2024-2025 Fellows Research
Privacy, Surveillance, and Academic Freedom by Anil Kalhan Professor of Law, Drexel University; Fellow, University of California National Center for Free Speech and Civic Engagement (2024–25)
Introduction As traditionally understood in the United States, academic freedom protects the ability of college and university faculty to engage in teaching, research and scholarly publication, and participation in institutional governance free from retaliation, improper influence, or control by administrators, trustees, donors, politicians, and other external actors. It also extends to protect extramural expression by faculty members outside of their institutions in their capacities as citizens.1 In the first instance, these protections are often framed as safeguards against direct interference with faculty speech and publication.2 Although academic freedom first emerged as a set of professional standards within the domain of higher education itself—and remains primarily grounded in those professional norms— its subsequent and still limited recognition under the First Amendment both reflects and further reinforces this prevailing emphasis on direct protection of expression.3 This understandable emphasis on the ultimate outputs of academic expression, however, can obscure the need to also protect the professional and institutional conditions necessary for academic work to take place and those expressive outputs to be developed. Before faculty members engage students in the classroom, publish their scholarship, or participate in institutional governance, they often must develop, test, and refine their ideas, frequently through processes that are informal, tentative, or exploratory. These formative activities frequently depend on expectations of confidentiality, discretion, or bounded disclosure that receive limited attention in discussions about academic freedom focused primarily on direct protection of expression. Moreover, even after ideas have been developed and judgments have been more fully formed, faculty members still often depend 1 2
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See generally Matthew W. Finkin & Robert Post, For the Common Good: Principles of American Academic Freedom (2009); Henry Reichman, Understanding Academic Freedom (2d ed. 2025). See, e.g., Jennifer Lackey, Academic Freedom, in Academic Freedom 3, 3 (Jennifer Lackey ed., 2018) (“Academic freedom . . . allows members of institutions of higher learning to engage in intellectual pursuits without fear of censorship or retaliation . . . . The rationale for academic freedom is often connected to the justification for free speech more broadly.”). See, e.g., David M. Rabban, Academic Freedom: From Professional Norm to First Amendment Right (2024).
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