Academic Freedom at American Universities

Constitutional Rights, Professional Norms, and Contractual Duties

Philip Lee

This book details the legal and historical development of institutional and professorial academic freedoms to better understand the relationship between these concepts. While some judges and scholars have focused on the divergence of these protections, this book articulates an aligned theory that brings both the professorial and institutional theories together. It argues that while constitutionally based academic freedom does its job in protecting both public and private universities from excessive state interference, or at the very least it asks the right questions, it is inadequate because it fails to protect many individual professors in the same way. This solution entails using contract law to fill in the gaps that constitutional law leaves open in regard to protecting individual professors.

Contract law is an effective alternative to constitutional law for three reasons. First, unlike constitutional law, it covers professors at both public and private universities. Second, it allows for the consideration of the custom and usage of the academic community as either express or implied contract terms in resolving disputes between universities and professors. Third, contract law enables courts to structure remedies that take into account the specific campus contexts that give rise to various disputes instead of crafting broad remedies that may ill fit certain campus environments.

The proposed reconceptualization of academic freedom merges constitutional protection for institutions and contractual protection for individual professors. This combined approach would provide a more comprehensive framework than is currently available under the predominantly constitutional paradigm of academic freedom.

Lexington Books

Pages: 202 • Trim: 6⅜ x 9¼

978-1-4985-0100-2 • Hardback • November 2014 • $121.00 • (£93.00)

978-1-4985-0102-6 • Paperback • May 2016 • $54.99 • (£42.00)

978-1-4985-0101-9 • eBook • November 2014 • $52.00 • (£40.00)

Subjects: Law / Educational Law & Legislation, Education / Educational Policy & Reform / General, Education / Higher, Law / Comparative, Political Science / Public Policy / General

Academic Freedom at American Universities

Constitutional Rights, Professional Norms, and Contractual Duties

Hardback

Paperback

eBook

Summary

This book details the legal and historical development of institutional and professorial academic freedoms to better understand the relationship between these concepts. While some judges and scholars have focused on the divergence of these protections, this book articulates an aligned theory that brings both the professorial and institutional theories together. It argues that while constitutionally based academic freedom does its job in protecting both public and private universities from excessive state interference, or at the very least it asks the right questions, it is inadequate because it fails to protect many individual professors in the same way. This solution entails using contract law to fill in the gaps that constitutional law leaves open in regard to protecting individual professors.

Contract law is an effective alternative to constitutional law for three reasons. First, unlike constitutional law, it covers professors at both public and private universities. Second, it allows for the consideration of the custom and usage of the academic community as either express or implied contract terms in resolving disputes between universities and professors. Third, contract law enables courts to structure remedies that take into account the specific campus contexts that give rise to various disputes instead of crafting broad remedies that may ill fit certain campus environments.

The proposed reconceptualization of academic freedom merges constitutional protection for institutions and contractual protection for individual professors. This combined approach would provide a more comprehensive framework than is currently available under the predominantly constitutional paradigm of academic freedom.

Details

Lexington Books

Pages: 202 • Trim: 6⅜ x 9¼

978-1-4985-0100-2 • Hardback • November 2014 • $121.00 • (£93.00)

978-1-4985-0102-6 • Paperback • May 2016 • $54.99 • (£42.00)

978-1-4985-0101-9 • eBook • November 2014 • $52.00 • (£40.00)

Subjects: Law / Educational Law & Legislation, Education / Educational Policy & Reform / General, Education / Higher, Law / Comparative, Political Science / Public Policy / General

Author

Philip Lee is assistant professor of law at University of the District of Columbia David A. Clarke School of Law.

Table of Contents

Introduction
Chapter 1: The Crisis of Academic Freedom in the Modern University and the Founding of the AAUP
Chapter 2: The AAUP’s First Policy Declaration in 1915 and its Early Struggle to Defend Academic Freedom
Chapter 3: The AAUP’s Seminal 1940 Statement and Judicially Defined Academic Freedom During the McCarthy Era
Chapter 4: Modern Constitutional Conceptions of Academic Freedom
Chapter 5: The Limitations of Constitutionally Based Professorial Freedom
Chapter 6: Contract Law as an Alternative Foundation for Professorial Freedom
Conclusion

Reviews

Philip Lee presents a convincing case for transforming higher education with respect to protecting and encouraging true academic freedom of professors. . . .Professor Lee’s research demonstrates substantial mastery of the subject matter and relevant materials. . . .Lee’s work evidences careful scholarship. . . .The author’s writing style is consistently clear and engaging – no mean feat considering the rather technical and procedural materials encompassing much of this book. Philip Lee’s Academic Freedom at American Universities presents an important argument for an alternative – contract law – foundation for professorial freedom in the academy. I recommend the book as a valuable resource for all public and private higher education institutions, particularly their faculty and executive administration.
— Reflective Teaching

In Academic Freedom at American Universities, Philip Lee provides an exhaustively researched and accessible history of the development of the principle of academic freedom…. 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.
— Canadian Association of University Teachers Bulletin

Academic Freedom at American Universities

Constitutional Rights, Professional Norms, and Contractual Duties

Philip Lee

Academic Freedom at American Universities

Constitutional Rights, Professional Norms, and Contractual Duties

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