"Academic freedom" is a slippery and largely undefinable term that tends to be trotted out to defend unpopular professorial and student expression. As such, it has acquired an elastic quality: "Academic freedom," like "hate" or "harassment," can mean just about whatever a person wants it to mean. It's a term that is at once useful and useless, a catch-all category that can be invoked to protect gross unprofessionalism as readily as it can be used to defend reasoned dissent or unorthodox but sound research. Two recent cases center on defining where academic freedom and the expressive rights of faculty end and other forms of professional and legal obligation begin.

At California's Palomar College, a math professor has sued five other faculty members for criticizing her administrative performance so harshly and publicly that, she claims, her reputation was materially damaged. Anne Voth claims that her critics harassed and defamed her; their defense is that their criticisms were made in protected public fora, and that their comments are thus covered by California's Strategic Lawsuits Against Public Participation statute.

The five professors that Voth accused of defamation are Rocco Versaci, president of the faculty union, Shannon Lienhart, Daniel Finkenthal, Susan Snow and Monika Brannick.

Lienhart, the only accused professor who returned phone calls for this story, said that the discord began when Voth essentially shut down the Tenure and Evaluation Review Board two years ago.

Voth, who joined the Palomar faculty 13 years ago, was criticized by many colleagues for the way she handled that panel, Lienhart said, who added that she believes the criticism was appropriate.

"It boils down to whether you can challenge people in positions of authority," said Lienhart.

In the lawsuit, which Voth filed Jan. 13, she thoroughly described the alleged harsh criticism and harassment in which the accused professors engaged.

"Voth has been the subject of ever-increasing attacks on her character and reputation from a small group of Palomar College employees," the suit claims. "These defamatory attacks have begun to increase in frequency and degree of harm."

According to the suit, the accused professors verbally charged Voth with "destroying the tenure and evaluations process," "fraud," "collusion with the administration to undermine the faculty's role in tenure evaluation," and "skating around doing nothing while other people get laid off."

The suit also claims the professors called Voth a liar who is corrupt, abuses her power and pursues personal vendettas. The professors made these comments maliciously, according to the suit, because they knew them to be false.

And at the University of Colorado, a departmental chairman in the medical school was removed from his administrative position after publicly criticizing the school's decision to move the school from its current location in Denver to a more remote location in Aurora, a Denver suburb. Robert Schrier made no secret of his opinion that the scheduled move would be fiscally and administratively disastrous, and expected that his criticisms would be fully protected. When he was stripped of his chairmanship, he sued, declaring that the university had violated his First Amendment rights as well as his contractual right not to be retaliated against for his speech. Schrier, who retains his professorship and his salary, argued that academic freedom guarantees him greater expressive rights than other public employees, but he did not impress the court, which found for the university. On appeal, the 10th Circuit upheld the lower court ruling, finding that Schrier's opposition to the move "impaired harmony among co-workers, detrimentally impacted close working relationships within the School of Medicine, impaired his performance as department chair, and interfered with the university's ability to implement the move."

The court paid particular attention to the limits of that expansive and self-excusing term, academic freedom:

Taking up the lower court's conclusion that academic freedom has no "special" First Amendment significance, the appeals panel's opinion includes language that asserts otherwise: "Courts have conspicuously recognized that academic freedom is a 'special concern' of the First Amendment," the 10th Circuit judges wrote. "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."

But the court goes on to say that it agrees with the magistrate judge that "an independent right to academic freedom does not arise under the First Amendment without reference to the attendant right of free expression.... Schrier's argument implies that professors possess a special constitutional right of academic freedom not enjoyed by other governmental employees. We decline to construe the First Amendment in a manner that would promote such inequality among similarly situated citizens."

"the special character of academic life, which must encourage and sustain robust debate and dissent for its own sake"...debate and dissent are important in academia, but are they really more important there than in other aspect of American life? Had there been more of a culture of "dissent and debate" at NASA, a number of shuttle crewmembers might still be alive. Had there been more of a culture of "dissent and debate" at GM, maybe people wouldn't be talking about a possible GM bankruptcy.

Also: while dissent is important, I question the value of dissent *for its own sake.* If one has something important to say, then one should say it, regardless of its unpopularity--but no one needs to be coming up with "transgressive" opinions just for the sake of transgressiveness.

In my non-lawyer, non-professorial opinion:

1) That "academic freedom" is a professional courtesy, not a legal right, seems obvious enough.

2) I'd also distinguish between "academic speech" and "administrative speech". Dinging someone's administrative status for his rabble-rousing over an administrative issue may not be what one expects of a university, but I'm not sure it's an issue of "academic freedom".

The problem with the Schrier decision is not the assertion that there are some limits to academic freedom but the court's ignoring the reasoning of other precedents (e.g., Keyishian) and the fact that Schrier's speech was precisely the type of commentary on issues of public concern (in this case, the appropriate use of public funds to move a unit) that should exact at least a little more scrutiny by the courts.

And, even if on balance one might claim that the university had an interest in having administrators who could carry out such a plan smoothly, with such interests outweighting Schrier's rights, it seems the court need not have made such a sweeping assertion of institutional authority. We should be wary of it. The same court that reserves academic freedom as solely an institutional prerogative, with no individual rights for public-employee faculty protected by the first amendment, will also restrict student rights by similar reasoning.

Have you actually read what Schrier said, so you're comfortable implying that it falls under "gross unprofessionalism?"

Two senses of "academic freedom": (1) freedom of speech by academics; (2) freedom to pursue ideas and research agendas, in an academic setting, without fear of losing one's job or being somehow punished because those ideas or agendas are unpopular. Schrier appealed to the former, but only the latter makes legal sense. My admittedly limited knowledge of the case suggests (and I think I'm agreeing with Sherman Dorn here) that Schrier was probably within his rights to make the complaints he did -- but it seems ridiculous to justify his speech on the grounds of *academic* freedom. He was not saying anything pertaining to academic work; his speech was not (though the UC's lawyer,oddly, seems not to notice this) "of an academic nature." Not every issue that arises in a university is ipso facto "of an academic nature." And indeed, because Schrier kept his tenure and faculty status, it does not seem that his academic freedom as such was compromised.

But I still think he should not have been punished. I agree with Schrier's claim that his employer treated him unfairly; I deny that the unfairness had anything to do with "academic freedom."