House of Representatives Chamber in the Tennessee State Capitol building on December 1, 2014 in Nashville, Tennessee CREDIT Nagel Photography  Shutterstock.com feat

House of Representatives chamber in the Tennessee State Capitol in Nashville. (Nagel Photography/Shutterstock.com)

New Tennessee law is good news for academic freedom

By May 15, 2017

Last week, FIRE was happy to report that a comprehensive campus free speech bill was signed into law in Tennessee by Governor Bill Haslam after receiving overwhelming bipartisan support in the Tennessee General Assembly. While the new law has received a great deal of praise, some have raised good faith questions about whether it might risk undermining expressive rights, particularly for faculty. It doesn’t.

Among the many provisions in the Campus Free Speech Protection Act is a section that provides statutory protection for the classroom speech of faculty members. That section reads:

Although faculty are free in the classroom to discuss subjects within areas of their competence, faculty shall be cautious in expressing personal views in the classroom and shall be careful not to introduce controversial matters that have no relationship to the subject taught, and especially matters in which they have no special competence or training and in which, therefore, faculty’s views cannot claim the authority accorded statements they make about subjects within areas of their competence; provided, that no faculty will face adverse employment action for classroom speech, unless it is not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction[.]

The language in this section of the statute closely mirrors the text of the American Association of University Professors’ 1940 Statement of Principles on Academic Freedom and Tenure, which reads in relevant part:

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.

Writing last week for the AAUP’s Academe blog, Professor John K. Wilson weighs the law’s faculty speech provision carefully before pronouncing it a winner for faculty rights:

Perhaps the worst part of the law says, “faculty shall be cautious in expressing personal views in the classroom and shall be careful not to introduce controversial matters that have no relationship to the subject taught, and especially matters in which they have no special competence or training.” This stigma on expressing “personal views” in a class, imposed by state law, is certainly a bit repressive, as is the direct targeting of “controversial matters” as a bad thing. And, yes, it is very similar to the AAUP’s 1940 Statement of Principles, except that the AAUP statement says faculty “should be careful” not “shall be careful” (as a requirement). And the AAUP statement adds (via the 1970 Interpretive Comments), “The intent of this statement is not to discourage what is ‘controversial.’ Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster,” an important idea omitted from the Tennessee law (and one that Tennessee colleges should add to their provisions).

However, these flaws are ameliorated by the next clause in Tennessee’s law: “no faculty will face adverse employment action for classroom speech, unless it is not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.” The “substantial” definition is not altogether clear, but it’s still a very good provision and a strong protection for faculty, probably better than what exists in any current campus code in Tennessee. [Emphasis added.]

FIRE agrees with much of this analysis, particularly Wilson’s point about the functional difference between “should” in the AAUP’s 1940 Statement and “shall” in the statutory language, and his concern about discouraging discussion of “controversial matters.” Generally speaking, discussing controversial matters in both the classroom and on campus in general is an exercise that universities should foster rather than discourage. But, as Wilson notes, the language in the latter half of the provision ensures that classroom discussions of controversial matters will not lead to adverse employment action unless the controversy was both irrelevant to the class, broadly construed, and took up a substantial amount of class time. (Faculty speech that is both irrelevant to the class topic and also takes up substantial amount of instructional time is not protected, but this was already the case; after all, when students enroll in a course, they may reasonably expect that the faculty member teaching that course will spend much of their classroom time doing so.)

It’s worth noting that this concrete protection applies broadly, covering “tenured and non-tenured professors, adjunct professors, visiting professors, lecturers, graduate student instructors, and those in comparable positions, however titled.” And protection of faculty speech rights is further buttressed elsewhere in the law. For example, the new law explicitly requires public institutions to adopt a policy prohibiting the invocation of “civility” as a reason to silence debate, proclaiming that

concerns about civility and mutual respect shall never be used by an institution as a justification for closing off the discussion of ideas, however offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed those ideas may be to some students or faculty[.]

Indeed, this commitment is identified in the law as “the public policy of this state.” This is an important statement. FIRE has too often seen cries for “civility” serve as a vehicle for censorship and punishment of faculty speech.  

In a statement published following the law’s passage, the AAUP argued against any and all legislation that might prevent the university, as an autonomous entity, from making its own decisions about academic freedom and campus free speech:

Several state legislatures have recently passed or introduced legislation that addresses issues related to campus free speech. Given the important role of colleges and universities in debate, dissent, and the free exchange of ideas, the AAUP strongly supports freedom of expression on campus and the rights of faculty and students to invite speakers of their choosing. We oppose, however, any legislation that interferes with the institutional autonomy of colleges and universities by undermining the role of faculty, administration, and governing board in institutional decision-making and the role of students in the formulation and application of institutional policies affecting student affairs. The appropriate institutional regulations on campus free speech and protest, the invitation of outside speakers, and student discipline should be adopted through normal channels of institutional governance, and such regulations should be consistent with Association-approved statements on Freedom of Expression and Campus Speech Codes, Academic Freedom and Outside Speakers, and the Joint Statement on Rights and Freedoms of Students.

FIRE is sympathetic to this argument. We have long been hesitant to rely on legislatures to address concerns regarding free speech or academic freedom, and we, too, are wary that legislative involvement risks politicizing these issues and reducing faculty and student power.

Over the last few years, however, our view has changed. Staying on the sidelines would leave legislators — who are increasingly focused on authoring bills addressing campus issues — without our input. If FIRE and other organizations committed to the nonpartisan defense of faculty and student rights do not interact with lawmakers, the resulting legislation will only be more likely to reflect partisan politics, not sound public policy. In our experience, engaging legislators with regard to campus civil liberties has created productive working relationships that have led to solidified protections for students and faculty. This was the case this year not only in Tennessee, but also Utah and Colorado.

Nor do we think legislation is an evil always to be avoided. The legislative process is one of few realistic routes — if not the only realistic route — to resolving threats to academic freedom posed by other sources. (Legislative action is now likely the most effective answer, for example, to the damage to academic freedom posed by the U.S. Supreme Court’s decision in Garcetti v. Ceballos.)

In addition to our support in principle for carefully crafted legislative efforts to protect academic freedom, FIRE also believes that the specific language in the Tennessee Campus Free Speech Protection Act is helpful. The bill does not authorize the restriction of any faculty speech. Rather, it provides statutory protection for any classroom speech that is “reasonably germane to the subject matter of the class as broadly construed” and also provides a statutory safe harbor for classroom speech that falls outside that standard so long as it does not comprise “a substantial portion of classroom instruction.” In other words, brief forays into subjects beyond a class’s broad parameters are statutorily protected.

Had this law been in effect in Colorado, sociology professor Patti Adler would not have been subjected to a lengthy harassment investigation and forced into retirement for including  a skit involving volunteer teaching assistants dressed as and portraying prostitutes as part of her “Deviance in U.S. Society” course at the University of Colorado. If my home state of New Jersey had this law, sociology professor Dawn Tawwater would not have been terminated from her tenure-track position for her occasional use of profanity in the classroom and her screening of a racy feminist parody of the music video for the Robin Thicke song “Blurred Lines.” Professors Hyung-il Jung, James Tuttle, Elizabeth Ito, and Andrea Quenette are other examples of instructors who would not have faced adverse employment actions for their classroom speech if their states had similar laws.

“Tennessee’s law seems to be the best ever enacted,” Wilson concludes. As he says, “there’s no denying that this is a real advance for campus free speech in Tennessee.” We agree. Wilson also argues that “the hard work of protecting free speech on campus can’t be accomplished only with legislation, and there is a danger that such laws will encourage further legislative meddling that threatens free speech and academic freedom on campus.” We agree there, too. FIRE’s work defending free speech on campus doesn’t end when a school earns a green light rating or a state passes a helpful law. As always, we will remain vigilant as always to ensure faculty and student rights are protected nationwide, from legislators and any other would-be censors.  

FIRE is pleased that the Campus Free Speech Protection Act has become law and hopes that other states will follow suit. Passing similar legislation will help ensure that free speech on campus and academic freedom flourish.