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Proceedings

Manuscript

Abstract

This brief introduction to the principles of academic freedom is intended for attorneys and other administrators who represent or work at colleges and universities. It has two purposes. The first is to introduce them to academic freedom as a set of professional principles regardless of whether or not they are legally enforceable. Attorneys and administrators need to understand the culture of the institutions they represent or serve. Nowhere is this more true than with colleges and universities, which have well established traditions and norms that influence the expectations and conduct of all those responsible for their governance, including faculty, administrators and trustees.

The second purpose is to introduce the law relating to academic freedom as it has evolved over the last half century. As will become apparent, it is not always clear where academic freedom as a set of professional principles ends and the law begins. Academic freedom has received some recognition by the Supreme Court and considerably more by the lower federal courts in connection with the application of the First Amendment to cases involving both universities as institutions and the individual rights of faculty. However, the meaning of academic freedom in the context of constitutional law is confused. Apart from its constitutional dimension, academic freedom as a legal principle results from its incorporation into contracts or collective bargaining agreements between

universities and faculty or into policies, guidelines or handbooks adopted or issued by universities that may or may not create contractual rights. It is not possible in an introduction to the subject of academic freedom to cover these complex issues of contract law and interpretation. Rather, the goal of the present work is merely to present what principles are or are not part of the definition of academic freedom and how they may be fairly applied in some of the most common contexts in which they arise.

This guide was the outgrowth of several meetings over the course of two years sponsored by the Ford Foundation, as part of its “Difficult Dialogues Initiative,” and with the active support of the National Association of College and University Attorneys. I have benefitted greatly from the discussions at those meetings and from the comments of many of its participants on drafts of this guide.

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