71 Am. U. L. Rev. 977 (2022).

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Abstract

Although the nature and extent of academic freedom has been subject to analysis for over a century, recent developments underscore the need to reconsider the proper scope of academic freedom. These developments include Meriwether v. Hartop, a 2021 Sixth Circuit decision in which a professor claimed a Constitutional right, based in academic freedom, to refuse to use a student’s pronouns; the growing science of pedagogy and understanding of how students learn; and the changing role of higher education in the United States. We propose updated factors for assessing the scope of academic freedom that balance the interests of the university, individual faculty members, students, and the general public. In doing so, we specifically address and discuss the interest of the state in delivering an “effective education”—a concept that we ground in both the literature of constitutional rights and also the literature of effective pedagogy, linking the interest of the state in delivering effective learning experiences to the science of teaching and learning. We also address the need for the recognition of gender pronouns and the potential for harm when they are not recognized.

* Gomo Family Professor and Assistant Dean for Teaching and Learning Excellence, College of Business, Oregon State University.

** Associate Professor, Bentley University.

*** Professor, W.A. Franke College of Business, Northern Arizona University.