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Is Teaching 'Junk Science' Protected by Academic Freedom?

By Marjorie Heins

Ball State University is embroiled in controversy over a course offered by its physics and astronomy department, called "The Boundaries of Science." The Freedom From Religion Foundation has complained that the course isn’t science but religious indoctrination, and that because Ball State is a public university, offering the course violates the church-state separation required by the First Amendment. Others say it’s an exercise in academic freedom. In fact, it is probably neither.

Academic freedom protects professors’ scholarship and teaching — within limits. It certainly protects the ability to broach controversial ideas in class. But it isn’t an absolute right. Professors have to teach the subjects assigned, and can’t engage in racial or sexual harassment, to mention just a few limits. There is also the matter of professional competence. A Holocaust denier may be competent to teach math or Spanish, but is unqualified to teach European history. A believer in "creation science" may be competent to teach medieval literature, but not biology. If the course is junk science, the professor has no academic-freedom right to teach it, and his department should have enough professional integrity to remove it from the catalog.

But what if the department decides not to? Does teaching the course at a public university violate the constitutional mandate prohibiting an "establishment of religion," as it indisputably would if offered at a public high school? There’s little case law on this question — probably because there aren’t many public universities that offer courses proselytizing religion under the guise of science.
The traditional formula for deciding whether a government program violates the Establishment Clause is the so-called "Lemon test," derived from a 1971 Supreme Court case, and asking three questions: whether the program has a secular purpose; whether its primary effect is to advance or inhibit religion; and whether it results in excessive government entanglement with religion. More recently, the Supreme Court has used two other tests: whether the program amounts to government endorsement of religion, and whether it is coercive. The coercion inquiry is particularly relevant to prayers and religion courses in public schools: where a prayer is mandatory, it forces students to recite beliefs they don’t necessarily hold, and where a course is mandatory, it subjects them to unwanted indoctrination.

In 1972, a federal court of appeals struck down a chapel-attendance mandate at a collegiate military academy, even though no one was required to attend the academy (unlike a public school) and even though cadets could be excused from the chapel requirement (Anderson v. Laird). In two later cases, on the other hand, courts allowed graduation prayers at public universities on the theory that there was no coercion, there was a secular purpose (to "solemnize public occasions"), there was no primarily religious effect because "an audience of college-educated adults" — unlike school children — was not likely to be unduly influenced, and there was no excessive entanglement with religion (Tanford v. Brand and Chaudhuri v. Tennessee). But in a 2003 case, another court ruled that a supper prayer at the Virginia Military Institute did violate the Establishment Clause because the students were "plainly coerced into participating in a religious exercise" (Mellen v. Bunting).

Then there was the strange case of a group in Nassau County, New York, which challenged a "Human Sexuality" course at the local community college because, they claimed, it "proselytizes against the Judeo-Christian sexual ethic and advocates an anti-religious sexual ethic to replace it." The judge found no endorsement of religion, a secular purpose, and nothing implicating any other prong of the Lemon test (Gheta v. Nassau County Community College).

How might these somewhat inconsistent precedents apply to "The Boundaries of Science"? There is no coercion because nobody has to attend Ball State or enroll in the course. There’s little likelihood that reasonable observers would think the administration endorses the professor’s religious message. On the contrary, a basic tenet of academic freedom is that professors don’t necessarily speak for the university — indeed, they should be free to speak out against its policies. There’s little chance of entanglement with religion, and although it might be difficult to discern a secular purpose, and the primary effect might be religious, on balance, the courts would probably not find this dubious course to violate the Establishment Clause.

Academic freedom, as a matter of First Amendment right at public universities, protects both the institution and the individual professor. The Supreme Court has noted the potential for conflict between the two. In the case of Ball State, though, the question is one of professional competence, and the institution, through its faculty committees, gets to decide whether "The Boundaries of Science" meets this standard.  If it is religion masquerading as science, it clearly doesn’t, regardless of whether it violates the Establishment Clause.

A case from the University of Alabama in 1991 supports this conclusion. Students complained that a professor of physiology was engaging in religious proselytizing in class. The university told him to stop; the professor claimed a violation of his academic freedom. The federal court of appeals acknowledged that, as the Supreme Court had recognized years before, teachers’ academic freedom is a "special concern of the First Amendment," but in the end ruled that the university was within its rights in restricting the professor’s classroom speech. The court did not reach the question of whether religious proselytizing in a public university class violates the Establishment Clause (Bishop v. Aronov).

In the case of "The Boundaries of Science," the right of the Ball State administration to decide on the course’s overall scientific validity is even stronger than the University of Alabama’s claim of authority to restrict a professor’s occasional in-class proselytizing. The point is that these are educational decisions for the university to make, and absent a violation of the Establishment Clause, outside political interference is dangerous, no matter how well-intentioned.

May 30, 2013

This article was originally published in Inside Higher Ed, 

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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