Asper Centre Event

David Rabban argues for a distinct theory of the right to academic freedom, as the U.S. and state governments tighten the screws on universities

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By Daniel Minden

As the Trump administration and state governments ramp up efforts to regulate American universities, David M. Rabban, an expert on the law of academic freedom and professor at the University of Texas School of Law, highlights that the U.S. Supreme Court has recognized a distinct right to academic freedom under the First Amendment of the U.S. Constitution – but argues that this distinct right must be properly elaborated by courts and theorized by scholars. 

On November 13, 2025, Rabban was hosted by the David Asper Centre for Constitutional Rights and the H.R. Jackman Faculty of Law Program on the Critical Analysis of Law for a lecture covering the interpretation of academic freedom as a First Amendment right.  

The foundational Sweezy and Keyishian decisions 

Rabban noted that although the text of the First Amendment does not explicitly refer to academic freedom, the Supreme Court of the United States identified academic freedom as a distinct right under the First Amendment in Sweezy v. New Hampshire, 354 U.S. 234 (1957), a McCarthy-era case arising from the state of New Hampshire’s investigation of a Marxist professor. In another landmark case, Keyishian v. Board of Regents 385 U.S. 589 (1967), the Court held that “Academic freedom is a special concern of the First Amendment” – an idea cited in hundreds of subsequent cases. 

Despite the Court’s holding in Keyishian, Rabban argues that the Court has never adequately explained why academic freedom is “special,” and that the large majority of academic freedom cases lack a substantive analysis. To fill in the gaps, Rabban has focused on interpreting the meaning of academic freedom through research presented in his new book, Academic Freedom: From Professional Norm to First Amendment Right. 

Interpreting the right to academic freedom 

What exactly is protected by the right to academic freedom as currently understood by American courts? Rabban finds that courts have principally protected the content of teaching and research. At times, they extended the freedom further, to protect, for instance, the confidentiality of classroom discussions, the confidentiality of medical records, and confidentiality guarantees extended by historians to interviewees previously involved in the Irish Republican Army. 

Other aspects of professors’ conduct have been treated inconsistently by courts. In some instances, courts have protected pedagogical decisions by professors when those decisions were justified on academic grounds as determined by peer academics. However, in Trustees of Indiana University v. Curry, No. 18-1146 (7th Cir. 2019), the United States Court of Appeals, Seventh Circuit, found that the plaintiffs’ argument that the use of fetal tissue in research was protected by the First Amendment was a “non-starter” since the statute forbidding the practice “regulates conduct, not speech.” 

Professors’ “intramural speech,” specifically, their comments about university policies or public issues outside of their domain of specialty, has also been treated inconsistently by courts. Some decisions have extended the right to academic freedom to include a professor’s comments about university policies, but in most cases, courts have decided cases pertaining to intramural speech under the broader First Amendment umbrella.  

In addition to professors, the U.S. Supreme Court has also protected the right of institutions to academic freedom. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court affirmed a concurring decision from Sweezy which found that the “four essential freedoms” of a university are the rights “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

The insufficiency of general First Amendment rights when applied to professors 

Why is a specific right to academic freedom required, given the broader First Amendment? Rabban argues that general First Amendment rights as applied to professors are inadequate, necessitating the specific right. 

To be protected speech under the general First Amendment, speech by public employees must be about matters of “public concern.” In cases involving professors, courts have excluded from the “public concern” such categories as “abstract theorizing,” criticism of university administrators, and comments by professors protesting the denial of tenure to other professors. These categories of speech are fundamental to the work of any professor but are left unprotected by general First Amendment rights, argues Rabban. 

In addition, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that the speech of public officials “pursuant to their official duties” is not protected under the First Amendment. Obviously, this rule restricting the scope of First Amendment rights would massively impede the protection enjoyed by professors, if applied to them. The Court even recognized the possible need to exclude professors from the Garcetti rule, but since the facts of the case did not involve academic freedom, the Court left aside the issue of the rule’s applicability to professors. 

The need to theorize the right to academic freedom as a distinct First Amendment right 

To compensate for the failure of the general First Amendment Rights to adequately protect professors, a specific right to academic freedom is needed, says Rabban. A proper theory of the right to academic freedom can both justify its existence and define its scope. Given the lack of U.S. Supreme Court jurisprudence adequately laying out the justification and scope of the right to academic freedom, Rabban has taken on this work himself.  

As a starting point, Rabban cites a publication by the American Association of University Professors (AAUP) which contains, in his view, the best justification of academic freedom. The AAUP highlights professors’ unique function in society, which is to apply their expertise to the pursuit and dissemination of knowledge which is a benefit to society, a role which would necessarily be impeded if professors could not reach academic conclusions that meet academic standards but offend legislators or members of the public. 

For Rabban, this unique role of the professor in society justifies the existence of a separate First Amendment right to academic freedom. The justification of the right can also help determine its scope. Rabban argues that the scope of the right must include pedagogical decisions and speech about educational issues at universities – but since the theory of the right relies on expertise to justify specific rights to academic freedom, the intramural expression of professors outside their expertise should not be protected by the right to academic freedom. 

Academic freedom in Canada 

During the question-and-answer period, one questioner noted that in Canada, the content of the right to academic freedom is generally seen as the right of professors not to be sanctioned by universities for exercising their general freedom of expression rights. The questioner noted that this Canadian conception of academic freedom is generally protected through collective agreements, rather than constitutional litigation. The efficacy of protecting academic freedom in Canada through collective bargaining is only possible because Canada has a much higher rate of faculty union membership as compared to the United States. 

Current challenges in the United States 

In concluding his talk, Rabban highlighted the current pressure being exerted by the U.S. federal government and state governments on academic freedom rights. Though Rabban accepts that legislatures do have a role in determining the general curriculum requirements for public universities, he contends that through their recent acts, legislatures are inappropriately supplanting the role of universities by determining the specific content of courses. These state acts are far more intrusive than previous state interventions such as the Cold War-era questioning of Professor Sweezy, argues Rabban.  

Even though current state regulations have created a chilling effect and rendered certain American professors hesitant to teach about topics such as race and sex, Rabban argues that the right to academic freedom matters and is worth exercising despite the risk of penalties such as forced early retirement. Rabban notes that in times of totalitarian rule, academics have given up a great deal, including their liberty, to preserve the right to academic freedom. Rabban’s advice to academic colleagues is not to be chilled, and to exercise their rights. 

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law.

Asper Centre hosts panel on Indigenous Child Welfare and Self-Governance

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by Taoran Li

On 31 October 2024, the Asper Centre’s Indigenous Rights Working Group presented a panel event to unpack the significant legal issues and potential future implications of two recent decisions on Indigenous child welfare and self-governance. The decisions Haaland v Brackeen, 599 U.S 255 (2023) issued by the Supreme Court of the United States and Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5  issued by the Supreme Court of Canada, determined the validity of federal legislation introduced to address historic and ongoing harms caused by the apprehension of Indigenous children from their families by settler governments in both Canada and the United States.

The panel, moderated by Cheryl Milne, the Executive Director of the Asper Centre, consisted of Maggie Blackhawk, professor at New York University and teacher of federal Indian law, constitutional law and legislation; Sara Mainville, partner at JFK Law LLP and Chief of Couchiching First Nation; and, Professor John Borrows, the Loveland Chair in Indigenous Law at the University of Toronto Faculty of Law.

The idea for the panel and the questions formed for the panelists were the result of research conducted by the Asper Centre’s Indigenous Rights Working Group in 2023. Isabel Klassen-Marshall, one of the co-leaders for the Working Group began the discussion by introducing the facts and issues in the two cases. In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 the Canadian Supreme Court considered the validity of “An Act Respecting First Nations, Inuit and Metis Children, Youth and Families” or Bill C-92, an Act passed by Parliament in 2019. The Act formally recognized the inherent Aboriginal right of self-government, including jurisdiction over child and family services and established mechanisms through which Indigenous communities can exercise their authority, either by enacting their own laws or through coordination agreements negotiated with federal and provincial governments.

In response to a reference question triggered by the Attorney-General of Quebec, the Quebec Court of Appeal held the provisions in the Act to be valid, except for the provisions which gave Indigenous laws the force of federal law. Upon appeal to the Supreme Court, the Supreme Court of Canada upheld the Act as a whole as constitutionally valid. The Supreme Court’s approach differed from the Quebec Court by recognizing constitutionality through a federalism analysis, rather than a finding of a generic s 35 right to self-government over child and family services. The Court held that the Parliament’s explicit affirmation of an inherent right to self-government was an expression of Parliament’s position on the scope of s 35, rather than any amendment of the Constitution or actual recognition of a s 35 right.

Haaland v Brackeen related to a constitutional challenge to the Indian Child Welfare Act (ICWA), brought by the State of Texas, three families who wished to adopt or foster Indigenous children and an Indigenous woman who wanted non-Indigenous parents to adopt her biological child. The ICWA is a federal law enacted in 1978 providing for minimum standards for foster care and adoption cases involving Indigenous children. It overrides aspects of state family law to preserve the stability of tribal nations and communities, including a placement preference in adoption cases for relatives, members of the child’s tribe, and members of other Indigenous families. The claimants’ challenge comprised many grounds, including that Congress lacked the authority to enact ICWA and that ICWA violated the Equal Protection Clause as the law prioritized placement of children based on race rather than understandings of Indigenous nationhood. The U.S. Supreme Court dismissed the challenge and upheld ICWA. In doing so, it confirmed Congress has a broad plenary power to legislate with respect to different tribal nations. The equal protection claim was dismissed on the basis of standing.

The panel discussion covered many practical and theoretical implications of the decisions: from the mechanisms and architecture of Bill C-92 for resolving conflict between Indigenous and provincial laws and individual and collective rights, to how the decisions impact the existing division of powers regarding child welfare between federal and provincial governments, to how the lower courts are already interpreting and applying the legislation. A strong theme throughout the discussion was the underlying colonial dimension to the decisions and the unresolved question of inherent Indigenous self-government. Professor Borrows noted that by only recognising that the Bill C-92 legislation “acts as if” there is inherent right to self-government under s 35, the Supreme Court of Canada is not committed to uphold or deny the fact that Indigenous peoples might have an inherent right to self-government in their relationship to their child and family services. On the other hand, Professor Borrows commented this incrementalism has a positive element as Parliament binds itself to proceed as if that right already exists and allows parties to gain experience in exercising responsibilities with regards to child well-being.

Similarly, the colonial dimension also permeates through Haaland v Brackeen in the context of American colonialism. Professor Blackhawk explained that the Supreme Court in upholding ICWA both reaffirmed the power of American colonialism but also expressed concerns over its limits. The Court reaffirmed American colonialism by confirming the power Congress had to colonize Native Americans within the territorial borders of the United States lies in the “powers inherent in sovereignty” in the Constitution of the United States. This term captures a body of laws from the 18th and 19th centuries founded upon concepts such as the law of nations and natural law, which rested on the right of “civilized nations” to govern “savage nations” through forms of colonization. The body of laws was eventually flattened into the plenary power doctrine, where the court withheld using its own review power to oversee the process of colonialism due to the political branches possessing “plenary power”. In this sense, Haaland v Brackeen represents an odd juncture where reconstruction amendments that aim to solve the failure of human enslavement are also furthering the American colonial project.

Sara Mainville brought a critical practitioner viewpoint to the panel and explained the available mechanisms to Indigenous governing bodies in Canada to enforce their own laws and how those mechanisms would interact with existing provincial enforcement systems and laws. Sara first drove home the message that the 19th century governance of the Indian Act is still a reality for Indigenous peoples in Canada, and that governance capacity for Indigenous communities presents a great challenge. However, Bill C-92 does assist Indigenous governing bodies, including section 20(3) of the Act which provides that the laws of an Indigenous governing body who has entered into a coordination agreement, or made reasonable efforts to do so for one year, will have the force of federal law. This section is an example of innovation in Bill C-92 that helps to resolve issues in advance of coordination agreement negotiations.

To reiterate a point made by Professor Blackhawk, there is space for colonized people to share strategies that have been empowering in their colonial jurisdictions. The panel is illustrative of the merits of this.

View the webcast of the panel discussion HERE.

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.

Asper Centre Celebrates 15th Anniversary

Posted on by Tal Schreier

Jutta Brunnée, Faculty of Law Dean, University Professor and James Marshall Tory Dean’s Chair in conversation with
Asper Centre Executive Director Cheryl Milne

The David Asper Centre for Constitutional Rights celebrated 15 years at their special anniversary event on November 15, 2023.

Located within the University of Toronto Faculty of Law, the Centre and is devoted to advocacy, research, and education around constitutional rights in Canada.

With the establishment of the Asper Centre, made possible through the generous benefaction of Faculty of Law alumnus David Asper (LLM 2007), U of T is one of only a small number of schools internationally that play active roles in constitutional debates with practical impacts on constitutional rights. In addition to its innovative programs, the Centre houses a legal clinic that brings together students, faculty members, and members of the legal profession to work on significant, ground-breaking constitutional cases.

Since 2008, the centre has:

  • Led 38 Supreme Court of Canada interventions
  • Held 54 constitutional roundtables and 13 conferences/symposia
  • Supported 45 student working groups
  • Hosted 11 Constitutional Litigators-in-Residence
  • Released 37 publications

At the in-person live podcast recording of Charter: A Course (Season 3), Dean Jutta Brunnée interviewed the Asper Centre’s Executive Director, Cheryl Milne, who has been with the Centre since its inception.

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Constitutional Litigator-in-Residence, Ewa Krajewska (photo far left) interviewed Asper Centre Clinic alumni (photo second from left to right): Keely Kinley (JD 2021), Ryan Deshpande (JD 2021), Geetha Philipupillai (JD 2017), and Neil Abraham (JD 2016).

This event celebrated the Asper Centre’s commitment to articulating Canada’s constitutional vision to the broader world.

Special thanks to the evening’s participants and to all who attended!

Asper Centre 2022-2023 Annual Report

Watch the Charter @ 40: The Asper Centre brought together its past Constitutional Litigators-in-Residence for a special conversation with Executive Director, Cheryl Milne, reflecting on the Charter of Rights and Freedoms at 40 years.

From U of T Law website at https://www.law.utoronto.ca/news/asper-centre-15th-anniversary

Asper Centre’s 15th Anniversary Celebration

The David Asper Centre for Constitutional Rights is celebrating 15 years of advocacy, research and education with a special anniversary event taking place on November 15th, 2023.

Please join us for an in-person live podcast recording of Charter: A Course, featuring U of T Law Dean Jutta Brunnée interviewing Cheryl Milne (Executive Director, Asper Centre), followed by Ewa Krajewska (the Asper Centre’s current Constitutional Litigator in Residence) interviewing Asper Centre Alumni: Neil Abraham (JD 2016), Ryan Deshpande (JD 2021), Keely Kinley (JD 2021), and Geetha Philipupillai (JD 2017).

The live podcast recording will be followed by an intimate cocktail reception. Registration Required.

REGISTER HERE

 

COVID-19 Contact Tracing and Uncharted Constitutional Waters

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by Amy Chen

On July 29, 2020, Lisa Austin, Andrea Slane, Vincent Chiao, and David Lie joined Director Cheryl Milne of the Asper Centre to discuss their collaborative research paper: Test, Trace, and Isolate: COVID-19 and the Canadian Constitution. The paper (also co-authored with Beth Coleman, Martha Shaffer, and François Tanguay-Renaud) reviews the benefits, limitations, and constitutional implications of contact tracing apps. The webinar can be viewed online here.

What are Contact Tracing Apps?

Dr. Lie began the panel by giving an overview of the different types of contact tracing apps. Contact tracing is a method for controlling infectious disease outbreaks by identifying, notifying, and monitoring individuals who have been exposed to the disease. In response to the COVID-19 pandemic, countries have been utilizing smartphone apps to conduct digital contact tracing in conjunction with manual human contact tracing. These apps fall into two categories – apps that are centralized and integrated with manual human contact tracing, and apps that are decentralized and work parallel to manual tracing. Dr. Slane noted that different liberal democracies have tried different frameworks. Australia and Singapore have adopted the centralized approach; Germany, Austria, and Switzerland have adopted the decentralized approach; some countries (i.e. Bahrain, Kuwait) have tried more privacy-intrusive apps that collect GPS data.

Ontario will be using the decentralized model through an API developed and supported by Apple and Google. The app, which is currently in its beta testing phase, uses Bluetooth to communicate with other phones that have the app installed. This allows the app to track and record the names of those who have come into close contact. If an individual tests positive for COVID-19, they can voluntarily upload the list of recorded names onto the app’s server. If other users have been in contact with the same individuals, they will be notified through the app. The app may also show a “risk score” and recommend high-risk individuals to get tested.

Pros and Cons of the Decentralized Framework

There are two upsides to this decentralized framework: 1) it is technologically supported by Apple/Google and 2) it is more privacy-protective. However, the panelists stressed that this also means that there are many downsides. First, Professor Austin noted that Apple and Google’s role has not been sufficiently scrutinized. The app will be governed by the technical decisions of these large technological companies rather than the decisions of our democratically elected governments. While Australia has experienced some technical difficulties with their centralized app, their government has been able to pass legislation regarding data control and usage.

Second, a privacy-protective app means that the data is limited in its accuracy and effectiveness. Dr. Lie pointed out all the ways in which the data could be distorted. The app relies entirely on individuals to voluntarily report their positive diagnoses, which means that many positive cases could be missed. Users could put fake names on their phones or repeatedly change their names, which makes it harder to track infected individuals. Proximity data, which is calculated based on the strength of the phones’ Bluetooth signals, could be inaccurate if the signals are disrupted. It is uncertain what percentage of the population needs to get the app for it to be effective. It is even uncertain whether digital contact tracing would supplement manual contact tracing efforts.

The most concerning aspect about the decentralized approach is that health authorities will only have limited access to the data collected by the app. Health authorities would not be able to contact infected individuals and provide them with education and health support. They would not be able to assess the effectiveness of the app, particularly its effectiveness for vulnerable communities. Dr. Slane indicated that the app will not be accessible for individuals who do not have access to smartphones, who have language barriers, who distrust technology, and who distrust state action or surveillance. Publicly accessible data is needed to develop effective targeted approaches for communities that are disproportionately affected by the pandemic.

Digital Contact Tracing and the Charter

Digital contact tracing requires a balancing between our personal privacy rights and public health outcomes. As explained by Professor Austin and Professor Chiao, the Charter is an important framework in assessing how to balance these rights in a way that is justifiable in a free and democratic society.

The Federal Privacy Commissioner has stated that data collected by the apps must be used in a way that is consistent with the principles of necessity and proportionality. What that means is hard to assess ex ante since we are in “uncharted waters”, but there are several contextual factors to keep in mind. First, we would need to know exactly what Ontario’s public health goal is in pushing out contact tracing apps. If the goal is to make manual tracing more effective, it may be harder for the government to justify why a decentralized privacy-protective app is necessary or proportional.  Second, privacy rights dictated by the Charter are traditionally assessed a criminal “state vs. individual” context. While courts may be concerned with protecting individuals from the overreach of state power in the criminal context, individual privacy rights may be given less weight in the context of a public health emergency. Finally, how the rights will be balanced will likely be determined through political decisions rather than through legal decisions.  If the app is widely perceived to be effective, courts are unlikely to disturb the government’s decision. If the app is perceived to be ineffective, the government will likely take actions without prompting from the courts.

Digital contact tracing could engage both s. 7 and s. 8 Charter interests. The apps could engage an individual’s interests in life, liberty, and security if the data was used to enforce quarantine or lift isolation measures in an unsafe manner. Whether the principles of fundamental justice would be violated would depend on a multitude of variables that cannot be determined at this time. In addition, the apps could engage our privacy interests associated with our anonymity or our biological cores. The nature and scope of the section 8 right would be context-specific. For instance, individuals may inadvertently waive or diminish their reasonable expectation of privacy by volunteering data and accepting the terms and conditions of the app. On the other hand, section 8 may protect individual privacy if data was used for purposes that were not consented to (i.e. law enforcement, immigration). Individual privacy rights may also be engaged in circumstances that are not governed by the Charter. Businesses may conduct informal voluntary screening questionnaires as a condition for accessing services, or employers may ask employees to use the digital tracing apps in the workplace. These issues would have to be dealt with through quasi-constitutional private sector data protection laws.

Ultimately, the panelists argue that digital contact tracing must be integrated alongside traditional human contact tracing for there to be effective health outcomes. Given the shifting public health landscape, the scope of the legal ramifications of contact tracing apps is still unknown. The panelists stressed that public trust in the app, our governments, and our public health authorities will be crucial in determining the effectiveness of digital contact tracing.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.