Constitutional Roundtable

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.

Constitutional Roundtable with Professor Richard Bellamy

The David Asper Centre for Constitutional Rights’ Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice.  The Constitutional Roundtable series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian constitutional law.

The Asper Centre is pleased to present a lunchtime Constitutional Roundtable by Professor Richard Bellamy (Professor of Political Science at the University College of London) on Tuesday November 12, 2024, at 12h45 EST on “Democracy through Courts?” based on a chapter of his forthcoming book titled Defending the Political Constitution. 

ABSTRACT: The democratic critique of judicial review by constitutional courts has prompted its defenders to counter that courts have democratic qualities as good as, and in certain respects even stronger than, conventional democratic politics. This article offers a critical analysis of three arguments favouring this approach. The first argues that constitutional courts operate as exemplars of democratic deliberation. In particular, they give expression to the public reasons underlying democracy and ensure democratic practice does not subvert its ideals. The second holds that rights-based litigation offers a form of democratic participation, providing a voice to those who might have been excluded from electoral democracy. The third contends that judges operate in a similar way to elected representatives, who are best conceived as trustees rather than as delegates. All three views are found wanting. Courts do possess certain limited democratic qualities. However, they are not intrinsic features of courts themselves. They arise from their being dependent upon rather than independent from the conventional democratic process.

*All are welcome * Light Lunch provided * No Registration Required*

Asper Centre Panel on Indigenous Child Welfare & Self-Governance

Asper Centre Constitutional Roundtable Presents a Panel on

Indigenous Child Welfare & Self-Governance

with Prof John Borrows (the Loveland Chair of Indigenous Law, UofT Law), Prof Maggie Blackhawk (NYU Law) & Sara Mainville (JFK Law LLP)

Moderated by Asper Centre ED, Cheryl Milne

Thursday, October 31, 2024 at 12:30pm – 2:00pm (in person or virtual)

Room J130, Jackman Law Building, Faculty of Law, University of Toronto

All are welcome * Light lunch will be provided * Registration Required

REGISTER HERE

Background

Over the past few years, both Canadian and American courts have decided cases that impact Indigenous Nations’ ability to care for Indigenous children. Both countries have histories and present realities of removing Indigenous children from Indigenous homes, thereby jeopardizing the safety of Indigenous children and undermining Indigenous Nations’ sovereignty and governance. With this context in mind, the recent Supreme Court of the United States Haaland v Brackeen decision, and the Supreme Court of Canada Attorney General of Québec, et al. v. Attorney General of Canada, et al decisions are of paramount importance to Indigenous sovereignty and safety. Both cases address federal legislation introduced to address the historic and ongoing harms caused by the apprehension of Indigenous children by settler governments. In both countries, these decisions also demonstrate how child welfare is closely connected to Indigenous assertions of and rights to self-government.

The Asper Centre Indigenous Rights Working Group is pleased to present a panel event to unpack the significant legal issues and potential future implications of these cases, with a focus on the Quebec Reference case and its meaning for the interpretation of Section 35 of the Constitution and Indigenous self-governance.

Panelists

Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is professor of law at NYU and a prize-winning scholar and teacher of federal Indian law, constitutional law, and legislation. Blackhawk was awarded the American Society for Legal History’s William Nelson Cromwell Article Prize and her research has been published or is forthcoming in the Harvard Law Review, Stanford Law Review, Yale Law Journal, Supreme Court Review, American Historical Review, Legislative Studies Quarterly, Journal of the Early Republic, and Journal of Politics. Much of her scholarship explores the relationship between law and power, with a particular emphasis on the ways that subordinated peoples leverage law to shift power to their communities—especially outside of rights and courts-based frameworks. Her recent projects have focused on the laws and legal histories of American colonialism and the central role of the American colonial project, including the resistance and advocacy of Native and other colonized peoples, in shaping the constitutional law and history of the United States.

Sara Mainville is a partner at JFK Law LLP and has been a member of the Ontario bar since 2005 and she is a member of the BC bar (2022) with specific matter approvals to practice in Nunavut and Quebec. Sara has a Management/Public Administration degree (Lethbridge) and a Bachelor of Laws from Queen’s University. She has a LLM from the University of Toronto and an Advanced Negotiations certificate from Harvard University, and a Certificate in Entertainment Law (Osgoode PD). In 2014, Sara was elected as Chief of Couchiching First Nation after the sudden death of her friend and mentor, Chief Chuck McPherson. Sara uses this experience as a former Chief to help leadership work past difficult issues, within Indigenous forms of dispute resolution, and walk the community through processes to encourage discourse and grassroots solutions to long-held problems. Sara has completed Advanced Negotiations training at Harvard University and dispute resolution, legislative drafting, and mediation training at professional institutes in order to advance her clients’ long held goals for self-determination and truer treaty partnerships in Canada. Sara is generally seen as a subject-matter expert about Crown-Indigenous relations, the United Nations Declaration on the Rights of Indigenous Peoples, Treaty 3, and Anishinaabe Inakonigewin. However, Sara sees herself as a life-long learner willing to meet in community, read voraciously, and listen intently to better understand Indigenous knowledge systems across Canada.

John Borrows B.A., M.A., J.D., LL.M. (Toronto), Ph.D. (Osgoode Hall Law School), LL.D. (Hons., Dalhousie, York, SFU, Queen’s & Law Society of Ontario), D.H.L, (Toronto), F.R.S.C., O.C., is the Loveland Chair in Indigenous Law at the University of Toronto Law School. His publications include, Recovering Canada; The Resurgence of Indigenous Law (Donald Smiley Award best book in Canadian Political Science, 2002), Canada’s Indigenous Constitution (Canadian Law and Society Best Book Award 2011), Drawing Out Law: A Spirit’s Guide (2010), Freedom and Indigenous Constitutionalism ((Donald Smiley Award best book in Canadian Political Science, 2016), The Right Relationship (with Michael Coyle, ed.), Resurgence and Reconciliation (with Michael Asch, Jim Tully, eds.), Law’s Indigenous Ethics (2020 Best subsequent Book Award from Native American and Indigenous Studies Association, 2020 W. Wes Pue Best book award from the Canadian Law and Society Association). He is the 2017 Killam Prize winner in Social Sciences and the 2019 Molson Prize Winner from the Canada Council for the Arts, the 2020 Governor General’s Innovation Award, and the 2021 Canadian Bar Association President’s Award winner.  He was appointed as an Officer of the Order of Canada in 2020. John is a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

REGISTER HERE

Constitutional Roundtable with Professors Kerri Froc and Jean-Christophe Bédard-Rubin on the QCCA decision in Hak v. Attorney General of Quebec

The Asper Centre Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian and comparative constitutional law.

We are pleased to host Associate Professor Kerri Froc (UNB Law) in conjunction with Assistant Professor Jean-Christophe Bédard-Rubin (U of T Law) for a Constitutional Roundtable on March 13, 2024 in the Solarium, Falconer Hall, Faculty of Law.

Professors Froc and Bédard-Rubin will break down the Quebec Court of Appeal’s decision in Hak et al. c. Procureur général du Québec, concerning the constitutionality of Bill 21, An Act Respecting the Laicity of the State. This appeal concerns freedom of expression, freedom of religion and equality rights, as Muslim women in Quebec who wear religious symbols such as the niqab or hijab would be prohibited from working in certain professions and in most parts of public administration, and prevented from benefitting from some public services because the law requires them to do so with their faces uncovered. The government of Quebec also pre-emptively used the override clause to prevent any constitutional challenges to the legislation. This Constitutional Roundtable will cover what this decision means for Charter rights, gender equality, and state use of the “notwithstanding clause.”

Kerri Froc is an Associate Professor at UNB Law, as well as a Trudeau and Vanier Scholar. She has taught courses at Carleton University, Queen’s University and University of Ottawa on feminist legal theory and various aspects of public law, among others.

Kerri received her PhD from Queen’s University in 2016 and holds a Master of Laws from the University of Ottawa, a Bachelor of Laws from Osgoode Hall Law School and a Bachelor of Arts from the University of Regina.

Before completing her doctorate, she spent 18 years as a lawyer, as a civil litigator in Regina, a staff lawyer for the Women’s Legal Education and Action Fund (LEAF), and as a staff lawyer in the areas of law reform and equality at the Canadian Bar Association. She is a member of the Saskatchewan and New Brunswick bars.

Assistant Professor Jean-Christophe Bédard-Rubin’s work explores Canadian constitutional culture from historical and comparative perspectives. He studied law, political science, and philosophy at Université Laval, Yale University, and the University of Toronto. During his doctoral studies, Jean-Christophe was the McMurty Fellow of the Osgoode Society for Canadian Legal History and a Joseph-Armand Bombardier Scholar. He has done consultancy work on constitution-building for International IDEA and, prior to his graduate studies, he worked in litigation for the Quebec Department of Justice.

Bédard-Rubin currently pursues two main research projects. The first is an intellectual history of the foundations of public law in French Canada. This project seeks to reconstruct the intellectual networks in which French Canadian public lawyers participated to excavate the transatlantic influences on the formation of Quebec’s legal syncretism. This genealogical reconstruction recovers the conceptual and theoretical innovations that allowed French Canadians to articulate a genuine theory of the state outside of the revolutionary framework. In so doing, this work sheds a different, somewhat oblique light on Canada’s constitutional experience and questions its status in comparative constitutional scholarship.

The second research project investigates judicial bilingualism in Canada. Using mixed social science methods, this project explores the various empirical impacts of bilingualism on judicial behaviour, the normative significance of legal bilingualism for the authority of judicial decisions, and the ways in which language shapes the dominant conception of the judicial role in Canada’s French and English public spheres.

Jean-Christophe’s work has been published in English and French in the Review of Constitutional Studies, the Canadian Journal of Law & Society, the Osgoode Hall Law Journal, the Bulletin d’histoire politique, and the International Journal of Canadian Studies, amongst others.

All are welcome * Light lunch provided * No registration required