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CAUT Bulletin Archives

January 2017

Book Review / Academic freedom at American universities: Constitutional rights, professional norms, and contractual duties

by Rachel K. Brickner
AcademicFreedomAtAmericanUniversitiesBKIn Academic Freedom at American Universities, Philip Lee provides an exhaustively researched and accessible history of the development of the principle of academic freedom, particularly through the work of the American Association of University Professors, and its application in US law. He demonstrates that, although courts have acknowledged that academic freedom is an important public good, there are serious limitations on the use of constitutional law to protect professors’ academic freedom. He contends that contract law provides a better legal basis for doing so. 

Lee builds toward this argument through two narratives. In the first, he traces the AAUP’s work in developing principles of academic freedom, as well as of tenure, due process, and collegial governance. Prior to 1915, the year the AAUP was founded, Lee notes that professors could be fired at will and without recourse if they offended university administrators. The AAUP’s “Committee A” was established to investigate such cases of dismissal and, in 1915, issued the first declaration on academic freedom and tenure. The AAUP updated its declarations of academic principles on several occasions. The 1940 declaration, which also elaborated the principles of due process and tenure, was highly influential and became widely accepted by American college and university administrations.          

Despite the widespread acceptance of the AAUP’s academic principles, these were effectively voluntary guidelines, and the AAUP had no means of enforcing university administrations to abide by them. In the second narrative of the book, Lee explores the parallel development of a rich body of constitutional case law addressing academic freedom issues. Even though court decisions have repeatedly emphasized the importance of academic freedom to the mission of the university, Lee finds that there are four main obstacles in relying on constitutional law to protect professors’ academic freedom. First, to the extent that professors’ speech is protected by the First Amendment, it applies to their teaching activities, but not necessarily to duties performed outside the classroom. Second, courts have tended to prioritize the academic freedom of the institution (e.g., administering the delivery of programs) over that of individual faculty. Third, because the First Amendment protects speech vis-à-vis the government, free speech protections are not applied equally to faculty at public and private universities. Finally, all of this is compounded by the fact that the courts have not ruled consistently on academic freedom issues. They are far from a place of consensus.          

Lee does not explicitly clarify how the AAUP’s principles are linked to American case law until the final chapters when he argues that contract law, rather than constitutional law, provides a better legal framework for defending academic freedom. Contract law, Lee argues, allows courts to focus on the nature of a dispute, and whether it has violated the norms of academic freedom that have been agreed to by both parties. Importantly, it applies to faculty at public and private colleges and universities, thus avoiding one of the main pitfalls of relying on a constitutional defense of academic freedom. When academic principles are explicitly included in faculty handbooks, appointment letters, or collective agreements, they carry even more weight in the event of a dispute.          

Lee recognizes that contract law is not a perfect framework for defending acade­­mic freedom. One limitation is that universities may use their greater bargaining power to try to weaken academic freedom language in relevant policy documents. There is an important lesson here: strong contract language protecting academic freedom is not just symbolic; it can offer genuine legal protection when disputes arise between individual faculty and university administrations. Lee’s study reminds us how important it is for individual faculty and faculty associations to remain steadfast in their commitment to including strong academic freedom language in university policies and collective agreements. Rachel K. Brickner is a professor of political science at Acadia University in Wolfville, Nova Scotia.