Critical inquiry: A tool for protecting the dissident professor's academic freedom

California Law Review

Volumn 96, Issue 6, 2008, Pages 1669-1691

  Elrod, Jennifer ^a,b,c  

^a Marshall Brennan Constitutional Literacy Project at Boalt

^b UNIVERSITY OF CALIFORNIA   (United States)

^c The Earth Institute at Columbia University

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58049156810     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (144)

1. I use the terms "free expression" and "expressive activity" interchangeably and as a term that connotes both speech and conduct. See Louis Henkin, Foreword: On Drawing Lines, 82 HARV. L. REV. 63, 79 (1968) (arguing that speech and conduct are constitutionally indistinguishable in a First Amendment context because "[s]peech is conduct and actions speak").
2. See generally GEOFFREY R. STONE, PERILOUS TIMES (2004) (discussing tensions over free expression from the 1790s through the 1960s in five eras of war or national emergency).
3. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,641-42 (1943).
4. See, e.g., Robin Wilson & Ana Marie Cox, Terrorist Attacks Put Academic Freedom to the Test, CHRON. HIGHER EDUC, Oct. 5, 2001, at A12 ("[P]rofessors across the country have found their freedom to speak out hemmed in by incensed students, alumni, and university officials.... Academics have been shouted down by voices on the left and the right.").
5. See, e.g., Patrick D. Healy, College Cancels Speech by Professor Who Disparaged 9/11 Attack Victims, N.Y. TIMES, Feb. 2,2005, at B1.
6. See, e.g., Dan Frosch, Colorado Regents Vote to Fire a Controversial Professor, N.Y. TMES Jul. 25, 2007, at All. Churchill's termination was based on academic misconduct, including plagiarism. Id.
7. Even if Churchill, as a tenured professor at a public university, had turned to the federal courts for vindication of his freedom to speak as a citizen, he would have found minimal help. Sadly, public university professors do not enjoy expansive speech protection under the Supreme Court's free speech jurisprudence. Despite lofty pronouncements about "the transcendent value" of academic freedom, the Court has not squarely defined or addressed the contours of the term. e, e.g. eyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967). To the contrary, if a professor speaks out as a citizen she can be subjected to sanctions under the public employee speech doctrine. This highly restrictive doctrine can apply when the professor seeks to challenge her right to speak in court, whether her extramural utterances occurred on her home campus or in an outside venue. See, e.g., Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) (applying the public employee speech doctrine to a public university professor who was demoted based on his controversial offcampus speech).
8. See Jennifer Elrod, Academics, Public Employee Speech, and the Public University, 22 BFF. PUB Int. L.J. 1, 60 (2004) [hereinafter Elrod, Academics] (describing the potential chilling and self-censoring of professors where they worry about crossing an unspoken boundary).
9. Id.
10. See AM. ASS'N OF UNIV. PROFESSORS, 1940 STATEMENT OF PRINCIPLES ON ACADEMIC FREEDOM AND TENURE WITH 1970 INTERPRETATIVE COMMENTS, available at http://www.aaup.Org/NR/rdonlyres/EBBlB330-33D3-4A51-B534-CEE0C7A90DAB/0/ 1940StatementofPrinciplesonAcademicFreedomandTenure.pdf [hereinafter AAUP, 1940 Statement]; see also UNIV. OF COLO. BD. OF REGENTS, LAWS OF THE REGENTS, Art. 5, Pt. D, 5.D.1-.2 (2002), available at https://www.cu.edu/regents/Laws/Article5D. hrm; UNIV. OF COLO. FACULTY HANDBOOK, ACADEMIC PRINCIPLES, PROFESSIONAL RIGHTS AND RESPONSIBILITIES, AND RELATED POLICIES, II.B, available at http://www.cu.edu/faculty/fac-handbook/06/Six-II.html (including a full reference to the AAUP Statement on Academic Freedom and Tenure) (last visited Feb. 4, 2008).
11. See, e.g., John Gravois, Colo. Regents Vote to Fire Ward Churchill, CHRON. HIGHER EDUC, Aug. 3, 2007, at A1 (describing the history of the Churchill controversy and conservatives' pleasure in his termination). But see Ward Churchill Fired from CU Boulder Amid Storm of Controversy, AIM Protests, NATIVE VOICE, Aug. 1, 2007, at C1 (commenting that Churchill's firing was little more than CU officials submitting to pressure from neoconservatives).
12. Interference may take many forms in the academic setting. For example, one professor may mount a campaign to prevent another academic's visit to a campus as happened at Hamilton. See Healy, supra note 5. Politicians may bring intense pressure to bear on a college president to sanction a professor. See Jeffries, 53 F.2d at 9.
13. In advocating for academic freedom, I do not suggest that a college or university should never investigate allegations of academic misconduct against a tenured professor such as those made against Churchill. To the contrary, an institution of higher education (public or private) has an obligation under the AAUP's principles of academic freedom to ensure that its scholarly standards are being met by all members of its faculty. Rather, I merely propose that institutions of higher learning resist those pressures (inside and outside) that interfere with an academic's extramural utterances.
14. See Keyishian v. Bd. of Regents, 385 U.S. at 603 ("Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. . . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'") (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)).
15. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) ("Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion only achieves the unanimity of the graveyard.").
16. Ward Churchill, Some People Push Back: On the Justice of Roosting Chickens, http://www.kersplebedeb.com/mystuff/s11/churchill.html (last visited July 28, 2008).
17. Id.
18. Id.
19. Id.
20. Id.
21. Id. Although Churchill briefly mentions the Pentagon and its victims as "military targets, pure and simple," his essay focuses on those who died in the World Trade Center. Id.
22. Id.
23. Id.
24. See WARD CHURCHILL, ON THE JUSTICE OF ROOSTING CHICKENS: REFLECTIONS ON THE CONSEQUENCES OF U.S. IMPERIAL ARROGANCE AND CRIMINALITY ch. 1 (2003) (revised version of the essay).
25. See Pamela White, The Man in the Maelstrom, BOULDER WEEKLY, Feb. 10, 2005, at 6 (Churchill stated: "And I am mightily sorry about the janitors and food-service workers and the kids. I mourn the kids in particular.").
26. Churchill, supra note 16; see also White, supra note 25, at 7-8.
27. Churchill, supra note 16; see also White, supra note 25, at 7 ("I did a framing that was comparable in its purported insensitivity to what the Pentagon does as business as usual with no complaint at all from the American public, and the response is a terrorist response. Now that we understand it, maybe we can fix it. But first you have really to understand it and not pretend it's something 'other,' alien, psychotic").
28. See Howard Pankratz, Prof Quits Chair Over 9/11, Ward Churchill Resigns As Head of CU's Ethnic-Studies Department In Wake of Criticism Over His Comparing World Trade Center Victims to "Little Eichmanns," DENVER POST, Feb. 1,2005, at Al.
29. See Scott Smallwood, Inside a Free-Speech Firestorm, CHRON. HIGHER EDUC, Feb. 18, 2005, at A10 (repotting that "other than a brief mention in The Burlington Free-Press during a December 2001 visit to the University of Vermont, the essay never made the news").
30. See, e.g., Michelle York, Unrest on Campus Over Speaker Who Sees U.S. Role in 9/11, N.Y. TIMES, Jan. 31, 2005, available at http://www.nytimes.com/2005/01/31/nyregion/31hamilton.html (reporting that the Kirkland Project was Hamilton's attempt to bring diversity to the predominantly white, male campus and to create a "safe" space for women, people of color, lesbians, gays, and others).
31. See, e.g., Nancy Rabinowitz, What You Didn 't See on TV: The Kirkland Project Speaks Out, SPECTATOR, Feb. 4, 2005.
32. See Smallwood, supra note 29 (describing Professor Theodore Eismeier's many activities and efforts to prevent Churchill from speaking at Hamilton).
33. See Press Release, Hamilton Coll., Kirkland Project Panel Cancelled (Feb. 2, 2005), available at http://www.hamilton.edu/news/more- news/display.cfm?ID=9020 (describing the cancellation of the panel discussion based on "threats of violence").
34. See Press Release, Hamilton Coll., President Stewart Sends Message to Hamilton College Community: Memo Updates Campus on Kirkland Project (Jan. 20, 2005), available at http://www.hamilton.edu/news/more-news/display. cfm?ID=9011.
35. See Smallwood, supra note 29.
36. The fact that both of Eismeier's opinion pieces appeared in the issue suggests his very strong influence upon his government student, the editor of the student newspaper that published the pieces. See Theodore Eismeier et al., Postscript: Deja Vu All Over Again, SPECTATOR, Jan. 21, 2005 [hereinafter Eismeier, Postscript]; Theodore Eismeier et al., Advocacy and Academia, SPECTATOR, Jan. 21, 2005 [hereinafter, Eismeier, Advocacy].
37. See Ian Mandel, Controversial Speaker to Visit Hill, SPECTATOR, Jan. 21, 2005. Despite his claim that he was presenting both sides, the student editor quoted Eismeier in his front-page article and provided Eismeier with space for two opinion pieces. The January 21, 2005, issue of the newspaper took on the appearance of Eismeier's bully pulpit.
38. See Eismeier, Postscript, supra note 36. But see Maurice Isserman, Would Malcolm X be Welcome to Speak at Hamilton College?, SPECTATOR, Jan. 28, 2005, (suggesting that the only acceptable controversial speakers are those like Malcolm X whose reputations have been "sanitized and legitimized" by the passage of time following their deaths).
39. See Theodore J. Eismeier, A Post-Wardem: One Professor's Defense, SPECTATOR, Feb. 18, 2005, [hereinafter, Eismeier, A Post-Wardem] (stating that he had spoken with reporters prior to the cancellation of the panel on dissent and claiming that the college had failed to repudiate Churchill's comments about September 11). But see Press Release, Hamilton Coll., President Stewart Sends Message to Hamilton College Community, supra note 34 (Hamilton's president issues press release that Churchill's statements, even though offensive to many, are protected free speech).
40. See, e.g., Britten Chase, Crisis of Academic Freedom at Hamilton College: Why Ward Churchill Is Not Susan Rosenberg, SPECTATOR, Jan. 28, 2005 ("We have an intellectual right to embrace [Churchill] or dismiss him. The school owes its students as many sides of an issue as it can provide and we owe ourselves the responsibility to form an opinion based on what we have heard.").
41. See, e.g., Alaina Potrikos, Controversy Festers on Hamilton Campus Again, POST- STANDARD (Syracuse, N.Y.), Jan. 26, 2005, at Al (describing Churchill's impending visit to Hamilton as causing controversy on the campus).
42. See Smallwood, supra note 29.
43. See, e.g., Choice of Speaker Ignites Protests Again at Hamilton College, Assoc. PRESS STATE & LOCAL WIRE, Jan. 26, 2005.
44. Editorial, There They Go Again, WALL ST. J., Jan. 28, 2005, at W11.
45. See, e.g., John C. Ensslin, CU Profs Essay Sparks Dispute: Ward Churchill Says 9/11 Victims Were Not Innocent People, ROCKY MOUNTAIN NEWS, Jan. 27, 2005, at 4A.
46. See Frosch, supra note 6.
47. See Errol A. Cockfield, Jr., Controversial Speaker Raises Pataki 's Wrath, NEWSDAY, Feb. 1,2005, at A31.
48. See Panel Discussion Canceled Amid Furor Over 9/11 Remarks, FIRST AMENDMENT CENTER, Feb. 1, 2005, http://www.firstamendmentcenter.org/%5Cnews.aspx?id=14774.
49. See Press Release, Univ. of Colo. at Boulder, CU Board of Regents to Hold Special Meeting (Jan. 30, 2005), available at http://www.colorado.edu/news/releases/2005/39.html ("Mr. Churchill's comments regarding the events of September 11, 2001 have resulted in substantial controversy . . . ."); Press Release, Univ. of Colo. at Boulder, CU Board of Regents Special Meeting on Feb. 3 (Feb. 2, 2005), available at http://www.colorado.edu/news/releases/2005/48.html ("The special meeting was called to consider the recently publicized comments of Professor Ward Churchill of the department of ethnic studies at CU-Boulder.").
50. See Univ. of Colo., Bd. of Regents, Minutes of the Special Meeting on February 3, 2005, available at https://www.cu.edu/regents/Minutes/ MINUTESFEB020305.htm.
51. See Press Release, Univ. of Colo. at Boulder, CU Board of Regents Special Meeting on Feb. 3, supra note 49 (stating that Churchill's remarks about September 11 were the reason for the Regents' Special Meeting).
52. See Univ. of Colo., Bd. of Regents, Minutes of the Special Meeting on February 3, 2005, supra note 50; see also Jefferson Dodge, Faculty Defend Free-Speech Rights of UCB Prof Amid Public Outcry, SILVER & GOLD, Feb. 3, 2005, available at https://www.cu.edu/sg/messages/4177.html (reporting that one Regent stated that Churchill's comments about the events and attacks of September 11, 2001, were not protected by "tenure and freedom of speech," another Regent stated she was "appalled" and that "something needs to be done" about Churchill).
53. See Rabinowitz, supra note 31 ("At the instruction of the dean and President, the Kirkland Project changed [Churchill's] talk to a panel that focused on the very dangerous ideas being opposed by [a] small group of faculty.").
54. See Univ. of Colo., Bd. of Regents, Minutes of the Special Meeting on February 3, 2005, supra note 50 (Interim Chancellor's statement to Regents regarding the oversight by his office and the investigation into all of Churchill's writings and public statements).
55. See, e.g., Am. Ass'n of Univ. Professors, AA UP Releases Statement on Professor Ward Churchill Controversy, Feb. 4, 2005, available at http://www.aaup.org/AAUP/newsroom/prarchives/2005/Church.htm ("Freedom of faculty members to express views, however unpopular or distasteful, is an essential condition of an institution of higher learning that is truly free."); Dan Poulson & Harvey Silvergate, Warding Off Attack, FOUNDATION FOR IINDIVIDUAL RTS. EDUC, Feb. 18, 2005, available at http://www.thefire.org/index. php/article/5326.html/("Sadly as long as spineless educational leaders continue to value a quiet campus over academic freedom, and to protect the sensibilities of those who think they have a right not to be offended, it may never be safe - for liberals or conservatives - to be unpopular.").
56. See Dodge, supra note 52 (reporting that the faculty defended Churchill's right to express what many viewed as offensive remarks because "[t]he lifeblood of any strong university is its diversity of ideas").
57. See Jefferson Dodge, A & S Council: Halt Churchill Review, SILVER & GOLD, Feb. 17, 2005, available at https://www.cu.edu/sg/messages/4205.htrnl (reporting that the faculty governance body of the Arts and Sciences faculty opposed CU's investigation of Churchill and urged the university to defend academic freedom).
58. Id.
59. Id.
60. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
61. Id. (indicating that robust debate "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials").
62. See, e.g., STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE96- 97(1990).
63. Id.
64. Id.
65. See STONE, supra note 2, at 14 (arguing that the government suppressed civil liberties in five eras-1798, the Civil War, World Wars I and II, and the Vietnam War-and sacrificed civil liberties in an effort to create a unified and unitary mindset).
66. John K. Wilson, Academic Freedom in America after 9/11, NEA HIGHERCEDUC. J., Fall 2005 at 119, available at http://www2.nea.org/he/heta05/images/2005pg119.pdf (describing the various chilling effects upon colleges and universities after September 11, 2001).
67. Id.
68. See, e.g., Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 255-57 (asserting that active citizen participation is essential to democratic governance).
69. See, e.g., Jennifer Elrod, Protecting Journalists from Compelled Disclosure: A Proposal for a Federal Statute, 7 N.Y.U. J. LEGIS. & PUB. POL'Y 115, 131-35 (2003) (arguing that there is a strong first amendment value of informed decision-making, autonomy, and active participation by citizens in a democracy).
70. Id.; see also Ellen Schrecker, Worse Than McCarthy, CHRON. HIGHER EDUC, Feb. 10, 2006, at B20.
71. See AM. COUNCIL OF TR. & ALUMNI (ACTA), DEFENDING CIVILIZATION (2002), available at http://govdocs.evergreen.edu/defciv.pdf.
72. See, e.g., ACTA, supra note 71. ACTA describes itself as filling a need because, while politicians "from across the spectrum condemned the [September 11] attacks and followed the President in calling evil by its rightful name, many faculty demurred. Many invoked tolerance and diversity as antidotes to evil. Some even pointed accusatory fingers, not at terrorists, but at American itself." Id. at 1. The original report named names and published the statements made by the approximately 40 academics whom ACTA deemed to be insufficiently patriotic. See Eric Scigliano, Naming-and Un-naming-Names, NATION, Dec. 13, 2001, available at http://www.thenation.com/doc/20011231/scigliano/print (reporting that ACTA had posted the list of the academics' names and then removed it from its website's report). But see Kristine McNeil, The War on Academic Freedom, NATION, NOV. 11, 2005, http://www.thenation.com/ doc.mhtml?=20021125s=mcneil (asserting that contrary to its claims of preserving academic freedom and dissent, ACTA was seeking suppression of all viewpoints that did not support, without question, U.S. foreign policy).
73. See ACTA, supra note 71, at 1.
74. See, e.g., Alien Enemies Act, ch. 66, §§ 1-3, 1 Stat. 577 (1798) (current version at 50 U.S.C. §§ 21-24 (2000)); Sedition Act, ch. 74, §§ 1-4, 1 Stat. 596 (1798) (expired 1801). President John Adams secured the passage of the Alien and Sedition Acts on the basis that the French posed a threat to America. The Sedition Act enabled the government to punish citizens who were critical of the Adams Administration, including the Jeffersonian Republicans who were gaining political power and challenging the Federalists then in power. See also Smith Act of June 28, 1940, ch. 439, §§ 1-5, 54 Stat. 670, 670-71 (codified as amended at 18 U.S.C. §§ 2385 (2000)) (punishing citizens deemed to be subversives); the Espionage Act of 1917, Act of June 15, 1917, Pub. L. No. 65-24, ch. 30, 40 Stat. 217 (repealed 1948) (punishing speech that impeded the nation's war effort); Act of March 3, 1903, Pub. L. No. 57-162, ch. 1012, 32 Stat. 1213 (repealed 1907) (denying entrance to and permitting deportation of anarchists on the basis of their political belief or affiliation); STONE, supra note 2, at 16-78 (discussing the Sedition Act of 1798 and its impact upon dissident political speakers).
75. See, e.g., MARK E. NEELY, JR., THE FATE OF LIBERTY (1991) (analyzing Lincoln's suspension of Habeas Corpus and its impact on dissidents during the Civil War), STONE, supra note 2, at 8-134; see also Schenck v. United States, 249 U.S. 47 (1919) (finding that free expression can be suppressed during a time of war without offending the First Amendment); Exec. Order No. 9066, 7 Fed. Reg. 1407 (1942) (mandating the internment of Japanese-American citizens during World War II); see also Yasui v. United States, 320 U.S. 115 (1943); Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); Ex parte Endo, 323 U.S. 283 (1944) (upholding the constitutionality of the government's actions towards Japanese Americans during World War II).
76. See Wilson & Cox, supra note 4 (reporting that professors were unable to express any views that were not in conformity with the status quo regarding the events of September 11, 2001); see also Frosch, supra note 6, (describing the Churchill controversy over his polemical essay and his subsequent firing).
77. See, e.g., DAVID C#bolev & JAMES X. DEMPSEY, TERRORISM & THE CONSTITUTION (3d ed. 2006) (arguing that civil liberties are being stripped away under the sweeping claim of national security).
78. See Leonard W. Levy, The Original Constitution As a Bill of Rights, 9 CONST. COMMENT. 163, 165 (1992) ("The rights of the people, according to Federalist theoreticians, depended not on 'parchment provisions,' but on public opinion, an extended republic, a federal system, a pluralistic society of competing interests, and a national government of limited powers ....").
79. Id.
80. See Jonathan R. Cole, Academic Freedom under Fire, DAEDALUS, Spring 2005, at 5 (suggesting a parallel between the McCarthy era and the current attacks on dissident academics by "the influence of external politics on university decision making").
81. See, e.g., Jordan E. Kurland, Ban Outside Speakers? Not On Our Watch, ACADEME ONLINE (2007), available at http://findarticles.com/p/articles/mi-qa3860/is-/ai-n21033324 (providing brief history of various attempts to ban campus speakers from 1950s to the present based upon the speaker's viewpoint).
82. See, e.g., Wilson & Cox, supra note 4; Schrecker, supra note 70, and Cole, supra note 80.
83. See, e.g., Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect," 58 B.U. L. REV. 685, 689 (1978) ("The very essence of a chilling effect is an act of deterrence."); id. at 691 ("Free speech is an affirmative value-we are concerned with encouraging speech almost as much as preventing its restriction by the government.") (citations omitted).
84. Wieman v. Updegraff, 344 U.S..183, (1952) (Frankfcrurter, J., concurring).
85. Adler v. Bd. of Educ, 342 U.S. 485, 510 (1952) (Douglas, J., dissenting) ("Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment.").
86. See Schauer, supra note 83, at 691 ("If, despite the first amendment, no one was willing to discuss public issues, express new opinions, or exchange ideas and information, society would no doubt suffer.") (citations omitted).
87. See, e.g., Eismeier, A Post-Wardem, supra note 39.
88. See, e.g., Dan Elliott, Politicians vs. Professors: Battle Heats Up Post-Sept. 11, Assoc. PRESS STATE & LOCAL WIRE, Feb. 13,2005.
89. See, e.g., Robin Wilson, Conservatives Just Aren't Into Academe, Study Finds, CHRON. HIGHER EDUC, Feb. 22, 2008, at Al.
90. See Schauer, supra note 83, at 693. The danger of this ... invidious chilling effect lies in the fact that something that "ought" to be expressed is not. Deterred by the fear of punishment, some individuals refrain from saying or publishing that which they lawfully could, and indeed, should. This is to be feared not only because of the harm that flows from the non-exercise of a constitutional right, but also because of general societal loss which results when the freedoms guaranteed by the first amendment are not exercised. Id.
91. See Elrod, Academics, supra note 8, at 60.
92. Id. at 693-94 ("[The first] amendment is based on the assumption, perhaps improvable, that the uninhibited exchange of information, the active search for trath[,] and the open criticism of government are positive virtues. The chilling effect doctrine is simply the logical corollary to the view that the suppression of protected speech is a particularly harmful and undesirable situation."); see Adler v. Bd. of Educ, 342 U.S. 485, 510 (1952) (Douglas, J., dissenting) ("Supineness and dogmatism take the place of inquiry" and "the 'party line' of the orthodox view, of conventional thought, of the accepted approach" is the only safe choice for teachers.); see, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) ("Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.").
93. Adler, 342 U.S. at 510.
94. See infra Part V, discussing critical inquiry.
95. See AAUP, 1940 Statement, supra note 10, at 3-4; see generally Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66 TEX. L. REV. 1265 (1988) (setting forth the constitutional principles and outside factors that influence academic freedom).
96. Id. at 6 (quoting the 1964 Committee A Statement on Extramural Utterances).
97. See Elrod, Academics, supra note 8, at 32-59 (arguing that academic freedom claims are most often resolved under the Court's public employee speech doctrine rather than the AAUP's three core principles).
98. See generally id.
99. See, e.g., Cole, supra note 80.
100. Robert Post, The Structure of Academic Freedom, in ACADEMIC FREEDOM AFTER SEPTEMBER I I, at 61, 64 (Beshara Doumani ed., 2006).
101. Id.
102. Id. at 78 (commenting that institutions of higher education "hire, promote, tenure and support faculty based on criteria of academic merit that purport to apply professional standards"). But see Elrod, Academics, supra note 8, at 61-69 (arguing that academic speech, a professor's expressive activity directly tied to her academic expertise, should be afforded greater constitutional protection under the First Amendment's speech clause and, therefore, is an individual right rather than an institutional one. Otherwise, there is no meaningful protection for the expressive activity of public university professors).
103. Post, supra note 100 at 64.
104. Id. at 74-88. But see Judith Butler, Academic Norms, Contemporary Challenges: A Reply to Robert Post on Academic Freedom, in ACADEMIC FREEDOM AFTER SEPTEMBER II, at 107,120 (Beshara Doumani ed., 2006) (arguing that Post's analysis relies too heavily upon a fixed notion of scientific inquiry from the early twentieth century that has been discarded because "standards and norms are historically changeable and socially negotiated").
105. These separate principles were part of the AAUP's response to the need for professionalization in college or university teaching so that universities would stop bowing to pressure to fire a professor each time a professors' views irritated a trustee or donor. See Elrod, Academics, supra note 8, at 13-23.
106. See id. at 15.
107. See AAUP, 1940 Statement, supra note 10.
108. See Elrod, Academics, supra note 8, at 61-69.
109. See Post, supra note 100 at 72-73.
110. Id. at 82-88.
111. See AAUP, 1940 Statement, supra note 10, at 2.
112. See UNIV. OF COLO. FACULTY HANDBOOK, supra note 10. All three AAUP foundational principles appear in CU's By-Laws of the Regents and in its Faculty Handbook.
113. AAUP, 1940 Statement, supra note 10.
114. Id. It is unclear, however, who determines the accuracy, restraint, respect for others' opinions, and professional identity from which the assertions were made.
115. Id.
116. This is not meant as an exhaustive list of possible settings in which professors might engage in expressive activity. Rather, it is meant merely as a brief set of illustrations.
117. See, e.g., Pickering v. Bd. of Educ, 391 U.S. 563, 572-74 (1968) (allowing erroneous statements by public school teacher regarding a matter of public concern in order encourage such discussions).
118. Post, supra note 100, at 82.
119. See Elrod, Academics, supra note 8, at 50-60 (discussing the public employee speech doctrine and its application to higher education).
120. Post, supra note 100, at 82 ("Since its founding, AAUP's docket of alleged violations of academic freedom has been 'overwhelmingly . . . dominated by extramural freedom cases."') (citations omitted).
121. See, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) ("For speech concerning public affairs is more than self-expression; it is the essence of self-government."); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) ("The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.") (citations omitted).
122. See Post, supra note 100, at 82 ("This dimension of academic freedom does not concern the freedom to communicate in ways that are connected to faculty expertise ....").
123. See Smallwood, supra note 29.
124. See Press Release, Hamilton Coll., Letter to the Hamilton Community; President Discusses Kirkland Project/Ward Churchill Event (Feb. 9, 2005), available at http://www.hamilton.edu/news/more-news/display.cfm? ID=9073.
125. See supra Part I.B, discussing the controversy at Hamilton.
126. See Smallwood, supra note 29 (describing Eismeier's actions to prevent Churchill's appearance at Hamilton).
127. See Cockfield, supra note 47 (reporting Pataki's anger over Hamilton's invitation to Churchill).
128. See, e.g., Norma J. Shepelak et al., Critical Thinking in Introductory Sociology- Classes: A Program of Implementation and Evaluation, 20 TEACHING SOCIOLOGY 18, 19 (1992).
129. Id. at 19 ("Critical thinking ... is viewed as a cognitive approach to an active, rational assessment of information and is based on an awareness and understanding of a set of logical analyses that permit a rational evaluation of arguments.") (citations omitted).
130. See, e.g., C. Harvey Williams, Doing Critical Thinking Together: Applications to Government, Politics, and Public Policy, 24 PS: POLIT. SCI. & POLITICS 510, 511 (1991) ("What are the fundamental issues raised? What is the relevant evidence required for resolving these issues? Is the source of authority credible? Are the reasons given adequate? Are there contradictions in the logic and evidence presented? Are the conclusions based on appropriate assumptions and premises? Are there other points of view than can be considered?").
131. See generally Shepelak, supra note 128; Williams, supra note 130.
132. See supra Part I.B, describing the controversy over Churchill at Hamilton.
133. See Churchill, supra note 16.
134. See Williams, supra note 130, at 511 (positing that the successful critical thinker must possess, among other things, "a willingness to scrutinize personal ideas and values and to articulate and empathize with opposing views without defensive reactions; a curiosity about the relationship between ideas, theories, and systems, as well as a passion for insight and understanding; and, finally, a constructive attitude toward argumentation without being consumed by ego protection.").
135. See Churchill, supra note 16.
136. See Eismeier, Postscript, supra note 36; Eismeier, Advocacy, supra note 36; Eismeier, A Post-Wardem, supra note 39.
137. See Rabinowitz, supra note 31 (discussing the reaction of some Hamilton's faculty members to Elizabeth Fox Genovese anti-abortion views and her use of the term "holocaust"); see also Smallwood, supra note 29.
138. See Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).
139. See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).
140. See supra Part III, discussing the chilling effect.
141. See Keyishian, 385 U.S. at 603.
142. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
143. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641-42 (1943).
144. Id. at 642.