right (in determining who should get press passes, for example). However, no news organization would decide to give up its freedom.
The same is not true of academic freedom. Unlike churches and newspapers, colleges are not individuals writ large—and many of them, as institutions, would gladly give up academic freedom.
The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Those who argue for the inclusion of academic freedom under the First Amendment place it within the right of “freedom of speech.” As in all of the rights covered by the Amendment, this one starts with the individual. As with freedom of the press (unlike freedom of religion, where the institution is specifically mentioned), any extension of the right to a class of institution can only be implied.
To fit within the context of the First Amendment, academic freedom would have to apply to everyone, extension (or lack of it) to institutions notwithstanding. That is, all citizens would have the right of academic freedom—and this right would be carried through to the institutions which aided in utilization of that right. There’s no problem here, and this is the basis of the idea that academic freedom is covered by the First Amendment.
Such an assertion, however, ignores the fact that academic freedom, by definition, applies to institutions of a specific nature—and here’s where we get into trouble when trying to use the First Amendment to justify academic freedom. For, as I have said, universities are not amplifications of individuals.
All religious and news entities want the privileges extended to them either directly through the First Amendment or by implication. At least, they are never in conflict with individual rights in these areas, for their purposes are exclusively extensions of those individual rights.
Again, such is not necessarily the case of academic institutions. They do not always act as extenders or amplifiers of an individual right to academic freedom. The authors of the 1915 American Association of University Professors “Declaration of Principles” recognized this, and deliberately excluded a certain class of academic institutions from academic freedom:
The simplest case is that of the proprietary school or college designed for the propagation of specific doctrines prescribed by those who have furnished its endowment. It is evident that in such cases the trustees are bound by the deed of gift, and, whatever be their own views, are obligated to carry out the terms of the trust. If a church or religious denomination established a college to be governed by a board of trustees, with the express understanding that the college will be used as an instrument of propaganda in the interests of the religious faith professed by the church or denomination creating it, the trustees have a right to demand that everything be subordinated to that end. If, again, as has happened in this country, a wealthy manufacturer establishes a special school in a university in order to teach, among other things, the advantages of a protective tariff, or if, as is also the case, an institution has been endowed for the purpose of propagating the doctrines of socialism, the situation is analogous. All of these are essentially proprietary institutions, in the moral sense. They do not, at least as regards on particular subject, accept the principles of freedom of inquiry, of opinion, and of teaching; and their purpose is not to advance knowledge by the unrestricted research and unfettered discussion of impartial investigators, but rather to subsidize the promotion of the opinions held by the persons, usually not of the scholar's calling, who provide the funds for their maintenance. Concerning the desirability of the existence of such institutions, the committee does not desire to express any opinion. But it is manifestly important that they should not be permitted to sail under false colors. Genuine boldness and thoroughness of inquiry, and freedom of speech, are scarcely reconcilable with the prescribed inculcation of a particular opinion upon a controverted question. Such institutions are rare, however, and are becoming ever more rare.
Rare or not (and they may be becoming more common today, as new religion-based colleges and universities appear along with the growing number of for-profit academic institutions), such institutions do exist. Yet, as the “Statement” says, they cannot be (and should not be) forced to conform to the precepts of academic freedom.
Unlike a situation with religion or the press, where there is no problem if an institution wishes to opt out (for the right rests with the individual anyway), academic freedom is, by its very nature, institutional and not individual. Here, the right is meaningless without the institution. In the other two instances, the right remains, institutional presence (or lack of it) notwithstanding. Therefore, in the case of academic freedom, definition of just what an academic institution is remains critical to any promotion of the right.
If a religion desires to start a university, is it required, under the First Amendment, to let its faculty make all decisions concerning situations that might be covered under academic freedom? Is a for-profit college required to make academic freedom part of its operating principles? No, according to the “Statement.” Only those institutions which “accept the principles of freedom of inquiry, of opinion, and of teaching” are.
And this is the crux of the problem with placing academic freedom under the First Amendment. If it does not extend to all, it is no right.
If a professor at a religious institution or at one of the for-profit colleges that has never accepted the principles of academic freedom tries to claim that right for himself or herself as an individual, the entire “right” of academic freedom threatens to collapse as completely as a house of cards. The United States has never established a sweeping right of this sort. Attempting to read academic freedom into the First Amendment will only lead to its eventual collapse, no matter that the Supreme Court has made passing reference to academic freedom as a right. Furthermore, what we have seen so far in court treatment of academic freedom is little more than a conflict between individual and institutional rights.
Taken out of an institutional context, academic freedom is nothing more than freedom of speech. Left inside, but retaining a special First Amendment prerogative, however, it threatens institutional rights in ways that will never happen with religion or the press.
Again, unlike religious and news-media entities, academic institutions are not simply extenders and enablers of individual rights. They do not exist as institutional amplifiers of individuals. They have a variety of purposes, many of which that can be at odds with those of the individuals who compose them. In addition, the rights of the individuals, in institutions of religion and the press, do not extend into the institution. Academic freedom does. In fact, it rests there.
An individual, if he or she does not like the way a church is manifesting belief, cannot force that church to change—at least, not through law. The right to believe as one chooses does not extend to forcing a church to change to accommodate the individual, or even to allow the individual to worship differently within that church. Similarly, the right of freedom of the press does not guarantee that what an individual reporter writes will be published. These are internal matters and not generally the concern of law.
Academic freedom, always an internal matter (again, outside of the related freedom-of-speech protections that are the rights of all individuals), is also no concern of law, but is a compact within the institution. To argue otherwise is akin to arguing that a church must continue to accept a member who has decided upon a radically different way of belief, or of arguing that a newspaper must print whatever its journalists present to their editors. In neither of these latter two situations would the individual’s rights under law be compromised if she or he were expelled from the congregation or the stories spiked. Just so, if academic freedom falls under the umbrella of freedom of speech, no rights have been violated if a professor is told what to teach. And this is the problem. In each instance, the individual right—to worship as one pleases, to write what one pleases, to teach how one pleases—still exists… just not in this particular institution. One is welcome to go elsewhere and do what one wants. The government isn’t involved one way or another—and neither are the rights it guarantees. And that, of course, would make real academic freedom within the institution impossible. Thus, by turning academic freedom into a personal right divorced from the institution, we make it meaningless within the institution.
Religious institutions and news-media entities are, of course, private. The same cannot always be said for academic institutions. So, if First Amendment rights stop at the door of private institutions like synagogues and newspapers, does that mean that academic freedom, even if it is also no internal right of private academic institutions, can be argued as a right within our public universities—salvaging at least a little of the right?
Yes, it could be. But would that really be helpful to academic freedom, or might it be harmful?
If we are to argue that private academic institutions, like all other private institutions, can do what they will (within certain limits), then academic freedom is effectively emasculated. Public universities cannot carry it alone (and it becomes meaningless as a right). If, on the other hand, academic freedom is forced upon private institutions as well (as a First Amendment right), then our purpose-driven institutions from religious colleges on will be seriously weakened or destroyed—and institutional rights of all sorts will be called into question in ways making “government intrusion” much more a reality than ever before. And, the optimism of the “Statement” notwithstanding, purpose-driven academic institutions (let alone the vast number of other private ones) are neither rare nor likely to become extinct.
The conundrum this creates is the core reason that academic freedom has to exist outside of legal structures and only within the cultures of academic institutions.
In the United States, academic freedom is at the heart of the culture of most of our colleges and universities, both private and public—but not all. It exists through explicit definition in union contracts, university bylaws, operating guidelines, and other documents, but it is not mandated by law.
Though well-intentioned, the arguments for placing academic freedom under the First Amendment will ultimately weaken it when challenged by those institutions (such as religious colleges) which would see its instantiation in particular situations threats to their very missions. The courts will have to decide that, for a religious college, academic freedom is trumped by freedom of religion, for the latter is explicit in the First Amendment while the former is not. And academic freedom as a First Amendment right will, effectively die—and will be weakened as a compact because of its perception as a debunked “right.”
Protection of academic freedom, then, cannot be effected through law, but must continue as a negotiated compact between faculties and administrations. Anything else will lead to its weakening.