The Foundation for Individual Rights in Education has written to the president of the University of North Texas, warning him that his inquiry into the Schenker furore violates the First Amendment of the US constitution. This may end up in court.
The First Amendment Bars UNT from Penalizing Scholarly Writing Others Find
While the content of JSS’s series of responses to Ewell’s SMT address may be deeply offensive
to some readers, it does not fall into any exception to the expressive rights shielded by the
First Amendment and academic freedom. It is well-established that the First Amendment
does not make a categorical exception for expression that some may find hateful, and equally
well-established that it constrains public universities in penalizing students for exercising
their right to free expression and faculty members for exercising their right to academic
A. UNT is Bound by the First Amendment’s Protection of Academic Freedom
It has long been settled law that the First Amendment is binding on public colleges like UNT.
Healy v. James, 408 U.S. 169, 180 (1972) (“[T]he precedents of this Court leave no room for the
view that, because of the acknowledged need for order, First Amendment protections should
apply with less force on college campuses than in the community at large. Quite to the
contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the
community of American schools.’”) (internal citation omitted); see also DeJohn v. Temple
Univ., 537 F.3d 301, 314 (3d Cir. 2008) (on public campuses, “free speech is of critical
importance because it is the lifeblood of academic freedom”).
The Supreme Court of the United States has made clear that academic freedom is a “special
concern of the First Amendment,” explaining that “[o]ur nation is deeply committed to
safeguarding academic freedom, which is of transcendent value to all of us and not merely to
the teachers concerned.”