The nature and purposes of academic freedom have assumed different forms at different points in history and in the contexts of secular and Catholic education, and when applied to professors or to students. This article will examine this complex idea in five steps: (1) some historical precedents to the modern concept of academic freedom before the 20th century; (2) the development of the idea in the United States; (3) the idea in Catholic colleges and universities in the United States; (4) Ex corde ecclesiae (1990) and its application in the U.S.; and (5) the continuing tensions regarding academic freedom today, especially with regard to Catholic universities.
Historical Precedents. With the development in the West of cathedral schools in 11th and 12th-century Europe, and then the great medieval universities beginning in the 12th century, questions arose about the relationship between these educational institutions and the surrounding society, including civil rulers and bishops. Theological faculties within universities gained a certain magisterial authority recognized by bishops and the pope. In some instances, for example, at the University of Paris in 1215 and then again in 1231, the popes protected theological faculties from the precipitous intervention of local bishops into their disputes. On the one hand, the theologians generally accepted authoritative Church teaching; on the other hand, they enjoyed considerable freedom in debating "disputed questions." Their influence in the Church was considerable. In one admittedly unusual situation, John XXII (1316–1334), asked the theologians of Paris not to come too quickly to a judgement about the orthodoxy of several sermons he had preached on the Beatific Vision, explaining that he was only testing his ideas in public, ideas which he thought merited further debate. Often, however, bishops did make determinations about proposed theological propositions, as was the case with Bishop Steven tempier's condemnation (1277) of 100 propositions, including several extracted from the writings of St. thomas acquinas. The role of theologians in explaining the faith and putting forth new ways of thinking of it on the one hand, and on the other hand the role of bishops in making judgments as to which explanations and interpretations are orthodox, has continued to be a locus for a distinctively Catholic understanding of academic freedom.
At the time of the reformation, the corporate character of medieval universities largely disappeared. The type of theology taught in a particular university in a confessional state was determined in large part by the ruler of that state. Universities in Europe had become, for all practical purposes, confessional institutions. In the early 18th and 19th centuries, a number of German universities "secularized" themselves, and in that process their faculties developed the concepts of Lehrfreiheit (the freedom of professors to do unfettered research and teach their findings) and Lernfreiheit (the freedom of students, mostly what we would consider graduate students, to learn from whomever they wished and to live their lives in private quarters without supervision). In the view of these faculty, such freedoms constituted a university in the true sense.
On the eve of the 20th century, academic freedom (though the name was not used until the early 20th century) indicated a thinker's personal commitment to speak what he or she believes to be true, regardless of consequence; the appropriateness of the use of reason for believers trying to think through their faith; the freedom of theologians to debate disputed questions; and the protection of academics from persons of power from outside the university.
Academic Freedom in the United States. An institutional confessional stance marked most of the early American colleges: Harvard and Yale, for example, being Congregationalist, William and Mary Anglican, and Princeton Presbyterian. The medieval universities had been self-governed by guild systems and thus largely protected themselves from various external threats. In the New World, boards composed of clergy and laity rather than faculty retained the power to hire and fire and to set policy. With greater reliance on the empirical research
model after the Civil War, the dominance of the clergy as presidents and board members of these colleges declined dramatically. By the end of the 19th century, the development of many of the social sciences as distinct disciplines further strengthened the autonomy of faculty, who now based their research on empirical methods of investigation over which the churches had decreasing authority.
Between 1890 and 1915, presidents of these colleges dismissed a number of faculty, many of whom had done doctoral work in German universities. These cases became widely known, and in 1915 thirteen professors signed a statement on academic freedom, titled "Declaration of Principles." Johns Hopkins philosopher Arthur Lovejoy and Columbia economist Edwin R. Seligman drafted the statement; eight of the 13 signers had studied in Germany and seven were social scientists. They founded the American Association of University Professors (AAUP), with John Dewey as its first president. Initially, membership was open to "any university or college teacher of recognized scholarship or scientific productivity who holds, and for ten years has held, a position of teaching or research." Administrators were then typically excluded. Academic freedom in the United States became at this time a protection for individual university professors against the arbitrary actions of adminstrators and those outside the academy who would seek to influence them. Stated more positively, academic freedom defended professors' ability to do research and go wherever their investigations led them, to teach their students what they know and believe, and to address issues in the public forum ("extramural freedom"), but to do so not as spokespersons for the university.
The AAUP insisted on the responsibilities as well as on the rights of individual professors. For example, when dealing with controversial matters, professors were expected to set forth divergent opinions without suppression or innuendo and were to help students learn for themselves rather than indoctrinate them. According to the 1915 Declaration, "the liberty of a scholar to set forth his conclusions, be they what they may, is conditioned by their being conclusions gained in a scholar's method and held in a scholar's spirit; that is to say, they must be fruits of competent and patient and sincere inquiry; and they must be set forth with dignity, courtesy, and temperateness." Moreover, the AAUP stressed that research required evaluation, which could be done competently only by peers who were to follow certain procedures designed to ensure fairness in matters of promotion and tenure. Again, in the 1915 Declaration, the AAUP stated that in all disciplines, "the first condition of progress is complete and unlimited freedom to pursue inquiry and publish its results," and added that "such freedom is the breath in the nostrils of all scientific activity." In the AAUP's vision of the academy, administrators gave permission to hire; professors, who constituted "the community of the competent," decided whom they would hire.
The signers of the 1915 "Report" acknowledged the right of a board of trustees of a denominational college to govern according to its religious tradition, but made it clear that the AAUP had serious reservations about the academic integrity of at least a number of such institutions. They stated that such institutions "do not, at least as regards one particular subject, accept the principles of freedom of inquiry, of opinions and of teaching; and their purpose is not to advance knowledge by the unrestricted research and unfettered discussion of impartial investigations, but rather to subsidize the promotion of the opinions held by persons usually not of a scholar's calling, who provide funds for their maintenance. Concerning the desirability of the existence of such institutions, the committee does not desire to express any opinion. But it is manifestly important that they should not be permitted to sail under false colors. Genuine boldness and thoroughness of inquiry and freedom of speech are scarcely reconcilable with the prescribed inculcating of a particular opinion upon a controverted question." As a result, the AAUP judged that nearly all church-related colleges could not fully embrace academic freedom. In 1940, it stated what came to be known as the "limitations clause," which read: "limitations in academic freedom because of religious and other aims of the institutions should be clearly stated in writing at the time of appointment."
At the time, few church-related institutions had any discussions about academic freedom. A report given at the 1942 meeting of the National Catholic Education Association convention stated that 65% of those Catholic colleges that responded to the questionnaire made no provision for tenure. Since a great majority of Catholic colleges were run and staffed by religious, they never saw the need for tenure. People under the vow of obedience were simply assigned and reassigned, sometimes quite arbitrarily.
The 1960s saw a number of changes in Catholic higher education: the establishment of largely lay boards of trustees, more widespread adoption of the dominant scientific research model, and a decline in Catholic professional associations. By 1970, the AAUP stated that "most such colleges no longer need to state such a limitations clause." It remained, nonetheless, opposed to any forms of indoctrination. In 1983, for example, it stated that a "college or university is a marketplace of ideas, and it cannot fulfill its purpose of transmitting, evaluating and extending knowledge if it requires conformity with any orthodoxy of content or method." In 1988, shortly after moral theologian Fr. Charles Curran had been told by the Catholic University of America trustees, that he could no longer teach Catholic moral theology, a sub-committee of the AAUP clarified further the 1940 statement by affirming clearly two of its main points: "(1) the prerogative of institutions to require doctrinal fidelity; and (2) the necessary consequences of denying to institutions invoking this prerogative the moral right to proclaim themselves as seats of higher learning." Though never formally approved by the AAUP, the subcommittee's conclusions are consistent with the organization's long-standing doubt that some church-related institutions provide their faculty with academic freedom, and, in fact, are universities in the "full sense of the term."
Academic Freedom and Catholic Colleges and Universities in the U.S. Most Catholic educational institutions, beginning with those established by the Ursuline sisters in New Orleans in the 1720s, and John Carroll in Washington in 1789, were little more than primary schools whose mission was to prepare their students for service in the world and equip them with the capacity to defend their Catholic faith. Nearly all of the institutions that eventually grew into colleges were founded by religious communities of men and women. At the turn of the 19th century, nearly all Catholic colleges were small, and even by 1940 typically had no endowments, the religious who ran the majority of them constituting their institutions' "living endowments." Few offered tenure and none endorsed the AAUP's understanding of academic freedom. In 1889, the U.S. bishops founded in Washington, D.C., the Catholic University of America, intended initially to be only a graduate school. Bishops on the board retain full legal control at a pontifically chartered institution. Over the years, the board of the Catholic University dismissed several faculty for opinions judged to be unorthodox (most recently, the 1986 Curran case).
Catholic colleges and universities grew steadily in number and size in the 20th century. In 1916, 32,000 students had enrolled in 84 colleges for men (though more than half these men were actually high school students), and by 1940, 160,000 men and women were enrolled. Shortly after the end of World War II, enrollments at Catholic colleges and universities grew considerably (thanks to the GI Bill and the baby boom). By 1966, nearly 400,000 students had enrolled. In the 1960s, leaders of these institutions began to shift full authority over their institutions to predominantly lay boards of trustees and to adopt the ecumenical emphasis of Vatican II. They promoted the professionalization of their faculties, and, in the process, frequently looked to the AAUP for their understanding of academic freedom and tenure. The year 1966 also marked the beginning of an unexpected and rapid decline in the number of religious men and women who had founded these very institutions.
In July 1967, twenty-six Catholic university and college presidents, faculty, and bishops gathered in Land O'Lakes, Wisconsin, to prepare a statement on the nature and role of a Catholic university. "The Catholic university today must be a university in the full modern sense of the word, with a strong commitment to and concern for academic excellence. To perform its teaching and research functions effectively the Catholic university must have a true autonomy and academic freedom in the face of authority of whatever kind, lay or clerical, external to the academic community itself. To say this is simply to assert that institutional autonomy and academic freedom are essential conditions of life and growth and indeed of survival for Catholic universities as for all universities." This excerpt from the statement has been frequently cited by many leaders of Catholic higher education. Just as frequently overlooked, however, is another affirmation found in the same paragraph: "Distinctively, then, the Catholic university must be an institution, a community of learners or a community of scholars, in which Catholicism is perceptibly present and effectively operative." How to be distinctively Catholic and, at the same time, an autonomous institution which affirms an "academic freedom in the face of authority of whatever kind," has remained a key question ever since.
A series of state and Supreme Court judgments in the 1960s and 1970s made it difficult for Catholic colleges and universities to be explicit about their religious mission and remain eligible for state and federal funding. In the early 1980s, a series of court decisions seemed, at least in the view of some academic leaders, to force Catholic colleges and universities to choose between being sectarian or secular. Some of these leaders thought that if they were to remain eligible for federal funding, they needed to avoid any mention of the religious mission of their institution when hiring new faculty or admitting students, to teach theology only as an academic discipline, and to avoid all proselytizing. Most institutions had already made all religious practices optional and had begun to affirm academic freedom along the lines outlined by the AAUP, if not simply adopting it as their own. Given such understandings, along with the rapid expansion and professionalization of lay faculties, the decrease in the number of priests and religious, the power of accrediting agencies, the restrictions that accompanied an ever increasing amount of government money for sponsored research, and the market pressures to compete with state subsidized public institutions, many Catholic colleges and universities, by the mid 1980s, struggled to find legal ways to make their identity and mission "perceptibly present and effectively operative."
Ex corde ecclesiae (1990). In 1979, the Vatican Congregation for Education published the apostolic constitution Sapientia Christiana, written for all pontifically chartered universities (such as the Catholic University of America). Shortly thereafter, the Congregation initiated a world-wide consultation for a second document that would deal with all non-pontifically chartered institutions—the vast majority of institutions in the U.S. In 1990, Pope John Paul II published the apostolic constitution Ex corde ecclesiae, indicating by its title that universities find their origin from the heart of the Church. The document's vision of higher education calls for Catholic institutions to show how various types of knowledge relate to one another, and to develop a coherent undergraduate curriculum in which philosophy and theology provide a framework for integration. It calls for faculty members to learn about each other's work, to search for the ethical and moral implications of both the methods and discoveries of their research, and to promote social justice.
Two essential components of the Land O'Lakes statement appear in the 1990 document: "Every Catholic university possesses that institutional autonomy necessary to perform its functions effectively and guarantees its members academic freedom, so long as the rights of the individual person and of the community are preserved within the confines of the truth and the common good." By institutional autonomy, the document explains in a footnote that "the governance of an academic institution is and remains internal to the institution." Concerning academic freedom, it explains further that it "is the guarantee given to those involved in teaching and research that, within their specific specialized branch of knowledge and according to the methods proper to that specific area, they may search and publish the results of this search, keeping in mind the cited criteria, that is, safeguarding the rights of the individual and of society within the confines of the truth and the common good."
The Vatican directed national episcopal conferences to take the general norms outlined in the second part of Ex corde (the first part dealt with the mission and identity of Catholic higher education), and make whatever adaptations were needed for their local application. A "pastoral" application was produced by the U.S. bishops in 1996, but was rejected by the Vatican, which directed that essential juridical elements, outlined in the revised 1983 Code of Canon Law, be included in a new application. Among those juridical elements were the requirement of the mandatum for Catholic theologians, the taking of the Oath of fidelity by presidents of Catholic universities, the desirability of at least 50 percent of the faculty and the board of trustees be Catholics, and the clear inclusion of Ex corde 's description of the mission and nature of a Catholic university in the by-laws of the local institution. The bishops produced such an application in 1999, which was subsequently approved by the Vatican.
Continuing Tensions Regarding Academic Freedom. Five persistent tensions accompany the idea of academic freedom at Catholic colleges and universities: (1) the differences between the corporate and individual aspects of academic freedom, (2) the AAUP's understanding of academic freedom, (3) institutional autonomy and episcopal authority, (4) the academic freedom of the Catholic theologian, and (5) the practice of hiring for mission.
First, Catholic universities have stressed in practice, though rarely explicitly, a corporate idea of academic freedom. The AAUP understanding of academic freedom emphasizes the rights and responsibilities of the individual professor and the corresponding power of professional peers to determine what counts as knowledge. That understanding arose largely out of a liberal democratic focus on individual rights. Catholic tradition draws on a different understanding of the individual and society. It starts with the understanding that a person is radically social and always a member of a community. It describes society more in organic than contractual terms, though rights continue to belong both to the community and the individual. Given these differences between the AAUP and the Catholic approaches to the individual's relationship to community, it is understandable why the Church has had such difficulty with many of the affirmations of the Enlightenment, particularly the way it formulated the ideas of freedom of conscience and religious liberty. It seemed to Church authorities that both freedoms led inevitably to a kind of philosophical relativism and a rejection of Church tradition and authority. It was only midway through the 20th century that the work of thinkers like John Courtney Murray helped the Church embrace religious freedom, albeit with careful qualifications. Medieval universities retained a strong corporate freedom; they set their own standards and debated controversial issues. Were the university not to have the right to set appropriate standards that strengthen the Catholic character of the institutions, then the emphasis only on the individual professor's rights would weaken the corporate identity of the institution.
Second, the AAUP's concept of academic freedom emphasizes, as has been mentioned, a type of knowledge that relies primarily on scientific methodology. Therefore, it emphasizes new knowledge, acquired by inquiry and experimentation rather than the faithful retrieval and handing on of religious and humanistic traditions. In other words, the authority of a certain type of tradition, a religious tradition, was displaced by another tradition, a certain academic tradition that recognized as valid only that knowledge which is arrived at through scientific methodology. While it is true that very few thinkers now would describe themselves only as empiricists, for a number of secular academics the acceptance of Christian revelation as true still appears to be an indefensible sacrifice of intellectual freedom.
Having underscored these two limitations, it should be added that Catholic institutions can benefit from other characteristics of the AAUP understanding of academic freedom. In particular, its emphases on due process and institutional autonomy are of critical importance for Catholic institutions, which only in recent decades are putting in place procedures to insure both.
Third, Ex corde strikes a delicate balance between institutional autonomy on the one hand and episcopal authority on the other when, citing Pope John Paul II's 1987 New Orleans address to the leaders of Catholic higher education, it says that bishops "should be seen not as external agents but as participants in the life of the Catholic university." Except for pontifically chartered universities, nearly all Catholic colleges and universities in the United States (diocesan colleges have a slightly different relationship to their bishop) have predominantly lay boards of trustees. In essence, the local bishop has, as a consequence, no direct authority within the university to hire or fire faculty or employees. The bishop's influence takes the form of persuasion and encouragement, and will be as effective as is his relationship with the leadership and members of a particular Catholic college. On the other hand, if a board of trustees changed its by-laws to permit the bishop some direct authority, the bishop's "influence" would become administrative authority, no longer external but internal. Unfortunately, the mutually exclusive meaning conveyed by the words "external" and "internal" obscure the many ways in which the life of the Church, including the leadership of bishops, and the mission of a Catholic university do and should mutually influence each other. While the Church and the university have distinctive missions, in some ways, not juridical, these missions overlap.
Fourth, some secular academics question seriously whether Catholic theologians have genuine academic freedom. Theologians do not employ the same methods of verification as do scientists; their work, like that done by many in the humanities, is seen as mainly interpretation and opinion, not the result of rigorous and objective methodologies. Their teaching is perceived as "advocacy" or even "proselytization," rather than the dispassionate presentation of knowledge. Their competency is determined not by their peers, but by bishops who are perceived as "external non-academic" agents. The requirement that Catholic theologians teaching Catholic theology have from the local bishop a mandatum seems to verify all these perceptions. In response to these concerns, some have criticized the narrow epistemology that privileges the scientific method. Others maintain that many academics have shown that it is possible to teach a discipline enthusiastically and yet critically. It is also pointed out that "realities" outside the academy daily determine what ought to be the subject matter of a discipline—Supreme Court decisions for legal education, business trends for finance curricula, the state of the environment for ecologists, and developments in information technology for those designing communications curricula. More precisely, the lives and experiences of Christian believers in different cultures during different periods of history constitute as important a source for theological work as do the formal doctrinal decisions of Church councils and bishops. Finally, defenders of the mandatum point out that it only requires a Catholic theologian to present as Catholic theology what is officially the teaching of the Church—a legitimate professional expectation. Theologians, they continue, may also present other points of view, provide comparisons with other traditions, and raise critical questions, even about official teachings of the Church. If however a Catholic theologian opposes dogmatic teachings of the Church, then he or she ceases to be a Catholic theologian in good standing. Continuing tensions remain and, if Church history is any indication, will continue to remain as to how to insure due process should a difference on doctrine arise between a theologian and a bishop, and as to whether that difference is legitimate or heterodox. Or, tensions will remain over differing interpretations of just what constitutes, in the words of Ex corde, the "confines of truth" and "the common good," the two qualities it attaches to academic freedom.
Fifth and finally, in recent years Catholic colleges and universities have increasingly attempted to "hire for mission," that is, to seek out academically qualified candidates for faculty positions who are Catholic or, if not, who nonetheless understand and support the institution's Catholic mission. Such efforts are fraught with difficulties, not the least of which are hiring candidates with religious but not academic qualifications and making all who are not Catholics feel only tolerated. Defenders of the practice of hiring for mission claim that if Catholicism is to be "perceptively present and effectively operative," especially as an intellectual force, then at least some Catholic intellectuals must be hired. As important as Catholic theology is for a Catholic university, other disciplines also must find ways to explore, critique, and embody key insights of Catholic intellectual traditions. Finally, they argue that unless there is a strong and vital non-juridical relationship to the faith and intellectual life of the Church that founded the college or university, it is only a matter of time before that institution begins to move away from its theological tradition to a moral one, and from there to a humanistic tradition, and before long, given the strong secular currents in the academy in the West, to a tradition that has no discernible relationship— intellectual or cultural—to the founding Church at all.
How to understand academic freedom for Catholic colleges and universities, how to benefit from the AAUP understanding of academic freedom aware of its limitations, how to balance institutional autonomy with a vital relationship to the larger Church, how to hire for mission without narrowing the base of faculty talent and the range of views any university should examine, and how to sustain a context in which theologians as well as faculty in other disciplines can creatively work—these challenges, if handled thoughtfully, will continue to ensure that Catholic higher education will provide a truly distinctive alternative to the over 3,000 other institutions of higher learning in the United States.
Bibliography: "Academic Freedom: American and Catholic," in Origins 28, no. 35 (18 Feb. 1999). a. gallin, ed., American Catholic Higher Education: Essential Documents, 1967–1990 (Notre Dame 1992). p. gleason, Contending with Modernity (Oxford 1994). j. heft, ed., A Catholic Modernity? A Discussion with Charles Taylor (Oxford 1999). r. hofstadter and w. metzger, The Development of Academic Freedom in the United States (New York 1955). w. p. leahy, Adapting to America: Catholics, Jesuits, and Higher Education in the Twentieth Century (Washington, D.C. 1991). j. t. mcgreevy, "Thinking on One's Own: Catholicism in the American Intellectual Imagination, 1928–1960," Journal of American History 84.1 (June 1997): 97–131.
[j. l. heft]
Academic freedom, in its primary sense, is the freedom claimed by a college or university professor to write or speak the truth as he sees it, without fear of dismissal by his academic superiors or by authorities outside his college or university. In a secondary sense, the term denotes the corporate freedom claimed by an institution of higher learning to determine its policies and practices, without restraint from outside agencies. This latter usage is clearly distinct and derivative; for such corporate autonomy derives its justification ultimately from the services performed by the scholars whose activity it exists to foster and protect, while, on the other hand, the freedom of the individual scholar often requires protection from the pressures of his own institution, as well as from outside forces. Finally, the term is coming to be used, in a much looser sense, to denote the freedom claimed by a teacher, in any school and of any grade, to perform his function without unreasonable restrictions from public law, institutional regulations, or public opinion. The freedom to learn has traditionally been regarded, particularly in German universities, as an inseparable accompaniment of the freedom to teach, but it has only recently received explicit attention in the United States as an element of academic freedom representing the student’s right to be as free of external pressures in his learning as the professor is in his teaching.
The idea of academic freedom is an offshoot of the root idea of freedom of thought. Thinking arises as a questioning of accepted beliefs and ways of acting, and it is thus always a potential enemy of reigning ideas; but the consciousness of the need for intellectual freedom does not arise until the thinker encounters opposition from religious tradition or political authority. In the Western world, the earliest clear statement of such opposition appeared in Socrates’ famous defense of himself, at Athens in 399 b.c., against the charge of impiety. Socrates’ claim of freedom of thought implies the freedom to teach, and Socrates justified this claim both as a duty that he owed the gods and a benefit that he conferred upon the state. These are, in germ, the themes that recur in all later discussions of the issue in Western history. Freedom of thought and expression is now generally recognized in the liberal states of modern times as a fundamental civic right, indeed as the chief trait that distinguishes liberal societies from totalitarian or despotic ones.
As a special form of intellectual freedom, academic freedom implies the existence of a corporate body of teachers, organized as a college, university, or other institution of higher learning, exercising some control over its individual members and itself subject to control by the agencies, private or public, that support it. In their early days, the medieval universities successfully maintained their corporate autonomy, supported as it was by the great prestige that they enjoyed as centers of intellectual life, by their capacity for unity and self-discipline, and by the loyalty of the important persons in church and state who had studied in them. With the hardening of church doctrine in the thirteenth century and the establishment of the Inquisition for suppressing heresy, the proponents of novel ideas in philosophy and theology began to be subject to more than academic disapproval; and the universities lost much of their autonomy and their professors much of their individual freedom. In the three succeeding centuries, the recovery of ancient learning and the revival of scientific inquiry enlarged the area of possible conflict between the scholar and the church; and when the spiritual unity of Christendom was split by the Reformation and the Counter Reformation and the political power of both church and empire dissolved before the rising nationstates, the universities lost even the semblance of autonomy, and their professors had to bow to, or at least refrain from openly opposing, the sect or sovereign that controlled them.
Out of these religious and political conflicts of the early modern period, the idea of academic freedom was born. It first appeared as an announced policy in the new universities of Leiden (in 1575), Helmst?dt (in 1574), and Heidelberg (in 1652), although its life was at first precarious. The claim to libertas philosophandi received powerful support, however, from the growing prestige of the new science and the increasing recognition of its utility. Francis Bacon, in his Advancement of Learning (1605), sounded an eloquent call for a rebirth of experimental inquiry, freed from the shackles of personal prejudice, religious and scholastic dogma, and the spirit of faction and dedicated to “the glory of God and the relief of man’s estate.” This vision of science as the mother of inventions that increase man’s power, enlarge the range of his activity, and aid him against his ancient enemies, hunger, poverty, and disease, has exercised an increasing fascination upon the modern mind. Scientific research, which in the seventeenth and eighteenth centuries tended to take refuge in nonuniversity organizations—such as the Royal Society in England (in 1660), the Academy of Sciences in Germany (in 1700), and the American Philosophical Society (in 1743)—was brought back, in the nineteenth century, into the colleges and universities, together with the freedom of inquiry that such pursuit demands.
A second powerful influence leading to the acceptance of freedom of inquiry was the prolonged wrestling of modern philosophy with the problem of knowledge. Reflection upon the methods of scientific inquiry has shown that the attainment of truth requires professional competence of a high order; any claim to truth, however plausible, needs to be persistently questioned and has to be verified by objective procedures that become ever more complex and technical as knowledge advances. Even after prolonged examination and testing, the claim can be accorded only a high degree of probability; and its status is never immune to later criticism. These conditions imply a community of scholars and scientists cooperating with one another through mutual criticism and selecting and recruiting new members through disciplined and systematic training. These very requirements tended to produce such a community, animated by a professional spirit and resentful of any attempts by incompetent outside authorities to control its activities or judge its results.
Finally, the movement toward academic freedom received powerful support from the general liberalizing tendency of the modern age, intent upon removing the restraints of older institutions and customs and upon opening the way for diversity and freedom of enterprise in increasingly pluralistic nation-states. Economic liberalism supplied the suggestive metaphor of a free market in ideas, and the give-and-take of scholarly controversy is regarded as the academic parallel to a principle taken as essential in a modern economy. These are the chief traits of the climate of opinion within which academic freedom has developed and in which it lives today.
The justification of academic freedom cannot be based merely on the right to freedom of thought and expression enjoyed by all citizens of a liberal society, for academic freedom implies immunity to some natural consequences of free speech that the ordinary citizen does not enjoy. An ordinary citizen who expresses unpopular opinions may lose customers if he is a merchant, clients if he is a lawyer, patients if he is a physician, advertisers or subscribers if he is the editor of a newspaper, or suffer other forms of social or economic penalty resulting from disapproval of his expressed opinions. The university professor, in some degree, suffers similar consequences; but where academic freedom is recognized, he is protected from the gravest of them, namely, the loss of his position. The justification of academic freedom must therefore be sought in the peculiar character and function of the university scholar. The scholar’s function is to lead in the discovery and promulgation of knowledge; and the multiplication of universities in modern times and the expansion of their activities testify to the importance attached to this function. But the professor’s performance of this function is hampered or frustrated and his usefulness diminished if his inquiry is restricted in its range by religious, political, or economic pressures, if he is not allowed to communicate his results freely to others, or if he has to color or qualify his honest opinion through deference to powerful prejudices or special interests outside the world of science and scholarship. Hence, a society that believes that its stability, prosperity, and progress are dependent upon the advance of knowledge and establishes universities for this purpose is patently inconsistent if it denies to these universities the freedom that they must have if they are to fulfill their nature and function. Academic freedom exists, then, not to serve the interests of the professor but for the benefit of the society in which he functions, ultimately the community of mankind.
This does not imply that the scholar should be uncontrolled by any authority above him. He may make a mistake, like any other man; but his errors as a teacher or research worker can properly be corrected only by other scholars and scientists of similar competence and possessing the same academic freedom that he enjoys. His method and his results are always subject to their approval or disapproval; indeed, it is only by the freedom of other scholars to criticize his methods, to present evidence that he has overlooked, and to suggest alternative explanatory theories that his own results can safely be accepted. Such freedom to examine, to object, to amend, and to enlarge—in short, as Socrates put it long ago, “to follow the argument wherever it may lead”—is the indispensable condition for the proper performance of the scholar’s function, and it must be subject to no authority other than that which is inherent in its own operations.
The chief means of assuring academic freedom is security of tenure. This is enjoyed as a legal right by professors in German universities and in the older universities of the United Kingdom. Under French law, a university professor may not be deprived of his chair except by a judgment pronounced by his peers. A similar principle holds in Italy, in Belgium, and in most other countries of western Europe. It has been adopted also by Japan and by some of the new nations in the Near East and in Africa. In the United States, Canada, and Australia, and in some of the new universities in the United Kingdom, legal control is usually vested in a nonacademic board, council, or court, distinct from the faculties of the institutions. Although their control is legally unlimited, these boards are subject to the restraint of public opinion, of academic custom and precedent, and of accrediting bodies and professional organizations. The better universities and colleges provide in their statutes that certain grades of the academic staff—usually professors, or professors and associate professors—shall have continuous or indefinite tenure; and those institutions that do not have such provisions in their governing law are under pressure to conform in practice to the example set by the ones that do.
Certain conditions peculiar to higher education in the United States have hampered the growth of the tradition of tenure so firmly established in western Europe. The typical form of college and university government in the United States, i.e., government by a nonacademic board of trustees, has often been taken erroneously to imply that the faculty of a college or university are employees whom the trustees, at their discretion, have a right to hire or fire, as is usually the case in business organizations of similar structure. Moreover, the private institutions of higher education in the United States have always been largely supported by private benefactors, and it is natural for those who provide support for an institution to feel that they have a right to control the teaching that goes on in it and the opinions that emanate from it. After the establishment of state-supported universities, administered usually by politically appointed boards of trustees, the same reasoning was frequently used to demand that teaching in these institutions conform to the religious, political, and economic views of the citizens whose taxes supported them, or of the politicians who claimed to speak for the citizens. Finally, the princely benefactions that became available to universities and colleges at the turn of the century, from men who had acquired great fortunes during the period of economic expansion after the Civil War, placed additional pressure upon presidents and faculties to avoid antagonizing these sources of support. But this was precisely the period when the social scientists were becoming conscious of their scientific competence and were proposing reforms in the unregulated economic enterprise that had hitherto prevailed. In 1900, the forced resignation of the eminent sociologist E. A. Ross from Stanford University, at the insistence of Mrs. Stanford and contrary to the judgment of President David Starr Jordan and his faculty, focused national attention upon the danger to freedom of thought latent in the economic power of benefactors and trustees. But although there were numerous and grave instances of their abuse of this power, the trustees and presidents of these institutions were not, in general, indifferent to the public interest or unaware of the importance of academic freedom; they needed mainly to be reminded of the nature and limits of their responsibilities and to be provided with patterns of acceptable procedure for their guidance.
In the United States, the leading professional organization concerned with the clarification and defense of academic freedom is the American Association of University Professors, which, since its founding in 1915, has devoted itself to the formulation of acceptable principles of freedom and tenure and to the investigation of alleged violations. The careful and judicious inquiries that have preceded its published reports, plus the intrinsic justice of the principles asserted and the unfavorable publicity attending a vote of censure by this association, have made administrators and boards of trustees increasingly aware of the principles of academic practice that an institution of higher learning is expected to observe. The most basic of these principles is that teachers or investigators should have permanent or continuous tenure after the expiration of a probationary period, and their services should be terminated only for adequate cause. This principle recognizes the right and duty of an institution to assure itself of the quality of its members by keeping them on probation for a certain period after initial appointment, but it also sets a reasonable time limit for determining whether an appointee is qualified for tenure. The association recognizes that the dismissal of a professor on tenure is sometimes justified, for example, because of academic incompetence or gross personal misconduct. Here it insists, however, that the decision to terminate an appointment should not be made arbitrarily by the president or governing board; it must be arrived at by what is known in Anglo-American tradition as “due process.” This means that the case should be considered by both a faculty committee and the governing board of the institution; the accused should be informed in writing of the charges made against him; he should have the opportunity to be heard and to introduce evidence in his own defense; and if it is a charge of incompetence, the testimony should include that of other scholars, either from his own institution or from other institutions. These procedures are analogous to the elaborate provisions in French and Italian law covering the hearing of charges against a professor who has tenure.
The years immediately following World War II were difficult ones for academic freedom in the United States. The sudden public realization of the insidious methods of infiltration and subversion advocated by communist propagandists and the discovery of pockets of communism within a few American institutions of higher education caused much alarm, and suspicion was directed against all colleges and universities. This suspicion, exploited and inflamed by demagogues, led to a demand for extraacademic controls to assure the loyalty of the professors. State legislatures passed laws requiring loyalty oaths of all state employees, including teachers in colleges and universities, and some boards of independent institutions imposed similar requirements on their faculties. Legislative committees conducted public inquisitions of distinguished scholars; unsupported accusations against others were given wide publicity in newspapers; and some boards of trustees took arbitrary action to dismiss without a hearing professors against whom charges of communist affiliation had been publicly made. These individual incidents were tragic in their consequences for the persons concerned and filled the academic world with foreboding. But what is most remarkable is the extent and vigor of the resistance these procedures aroused. Despite what was said at the time by pessimistic commentators, the professors were not cowed; nor were the universities, for most of them defended their prerogatives and their professors, some with exemplary force and wisdom. Above all, the academic profession acquired from this experience a new consciousness of its unity and importance.
Thus, upon balance, it appears that the principles of academic freedom, as a result of the crisis just described, are more firmly than ever accepted as guides to policy and practice in the colleges and universities of the United States. With the improvement, which has occurred since then, in the economic status of the academic profession, and with the prospect of everincreasing demands upon it for staffing the enlarged programs of higher education that are planned by both state and federal governments, it can be said that the prestige of the profession is greater than it has ever been in this century; and its newfound unity and determination should make it better able to resist any future attacks that threaten the proper performance of its function. In such future contests, it can rely upon the increased public understanding of the importance of academic freedom that has resulted from the books and articles called forth by the crisis of the 1950s. Even more hopeful is the fact that recent decisions of the United States Supreme Court have shown that academic freedom is beginning to be recognized as a principle of public law, thus opening up the possibility of its receiving, as a constitutional right, a substantial measure of judicial protection.
In most countries of western Europe, academic freedom and tenure are well established by law and tradition. The main exception is Spain, where the universities are included in the national syndicalist system and are subjected to a rigorous ideological control that effectively stifles any free philosophical, religious, or social expression. In the communist countries of eastern Europe, there is a great deal of institutional autonomy and vigorous academic activity in mathematics, the natural sciences, linguistics, and archeology; but in the social sciences, freedom of thought is restricted by the official ideology. Thus, in Yugoslavia, every faculty has a special professor for the social sciences whose function is to expound the principles of Marxism and Leninism; and academic freedom is explicitly restricted to those who do not, by their ideas or actions, threaten the existing socialist regime. In Poland, the officially declared purpose of higher education is to develop “cadres of people’s intelligentsia,” and scholarship is secondary to the building of a socialist society. There is evidence that professors do speak their minds in lecture rooms, but all published material is subjected to strict academic and political censorship. In Czechoslovakia, the impatience of the students with intellectual control was signalized in Prague, in 1956, by a mass demonstration, in the guise of a student festival, in which they demanded freedom of the press, an end to compulsory attendance at lectures on Marxism and Leninism, and an opportunity to hear presentations of non-Marxist theory. The government’s reaction was to reassert that the educational function of the state is to assure a Marxist-Leninist orientation in all studies. In the Soviet Union, there is an elaborate and efficient system of higher education, providing considerable autonomy for individual academies, universities, and institutes; but the whole is controlled from above, by the Communist party and its ideology. It is characteristic of all the communist countries that they claim adherence to the principle of academic freedom, as they conceive it; they regard the principles accepted in western Europe as only an ideological camouflage of economic interests, who will, according to the communists, inevitably interpret and apply them to their own advantage.
In China, the universities are apparently flourishing as never before, but they have lost their former status of neutral critics and have been made an integral part of the state’s apparatus. All teachers are subject to influence from the police and departments of government, and all communications with scholars in other parts of the world have been severed. But the incident of the “Hundred Flowers” shows that the tradition of independent thought is still alive, and it is said that the strength of this tradition has kept the government from using the most extreme measures against university professors. Yet Ma Yin-Chu, the eminent professor of economics, was dismissed as rector of Peking University in 1960 because he questioned certain fundamental assumptions of communist doctrine and published articles critical of the government’s economic policies.
It is encouraging to note that, in the plans for reorganizing university life in Egypt, Syria, Iran, and Pakistan, the principle of academic freedom, in the Western sense, is declared to be fundamental. Likewise, in the recently established universities in Africa—in Nigeria, Ghana, Rhodesia, and elsewhere—the statutes usually contain a guarantee of academic freedom. These countries, however, face almost insuperable difficulties in their attempts to develop systems of higher education and, at the same time, to raise the general level of literacy among their peoples; while their political inexperience and the resulting instability make the principle of academic freedom particularly liable to subversion, through the personal ambitions and rivalries of politicians. In South Africa, the commitment of the government to its policy of apartheid and the bringing of all the universities under government control have effectively stifled all freedom of thought in the area of race relations.
Thus, the status of academic freedom today is by no means assured. Even those countries in which it is well established in doctrine and custom, where its principles and their applications have been carefully formulated, and where its connection with fundamental needs of a progressive society has been amply demonstrated are not safe from waves of public opinion, the machinations of political reactionaries, vested religious and economic interests, or the jealousies of politicians, all of which may, in critical times, play havoc with established principles and practices. Whoever reflects soberly on the events of the past half century, and recalls what happened in the 1930s in Germany, the land in which academic freedom was most strongly rooted in law and custom, and in the United States during the 1950s, will not feel unduly confident of the future. Yet academic freedom does now have a long tradition behind it, a tradition that steadily gains in prestige from the material prosperity and political stability of those countries in which it thrives.
Glenn R. Morrow
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The right to teach as one sees fit, but not necessarily the right to teach evil. The term encompasses much more than teaching-related speech rights of teachers.
Educational institutions are communities unto themselves with rules of their own, and when conflicts arise, the most common and compelling arguments involve freedom. As a result, the academic community is famous for blazing new trails of freedom in society at large, and it is often forced to confront its own concepts of freedom in the process.
The American Association of University Professors (AAUP) has long led efforts among educators to define the concept of academic freedom in American colleges and universities. In 1940, the AAUP, in conjunction with the Association of American Colleges (now the Association of American Colleges and Universities), drafted and approved the Statement of Principles on Academic Freedom and Tenure. The statement's purpose is to "promote public understanding and support of academic freedom and tenure and agreement upon procedures to ensure them in colleges and universities."
According to the statement, educational institutions should afford full freedom for teachers to conduct research and publish their results, subject to their adequate performance in other academic duties. Teachers should also have freedom in the classroom to discuss their subject, but they should be careful not to introduce controversial matter that has no relation to their subject. Institutions may place limitations on academic freedom because of religious or other aims of the institution, though these limitations should be stated clearly in writing at the time of the teacher's appointment.
Although the AAUP's position is not binding upon colleges and universities, it has had an important impact on tenure policies of these institutions. Tenure, according to the AAUP, promotes freedom of teaching, research, and other educational activities, and also provides a "sufficient degree of economic security to make the profession attractive to men and women of ability." Tenure is based upon a contractual relationship between the educational institution and the teacher, and this agreement provides private rights between the two.
Academic freedom was first introduced as a judicial term of art (a term with a specific legal meaning) by Supreme Court Justice william o. douglas. In Adler v. Board of Education of City of New York, 342 U.S. 485, 72 S. Ct. 380, 96 L. Ed. 517 (1952), the Supreme Court upheld a New York law (N.Y. Civ. Service Law § 12-a) that prohibited employment of teachers in public institutions if they were members of "subversive organizations." In a scathing dissent joined by Justice hugo l. black, Douglas argued that such legislation created a police state and ran contrary to the first amendment guarantee of free speech.
Justice Douglas equated academic freedom with the pursuit of truth. If academic freedom is the pursuit of truth and is protected by the First Amendment, reasoned Douglas, then the New York law should be struck down because it produced standardized thought. According to Douglas's dissent, the New York law created an academic atmosphere concerned not with intellectual stimulation but with such questions as "Why was the history teacher so openly hostile to Franco's Spain? Who heard overtones of revolution
in the English teacher's discussion of The Grapes of Wrath? and What was behind the praise of Soviet progress in metallurgy in the chemistry class?" Douglas conceded that the public school systems need not become "cells for Communist activities," but he reminded the court that the Framers of the Constitution "knew the strength that comes when the mind is free."
Shortly after the Adler decision, a similar case arose in New Hampshire that received very different treatment by the Supreme Court. On January 5, 1954, Paul M. Sweezy was summoned to appear before New Hampshire attorney general Louis C. Wyman for inquiries into Sweezy's political associations. Under a 1951 New Hampshire statute, the state attorney general was authorized to investigate "subversive activities" and determine whether "subversive persons" were located within the state (Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 ). Wyman was especially interested in information on members of the progressive party, an organization many politicians suspected of nurturing communismin the United States.
Sweezy said he was unaware of any violations of the statute. He further stated that he would not answer any questions impertinent to the inquiry under the legislation, and that he would not answer questions that seemed to infringe on his freedom of speech. Sweezy did answer numerous questions about himself, his views, and his activities, but he refused to answer questions about other people. In a later inquiry by the attorney general, Sweezy refused to comment about an article he had written and about a lecture he had delivered to a humanities class.
When Sweezy persisted in his refusal to talk about others and about his lecture, he was held in contempt of court and sent to the Merrimack County jail. The Supreme Court of New Hampshire affirmed the conviction, and Sweezy appealed.
The U.S. Supreme Court went on to reverse the decision. The basis for the reversal was the New Hampshire statute's improper grant of broad interrogation powers to the attorney general and its failure to afford sufficient criminal protections to an accused. The Court commented strongly upon the threat such a statute posed to academic freedom.
The principal opinion, written by Chief Justice earl warren, questioned the wisdom of Wyman's legislative inquiry. With regard to the questions on Sweezy's lecture to the humanities class, the Chief Justice stated that "[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation."
Justice felix frankfurter wrote a separate concurring opinion. To Frankfurter, the call of the Court was to decide the case by balancing the right of the state to self-protection against the right of a citizen to academic freedom and political privacy. Frankfurter concluded that Wyman's reasons for questioning Sweezy on academics were "grossly inadequate" given "the grave harm resulting from governmental intrusion into the intellectual life of a university."
Neither of the plurality opinions in Sweezy would have found all congressional inquiries into academia to be unconstitutional. However, both opinions helped free educators in later cases by recognizing and emphasizing the danger of restricting academic thought. In Keyishianv. Board of Regents of the University of New York, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 629 (1967), the Supreme Court finally awarded to teachers and professors the full complement of free speech and political privacy rights afforded other citizens. Political "loyalty oaths" required of New York State employees (including educators) under state civil service laws were declared void, and New York education laws against "treasonable or seditious speech" were found to violate the First Amendment right to free speech. According to the Keyishian decision, "[A]cademic freedom … is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."
The tension between academic oversight and academic freedom did not end with the Keyishian case. The Supreme Court later decided several cases that identified more precisely how much control school authorities may exercise over education. The Court held in Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), that a school board can control curriculum and book selection, but it may not remove "objectionable" books from public school libraries solely in response to community pressure. Among the books that the Island Trees Union Free School District No. 26 in New York had banned in the mid-1970s were Slaughterhouse Five, by Kurt Vonnegut Jr.; Black Boy, by Richard Wright; Naked Ape, by Desmond Morris; and The Fixer, by Bernard Malamud.
School boards and state legislatures generally control public school curriculums, but their control is not complete. For instance, a state statute will be struck down if it requires public schools to teach creationism when they present evolution, and vice versa. According to the Court in Edwards v. Aguillard, 482 U.S. 578, 107S. Ct. 2573, 96 L. Ed. 2d 510 (1987), such a law undermines a comprehensive scientific education and impermissibly endorses religion by advancing the religious belief that a supernatural power created human beings. The Supreme Court has also held that if school authorities can show additional independent grounds for discharge, they may terminate a teacher for disruptive speech even if a substantial motivation for the termination was speech on issues of public concern (Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88S. Ct. 1731, 20 L. Ed. 2d 811 ; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 ). This precedent seemed to give school authorities ample means to elude liability for unconstitutional terminations. However, neither of the principles helped City University of New York (CUNY) when it was sued by the chair of its black studies department.
Professor Leonard Jeffries specialized in black studies and the history of Africa, and his teaching style at CUNY was controversial. Some students felt that Jeffries discouraged classroom debate, whereas others applauded him for verbalizing the frustrations of many African Americans. Jeffries referred to Europeans as "ice people" and as "egotistic, individualistic, and exploitative." Africans, on the other hand, were "sun people" who had "humanistic, spiritualistic value system[s]."
On July 20, 1991, Jeffries spoke at the Empire State Black Arts and Cultural Festival, in Albany, New York. In his speech, he assailed perceived Jewish power, asserting that Jews controlled CUNY and Hollywood and had financed the American slave trade. The speech attracted national attention and placed CUNY on the horns of a dilemma: either it could punish Jeffries and risk running afoul of the First Amendment and of academic freedom principles, or it could do nothing and risk losing expected income from offended school benefactors. For several months, the university wrestled with the problem. Then, in October, the board of trustees voted, without explanation, to limit Jeffries's current appointment as chair to one year instead of the customary three.
At the end of October, Jeffries wrote to Jeffrey Rosen, dean of social sciences, that he was declaring "war" on the faculty. In November, Jeffries scolded President Bernard Harleston as Harleston was leaving the administration building. By December, continuing performance reviews of Jeffries had become increasingly negative. On March 23, 1992, the CUNY Board of Trustees appointed Professor Edmund Gordon to the position of black studies chair. Jeffries filed suit in federal court against the CUNY trustees, Harleston, and Chancellor W. Ann Reynolds, on June 5, 1992.
Jeffries argued that the defendants violated his First Amendment free speech rights and his fourteenth amendment due process rights when they denied him a full three-year term as chair of black studies. The jury agreed with Jeffries that a substantial motivating factor in his dismissal was his speech in Albany. The jury also found that CUNY had not shown that Jeffries would have lost the chair had Jeffries not delivered the Albany speech. The jury further found that Jeffries had not disrupted the operation of the black studies department, the college, or the university. The jury did find, however, that CUNY had reasonably expected the speech to have a detrimental effect on the school. Despite this seemingly justifiable excuse for the school's action, the jury finally found that CUNY had deprived Jeffries of property (the position of chair) without due process of law.
The district court judge held that Jeffries's First Amendment rights had been violated. On the issue of liability, the jury awarded Jeffries $400,000 in punitive damages: $30,000 against President Harleston, $50,000 against Chancellor Reynolds, and $80,000 against each of CUNY's four trustees. After the verdict, Harleston, Reynolds, and each of the trustees moved to overturn the award. They argued that the verdict was inconsistent with the jury's findings and not supported by the evidence. The defendants also maintained that they were immune from individual liability as state officials acting in their official capacity. Jeffries filed a motion requesting a court order reinstating him as chair of CUNY's black studies department.
On August 4, 1993, the district court judge reduced Jeffries's recovery in damages by $40,000 but awarded him the black studies chair. Jeffries v. Harleston, 828 F. Supp. 1066 (S.D.N.Y., 1993). According to the judge, it was reasonable for the jury to find that CUNY had terminated Jeffries solely because of the views he expressed in the Albany speech, without constitutional grounds. The school apparently had ample opportunity to gather and present evidence that Jeffries's speech had disrupted the efficient and effective operation of the university but instead chose to argue that Jeffries had been terminated for tardiness, sending grades to the school by mail, and brutish behavior. The lack of evidence to buttress CUNY's defenses supported Jeffries's arguments that his free speech rights had been violated and that he deserved to be reinstated to the position of black studies chair.
Upon appeal, the U.S. Supreme Court remanded the case to the Second Circuit with instructions to consider the Court's ruling in Waters v. Churchill, 511 U. S. 661 (1994). The circuit court reversed and remanded the case to the federal district court. Jeffries's occupation does not afford him "greater protection from state interference with his speech than did the nurse in Waters." By taking away Jeffries's position as chair of the department, the university did not infringe on his ability to speak publicly or to teach in his own style, both of which could have been violations of his First Amendment rights. Jeffries v. Harleston, 52 F. 3d 9 (2d Cir. 1995).
Though the concept of academic freedom has traditionally been applied only to teachers, it has begun to creep into lower-court opinions involving the rights of students. Several Supreme Court cases are cited in support of such rights. In Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972), the Supreme Court held that a public university may deny campus access to provably disruptive groups, but it may not deny access based on the views the students wish to express. The Supreme Court ruled in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988), that a public school may censor the content of a student newspaper if the newspaper is not an entirely public forum and the reason for censure is related to a legitimate educational concern. In Board of Education of West-side Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 (1990), the Court approved the establishment of a Christian student group in a public school. The Court also held in Mergens that a school's refusal to permit a religious student group to meet at school and use its facilities violates the federal Equal Access Act (Education for Economic Security Act § 802, 20 U.S.C.A. § 4071 et seq. ) if the school provides such access to other noncurriculum student groups.
De George, Richard T. 1997. Academic Freedom and Tenure: Ethical Issues. Lanham, Md.: Rowman & Littlefield.
Hamilton, Neil W. 2002. Academic Ethics: Problems and Materials on Professional Conduct and Shared Governance. Westport, Conn.: Praeger.
Hiers, Richard H. 2002."Institutional Academic Freedom vs. Faculty Academic Freedom in Public Colleges and Universities: A Dubious Dichotomy." Journal of College and University Law 29 (October): 35-109.
Although academic freedom has become a first amendment principle of special importance, its content and theoretical underpinnings have barely been defined. Most alleged violations of academic freedom can be sorted into three catagories: claims of individual professors against the state, claims of individual professors against the university administration or governing board, and claims of universities against the state. Judicial decisions have upheld claims in all three contexts.
The Supreme Court, however, has not developed a comprehensive theory of academic freedom comparable to its recent elaboration of freedom of association as a distinctive First Amendment doctrine. The relationship between "individual" and "institutional" academic freedom has not been clarified. Nor has the Supreme Court decided whether academic freedom is a separate principle, with its own constitutional contours justified by the unique roles of professors and universities in society, or whether it highlights but is essentially coextensive with the general First Amendment rights of all citizens. Similarly unsettled is the applicability, if any, of academic freedom in primary and secondary schools. While acknowledging that teachers, unlike university professors, are expected to inculcate societal values in their students, the Supreme Court in board of education v. pico (1982) expressed concern about laws that "cast a pall of orthodoxy" over school as well as university classrooms. Student claims of academic freedom also remain unresolved.
This uncertainty about the constitutional definition of academic freedom contrasts with the internal understanding of the university community, which had elaborated its meaning before any court addressed its legal or constitutional significance. The modern American conception of academic freedom arose during the late nineteenth and early twentieth centuries, when the emerging research university eclipsed the religious college as the model institution of higher education. This structural change reflected an equally profound transformation of educational goals from conserving to searching for truth.
Academic freedom became associated with the search for truth and began to define the very idea of the university. Its content developed under the influence of Darwinism and the German university. The followers of Charles Darwin maintained that all beliefs are subject to the tests of inquiry and that apparent errors must be tolerated, and even expected, in the continuous search for truth. The German academic influence reinforced the growing secular tendencies in the United States. Many attributed the international preeminence of German universities to their traditions of academic freedom. As universities in the United States strove for similar excellence, they adapted these traditions.
This adaptation produced several major changes. The clear German differentiation between great freedom for faculty members within the university and little protection for any citizen outside it did not take hold in America. The ideal of freedom of speech, including its constitutional expression in the First Amendment, and the philosophy of pragmatism, which encouraged the participation of all citizens in social and political life, prompted American professors to view academic freedom as an aspect of more general civil liberties. The traditions of powerful administrators and lay boards of governors in American universities posed threats to academic freedom that did not exist in Germany, where universities were largely governed by their faculties. As a result, American professors sought freedom from university authorities as well as from external interference. And academic freedom, which in Germany encompassed freedom for both students and professors, became limited to professors in the United States.
The first major codification of the American conception of academic freedom was produced in 1915 by a committee of the nascent American Association of University Professors (AAUP). Subsequent revisions culminated in the 1940 Statement of Principles on Academic Freedom and Tenure, jointly sponsored by the AAUP and the Association of American Colleges, and currently endorsed by over 100 educational organizations. The 1940 Statement defines three aspects of academic freedom: freedom in research and publication, freedom in the classroom, and freedom from institutional censorship or discipline when a professor speaks or writes as a citizen. Many colleges and universities have incorporated the 1940 Statement into their governing documents. In cases involving the contractual relationship between professors and universities, courts have recently begun to cite it as the common law of the academic profession. This contractual theory has provided substantial legal protection for academic freedom without the support of the First Amendment, whose applicability to private universities is limited by the doctrine of state action.
The emergence of academic freedom as a constitutional principle did not begin until the McCarthy era of the 1950s, when public and university officials throughout the country challenged and investigated the loyalty of professors. Although earlier decisions had imposed some limitations on governmental intrusions into universities and schools, no Supreme Court opinion explicitly referred to academic freedom until Justice william o. douglas, dissenting in adler v. board of education (1952), claimed that it is contained within the First Amendment.
The Supreme Court endorsed this identification of academic freedom with the First Amendment in sweezy v. new hampshire (1957), which reversed the contempt conviction of a Marxist scholar who had refused to answer questions from the state attorney general regarding his political opinions and the contents of his university lecture. A plurality of the Justices concluded that the state had invaded the lecturer's "liberties in the areas of academic freedom and political expression." Both the plurality and concurring opinions in Sweezy emphasized the importance to a free society of the search for knowledge within free universities and warned against governmental interference in university life. Justice felix frankfurter's concurrence included a particularly influential reference to academic freedom that has often been cited in subsequent decisions. Quoting from a plea by South African scholars for open universities, Frankfurter identified "'the four essential freedoms of a university'—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 opinions in Sweezy indicated that academic freedom and political expression are distinct yet related liberties, and that society benefits from the academic freedom of professors as individuals and of universities as institutions. Yet neither in Sweezy nor in subsequent decisions did the Supreme Court untangle and clarify these complex relationships. Throughout the 1950s, it alluded only intermittently to academic freedom in cases involving investigations of university professors, and reference to this term did not necessarily lead to protective results. Even the votes and reasoning of individual Justices fluctuated unpredictably. During this period, many within the academic community resisted the advocacy of academic freedom as a constitutional principle, fearing that a judicial definition might both weaken and preempt the one contained in the 1940 Statement and widely accepted throughout American universities.
Supreme Court opinions since the 1950s have emphasized that academic freedom is a "transcendent value" and "a special concern of the First Amendment," as the majority observed in keyishian v. board of regents (1967). Justice lewis f. powell's opinion in regents of the university of california v. bakke (1978) reiterated the university's academic freedom to select its student body, but the Court has held in Minnesota State Board for Community Colleges v. Knight (1984) that academic freedom does not include the right of individual faculty members to participate in institutional governance. By eliminating the right-privilege distinction, which had allowed dismissal of public employees for speech otherwise protected by the First Amendment, the Supreme Court during the 1960s and 1970s dramatically expanded the rights of all public employees, including university professors, to speak in ways that criticize or offend their employers. Yet none of these decisions has refined the relationships between "individual" and "institutional" academic freedom or between "academic freedom" and "political expression," issues posed but not resolved in Sweezy. The Supreme Court's continuing reluctance even to recognize issues of academic freedom in cases decided on other grounds underlines the primitive constitutional definition of this term.
Cases since the early 1970s have raised novel issues of academic freedom. University administrators and governing boards have asserted the academic freedom of the university as an institution to resist judicial review of their internal policies and practices, which have been challenged by government agencies seeking to enforce civil rights laws and other statutes of general applicability, by citizens claiming rights to freedom of expression on university property, and by professors maintaining that the university violated their own academic freedom or their statutory protection against employment discrimination. Faculty members have even begun to make contradictory claims of academic freedom against each other. Professors have relied on academic freedom to seek a constitutionally based privilege against compelled disclosure of their deliberations and votes on faculty committees to junior colleagues who want this information to determine whether they were denied reappointment or tenure for impermissible reasons, including reasons that might violate their academic freedom. These difficult issues may force the courts to address more directly the meaning and scope of academic freedom and to resolve many of the lingering ambiguities of previous decisions.
David M. Rabban
Lovejoy, Arthur 1937 Academic Freedom. In E. Seligman, ed., Encyclopedia of the Social Sciences, Vol. 1, pages 384–388. New York: Macmillan.
Symposium 1963 Academic Freedom. Law & Contemporary Problems 28:429–671.
Van Alstyne, William 1972 The Specific Theory of Academic Freedom and the General Issue of Civil Liberty, In E. Pincoffs, ed., The Concept of Academic Freedom, pages 59–85. Austin: University of Texas Press.
ACADEMIC FREEDOM describes a group of rights claimed by teachers—the right to study, to communicate ideas, and to publish the results of reflection and research without external restraints—in short, to assert the truth as they perceive it. Academic freedom developed in the universities of western Europe in the seventeenth and eighteenth centuries. It emerged in a period of growing tolerance nurtured by the spread of scientific inquiry, reaction to the fiercely destructive religious conflicts that had for so long plagued Europe, the growth of commerce, and the evolution of the liberal state with its general bias toward liberty. Academic freedom is now recognized in most countries.
The principal justification of academic freedom is that through the unhampered interplay of ideas, the world's stock of usable knowledge is enlarged. Thus, while academic freedom directly benefits the teacher or institution, in a larger and much more significant sense, it serves vital public interests. American professors have fought for academic freedom since the nineteenth century, but the U.S. Supreme Court did not endorse the concept until the mid-twentieth century. The first case in which a majority of the Court's justices ruled that academic freedom is protected by the Constitution was Sweezy v. New Hampshire (1957). Today, the concept of academic freedom is well established in Supreme Court jurisprudence. In most countries, academic freedom refers to the autonomy of the institution and its independence from external restraints; in the United States, in accordance with the individualistic bent of its constitutional law, the claim to academic freedom is usually associated with an individual teacher's freedom from interference with the free play of the intellect.
Academic freedom is invariably tied to the concept of tenure (status granted after a trial period, protecting a teacher from summary dismissal), since without security of employment, teachers cannot safely exercise their intellectual freedom. Tenure does not mean, however, that teachers can never be dismissed. Rather, it means they can be dismissed only for adequate cause, established according to the exacting requirements of due process, and including at some stage a judgment by professional peers. Academic freedom does not protect teachers from dismissal for causes not related to the exercise of their intellectual rights.
There are many associations throughout the world that are concerned with the defense of academic freedom and tenure; one of the most vigorous defenders in the United States is the American Association of University Professors (AAUP). Such defense is needed because academic freedom is often under great pressure from a wide variety of sources: political parties, politicians, economic interests, religious and racial groups, alumni, donors, and members of governing boards. When the Supreme Court decided Sweezy, professors were under attack by politicians trying to ferret out communists. Today, critics of academia accuse professors of politically indoctrinating students, of presenting only a single point of view, of irrelevant discussions, and occasionally of deliberately misrepresenting course content in course catalog descriptions. The increased involvement of professors in off-campus business and government affairs has also generated scrutiny of academic research. Topics of concern include limits on research as a result of industrial-academic collaboration; influence by companies that employ researchers as consultants, thereby creating a conflict of interest; money rather than scientific inquiry being the propellant for research; and limits of academic disclosure dictated by corporate sponsors.
De George, Richard T. Academic Freedom and Tenure: Ethical Issues. Lanham, Md: Rowman and Littlefield, 1997.
Kahn, Sharon E., and Dennis Pavlich. Academic Freedom and the Inclusive University. Vancouver: University of British Columbia Press, 2000.
Sowell, Thomas. Inside American Education: The Decline, the Deception, the Dogmas. New York: Free Press, 1993.
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