Mending the Federal Circuit Split on the First Amendment Right of Public University Professors to Assign Grades
The ability to assign grades to students is an element of a professor’s academic freedom that has been litigated in several circuits with different results. In this Note, Evelyn Sung explores the differences in the methods of analysis employed by the courts to determine the level of constitutional protection appropriately accorded to professors and the extent to which college administrators may exact alterations in professors’ grading policies. Sung evaluates education theory and conducts historical analysis to determine that grade assignment qualifies as symbolic speech under current caselaw. Accordingly, the interest of professors to assign grades must be balanced against the interest of college administrators to promote efficiency in the services they provide, such as the thorough preparation and evaluation of graduating students. The maintenance of standardized grading policies, Sung argues, is at the core of the mission of the public university. A college administrator’s interest in making grades consistent and meaningful must be balanced delicately with a professor’s First Amendment right to assign grades.