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Short bibliography Introduction The conventional wisdom, including statements by the U. Supreme Court, has academic freedom as a legal right, derived from the First Amendment to the U.
I believe that this conventional wisdom is wrong.
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I am not the only attorney holding this unconventional view. The First Amendment protects academic freedom.
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This simple proposition stands explicit or implicit in numerous judicial opinions, often proclaimed in fervid rhetoric. Attempts to understand the scope and foundation of a constitutional guarantee of academic freedom, however, generally result in paradox or confusion.
The cases, shorn of panegyrics, are inconclusive, the promise of rhetoric reproached by the ambiguous realities of academic life.
The problems are fundamental: There has been no adequate analysis of what academic freedom the Constitution protects or of why it protects it.
Lacking definition or guiding principle, the doctrine floats in law, picking up decisions as a hull does barnacles. Academic freedom is an amorphous quasi-legal concept that is neither precisely defined nor convincingly justified from legal principles.
These two defects make the law of academic freedom difficult to understand. I have no doubt that academic freedom is important and desirable. In practice, the notion of academic freedom is invoked to justify statements by faculty that offend politicians, religious leaders, corporate executives, parents of students, and citizens.
History of academic freedom In medieval Europe, universities were self-governing enclaves that were outside the civil law. Some of this isolation survives today in poorly articulated views that universities are somehow immune from law.
Perhaps the fact that large universities have their own police department gives some support to the notion of independence. Regardless of whatever myths may circulate in academic communities, the same law applies to colleges and universities in the USA that applies to people in other settings in the USA.
The Prussian Constitution of declared that "science and its teaching shall be free. This kind of academic freedom has never been a major issue in the USA, owing to differences between the two countries: In Germany, there are no required classes for university students, and just one examination to obtain the Diplom degree.
In the USA, curriculum is rigidly controlled by faculty, and students must attend all of the required classes and a minimum number of "elective" classes, to qualify for a degree. There is typically at least one examination in every class in the USA.
The German constitution of 23 MayArt. Americans during the 's who desired a doctoral degree typically went to Europe and studied at a university in England, France, or Germany. Other universities in the USA were soon founded along the same lines: During this time, older American institutions of higher education e.
Inthe newly formed American Association of University Professors issued their first report on academic freedom.
Two kinds of academic freedom There are two distinctly different kinds of academic freedom, which should have distinct names: Individual academic freedom protects an individual professor. Institutional academic freedom protects universities from interference by government, a right that applies to the community of scholars, not to individual faculty.
The following people have commented on the problem of using "academic freedom" to mean two different concepts. Judge Posner, writing for the unanimous panel of three judges in Piarowski v. Illinois Community College, F.
Metzger, 66 Texas Law Review, Peter Byrne, 99 Yale Law Journal, However, all major colleges and universities have adopted this Statement, or a variation of this Statement, which is contained in the faculty policy manual of each college or university, and is incorporated by reference in the employment contract between the university and each individual faculty member.
In my ten years as a professor, the most egregious violations of academic freedom that I saw were committed by department chairmen who had spent all of their previous professional career as an employee of either industry or a government laboratory: Individual academic freedom is a relationship between professors and the university administration.
While this essay is not about tenure, I should briefly explain the legal effect of tenure. The effect of tenure is to make it very difficult for university administration to end the employment of a tenured professor, thus insulating tenured professors from criticism.
The benefits of tenure are contract rights, granted by the university administration. The AAUP and university policy manuals plainly say concepts of academic freedom apply equally to all professors, both tenured and untenured.
Given the probationary status of tenure-track faculty, it is obvious that it is only an ideal that tenure-track professors have the same academic freedom as tenured professors.Preliminary versions of economic research. Did Consumers Want Less Debt? Consumer Credit Demand Versus Supply in the Wake of the Financial Crisis.
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