Published online by Cambridge University Press: 02 August 2019
Under existing Supreme Court precedents, and as Professor Peter Byrne observes, “[t]he First Amendment protects academic freedom.”1 The argument in favor of recognizing academic freedom in the context of a government-sponsored college or university is relatively easy to make.2 The case for academic freedom in K-12 public schools is considerably more complicated because government historically has exercised very broad authority over the curriculum in the public schools (notably including specific learning requirements for promotion and graduation). Moreover, the notion that public school teachers and students can exercise substantial autonomy as speakers in the context of curricular activities exists in substantial tension with the traditional powers of the state governments to regulate comprehensively the public schools.3
The Warren Court first recognized academic freedom in the college and university context – and then extended this protection to the public school context. Although it did not expand on these precedents, the Burger Court did not resile from them.4 The Rehnquist and Roberts Courts, however, have significantly reduced the scope of First Amendment protection available to faculty and students alike in the nation’s public schools, colleges, and universities.