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1972 The pS ecific Theory of Academic Freedom and the General Issue of Civil Liberty William W. Van Alstyne William & Mary Law School

Repository Citation Van Alstyne, William W., "The peS cific Theory of Academic Freedom and the General Issue of Civil Liberty" (1972). Faculty Publications. 792. https://scholarship.law.wm.edu/facpubs/792

Copyright c 1972 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs The SpecificTheory of AcademicFreedom and the GeneralIssue of Civil Liberties*

By WILLIAM W. VAN ALSTYNE t

ABSTRACT:Academic freedom has been blurred in law and in popular usage. Its clarificationshould enable the Supreme Court to grant it explicit protection under the Constitution as an identifiable subset of First Amendment freedoms. Its identification with the professional endeavors of faculty mem- bers, moreover, should reduce the tendency of institutions to intrude upon the aprofessionalpersonal liberties of the faculty even while adequately protecting the extramural professional pursuits of the faculty and assuring them of equal protection in their interests as private citizens. Adjustments of standards by the American Association of University Professors, more definitely distinguishing the special accountability of faculty members for the integrity of their professional endeavors from their roles as private citizens, is long overdue.

William Van Alstyne is Professor of Law at Duke University. He is past General Counsel of the American Association of University Professors and currently serves as Chairman of Committee A on academic freedom and tenure. * This article is the revised product of a manuscript presented in the course of a symposium on academic freedom in the spring of 1972 at the University of Texas, under a grant from the Council of Learned Societies. The author is especially grateful to Professor Edmund Pincoffs for his support and encouragement and to the several participants whose comments provided the basis for certain revisions. It is not possible accurately to credit the various sources that have helped to inform this essay, especially those that did so indirectly, that is, in espousing quite different views of academic freedom than those offered here. Most espe- cially helpful in thinking about the subject, however, were the many Committee A Case Reports scattered throughout the volumes of the American Association of University Pro- fessors (AAUP) Bulletin, the brief essay by Arthur Lovejoy in Encyclopaedia of the Social Sciences (1937), s.v. "academic freedom," the splendid volume by Richard Hofstadter and Walter Metzger,The Developmentof AcademicFreedom in the United States (New York: Co- lumbia University Press, 1955), and Fritz Machlup's trenchant address, "On Some Misconcep- tions Concerning Academic Freedom," AAUP Bulletin 41 (1955), p. 753. There were several other very helpful materials too numerous to mention here. t Because portions of this essay bear directly on certain standards of the American Asso- ciation of University Professors (AAUP), it is of more than customary importance to stress that my statement of views is wholly personal. 140 ACADEMIC FREEDOM AND CIVIL LIBERTIES 141

AHALF-CENTURY ago, the Con- -given the surprising success of the stitution was misconstrued to pro- infant American Association of Univer- vide no positive law support for John sity Professors (AAUP), founded in Stuart Mill's Essay on Liberty. Inso- 1915 and at once startled by the extent far as the free exercise of political lib- to which its good offices were sought erty was tied to a job, neither profes- by aggrieved faculty members-it is sors nor policemen could safely pursue not remarkablethat an ineluctable tend- their civil liberties without anxiety that ency developed to expand upon aca- they would be fired. The utter inse- demic freedom to make it perform a curity of liberty and status, even larger service. From the solid and against abridgments by government fortified arguments sustaining academic itself, was underscored by the laconic freedom as a logical imperative if acade- dictum of Oliver Wendell Holmes, Jr., micians were to fulfill the cardinal ex- in 1892: pectation laid upon their professional the was The have a constitutional employment, principle pressed petitioner may into the field of civil liberties to talk but he has no consti- larger right politics, whether or not such liberties were tutional right to be a policeman .... pro- There are few employmentsfor hire in fessionally linked. In the absence of which the servant does not agree to sus- other sources of employment security pend his constitutionalright of free speech, protecting professors from dismissal in as well as of idleness,by the impliedterms pursuing conventional political activities of his contract. The servant cannot com- off-the-job and on their own time, or plain, as he takes the employmenton the entering into ordinary public assemblies him.1 terms which are offered and taking personal positions on social The point was not lost on the academic issues simply as private citizens and not profession in the dismal outcome of the as professional scholars or researchers, an Scopes Monkey trial, in 1927: academic freedom offered itself as irresistibly attractive umbrella. Gradu- or to serve [Scopes] had no right privilege ally, the phrase slipped away from a the state such terms as the except upon close association with protection of the state prescribed. ... In dealing with its academic in his endeavors own its own professional employeesengaged upon work, and assumed a new with the the state is not hamperedby the limita- synonymy tions of ... the Fourteenth Amendment general civil liberties of academics- to the Constitutionof the United States.2 and especially their general political liberties. Accordingly, the protection AN OVERVIEW of an academic in respect to the exercise It was exactly during this same pe- of his aprofessional political liberties riod that American professors, familiar was argued into position as a subset of with the tradition and values of Lehr- academic freedom. The effort so far freiheit in German universities, began succeeded that it has long been routine to domesticate it and to propound the for AAUP Committee A Reports to de- concept of "academic freedom" as a scribe the dismissal of professors on ac- principle worthy of general respect to count of aprofessional political activity fill up the void of the positive law in as a violation of their "academic free- this country. Given the circumstances dom." Professor Fritz Machlup accu- rately reports the situation in the new 1. McAuliffe v. Mayor of New Bedford, 155 Education: Mass. 216, 220, 29 N.E. 517, 518 (1892). Encyclopaedia of Higher 2. Scopes v. State, 154 Tenn. 105, 111-12, "Academic freedom (in its modem con- 289 S.W. 363, 364-65 (1927). ception, though not in the past) in- 142 THE ANNALS OF THE AMERICAN ACADEMY cludes the right of the academic indi- characterand function of the university vidual to engage in political activity." 3 scholar.4 The obvious is that others who Damaging to the profession point work for a may also wish to af- reac- living It is the seemingly small and filiate with causes or to of this to unpopular speak tionary purpose essay suggest about issues of the that this in the of freely political day development usage without reference to their work academic freedom was never sound and regular or that it ought now to be abandoned. professional endeavors, sometimes, as in our own even in Far from continuing to be helpful to case, sharp op- to the known wishes of the the profession, moreover, I believe the position continued use of the phrase in this institutional employer. Manifestly, it expanded sense is damaging to the must-and does-strike them as odd profession in three important ways. that professors nevertheless insist on First, the ubiquitousnessof indiscrim- having an extra right to be protected inate claims to academic freedom, in in these aprofessional pursuits and to respect to aprofessional political activ- do such things-a claim which is sub- ity, provides substance to a widespread limely stronger than their own. Pro- belief that the professoriat sees itself as fessors insist that such activities are an extraordinary elite, since we tend to part of their academic freedom and a associate our claim to protection not special contribution to the social good; with the general case for civil liberties, whereas such activities by others are but rather as a special case or subset merely an ordinary matter of common of academic freedom. As implied in the liberty to be tolerated in a liberal so- following observation by Glenn Morrow ciety but not, of course, of the same in his effort to rationalize the de- rank of special social good as the fense of academic freedom, the sprawl- protection of academic freedom. ing claim seems, without reason, to The consequent tendency of class be indifferent to the indistinguishable cleavage and cost in good will that I predicament of other citizens: wish to emphasize, however, is not the and elitism of academic freedom simply apparent suspect The justification of our for if the claim were well cannot be based on the right to claim; merely it would be a sufficient answer freedom of thought and expression en- taken, that must harder to joyed by all citizens of a liberal society, we simply try per- for academicfreedom implies immunityto suade a larger public that it is indeed some natural consequencesof free speech a correct one. Rather, the price we that the ordinarycitizen does not enjoy. pay is the much greater cost of the lad An ordinary citizen who expresses un- who cried "wolf" so often when it was popular opinions may lose customers if false that few would pay attention when he is a merchant,clients if he is a lawyer, it was true: an errant claim of academic patients if he is a physician, advertisers freedom obscures the vital if he is the editor of a news- importance or subscribers of academic freedom as more or suffer other forms of social or modestly paper, conceived and economic penalty resulting from disap- thereby engenders public indifference even when an authentic proval of his expressed opinion.... The justification of academic freedom issue of academic freedom is clearly and must therefore be sought in the peculiar unmistakably involved. I mean to 3. Fritz Machlup,"Academic Freedom," 4. Glenn Morrow, "Academic Freedom," Encyclopaedia of Higher Education (1972), Encyclopaediaof Social Sciences (1968), vol. vol. 1, pp. 6, 8. 1, pp. 4, 6. ACADEMIC FREEDOM AND CIVIL LIBERTIES 143 argue, of course, that while a profes- to academic freedom, however, in spite sor's ordinary freedom of speech is not of the fact that the Court has often a subset of his academic freedom, aca- made highly honorable mention of the demic freedom is itself a special sub- phrase in the adjudication of First set of First Amendment freedoms. Its Amendment claims.6 The prolonged importance as a special subset is likely * 6. The Supreme Court has often adverted to be obscured and ignored, however, to academic freedom in dicta. See, for ex- if we ourselves do not hold to the ample, Keyishian v. Board of Regents, 385 distinction. U.S. 589, 603 (1967): "Our Nation is deeply committed to safeguarding academic freedom, Postponed constitutional status which is of transcendent value to all of us and not merely to the teachers concerned. Second, although I cannot prove the That freedom is therefore a special concern of correctness of the impression, I believe the First Amendment, which does not tolerate that the earlier and errant of laws that cast a pall of orthodoxy over the expansion Griswold v. 381 academic freedom claims the classroom"; Connecticut, beyond U.S. 479 (1965): "[T]he State may not, con- boundaries of its core rationale has in- sistently with the spirit of the First Amend- advertently delayed the specific assimi- ment, contract the spectrum of available lation of academic freedom into consti- knowledge. The right of freedom of speech tutional law. In the and press includes not only the right to utter 1958, Supreme or to print, but the right to distribute, the Court interpreted the First Amendment right to receive, the right to read . . . and in a manner to provide separate and freedom of inquiry, freedom of thought, and distinct protection for freedom of asso- freedom to teach . . .-indeed the freedom of the sense and sub- the entire university community"; Barenblatt ciation, deriving v. United 360 U.S. 112 stance of that freedom from three other States, 109, (1959): "When academic teaching-freedom and its clauses-those dealing with freedom of corollary learning-freedom, so essential to the speech, freedom of assembly, and the well-being of the Nation, are claimed this Court will be on the to for redress of griev- always alert against right petition intrusion by Congress into this constitution- ances-but nevertheless marking it with ally protected domain"; Sweezy v. New a character of its own with certain Hampshire, 354 U.S. 234, 250-51, 261-64 instrumental features different from (1957): "The essentiality of freedom in the community of American universities is almost those of its parent clauses.5 Nothing self-evident. No one should underestimate equivalent has yet developed in respect the vital role in a democracy that is played by those who guide and train our youth. To 5. See M. W. Solter, "Freedomof Associa- impose any strait jacket upon the intellectual tion-A New and FundamentalCivil Right," leaders in our colleges and universities would George WashingtonLaw Review 27 (1959), imperil the future of our Nation. . p. 653; T. Emerson,"Freedom of Association Teachers and students must always remain and Freedomof Expression,"Yale Law Jour- free to inquire, to study and to evaluate, to nal 74 (1964), p. 1. The initial case was gain new maturity and understanding; other- N.A.A.C.P.v. Alabama,357 U.S. 449 (1958), wise our civilization will stagnate and die. which on its face required but the slightest . . . We do not now conceive of any cir- extension of free speech and assembly prece- cumstance wherein a state interest would dents. By the time additionalcases involving justify infringement of rights in this field"; quite different interests had been decided, Wieman v. Updegraff, 344 U.S. 183, 195-98 clearly it had become more useful and accu- (1952): "By limiting the power of the States rate to speak of a distinctive freedom of to interfere with freedom of speech and association. See, for example, N.A.A.C.P. v. freedom of inquiry and freedom of associa- Button, 371 U.S. 415 (1963); Gibson v. tion, the Fourteenth Amendment protects all Florida Legislative Investigation Committee, persons, no matter what their calling. But, in 372 U.S. 529 (1963); Brotherhood of R.R. view of the nature of the teacher's relation Trainmen v. Virginia State Bar, 377 U.S. 1 to the effective exercise of the rights which (1964). are safeguarded by the Bill of Rights and by 144 THE ANNALS OF THE AMERICAN ACADEMY gestation of academic freedom as an readily derived from, but not simply identifiable First Amendment claim, a fungible with, freedom of speech doc- special subset of vocational freedoms trine or general First Amendment doc- trine in respect to public employees, the Fourteenth Amendment, inhibition of be the of freedom of and of action may ironically consequence thought, upon our own tendencies to blur the thought, in the case of teachers brings the previous safeguards of those amendments vividly into distinctions. In possession of a per- operation. . . . They must have the freedom suasive justification in defense of aca- of responsible inquiry, by thought and ac- demic freedom, and finding the general tion, into the meaning of social and economic of other civil liberties so ideas, into the checked history of social and protection economic dogma. They must be free to sift hopelessly inadequate in respect to the evanescent doctrine, qualified by time and security of employment and the exer- circumstance, from that restless, enduring cise of free speech in general, we too process of extending the bounds of under- extended the rhetoric of aca- and to assure which the expediently standing wisdom, demic freedom to for additional freedoms of thought, of speech, of inquiry, of press worship are guaranteed by the Constitution degrees of protection which other kinds of the United States against infraction by of employees were denied at the time. National or State government. The functions The cost of the of educational institutions in our national life inaccuracy, however, and the conditions under which alone they has been the indefinite postponement of can adequately perform them are at the basis constitutional status for academic free- of these limitations upon State and National dom as a albeit limited, 487 separate, power"; Shelton v. Tucker, 364 U.S. 479, First Amendment The chances (1960): "The vigilant protection of constitu- right. tional freedoms is nowhere more vital than in for the specific constitutional protection the community of American schools"; White- hill v. Elkins, 389 U.S. 54, 59-60 (1967): The lack of closure is illustrated by Epper- "We are in the First Amendment field. The son v. Arkansas, 393 U.S. 397 (1968), invali- continuing surveillance which this type of dating a state criminal statute prohibiting law places on teachers is hostile to academic public school teachers from adverting to any freedom." theory regarding the origin of man not con- Additionally, a number of writers have sistent with the Bible. Despite the Court's previously urged the judiciary to acknowledge many previous references to academic free- a separately identifiable First Amendment dom, Mr. Justice Black saw no substantive right to academic freedom. See, for example, difficulty with the statute and concurred in W. Murphy, "Academic Freedom-An Emerg- the result solely because he thought the ing Constitutional Right," Law and Con- statute to be impermissibly vague, that is, as temporary Problems 28 (1963), p. 447; T. a criminal statute it provided insufficient Emerson and D. Haber, "Academic Freedom notice of the exact conduct teachers were of the Faculty Member as Citizen," ibid., p. expected to avoid. [See also his dissenting 525; David Fellman, "Academic Freedom in in Tinker v. Des Moines School District, 393 American Law," Wisconsin Law Review 1961 U.S. 503, 521-22 (1969).] While disagreeing (1961), p. 3; W. Van Alstyne, "The Con- that this was the sole fault of the statute, stitutional Rights of Teachers and Profes- Mr. Justice Steward suggested only that the sors," Duke Law Journal (1970), p. 841. statute raised a substantial question in light Nevertheless, it is clear that closure between of "guarantees of free communication con- the First Amendment and a distinct right of tained in the First Amendment," that is, a academic freedom has not yet been made. general free speech issue without any more The current situation is summed up in Justice specialized features peculiar to academic free- Holmes' observation about the work of a dom. The Opinion for the Court went no colleague: "I used to say that he had a power- further, moreover, than to hold the statute ful vise the jaws of which couldn't be got invalid as a violation of the religious estab- nearer than two inches to each other." lishment clause-leaving one to wonder [Quoted in E. J. Bander, ed., Justice Holmes, whether the case has any significance at all Ex Cathedra (Charlottesville, Va.: Michie, beyond the religion-related novelty of the 1966), p. 235.] particular kind of statute involved in the case. ACADEMIC FREEDOM AND CIVIL LIBERTIES 145 of academic freedoms, as a subset of a professional character.8 Not only has First Amendment rights, would very the practical reason which provided the likely be improved if we ourselves had incentive-if not a compelling logic- managed to respect the difference. for the earlier view that an academic's Third, there is a marvelous irony in civil liberties are a specific subset of the fact that the condition of constitu- his academic freedom been largely re- tional law has not remained static since moved,9 therefore, but the continued the policeman's case of 1892, or the insistence upon that view may even Scopes case of 1927. Rather, the ex- work against the equal protection of tent of positive law protection of public professors as citizens. In having rested employees in general now extends fully the right of the academic to pursue to threats against their employment in ordinary political activity specifically as retaliation for the exercise of freedom a manifestation of his academic free- of speech, and not merely to threats of dom, we have invited institutional em- fines or jail. The point was again ployers to interest themselves in the made by the Supreme Court during "professionalism" which the academic this most recent term, clearly reiterating employee reflects in that activity. The that even simple nonrenewal of an un- wooden insistence that academic free- tenured faculty member by a public dom is at the heart of an academic's institution would violate the First right to engage in political activity has Amendment if it was premised upon repeatedly drawn the sharp riposte that, personal political activity otherwise given this rationale, the political liber- protected by that amendment: ties of academics must be correspond- The first questionpresented is whether ingly reviewed by a higher standard- the lack of a contractualor respondent's 8. v. Board 391 tenure right to re-employment, taken Pickering of Education, defeats his claim that the non- U.S. 563 (1968), and see discussion in text at alone, n. 16 p. 153, of this article. renewalof his contractviolated the First 9. is used in hold "Largely" advisedly acknowl- and Fourteenth Amendments. We edgment of the fact that neither the Bill of that it does not.7 Rights nor the Fourteenth Amendment is Even the Court has applicable to institutions uninvolved with more, Supreme government. For a consideration of this recognized that a teacher would be so issue, see Burton v. Wilmington Parking Au- greatly inhibited vis-a-vis other citizens thority, 365 U.S. 715 (1961); Pennsylvania v. were he constrained by a strict profes- Board of Trusts, 353 U.S. 230 (1957); Cole- sional standard of and man v. Wagner College, 429 F.2d 1121 (2d care, accuracy, Cir. Powe v. 407 F.2d 73 of 1970); Miles, (2d courtesy in the rough-and-tumble Cir. 1968); Commonwealth v. Brown, 392 F.2d ordinary political discussion that the 120 (3rd Cir. 1968), aff'g 270 F. Supp. 782 First Amendment will protect his em- (E.D. Pa. 1967), cert. denied, 391 U.S. 921 ployment from jeopardy where his de- (1968); Grossner v. Trustees of Columbia from that standard related University, 287 F. Supp. 535 (S.D.N.Y. 1968); parture only Greene v. Howard University, 271 F. Supp. to his aprofessional political utterances 609 (D.D.C. 1967), dismissed as moot, 412 as a citizen, and not to his teaching, F.2d 1128 (D.C. Cir. 1969); Guillory v. Ad- research, professional publication, or to ministration of Tulane University, 203 F. similar institutional responsibilities of Supp. 855 (E.D. La.), vacated, 207 F. Supp. 554, aff'd, 306 F.2d 489 (5th Cir. 1962). See 7. Perry v. Sindermann, US. Law Week 40 also R. O'Neil, "Private Universities and Pub- (1972), pp. 5087, 5088. See also W. Van lic Law," Buffalo Law Review 19 (1970), p. Alstyne, "The Demise of the Right-Privilege 155; R. Schubert, "State Action and the Pri- Distinction in Constitutional Law," Harvard vate University," Rutgers Law Review 24 Law Review 81 (1968), p. 1439. (1970), p. 323. 146 THE ANNALS OF THE AMERICAN ACADEMY that is, a professional standard-than to arrest that latitude of general free the like activities of others It thus pre- speech and personal liberty teachers are sumes to make professors subject to a fully entitled to enjoy as citizens on greater degree of overall employment equal terms with all other citizens, free accountability than others generally from any intrusion of institutional or owe in respect to their private freedom, legislative power associated solely with virtually as an elitist's concession of their academic and job-related respon- noblesse oblige given in exchange for sibilities. The legitimate claims of per- the special academic freedom claim: sonal autonomy possessed equally by that the claim of general civil liberty all persons, wholly without reference to by academics is more important to so- academic freedom, frame a distinct and ciety than the claim of general civil separate set of limitations upon the just liberty of others. The instances in power of an institution to use its lever- which educational institutions have age of control. More than the profes- acted on this concession are legion, as sion may generally know (and far more many of the published Committee A than an undifferentiatedtheory of aca- reports attest. Respectfully, I do not demic freedom-with its excess baggage think we can avoid some shared re- of general responsibility-may itself sponsibility for this unhappy tendency, allow), moreover, the judicial recogni- given our past practice of claiming so tion of these general limitations upon much for academic freedom and so little institutional authority has already for civil liberty. We may hope to get taken hold. Part of this essay will at- out of this thicket more swiftly, how- tempt to make the case that the specific ever, by returning to the fundamentals theory of academic freedom is entirely of academic freedom and simultane- congenial to this welcome development ously insisting upon the uniform and in constitutional law and that it may robust protection of civil liberties. contribute far more toward the equal The proposition that academic free- treatment of teachers and scholars in dom is a special subset of First Amend- the enjoyment of their personal liberties ment freedoms, but that it is distin- than the less discriminating theory guishable from other civil liberties, which treats an academic's political necessarily means that it is not uni- freedom as a subset of his academic formly available in defense of a teach- freedom. er's or scholar's aprofessional purely THE AND including even some involving DEFINITION, RATIONALE, pursuits, SYSTEM OF ACADEMIC FREEDOM his general freedom of speech. The acknowledgment that this is so, how- The phrase "academic freedom," in ever, is not meant to imply that we the context "the academic freedom of lack a suitable forensic or constitutional a faculty member of an institution of basis to secure these other liberties higher learning," refers to a set of voca- from institutional or legislative abridg- tional liberties: to teach, to investigate, ment, or that the AAUP should be less to do research, and to publish on any vigilant than it has been in reporting subject as a matter of professional conditions in higher education inimical interest, without vocational jeopardy or to those liberties. Indeed, I mean to threat of other sanction, save only upon argue that in certain important re- adequate demonstration of an inexcus- spects, exactly the converse is more able breach of professional ethics in nearly true: that the special constraints the exercise of any of them. Specifi- of academic freedom cannot be invoked cally, that which sets academic freedom ACADEMIC FREEDOM AND CIVIL LIBERTIES 147

apart as a distinct freedom is its voca- any of his professional pursuits, even tional claim of special and limited assuming that the individual's interest accountability in respect to all academi- pertained to a subject that the institu- cally related pursuits of the teacher- tion declines itself to support and may scholar: an accountability not to any thoroughly disapprove. A principle of institutional or societal standard of educational pluralism may excuse an economic benefit, acceptable interest, act of institutional parochialism in what right thinking, or socially constructive it is prepared to offer as an institution theory, but solely to a fiduciary stan- of higher learning, but the principle of dard of professional integrity. To con- academic freedom clearly condemns any dition the employment or personal free- act of institutional censure in respect dom of the teacher-scholar upon the to the professional endeavors of its institutional or societal approval of his faculty, assuming only no failing of academic investigations or utterances, professional integrity in the pursuit of or to qualify either even by the im- those endeavors. Similarly, academic mediate impact of his professional en- freedom protects the vocational discre- deavors upon the economic well-being tion of faculty members to conduct or good will of the very institution whatever instruction and research they which employs him, is to abridge his may be retained to provide consistent academic freedom. The maintenance with standards of professional integrity. of academic freedom contemplates an accountability in respect to academic Three cases investigations and utterances solely in respect of their professional integrity, We may concretely illustrate the sev- a matter usually determined by refer- eral foregoing observations by briefly ence to professional ethical standards of stating three cases, all of which lie truthful disclosure and reasonable care. easily within the uniform protection of Academic freedom is a "freedom"- academic freedom: rather than a the sense that "right"-in Case 1. A member is as- it establishes an immunity from the faculty to teach a course in in- of others to use their authority signed biology power clusive of theories the to restrain its exercise without, how- respecting origin of man. A state law that a commandinga right of provides ever, necessarily teacher be fired and fined if he institutional for every object may subsidy adverts to of evolution or of endeavor that might en- any theory professional of view the of the interest of the individual pro- point respecting origin gage man inconsistent with the literal fessor. In to a limited program story cleaving of Genesis. The law is an or in husbanding its scarce financial infringement for the decision of of the teacher's academic freedom inso- resources, instance, far as it forecloses a an institution not to offer a particular professionally or to means responsible treatment of the subject.'0 subject not, itself, provide Case 2. An for a line of research may be English professor assigns particular a short to her stu- faulted as educationally unenlightened, particular story give dents a better of one but it would not, on that account, understanding of Western literature. constitute an abridgment of academic genre Conceding that the and freedom. At the same time, however, professor's ability particu- lar treatment of the are above academic freedom would be abridged subject were any form of sanction threatened 10. Compare Epperson v. Arkansas, 393 against a faculty member because of U.S. 97 (1968), discussed in n. 6. 148 THE ANNALS OF THE AMERICAN ACADEMY

reproach, the president of the college demic freedom reflects the political and nonetheless admonishes her to discon- institutional circumstances of the aca- tinue the assignment because in his demic profession in this country. Were judgment the story is garbage, the phi- teachers and scholars sole practitioners, losophy of the story is destructive, and certified by licensure agencies in the because several parents have com- manner of doctors or lawyers, we might plained. Following her statement that expect that questions of professional she believes she has a responsibility to integrity would be reserved primarily teach the story consistent with a pro- to these agencies-otherwise leaving fessional treatment of the subject she to individual clients or educational has been engaged to teach, she is fired. "customers" the separate determination Her dismissal clearly violated her aca- of whether each teacher or scholar is demic freedom, assuming only that her good enough in his profession to war- selection of the story was not other- rant being retained as an educational wise a clearly inappropriate profes- mentor or as an independent contractor sional means of fulfilling her academic to engage in research. There are no responsibilities.11 such agencies in higher education as in Case 3. A professor of anthropology, law and medicine, however, and one interested also in genetics, prepares a will tend to starve as a sole practitioner. paper which he presents before an off- Nor is today's academy at all like the campus symposium in which he reviews original Akademeia-simply a place on the basis for a particular hypothesis- the outskirts of Athens where Plato that significant evidence suggests the could be found by anyone interested in inheritability of variable intelligence his professions. Neither are univer- linked to race. Although his utterances sities under the benign protection of are extramural, they are clearly aca- powerful autocrats, such as a German demic in character. Assuming only prince or a powerful ecclesiastical or- that he has been guilty of no failure ganization which, while brooking no of professional integrity in the manner academic freedom at all for criticism of in which he has presented his hypothe- themselves or of the doctrines associ- ses, his conduct is fully protected by ated with their power, might otherwise fundamental principles of academic offer protection against the hostilities of freedom. Accordingly, no matter how all others. Nor are entire faculties in unpopular, distasteful, socially destruc- this country endowed as Oxford or tive, or embarrassing his extramural Cambridge with sufficient assets that presentation may seem to the univer- the faculties may largely control their sity where he is employed, no action own situation. may appropriately be taken against Rather, it is all very familiar that him.12 the academic profession is practiced in this country in association with The mechanism in common use in the public and private educational United States for the of aca- enterprises: protection that one's capacity for the exercise of 11. Compare Parducci v. Rutland, 316 F. academic freedom is inextricably tied Supp. 352 (M.D. Ala. 1970), possibly the to his university employment, that the first decision clearly identifying academic ultimate financial resources of the insti- freedom as a separate and distinct First tution are largely beyond the control Amendment freedom. of the that ultimate 12. The similarity of this hypothetical to faculty, managerial news accounts of Professor Arthur Jensen's responsibility is not lodged within the work is, of course, not accidental. faculty, and that issues of professional ACADEMIC FREEDOM AND CIVIL LIBERTIES 149

integrity are resolved not by licensure Against the chance that the committee or professional associations in the main, members-themselves nearly always but within each institution-at least in drawn from within the institution- the first instance. Insofar as public may show undue favor from too close institutions are concerned, the power an identification with a colleague, an of the demos to force hemlock upon a authority of limited review is recog- modern Socrates is constrained by the nized in the hierarchy of administra- Constitution-indeed, the power of the tion. Against the chance that the people even to secure an end to his committee members may show bias academic freedom by having him fired against him-as from fear for their own is thus constrained. In the develop- status, from a commitment to a given ment of a more general mechanism professional dogma, or from profes- within each institution for protecting sional envy or sheer personal dislike- academic freedom, however, no satis- a more generous appeal may lie through factory reason has been given to dis- the hieararchy of administration and tinguish between the two kinds of aca- thereafter to other bodies-like the demic institutions-public and private. AAUP-and, on occasion at least, to The fact that the Constitution makes the courts. Indeed, the academic mav- such a distinction for purposes of erick may sometimes need more protec- positive law is largely beside the point. tion against the entrenched dogmas of In the absence of state, regional, or his immediate peers than against any- national professional licensure agencies one else, thus necessitating some right composed of professional teachers and of appeal from a local judgment to the scholars, the mechanism of professional judgment of others who have less accountability common in the United of a vested interest than they in the States has gradually developed through maintenance of a given "truth." the utilization of standing faculty com- This system does not always operate mittees within each institution in to accomplish the end for which it is which the professional teacher or designed, of course, as when a coinci- scholar is employed. Consistent with dence of prejudices-albeit often of what we have already said about aca- different kinds-may operate against demic freedom, however, the charge of the faculty member at every level; but each such committee is strictly limited: superior alternatives are not readily it is to ignore the particular impact of apparent. After all, no freedom, in- any teacher's exercise of his academic cluding even academic freedom, can freedom upon the institution and to claim exemption from some degree of concern itself solely with the question accountability. Under current condi- of whether the teacher or scholar has tions of educational organization in been guilty of such an inexcusable the United States, we have yet to dis- breach of professional ethics as to war- cover a safer choice than to entrust rant his termination, the penalty of that accountability in respect to the dismissal being appropriate only as a responsibilities of academicians in the necessary means of vindicating the very first instance to professional peer groups functions which the system of academic within each institution, acting under the freedom is itself meant to serve. specific constraint of confining their For several reasons, largely related to review solely to an examination of the the practical necessity of using local professional integrity of the manner in review committees, the judgment of which the individual discharged his these standing committees is not final. professional responsibilities. 150 THE ANNALS OF THE AMERICAN ACADEMY

impact upon the economic of Under more and less constraint well-being the employing institution, is the cost This system, developed specifically of exceptional care in the representa- for the maintenance of academic free- tion of that "truth," a professional dom, obviously differs from that which standard of care. Indeed, a grave generally prevails in ordinary employ- ethical failure in the integrity of a ment relations. Significantly, however, teacher's or scholar's academic repre- in respect to his academic freedom, the sentations, no matter of how little teacher or scholar is simultaneously notice or coincidental concern it may under more constraint as well as under happen to be to the particular institu- less constraint than would ordinarily tional employer, is precisely the kind obtain. Clearly he is under less con- of offense to the contingent privilege straint, of course, to the extent that of academic freedom which states a the standard is more protective of him clearly adequate cause for a faculty than if it were the standard common recommendation of termination. The to employment relationships in general; very reason for specially protecting the that is, Did he perform his assignment profession is itself frustrated, for in- as directed by management, did he stance, if experimental undertakings avoid any indiscretions clearly forbid- are knowingly falsified, or positions of den by management, and has he other- professional responsibility are sought to wise conducted himself in a manner not be gained through false representations injurious to the economic well-being of of originality-that is, plagiarism; it is the enterprise? We have already noted of no consequence that neither offense that none of these considerationsis per- may violate any general law, or that it missible where the committee concludes may turn out to be a matter of indif- that the professions or conduct for ference to a particular board of trus- which the faculty member has been tees. In either case, the trust of called to account were otherwise within academic freedom has been violated the prerogative of his academic free- and strict accountability is in order. dom. What is less obvious, however, In this way, then, academic freedom is the one respect in which the exercise speaks directly and distinctly to the of academic freedom is also under con- special critical role of the professional siderably greater constraint than if the teacher and scholar. He is encouraged conduct in which it is implicated were in the development of all of his aca- governed only by ordinary standards of demically related activities to ply a bold accountability to one's employer: as and innovative critical acumen. On the professional peers are admonished to be other hand, he is accountable to those less concerned than the administration who share a like duty and a similar or trustees to consider any institutional commitment as his own, to answer at repercussions resulting from what a a professional level for the ethical in- given faculty member may have done tegrity of his work so to establish professionally wholly consistent with by the fact of that integrity that he the ethical use of his academic free- fully justifies the contingent privilege of dom, they are admonished to be far academic freedomwhich he has claimed. more concerned than others in making The distinction of academic freedom certain of that ethical use. The price from the general protection of free of an exceptional vocational freedom to speech is precisely located in its im- speak the truth as one sees it, without mediate and indissoluble nexus with penalty even for its possible immediate the cardinal social expectation laid ACADEMIC FREEDOM AND CIVIL LIBERTIES 151 upon the particular profession with mining whether sex-related material is which it is identified-that there shall protected by the First Amendment.14 be a vocation to examine received If it were true that even the hardest- learning and values critically, a voca- core obscenity were being received, tion expected to do so and to make read, and shared with immediate pro- itself useful by the fact of disseminating fessionally involved colleagues in what its work. In this sense, it is the ele- could be shown to be a professionally ment of academic freedom which spe- responsible study of the subject, the cifically identifies the profession: It is fact of the academic context is not ir- simply contradictory to lay that expec- relevant to a determination of the case tation upon the profession and then to and may, indeed, be controlling. Pro- prevent its accomplishment by deter- fessionally related efforts directed in ring its fulfillment through rules which good faith precisely to fulfill the social punish its exercise. As Arthur Lovejoy, directive of the academic profession, who helped to found the AAUP, cor- that is, to examine received learning rectly observed: and values critically and to report the results without fear of will It the social functionof academic reprisal, [that is, make the case for the con- freedom] is rendered if the appropriate impossible stitutional of academic free- work of the investigatoris shackled by protection the requirementthat his conclusionsshall dom when the absence of these ele- never seriously deviate either from gen- ments might otherwise spell its failure. erally accepted beliefs or from those ac- There is, of course, nothing in this cepted by the persons,private or official, formulation that assumes that the First throughwhom society providesthe means Amendment subset of academic free- for the maintenanceof universities.13 doms is a total absolute, any more than freedom of is itself an exclusive ACADEMIC FREEDOM AS A SUBSET OF speech value above all else. FIRST AMENDMENT RIGHTS: A prized literally the false of fire in a COMPARISON WITH THE Thus, shouting crowded theater not immunize a GENERAL ISSUE OF may of from to CIVIL LIBERTY professor psychology having answer for the consequences of the en- As an identifiable subset of First suing panic, even assuming that he did Amendment freedoms, academic free- it in order to observe crowd reaction dom requires a significant modification first-hand and solely to advance the in the standards of judicial review general enlightenment we may other- otherwise applicable to freedom of wise possess of how people act under speech. Specifically, for instance, it great and sudden stress. It is to ob- clearly ought not be enough in a given serve, however, that the context of case to uphold the discharge of a fac- academic setting provides an additional ulty member that the state may have constitutional consideration-the spe- generally criminalized any use of por- cific consideration of academic free- nography, or that the university may dom-which may well be determinative have to forbid that similarly presumed 14. See Roth v. United States, 354 U.S. use, even assuming that the material is 476 (1957); A Book Named "John Cleland's not redeemedby standards the Supreme Memoirs of a Woman of Pleasure" v. At- Court has otherwise developed in deter- torney General of Massachusetts, 383 U.S. 413 (1966); Stanley v. Georgia, 394 U.S. 557 13. Lovejoy, "Academic Freedom," Ency- (1969); United States v. Reidel, 402 U.S. 351 clopaedia of the Social Sciences (1930), vol. 1, (1971); United States v. Thirty-Seven Photo- p. 384. graphs, 402 U.S. 363 (1971). 152 THE ANNALS OF THE AMERICAN ACADEMY under circumstanceswhere a free speech had we done so, that is, had we dis- claim would otherwise fail. Where pensed with the academic freedom claim, other societal values are not so clearly we might then have been without a conflicted by the particular manner in place to stand in defending the faculty which academic freedom is exercised member or in reproving the institution that the manner of that exercise can that sought to dismiss him. In this, I reasonably be described as profession- think we have been mistaken and that ally reprehensible-as would assuredly the proper place to stand is the same be true in the risking of human life in place occupied by so many others-on the "controlled experiment" to deter- the general issue of civil liberties and mine how crowds react to panic-the the just limitations on the relational law or institutional rule which oper- authority of institutions. It was just ates to abridge the exercise of that aca- this principle, for instance, that Presi- demic freedom should be held invalid dent Lowell reflected in risking the loss as applied to the particular case. In to Harvard of a ten-million-dollar be- this sense, then, it is proper to speak quest, which was threatened to be an- specifically of academic freedoms as a nulled unless an openly pro-German subset of First Amendment rights and professor was deprived of his chair. not to regard them as simply fungible What is so instructive of the episode is with freedom of speech in general. that Lowell did not state his position Simultaneously, we are bound to ac- in terms of claiming that what the pro- knowledge that when no claim of pro- fessor had done was an exercise of aca- fessional academic endeavor is present, demic freedom. Indeed, had Lowell neither can one lever himself into a done so, presumably he would then preferred First Amendment position by have felt called upon to say a great deal invoking a claim of academic freedom. more, to justify the faculty member's Granted that the proper characteriza- utterances as sufficiently restrained, tion must sometimes be difficult and rigorous, and consistent with profes- even elusive, we must admit that not sional integrity, as not to call into all that a faculty member does in re- question his ability to continue at Har- spect to his freedom of speech is a vard. Eschewing this approach, Lowell manifestation of professional endeavor. declared instead: a deal of it is neither Indeed, great If a universityor college censorswhat its professional nor unprofessional-that is, professors may say, if it restrains them done under professional auspices, but from uttering somethingit does not ap- in a clearly unprofessional manner. prove, it hereby assumesresponsibility for Rather, it is simply aprofessional, and that whichit permitsthem to say. This is the distinction is not a trivial one: logical and inevitable. If the universityis what is lost in respect to the special right in restrainingits professors,it has a to do protection of academic freedom may be duty so, and it is responsiblefor more than offset in a case whateverit permits. There is no middle particular by Either a differentkind of in ground. the university assumes gain-a gain being full for its freed from the of responsibility permitting pro- special accounltability fessors to expresscertain in academic freedom. opinions pub- lic, or it assumes no responsibilitywhat- We have hesitated to acknowledge ever, and leaves them to be dealt with like the distinction between professional and other citizens by the public authorities aprofessional activity, even when the accordingto the laws of the land.15 difference was abundantly clear, partly 15. Recounted and discussed in R. Hof- from an understandable anxiety that stadter and W. Metzger, The Development of ACADEMIC FREEDOM AND CIVIL LIBERTIES 153

It is perfectly clear that Lowell was ments [in a public newspaper] upon issues himself making an implicit distinction then currently the subject of public atten- between alleged abuses of academic tion, which are critical of his ultimate em- freedom-for which Harvard would ployer but which are neither shown nor doubtless admit its of can be presumed to have in any way responsibility either the teacher's review of its own impeded proper per- faculty-and alleged formance of his duties in the class- abuses of free and the daily speech general room or to have interferedwith the regular issue of civil liberty. The distinction is operations of the schools generally. In eminently correct and must not be these circumstances we conclude that the placed in jeopardy by what may now interest of the school administration in be seen as the pyrrhic success of having limiting teachers' opportunities to contrib- extended the claim of academic freedom ute to public debate is not significantly in a manner that invites more, rather greater than its interest in limiting a simi- lar contribution than less, institutional monitoring of by any member of the general civil liberties. general public.16 It is an altogether congenial develop- This "First Amendment" view of the ment in our constitutional law that the matter seems to me to be entirely sound Supreme Court has come to essentially and desirably free from the false the same conclusion in respect to the freight of special accountability which general civil liberties of those who attached itself whenever we tried in- teach: that at least where there is no stead to justify the aprofessional expres- affectation of professional endeavor in sions of faculty members as an act of the aprofessional expressions of a fac- academic freedom, rather than as an ulty member-and no false trading upon unexceptional claim to the equal pro- his institutional affiliation-there is tection of freedom of speech. As a correspondingly no sufficient justifica- valid principle which is clearly to be tion for the institution to presume to commended as a reasonable standard of review the conduct of the faculty mem- self-restraint for all institutions of ber by the more taxing fiduciary stan- higher learning, moreover, there is no dard of professional care. Thus, should basis for us to hold it less applicable to one be moved even casually to write a private institutions than to public ones. letter to the editor expressing his senti- ment on some political issue of the day, THE RECONSTRUCTIONOF THE 1940 it is entirely unjust for the institution STATEMENT OF PRINCIPLES that employs him to call his profes- sional integrity into question according If there is any inhibition which cur- to that standard of carefulness and rigor rently restrains the AAUP from main- that may appropriately qualify his pro- taining that the aprofessional activities fessional undertakings and the contin- of faculty members are not subject to gent special protection of academic institutional review by the same fidu- freedom. Indeed, to do so is in fact to ciary responsibility for which they may disadvantage him in his prerogatives as 16. Pickering v. Board of Education, 391 a citizen, as the Supreme Court noted U.S. 563, 572-73 (1968). For more extended in Pickering v. Board of Education: analyses of Pickering, see O'Neil, "Public Employment, Antiwar Protest, and Prein- What we do have before us is a case in duction Review," U.C.L.A. Law Review 17 which a teacherhad made erroneousstate- (1970), pp. 1028, 1040-53; W. Van Alstyne, "The Constitutional Rights of Teachers and Academic Freedom in the United States (New Professors," Duke Law Journal (1970), pp. York: Columbia U.P., 1955). 841, 848-54. 154 THE ANNALS OF THE AMERICAN ACADEMY be asked to account through academic University of Illinois.18 The ad hoc due process in respect to their academic investigating committee of the AAUP freedom, it may be thought to arise read the critical clause of the 1940 from the troubling ambiguity of the statement exclusively as an admonition following paragraph from the 1940 addressed to the professional conscience Statement of Principles: of the faculty alone: The college or universityteacher is a citi- The ad hoc committee is of the opinion zen, a memberof a learnedprofession, and that . . . as applied to a faculty member an officer of an educational institution. having definite or indefinite tenure, mak- When he speaks or writes as a citizen, he ing public utteranceson mattersof general should be free from institutional censor- concernto the community,the standardof ship or discipline, but his special position "academicresponsibility" is not a valid basis for in the community imposes special obliga- reprimand,dismissal, or other tions. As a man of learningand an educa- officialdiscipline.19 tional officer,he should rememberthat the Nevertheless, the plurality opinion for public may judge his profession and his Committee A From its as- institution his utterances. Hence disagreed. by he sessment of the of should at all times be should ex- legislative history accurate, the 1940 it concluded that ercise appropriaterestraint, should show statement, the "but" clause was not respect for the opinion of others, and a precatory should make every effort to indicate that statement; rather, the clause was in- he is not an institutional spokesman. tended to recognize the legitimacy of (Emphasisadded.)17 university authority to discipline fac- ulty members for violating norms of If this were taken as a state- paragraph accuracy, self-restraint, and courtesy ment of ad- professional aspiration even in respect to professionally unre- dressed to the good sense and esprit of lated extramural utterances: the academic fraternity, it might well be to state a commend- In light of CommitteeA's understanding thought highly of the 1940 with the able view. If it is a statement which Statement,together legislativehistory of the documentand its means to encourage institutional review "interpretation,"the Committee disagrees -and possible dismissal-of faculty with the authors of the report that "the members because aprofessional utter- notion of academicresponsibility, when the ances may sometimes lack the degree faculty memberis speakingas a citizen, is of and restraint not intended to be an admonitionrather than accuracy improp- a standard for the of disci- of their en- application erly expected professional pline.20 deavors, however, it is radically unfair Left to the equal civil liberties of academics alone, this position would appear to and needs to be revised. As it happens, embrace the most self-effacing-and neither of these alternatives quite de- simultaneously self-righteous-position scribes the present situation. of all. The fact that Committee A went A clarification was provided of the on to stress the ameliorative in- fluence critical "but" clause in 1963, in the of academic due process in such course of a Committee A review of a cases-and to disapprove the particu- lar case involving an assistant professor's dismissal of the faculty member as letter to the editor of a student news- 18. See "Report on Academic Freedom and paper published and distributed at the Tenure: The University of Illinois," A.A.U.P. Bulletin 49 (1963), pp. 25ff. 17. Reprinted in AAUP Policy Documents 19. Ibid., p. 36. and Reports 2 (1971). 20. Ibid., p. 41. ACADEMIC FREEDOM AND CIVIL LIBERTIES 155

"outrageously severe and completely cannot constitute grounds for dismissal unwarranted" under the circumstances unless it clearly demonstratesthe faculty -does little to relieve one's objection member'sunfitness for his position. Ex- tramuralutterances bear to the interpretation itself as a matter rarely upon the of sound On the one faculty member'sfitness for his position. principle. hand, a final decisionshould take into it to forswear claim Moreover, appears any special accountthe faculty member'sentire record of academic freedom in respect to a as a teacherand scholar. In the absenceof faculty member's personal prerogative weightyevidence of unfitness,the adminis- of general public discussion "when he tration should not prefer charges;if it is speaks or writes as a citizen," and not not clearly proved in the hearingthat the under pretense or claim of professional faculty member is unfit for his position, endeavor. At the same time, it appears the faculty committeeshould make a find- simultaneously to accept the legitimacy ing in favor of the faculty member con- cerned.21 of institutional restraint even in respect to such rhetoric ordinary political by Even conceding that this Committee A the standards exceptionally inhibiting construction may go nearly as far as of accuracy, care, restraint, and cour- the AAUP can proceed in light of the tesy identified with the individual's pro- phrasing and legislative history of the fessional status, that is, with his status 1940 it remains to "as a man of learning and an educa- statement, subject criticism.22 One that tional officer." In this respect, the step may easily be taken is the more clarifica- trade-off the AAUP appeared to have emphatic tion of the accepted with the Association of Ameri- standard of institutional re- can Colleges in 1940-namely, to culti- view-assuming that such review is vate public confidence in the profes- ever called for, or at least that the 1940 sion by laying down a professionally statement, unless amended, provides for taxing standard of institutional account- the possibility-in cases where no claim ability for all utterances of a public of academic freedom is asserted and no character made by a member of the willful trading upon professional status profession-is substantially more inhib- has been involved in the personal activ- iting of a faculty member's civil free- ity of a faculty member whose institu- dom of speech than any standard that tional position is thereby drawn into government is constitutionally privi- question by the character of the activ- leged to impose in respect to the per- ity. sonal political or social utterances of What needs to be done, however, is other kinds of public employees. 21. Committee A Statement on Extramural Immediately subsequent to its report Utterances (1964), reprinted in AAUP Policy in 1963-but consistent with other por- Documents and Reports 14 (1971). See also tions of that report-however, Com- "Advisory Letter from the Washington Office," mittee A a more strict construc- A.A.U.P. Bulletin 49 (1963), pp. 393, 394, adopted and the discussion in on Academic tion of the 1940 statement. This strict "Report Freedom and Tenure: The University of construction disarms that statement to California at Los Angeles," A.A.U.P. Bulletin a considerable extent and brings it, as 57 (1971), pp. 382, 394-400, 404, 405. thus construed, much closer to the posi- 22. See, for example, Remarks by President tion the Court on J. W. Maucker of the University of Northern Supreme adopted Iowa (on the occasion of receiving the Tenth First Amendment grounds in 1969: Alexander Meiklejohn Award), A.A.U.P. Bul- letin 54 (1968), pp. 251, 253-54; Schier, "Aca- The controlling principle is that a faculty demic Freedom and Political Action," A.A.U.P. member's expression of opinion as a citizen Bulletin 53 (1967), p. 22. 156 THE ANNALS OF THE AMERICAN ACADEMY not merely to make clearer that a fac- abuses of ordinary civil liberty may be ulty member may not properly be held compounded by the gratuitous use of to answer to an institution for the in- institutional disciplinary processes. It tegrity of his general utterances by the may be conceded that circumstances same standard by which he may have will sometimes arise where the personal to account for his academic freedom, conduct of a faculty member may so but to enlarge upon the implication of immediately involve the regular opera- our position that his substantive ac- tion of the institution itself or otherwise countability for such utterances will provide firm ground for an internal ordinarily not run to the institution at grievance that internal recourse, con- all. For an alleged abuse of freedom of sistent with academic due process, is speech, general provisions of law are offensive neither to the general protec- available to provide for measures of re- tion of civil liberty nor to the standards dress and sanction so far as it has been of this Association. Decisions such as thought both safe and just to allow. As that in the Pickering case are instruc- a consequence, society may not expect, tive, however, that this exception is not nor should the standards of the AAUP nearly so broad as the presumption of contemplate, that recourse for alleged custom has supposed.