Government as educator: A new understanding of first amendment protection of academic freedom and governance

Georgetown Law Journal

Volumn 97, Issue 4, 2009, Pages 945-1000

  Areen, Judith ^a  

^a Georgetown Law ^*  (Guyana)

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EID: 67549095034     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (417)

1. IMMANUEL KANT, THE CONFLICT OF THE FACULTIES 23 (Mary J. Gregor trans., Univ. of Neb. Press 1992) (1798).
2. Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion).
3. Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967).
4. 547 U.S. 410 (2006).
5. Id. at 426.
6. Id. at 438 (Souter, J., dissenting) (internal citation omitted).
7. Id. at 425 ("We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.").
8. Louis Menand, The Limits of Academic Freedom, in THE FUTURE OF ACADEMIC FREEDOM 3, 4 (Louis Menand ed., 19%).
9. See, e.g., Alan K. Chen, Bureaucracy and Distrust: Germaneness and the Paradoxes of the Academic Freedom Doctrine, 77 U. COLO. L. REV. 955 (2006);
10. Rebecca Gose Lynch, Pawns of the State or Priests of Democracy? Analyzing Professors' Academic Freedom Rights Within the State's Managerial Realm, 91 CAL. L. REV. 1061 (2003);
11. Lawrence Rosenthal, The Emerging First Amendment Law of Managerial Prerogative, 77 FORDHAM L. REV. 33 (2008);
12. Larry D. Spurgeon, A Transcendent Value: The Quest To Safeguard Academic Freedom, 34 J.C. & U.L. Ill (2007);
13. William W. Van Alstyne, Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review, LAW & CONTEMP. PROBS., Summer 1990, at 79. Walter Metzger criticized the American Association of University Professors (AAUP) for failing to insist that faculty be put in charge of their colleges and universities, but overlooked the Declaration's embrace of shared governance. Walter Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66 TEX. L. REV. 1265, 1276-77 (1988). Professor David Rabban is one of the few scholars to mention the governance dimension of academic freedom, but he did not otherwise analyze its role.
14. See David M. Rabban, A Functional Analysis of "Individual" and "Institutional" Academic Freedom Under the First Amendment, LAW & CONTEMP. PROBS., Summer 1990, at 227, 295 ("Claims of administrative abuse of the peer review process and disagreements over curricular and other educational policy issues seem sufficiently linked to critical inquiry to come within the specific theory of academic freedom.");
15. see also WILLIAM A. KAPUN & BARBARA A. LEE, 1 THE LAW OF HIGHER EDUCATION 663, 666 (4th ed. 2006) ("[A faculty claim] may properly be characterized as an academic freedom claim⋯ if the opinions and ideas that the faculty member expresses implicate the academic operations of a program, department, or school.");
16. Neal Kumar Katyal, The Promise and Precondition of Educational Autonomy, 31 HASTINGS CONST. L.Q. 557, 566 (2003) ("If educational autonomy becomes a license for university administrators to admit who they want when they want without faculty oversight, it's not part of academic freedom at all.").
17. See, e.g., J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment," 99 YALE L.J. 251, 311 (1989) ("In the last decade, the Supreme Court's decisions concerning academic freedom have protected principally and expressly a First Amendment right of the university itself - understood in its corporate capacity - largely to be tree from government interference in the performance of core educational functions.").
18. Compare id., with Rabban, supra note 9, at 230 ("I disagree [with Byrne]. Courts may have been presented with more institutional claims than individual claims of academic freedom, but they have also recognized that the [F]irst [A]mendment protects individual academic freedom."). Courts also have disagreed about whether academic freedom is an institutional right only. Compare Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Cir. 2000) (en banc) ("[Academic freedom] inheres in the University, not in individual professors⋯."), with Piarowsky v. Ill. Cmty. Coll. Dist 515, 759 F.2d 625, 629 (7th Cir. 1985) ("[Academic freedom] is used to denote both the freedom of the academy to pursue its ends without interference from the government⋯ and the freedom of the individual teacher⋯ to pursue his ends without interference from the academy⋯. ").
19. See Am. Ass'n of Univ. Professors, The A.A.U.P.'s "General Declaration of Principles," 1915, in 2 AMERICAN HIGHER EDUCATION: A DOCUMENTARY HISTORY 860, 860 (Richard Hofstadter & Wilson Smith eds., 1961) [hereinafter 1915 Declaration].
20. See, e.g., 1 HASTINGS RASHDALL, THE UNIVERSITIES OF EUROPE IN THE MIDDLE AGES 334-38 (EM. Powicke & A.B. Emden eds., 1936) (1895). Rashdall describes events at the University of Paris, from 1228 to 1229, that began with a tavern brawl involving students. The local government, in response, sent in a company of soldiers. When several students were killed, the faculty suspended lectures in protest and threatened to disperse unless appropriate redress was taken. A number of the faculty did go to Oxford and Cambridge. The threat worked; the papal legate who had advised the fatal attack was recalled, and Pope Gregory IX issued an order to the King and Queen-Mother directing them to punish the offenders. A series of papal bulls followed that increased the authority of the university. It was authorized, for example, to make its own rules and to punish violators by expulsion. Limits were placed on the authority of the local bishop and on the chancellors of the university to punish students.
21. Id. See generally RICHARD HOFSTADTER & WALTER P. METZGER, THE DEVELOPMENT OF ACADEMIC FREEDOM IN THE UNTIED STATES 3-77 (1955).
22. HOFSTADTER & METZGER, supra note 13, at 17 ("The medieval model of inquiry was limited by the presence of a hard core of accepted doctrine, authoritatively established, which was defined and enforced, made obligatory on all thinkers at the risk not only of their worldly position but of their spiritual privileges and possibly even their eternal souls.").
23. Kant, Schelling, Fichte, Schleiermacher, and Humboldt developed the ideal of academic freedom in reaction to Prussian censorship. FRITZ K. RINGER, THE DECLINE OF THE GERMAN MANDARINS: THE GERMAN ACADEMIC COMMUNITY, 1890-1933, at 23-24 (1969).
24. KANT, supra note 1.
25. Hoftstadter and Metzger, for example, did not discuss Kant's work in their classic history of academic freedom.
26. See HOFSTADTER & METZGER, supra note 13. Jacques Derrida described the "invisibility" of the text in the United States. Jacques Derrida, Canons and Metonymies: An Interview with Jacques Derrida, in LOGOMACHIA: THE CONFLICT OF THE FACULTIES 195, 199 (Richard Rand ed., 1992). In France, the text was known for its remarks on the French Revolution and "its links to [Kant's] Religion within the Limits of Mere Reason" but "it was not previously read as a discourse on the university, on the history and structure of this institution or its relationships to the state."
27. Id. Interest in Kant's text was ignited when Jacques Derrida delivered a lecture about it at the 1980 centennial of Columbia University's Graduate School.
28. Id. at vii.
29. In the preface, Kant quotes from the letter he received in 1794 from Frederick William, the King of Prussia: "Our most high person has long observed with great displeasure how you misuse your philosophy to distort and disparage many of the cardinal and basic teaching of the Holy Scriptures⋯." KANT, supra note 1, at 11. Kant replied that he had never disparaged Christianity and that in the future he would not speak in public on religion.
30. Id. at 19.
31. KANT, supra note 1, at 23. Kant argued that the benefits of academic freedom extend beyond the university: It is absolutely essential that the learned community at the university⋯ contain a faculty that is independent of the government's command with regard to its teaching; one that, having no commands to give, is free to evaluate everything, and concerns itself with the interests of the sciences, that is with truth; one in which reason is authorized to speak out publicly. For without a faculty of this kind, the truth would not come to light (and this would be to the government's own detriment).
32. Id. at 27-29. Kant also discussed the relationship among the traditional four faculties of a university. He praised the "lower" faculty of philosophy (today's "arts & sciences") for its commitment to reason over the three so-called "higher" faculties of theology, law, and medicine, which he saw as too controlled by the State.
33. Id.
34. See WILLIAM CLARK, ACADEMIC CHARISMA AND THE ORIGINS OF THE RESEARCH UNIVERSITY 442-46 (2006);
35. DANIEL FALLON, THE GERMAN UNiversity: A HEROIC IDEAL IN CONFLICT WITH THE MODERN WORLD 10-31 (1980);
36. 2 PAUL R. SWEET, WILHELM VON HUMBOLDT: A BIOGRAPHY 15, 53-71 (1980);
37. 3 A HISTORY OF THE UNIVERSITY IN EUROPE 4-5 (Walter Rüegg ed., 2004);
38. see also GERARD DELANTY, CHALLENGING KNOWLEDGE: THE UNIVERSITY IN THE KNOWLEDGE SOCIETY 33 (2001) ("von Humboldt was the most influential advocate of the Kantian idea of the university and the idea of academic freedom⋯.").
39. 3 A HISTORY OF THE UNIVERSITY IN EUROPE, supra note 20, at 5-6, 21, 33. The Humboldtian approach was heavily influenced by philosopher Friedrich Schleiermacher's vision: "The teacher must produce everything he says before his listeners: he must not narrate what he knows, but rather reproduce his own way to knowledge, the action itself. The listeners should not only collect knowledge. They should directly observe the activity of intelligence producing knowledge and, by observing it, learn how to do it themselves."
40. Id. at 21.
41. The nine colonial colleges were: Harvard (1636), William & Mary (1693), Collegiate School at New Haven (Yale) (1701), College of Philadelphia (University of Pennsylvania) (1740), College of New Jersey (Princeton) (1746), King's College (Columbia) (1754), College of Rhode Island (Brown) (1764), Queen's College (Rutgers) (1766), and Dartmouth (1769). THE HISTORY OF HIGHER EDUCATION, at xxvii (Lester F. Goodchild & Harold S. Wechsler eds., 2d ed. Pearson Custom Publ'g 1997) (1989).
42. See 1 AMERICAN HIGHER EDUCATION: A DOCUMENTARY HISTORY 3 (Richard Hofstadter & Wilson Smith eds., 1961) ("The European universities had been founded by groups of mature scholars; the American colleges were founded by their communities; and since they did not soon develop the mature scholars possessed from the beginning by their European predecessors but were staffed instead for generations mainly by young and transient tutors, the community leaders were reluctant to drop their reins of control."). The new governance structure was not accepted without struggle and was complicated by the fact that Harvard had two governing boards. In 1721, after there had been for some time only one faculty member on the five-person Corporation (the primary governing board at Harvard), two faculty members petitioned the Overseers (the other governing board) for seats on the Corporation. The controversy dragged on for several years until the Governor of Massachusetts sided with the Corporation against the faculty. When a similar protest arose in the early nineteenth century, the Overseers voted that faculty members did not have a right to be members of the Corporation, and the question has not been revisited since. A. LAWRENCE LOWELL, The Relation Between Faculties and Governing Boards, in AT WAR WITH ACADEMIC TRADITIONS IN AMERICA 281, 283-85 (1934).
43. See HOFSTADTER & METZGER, supra note 13, at 134-51. At William & Mary, as at Harvard, there were struggles over governance by a lay board. In 1779, when Thomas Jefferson was governor of Virginia and, therefore, ex officio head of the Board of Visitors of William & Mary (the college's lay governing board), the Board voted to modernize the curriculum. As part of their reform, the Latin professor was dismissed. When he sued, the college hired the young John Marshall as its lawyer. Marshall won the case by arguing that, because the college was private, the Board was free to operate as it thought best as long as it complied with the college's charter - an argument that prefigured the position Marshall later adopted as Chief Justice in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819).
44. See Bracken v. Visitors of William & Mary Coll., 7 Va. (3 Call) 573 (1790).
45. See Ass'n of Governing Bds. of Univs. & Colls. (AGB), AGB Statement on Institutional Governance, in AGB STATEMENT ON INSTITUTIONAL GOVERNANCE AND GOVERNING IN THE PUBLIC TRUST: EXTERNAL INFLUENCES ON COLLEGES AND UNIVERSITIES 1, 2 (2003) [hereinafter AGB Statement] ("[T]he presence of lay governing boards is what distinguishes American higher education from most of the rest of the world⋯."). In contrast, Oxford has kept a faculty-governance structure that has changed little in more than seven centuries. A twenty-six-member Council sets policy for the University on many matters, but final responsibility rests with Congregation, a body that includes some 4,000 members of the academic, senior research, library, museum, and administrative staffs. News: Next Steps for Oxford Governance, http://www.admin.ox.ac.uk/po/ 051212.shtml (last visited Jan. 4, 2008). A White Paper, published in May 2006, proposed significant changes that would have resulted in a governing structure similar to that of an American university. The proposals were strongly supported by the Vice-Chancellor, the chief executive officer of the university. According to the White Paper, the Council was to be reduced in size from twenty-six to fifteen members. The new board would have had seven internal and seven lay members and a lay chair.
46. Id. On November 28, 2006, a meeting of Congregation voted down the proposed change in governance, 730 to 456. The Vice-Chancellor elected to take the matter to all of Congregation in December by postal ballot. Report of Proceedings in Congregation, 28 November 2006, OXFORD U. GAZETTE, Dec. 7, 2006, available at www.ox.ac.uk/gazette/2006-7/ supps/1-4791.htm. This time, more than 2,500 members of Congregation voted, and again the proposal was rejected when more than sixty percent of those who voted opposed the change. Rejection on a Division of Amended Legislative Proposal Confirmed by Postal Vote, OXFORD U. GAZETTE, Jan. 11, 2007, available at www.ox.ac.uk/gazette/2006-7/weekly/110107/acts.htm.
47. CAROLINE WINTERER, THE CULTURE OF CLASSICISM: ANCIENT GREECE AND ROME IN AMERICAN INTELLECTUAL LIFE 1780-1910, at 11-29 (2002). The disputes that arose typically involved the failure of a president or faculty member to adhere to the religious doctrine of the sponsoring denomination. Henry Dunster was doing a good job as president of Harvard, for example, when he was forced out in 1654 for opposing infant baptism. 1 SAMUEL ELIOT MORISON, HARVARD COLLEGE IN THE SEVENTEENTH CENTURY 305-14 (1936).
48. HENRY ADAMS, THE EDUCATION OF HENRY ADAMS 51 (Ira B. Nadel ed., 1999) (1918). The problem was caused as much by bad pedagogy as by the curriculum as shown by the recollections of Andrew Dickson White, later the first president of Cornell, of his time as a student at Yale in the 1850s: The worst feature of the junior year was the fact that through two terms, during five hours each week, "recitations" were heard by a tutor in "Olmsted's Natural Philosophy." The text-book was simply repeated by rote. Not one student in fifty took the least interest in it; and the man who could give the words of the text most glibly secured the best marks. One exceedingly unfortunate result of this kind of instruction was that it so disgusted the class with the whole subject, that the really excellent lectures of Professor Olmsted, illustrated by probably the best apparatus then possessed by any American university, were voted a bore. Almost as bad was the historical instruction given by Professor James Hadley. It consisted simply in hearing the student repeat from memory the dates from "Pütz's Ancient History." How a man so gifted as Hadley could have allowed any part of his work to be so worthless, it is hard to understand. 1 AUTOBIOGRAPHY OF ANDREW DICKSON WHITE 27-28 (1905).
49. 1915 Declaration, supra note 12, at 866-67.
50. The German approach to higher education, particularly its commitment to research as well as teaching, significantly influenced the development of research universities in the United States, beginning with the founding of Johns Hopkins in 1876. Daniel Coit Gilman, discouraged by the criticism he received as the first president of the University of California, agreed to become the first president of Johns Hopkins when its governing board accepted his plan to establish an American university modeled on those in Germany. HUGH HAWKINS, PIONEER: A HISTORY OF JOHNS HOPKINS UNIVERSITY, 1874-1889, at 15, 21-22 (Johns Hopkins Paperbacks 2002) (1960). Gilman was one of the more than nine thousand Americans who studied at German universities in the nineteenth century as were nearly all of the fifty-three members of the Hopkins faculty in 1884. CARL DIEHL, AMERICANS AND GERMAN SCHOLARSHIP 1770-1870, at 1 (1978);
51. CHARLES THWING, THE AMERICAN AND GERMAN UNIVERSITY: ONE HUNDRED YEARS OF HISTORY 43 (1928).
52. See CHRISTOPHER JENCKS & DAVID RIESMAN, THE ACADEMIC REVOLUTION 15-20 (1968);
53. LAWRENCE R. VEYSEY, THE EMERGENCE OF THE AMERICAN UNIVERSITY 384-418 (1965).
54. Edward Ross Was already a prominent economist when he was recruited to the Stanford faculty in 1892. His public advocacy of free silver and opposition to the exploitation of foreign labor offended Mrs. Leland Stanford, the sole surviving trustee of the university that she and her late husband had. founded in memory of their son, Leland, Jr. In 1897, she demanded that David Starr Jordan, then president of Stanford, fire Professor Ross. Jordan delayed for as long as he could, but ultimately he capitulated and, in 1900, forced Ross out. ORRIN LESLIE ELLIOTT, STANFORD UNIVERSITY: THE FIRST TWENTY-FIVE YEARS 326-78 (1937);
55. MARY O. FURNER, ADVOCACY AND OBJECTIVITY: A CRISIS IN THE PROFESSIONALEATION OF AMERICAN SOCIAL SCIENCE, 1865-1905, at 241-42 (1975). Donald Kennedy, a former president of Stanford, has challenged the accuracy of this history. He reports that what triggered Jane Stanford's ire was a speech by Ross opposing Asian immigration in which he said, "And should the worst come to the worst, it would be better for us if we were to turn our guns upon every vessel bringing Japanese to our shores than to permit them to land." The speech was made at a time when Stanford was making special efforts to include Japanese and Chinese students in its classes. DONALD KENNEDY, ACADEMIC DUTY 125 (1997).
56. Professor Richard Ely in 1894 was tried but ultimately acquitted by a committee of the Regents of the University of Wisconsin for advocating strikes and boycotts. The Regents affirmed their commitment to academic freedom in their final report and added: "Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual sifting and winnowing by which alone truth can be found." Theodore Herfurth, Sifting and Winnowing: A Chapter in the History of Academic Freedom at the University of Wisconsin, in ACADEMIC FREEDOM ON TRIAL: 100 YEARS OF SIFTING AND WINNOWING AT THE UNIVERSITY OF WISCONSIN-MADISON 58, 59-67 (W. Lee Hansen ed., 1998).
57. The conflict at Vanderbilt was also one of the first American disputes over the teaching of evolution. In 1873, Central University of Nashville, Tennessee, was renamed in recognition of a large gift from Commodore Vanderbilt. The gift was conditioned on the university retaining an ecclesiastical system of control by the Methodist church, under which the local bishop served as ex officio president of the governing board. As part of his effort to increase the academic position of the school, Bishop McTyeire hired Alexander Winchell, a respected geologist and known evolutionist. After a number of religious journals accused Professor Winchell of attempting to destroy the truths of the Gospel, McTyeire dismissed Winchell in 1878. HOFSTADTER & METZGER, supra note 13, at 330-32.
58. Scott Nearing's contract as an assistant professor at the Wharton School of the University of Pennsylvania was not renewed in 1915. Although the trustees denied that they acted because of Nearing's support of legislation to limit child labor, faculty members were not persuaded. LIGHTNER WITMER, THE NEARING CASE: THE LIMITATION ON ACADEMIC FREEDOM AT THE UNIVERSITY OF PENNSYLVANIA BY ACT OF THE BOARD OF TRUSTEES, JUNE 14, 1915, at 1-14 (1915);
59. see also Report of the Committee of Inquiry on the Case of Professor Scott Nearing of the University of Pennsylvania, 11 AAUP BULL. 3, 7-15 (1916).
60. 1915 Declaration, supra note 12. Faculty members were inspired to act in part by the spirit of Progressivism. The formation of the AAUP began with a call for a conference on establishing a national organization that was issued by eighteen full professors at Johns Hopkins and was sent to faculties of nine leading universities. Seven of them - Clark, Columbia, Cornell, Harvard, Princeton, Wisconsin, and Yale - sent delegates. HOFSTADTER & METZGER, supra note 13, at 474-77.
61. See, e.g., Editorial, The Professors' Union, N.Y. TIMES, Jan. 21, 1916, at 8 ('"Academic freedom,' that is, the inalienable right of every college instructor to make a fool of himself and his college by⋯ intemperate, sensational prattle about every subject under heaven, to his classes and to the public, and still keep on the payroll or be reft therefrom only by elaborate process, is cried to all the winds by the organized dons⋯. It may be worth while to⋯ remark that the 'sciences' about which the uplift professors are apt to be most cocksure are pseudo-sciences, mere opinions. A sociologist for instance, cannot rightly speak with the certainty of a mathematician or a chemist⋯.").
62. See generally Walter P. Metzger, The 1940 Statement of Principles on Academic Freedom and Tenure, LAW & CONTEMP. PROBS., Summer 1990, at 3, 16 (citing additional negative reviews).
63. See, e.g., Byrne, supra note 10, at 276 (calling the Declaration "the single most important document relating to American academic freedom");
64. Robert Post, The Structure of Academic Freedom, in ACADEMIC FREEDOM AFTER SEPTEMBER 11, at 61, 64 (Beshara Doumani ed., 2006) (deeming the Declaration "[t]he first systematic and arguably the greatest articulation of the logic and structure of academic freedom in America");
65. Rabban, supra note 9, at 229 (referring to the Declaration as "the seminal professional definition").
66. 1915 Declaration, supra note 12, at 878. Lovejoy was one of seven faculty members who resigned from Stanford when his colleague, Edward Ross, was forced out. HOFSTADTER & MERGER, supra note 13, at 442;
67. see supra note 31. Seligman wrote the first draft of the Declaration which was then extensively revised by Lovejoy. THOMAS L. HASKELL, OBJECTIVITY IS NOT NEUTRALITY 184 (1998).
68. 1915 Declaration, supra note 12, at 870.
69. Id.
70. Id.
71. See VEYSEY, supra note 30, at 129-30.
72. Lernfreiheit, or student freedom, primarily protected the right of students to select which university to attend and which courses to take. FRIEDRICH PAULSEN, THE GERMAN UNIVERSITIES: THEIR CHARACTER AND HISTORICAL DEVELOPMENT 201 (photo. reprint 2007) (Edward Delavon Perry trans., 1895). The Declaration made clear that it would only discuss Lehrfreiheit. 1915 Declaration, supra note 12, at 861.
73. PAULSEN, supra note 43, at 170-71 (noting that Lehrfreiheit necessarily protects inquiry as well as teaching because university students want to hear "thoughts put forward as personal convictions by a man who has given thorough and earnest consideration to the great questions of the world and of life," not "officially prescribed or permitted views").
74. See Metzger, supra note 9, at 1269 ("In its native habitat, [Lehrfreiheit] referred to the statutory right of full and associate professors, who were salaried civil servants, to discharge their professional duties outside the chain of command that encompassed other government officials. It allowed them to decide on the content of their lectures and to publish the findings of their research without seeking prior ministerial or ecclesiastical approval or fearing state or church reproof; it protected the restiveness of academic intellect from the obedience norms of hierarchy.").
75. ABRAHAM FLEXNER, UNIVERSITIES: AMERICAN, ENGUSH, GERMAN 316-18 (Transaction Publishers 1994) (1930);
76. HOFSTADTER & METZGER, supra note 13, at 385-86. Humboldt asked the king to make the universities financially independent by giving them large grants of property. The official in charge of education within the Ministry of the Interior at the time persuaded the king to reject this proposal by pointing out that "however exalted the heads may be, the stomachs will always maintain their rights against them⋯. He who rules the latter will always be able to deal with the former." RINGER, supra note 15, at 112.
77. The Rector, who was the head of the university, was chosen annually by, and from, the full professors. PAULSEN, supra note 43, at 94-95.
78. HOFSTADTER & METZGER, supra note 13, at 386;
79. PAULSEN, supra note 43, at 93-100.
80. PAULSEN, supra note 43, at 93-97.
81. Faculty were protected from government intervention both individually and as a body.
82. Id.
83. HOFSTADTER & METZGER, supra note 13, at 389.
84. 1915 Declaration, supra note 12, at 863 ('Trustees⋯ have no moral right to bind the reason or conscience of any professor. All claim to such right is waived by the appeal to the general public for contributions and for moral support in the maintenance, not of a propaganda, but of a non-partisan institution of learning⋯. [T]he public should be advised that [any institution that restricts the intellectual freedom of its professors] has no claim whatever to general support or regard."). One of the most quoted sections of the Declaration is its assertion that academic freedom has three parts: freedom of inquiry and research, freedom of teaching, and freedom of extramural utterance and action.
85. Id. at 861. What has been overlooked, however, is that the Declaration qualifies this definition by saying that it is there defining only the freedom of the teacher, not all of academic freedom.
86. Id.
87. Scholars' conclusions must be "gained by a scholar's method and held in a scholar's spirit."
88. Id. at 871. A scholar's conclusions also must be "the fruits of competent and patient and sincere inquiry," and set forth with "dignity, courtesy, and temperateness of language."
89. Id. The Declaration places even greater limits on the teaching freedom of faculty. Students are not to be indoctrinated; they are to be educated to think for themselves.
90. Id. at 871. With immature students, the Declaration establishes even more stringent limits. Faculty must guard against "taking unfair advantage of the student's immaturity by indoctrinating him with the teacher's own opinions before the student has had an opportunity fairly to examine other opinions upon the matters in question."
91. Id. at 873.
92. Id. at 875.
93. Id.
94. Metzger, supra note 9, at 1267;
95. see also HASKELL, supra note 38, at 175 (noting that the scholarly disciplines are "communities of the competent" around which the modern university was formed, and further commenting that "[d]efending their authority is ⋯ what academic freedom is principally about").
96. The Supreme Court has held that an academic decision made by the faculty as a body may be challenged, but only if the decision is "such a substantial departure from accepted academic norms as to demonstrate that the faculty did not exercise professional judgment." Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 227 (1985). Many courts, unfortunately, have not acknowledged the importance of the role of the faculty as a body when internal disputes are litigated. Some have held, for example, that it is the administration rather than the faculty as a body that has the authority to decide which courses are to be taught.
97. See, e.g., Scallet v. Rosenblum, 911 F. Supp. 999, 1017 n.18 (W.D. Va. 1996) ("[I]f school administrators believe, as they apparently do, that a required first-year class on business ethics is the most appropriate forum in which to teach issues of diversity, they are entitled to make that judgment⋯."), aff'd, 106 F.3d 391 (4th Cir. 1997). Other courts have held that the institution rather than the faculty as a body has the authority to set the grading curve.
98. See, e.g., Lovelace v. Se. Mass. Univ., 793 F.2d 419, 426 (1st Cir. 1986) ("[M]atters such as course content, homework load, and grading policy are core university concerns⋯.").
99. See supra text accompanying notes 53-57.
100. 1915 Declaration, supra note 12, at 866.
101. Id. at 862. The Seligman Committee did not invent shared government. There had been faculty participation in governance of academic matters at some colleges and universities in the United States for nearly a century before the committee was formed. Jerimiah Day, for example, who served as president of Yale from 1817 to 1846, adopted the practice of discussing and deciding all questions connected with college policy in meetings of the faculty. HOFSTADTER AND METZGER, supra note 13, at 235. In 1837, Reverend Jasper Adams, a professor at West Point, argued for a functional allocation of powers that would give the faculty the right to determine the course of study, the choice of textbooks, and the internal matters of instruction and administration.
102. Id. at 237. The European tradition of faculty governance was another source of support for faculty governance of academic matters. As late as 1960, European professors who visited the United States evidenced surprise that "lay outsiders, should presume to exercise power over educational affairs." JOHN J. CORSON, GOVERNANCE OF COLLEGES AND UNIVERSITIES 46 (1960).
103. 1915 Declaration, supra note 12, at 862. Richard Chait conducted a survey on faculty governance that confirmed there is a link between tenure and shared governance: "Tenure was a reliable, but not infallible, indicator of greater faculty voice and slightly greater faculty interest in campus governance⋯. The absence of tenure suggested a comparatively vulnerable college where faculty have relatively limited authority or interest in shared governance." Richard P. Chart, Does Faculty Governance Differ at Colleges with Tenure and Colleges Without Tenure, in THE QUESTIONS OF TENURE 69, 96 (Richard P. Chait ed., 2002).
104. 1915 Declaration, supra note 12, at 865.
105. Id. at 864 (quoting Charles William Eliot, President, Harvard Univ., Academic Freedom, An Address Delivered Before the New York Chapter of the Phi Beta Kappa Society at Cornell University (May 29, 1907)). Eliot's successor at Harvard, A. Lawrence Lowell, who worked as a corporate lawyer for seventeen years before joining the academy, wrote in even more detail about the appropriate relationship between the faculty and governing boards.
106. See LOWELL, supra note 23, at 281. Lowell reasoned that corporate boards are not good role models for university boards because there are no private owners of a university for members of the governing board to represent. Universities are more like trusts, he concluded, than they are like for-profit corporations.
107. Id. at 285. Lowell favored the same division of labor between board and faculty endorsed by Eliot and the Declaration, but opposed developing written rules to govern their relationship because he thought it ought to be based on trust. He compared the relationship to marriage and added, "If a husband and wife should attempt to define by regulations their respective rights and duties in the household, that marriage could safely be pronounced a failure."
108. Id. at 290-91.
109. 1915 Declaration, supra note 12, at 864-65.
110. See Id. at 866 ("University teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of the trustees, than are judges subject to control of the president, with respect to their decisions.");
111. see also CLARK BYSE & LOUIS JOUGHIN, TENURE IN AMERICAN HIGHER EDUCATION: PLANS, PRACTICES, AND THE LAW 5 (1959) ("The government pays judges but it does not tell them how to decide. An independent⋯ university is as essential to the community as an independent judiciary." (quoting ZECHARIAH CHAFEE, JR., THE BLESSINGS OF LIBERTY 241 (1956))).
112. The Declaration catalogues the various external pressures that have threatened academic freedom in America from the early period, when the "chief menace⋯ was ecclesiastical, and the disciplines chiefly affected were philosophy and the natural sciences" to "more recent times [when] the danger zone has been shifted to the political and social sciences." 1915 Declaration, supra note 12, at 868. In private colleges and universities, according to the Declaration, the primary risk is to opinions that question economic conditions or commercial practices because the governing body includes trustees who are personally interested in "great private enterprises."
113. Id. at 869. In public institutions, which are dependent on legislatures for funding, the primary risk is to opinions that are deemed "ultra-conservative" rather than "ultra-radical."
114. Id. at 870.
115. Id. at 877.
116. "[Disciplinary] action can not with safety be taken by bodies not composed of members of the academic profession⋯. [I]n matters of opinion, and of the utterance of opinion, [lay governing] boards cannot intervene without destroying ⋯ the essential nature of a university - without converting it from a place dedicated to openness of mind⋯ into a place barred against the access of new light, and precommitted to the opinions or prejudices of men who have not been set apart or expressly trained for the scholar's duties."
117. Id. at 875.
118. Id.
119. Joan W. Scott, Academic Freedom as an Ethical Practice, in THE FUTURE OF ACADEMIC FREEDOM 163, 166 (Louis Menand ed., 1996).
120. Professor Robert Post has identified a paradox that results from the Declaration's reliance on professional standards: "academic freedom [is] simultaneously limited by and independent of professional norms." Post, supra note 37, at 75-78. Professors do not have academic freedom to violate professional norms at will, yet professional norms ought to be subject to criticism and disagreement. Post argues mat the problem is somewhat mitigated by the fact mat controversy is built into "the everyday practice of scholarship," although he cautions that the ideal of academic freedom will be sustained only if peer reviewers use professional norms wisely.
121. Id. at 76.
122. The Declaration warns faculty that they must avoid letting academic freedom be used "as a shelter for inefficiency, for superficiality, or for uncritical and intemperate partisanship." 1915 Declaration, supra note 12, at 872.
123. Id. In Professor Haskell's memorable phrase: "Unchecked, the republic of letters becomes a republic of pals." HASKELL, supra note 38, at 215.
124. 1915 Declaration, supra note 12, at 865 (stating that a university teacher should not hold or express "any conclusion which is not the genuine and uncolored product of his own study or that of fellow-specialists, " and that scholars' utterances, in particular, should not be shaped by the judgment of "inexpert and possibly not wholly disinterested persons outside of their ranks"). Northrop Frye provided one of the best descriptions of how a scholar should produce disinterested scholarship: One starts out with a tentative goal in mind, but on the way to it one must consider evidence impartially and draw only the strictly rational conclusions from that evidence. Cooking or manipulating the evidence to make it fit a preconceived idea works against detachment⋯⋯. [E]very discipline must be as scientific as its subject matter will allow it to be, or abandon all claim to be taken seriously ⋯. Northrop Frye, The Knowledge of Good and Evil, in THE MORALITY OF SCHOLARSHIP 3, 3-4 (Max Black ed., 1967). Professor J. Peter Byrne has expanded on Frye's statement by noting that a disinterested scholar "may be driven to conclusions by her respect for methodology and evidence that contradict her own preconceptions and cherished assumptions." Byrne, supra note 10, at 259;
125. see also STEVEN M. CAHN, SAINTS AND SCAMPS: ETHICS AND ACADEMIA 52 (1994) ("Reliable evaluators do not indulge in captious criticism or inordinate praise. They refuse to glorify mediocrity but recognize that what is imperfect may nevertheless be meritorious. They focus on the work to be judged and not on irrelevant factors such as the author's ⋯ political persuasion. In addition, they acknowledge their own intellectual predilections, admitting that not all their judgments would be shared by other reputable authorities⋯. Even a conceptual or methodological schism within a discipline should not prevent a reliable evaluator from reaching a negative judgment about the work of an ally or a positive judgment about the work of an opponent.");
126. HASKELL, supra note 38, at 149 ("Although [detachment] is an ideal and holds out a standard higher than any of us routinely achieve, acceptable performance under its regulative influence does not require superhuman effort. It is that frail and limited but perfectly real power that⋯ permits conscientious scholars to referee one another's work fairly, to acknowledge merit even in the writings of one's critics, and successfully to bend over backwards when grading students so as not to penalize those holding antagonistic political convictions.").
127. AM. ASS'N OF UNIV. PROFESSORS, 1940 Statement of Principles on Academic Freedom and Tenure with 1970 Interpretive Comments, in AAUP POLICY DOCUMENTS & REPORTS 3-11 (10th ed. 2006) [hereinafter 1940 Statement].
128. Today the AAC is known as the Association of American Colleges and Universities (AACU).
129. 1940 Statement, supra note 75, at 3-4.
130. Id. at 4.
131. See Metzger, supra note 36, at 12-77.
132. 1940 Statement, supra note 75, at 7-11.
133. See, e.g., Vega v. Miller, 273 F.3d 460, 476 (2d Cir. 2001) (Cabranes, J., dissenting) ("The AAUP's 1940 Statement of Principles on Academic Freedom and Tenure has been relied upon as persuasive authority by courts to shed light on, and to resolve, a wide range of cases related to academic freedom and tenure.");
134. Jimenez v. Almodovar, 650 F.2d 363, 368 (1st Cir. 1981) ("American court decisions [on tenure] are consistent with the 1940 Statement of Principles on Academic Freedom and Tenure widely adopted by institutions of higher education and professional organizations of faculty members.");
135. Browzin v. Catholic Univ. of Am., 527 F.2d 843, 848 & n.8 (D.C. Cir. 1975) ("[The 1940 Statement] represent[s] widely shared norms within the academic community, having achieved acceptance by organizations which represent teachers as well as organizations which represent administrators and governing boards.").
136. 1940 Statement, supra note 75, at 3.
137. Am. Ass'n of Univ. Professors, 7966 Statement on Government of Colleges and Universities, in AAUP POUCY DOCUMENTS & REPORTS 135-40 (10th ed. 2006) [hereinafter Statement on Government]. The Association of Governing Boards of Universities and Colleges issued a separate statement on institutional governance in 1988 that is more critical of shared governance.
138. See AGB Statement, supra note 25, at 3.
139. Statement on Government, supra note 83, at 135-36.
140. Id. at 138.
141. Id. The Statement on Government lists examples of the kinds of matters that are a mix of academic and business judgments, and thus should involve the participation of the board, administration, and faculty. Such matters include "major changes in the size or composition of the student body and the relative emphasis to be given to the various elements of the education and research program."
142. Id. at 136.
143. Id. at 139. Faculty also should establish "the requirements for the degrees offered in the course, determine[] when the requirements have been met, and authorize[] the president and board to grant the degrees thus achieved."
144. Id.
145. Id.
146. Id.
147. See id. ("Determinations in these matters should first be made by faculty action through established procedures⋯." (emphasis added)).
148. Id.
149. See infra notes 215-233 and accompanying text (discussing the Yeshiva standard and institutions that do not meet that standard).
150. AGB Statement, supra note 25, at 3.
151. Robert Birnbaum, The End of Shared Governance: Looking Ahead or Looking Back, in RESTRUCTURING SHARED GOVERNANCE IN HIGHER EDUCATION 5, 6-7 (William G. Tieroey & Vicente M. Lechuga eds., 2004) (quoting KELLOGG COMMISSION ON THE FUTURE OF STATE AND LAND-GRANT COLLEGES 1 (1996)).
152. Drew Gilpin Faust, Installation Address: Unleashing Our Most Ambitious Imaginings, HARV. MAG., Nov.-Dec. 2007, at 62, available at http://www.president.harvard.edu/speeches/faust/ 071012installation.html;
153. see also Bimbaum, supra note 94, at 7 ("The greatest danger to higher education may not be that decisions are made too slowly because of the drag of consultation, but that they are made too swiftly and without regard for institutional core values.")-
154. See, e.g., James J. Duderstadt, Fire, Ready, Aim! University Decision-Making During an Era of Rapid Change, in GOVERNANCE IN HIGHER EDUCATION: THE UNIVERSITY IN A STATE OF FLUX 26, 27 (Werner Z. Hirsch & Luc E. Weber eds., 2001) ("The faculty traditions of debate and consensus building, along with the highly compartmentalized organization of academic departments and disciplines, seem incompatible with the breadth and rapid pace required in today's high momentum university-wide decision environment.").
155. Professor D.G. Fraser of Worcester College made a similar point during the 2006 faculty debate at Oxford: How ironic that today's leading businesses are moving in the opposite direction from the failed 1970s policies [embodied in the proposed change in governance]. Dynamic knowledge-based businesses are moving away from large, centrally administered monoliths, towards small, self-organising entrepreneurial cells, flexibly connected and practically self determining ⋯ just like Oxford colleges⋯. Look at⋯ the Howard Hughes Medical Institute. They have just set up a⋯ campus to look at Neuroscience⋯ and the management structure? Small groups, collegiality, minimal management, trust in the past excellence of the people they employ. The debate ended with the faculty voting to reject an American-style lay governance board. Report of Proceedings in Congregation, 14 November 2006, OXFORD U. GAZETTE, NOV. 22, 2006, available at http://www.ox.ac.uk/gazette/2006-7/supps/1-4788.htm;
156. see also Burton R. Clark, Faculty Organization and Authority, in ACADEMIC GOVERNANCE: RESEARCH ON INSTITUTIONAL POLITICS AND DECISION MAKING 236, 240 (J. Victor Baldridge ed., 1971) ("As work becomes professionalized⋯ the organization of work must create room for expert judgment, and autonomy of decision-making and practice become a hallmark of the advanced profession."). Clark contends that faculty need more autonomy than other professional groups: Professionals who largely give advice or follow the guidelines of a received body of knowledge require extensive but not great autonomy for the individual and the group. They need sufficient leeway to give an honest expert opinion or to apply the canons of judgment of their field. Those requiring great autonomy are those who wish to crawl along the frontiers of knowledge ⋯ searching for the new - the new scientific finding, the new reinterpretation of history, the new criticism in literature or art. Academic man is a special kind of professional man, a type characterized by a particularly high need for autonomy. To be innovative, to be critical of established ways, these are the commitments of the academy and the impulses of scientific and scholarly roles that press for unusual autonomy.
157. Id. at 240-41.
158. See generally WILLIAM G. TIERNEY, THE IMPACT OF CULTURE ON ORGANIZATIONAL DECISION MAKING: THEORY AND PRACTICE IN HIGHER EDUCATION 133-75 (2008).
159. Derek Bok, 2006-2007 Annual Report to the Harvard Corporation, available at http://harvardmagazine.com/breaking-news/president-boks- annual-report (last visited Jan. 17, 2009);
160. cf. Joan Scott, The Critical State of Shared Governance, 88 ACADEME 41, 43 (2002) ("[E]ducational institutions have ways of dealing with conflict that are ⋯ different from those of businesses. There's more give and take, more discussion, more commitment to the exchange of ideas, and more respect for differences. Deliberation rather than speed characterizes this process."). Bok, who served as president of Harvard from 1979 to 1991, returned to serve as interim president from 2006 to 2007. George Keller argues that faculty participation in governance works best at particular levels of governance: At the department level, professorial governance can and should be highly democratic, with little administrative interference unless the faculty in the department drift from the institution's policies or fall into disarray or decline. Shared governance often works best, especially at large universities, at the level of a specialized school or college: ⋯ medicine, communications, business, and the like. The unit is small enough, the academic purposes are more focused, and the deans are not responsible for such a wide spectrum of chores as presidents. At the all-college or whole university level, shared governance increasingly is a failure, although it can work quite effectively at smaller institutions if there is a mutual understanding, mutual respect, and generosity of spirit. Yet large faculty senates are frequently quarrel pits ⋯ and platforms for harangues ⋯ And the pace is often snail-like. George Keller, A Growing Quaintness: Traditional Governance in the Markedly New Realm of U.S. Higher Education, in COMPETING CONCEPTIONS OF ACADEMIC GOVERNANCE: NEGOTIATING THE PERFECT STORM 158, 172 (William G. Tierney ed., 2004). To avoid the problems seen in some faculty senates, Keller recommends having faculty participate through special task forces that focus on a particular problem or issue and then dissolve. He notes that many professors: [A]re superb analysts, first-rate thinkers, and exceptionally knowledgeable persons, so when their attention is captured for a special purpose and for a limited period, and they are given adequate and detailed information about the topic and reasons for a decision on the topic, their counsel and suggestions can be invaluable.
161. Id. at 173.
162. The 2001 Survey of Higher Education Governance is one of the few research studies to look in-depth at the subject. It surveyed 1321 four-year institutions. Gabriel E. Kaplan, How Academic Ships Actually Navigate, in GOVERNING ACADEMIA 165, 172 (Ronald G. Ehrenberg ed., 2004). Those surveyed reported that 89.9% of the faculties had determinative or joint authority with the administration on content of the curriculum; on faculty appointments, it was 69.9% of the faculties; on tenure, it was 66.1%.
163. Id. at 184. The survey also found mat faculty participation in governance of academic matters increased over time. In 1970, faculties determined the content of curriculum at 45.6% of the institutions, and they shared authority with the administration at another 36.4%. By 2001, faculties determined curriculum content at 62.8% of the institutions, and they shared authority at 30.4%. In 1970, faculties determined the appointments of full-time faculty in 4.5% of the institutions, and they shared authority at 26.4%. By 2001, faculties determined appointments of full-time faculty in 14.5% and shared authority in 58.2% of the institutions.
164. Id. at 202. Faculty participation in governance varies significantly by type of institution. "In for-profits the faculty are quite clearly employees, few faculty are involved in creating curriculum, and decision making of all sorts is firmly in the hands of managers." Brian Pusser & Sarah E. Turner, Nonprofit and For-Profit Governance in Higher Education, in GOVERNING ACADEMIA 235, 251 (Ronald G. Ehrenberg ed.,2004).
165. 391 U.S. 563 (1968).
166. Id. at 574.
167. See Kay v. Bd. of Higher Educ. of N.Y., 18 N.Y.S.2d 821 (Sup. Ct.), aff'd, 20 N.Y.S.2d 1016 (App. Div.), app. denied, 29 N.E.2d 657 (N.Y. 1940). This first judicial mention of "academic freedom" occurred in a case with unfortunate parallels to the trial of Socrates for corrupting the youth of Athens. The trial court in Kay overturned the decision of City College to hire philosopher Bertrand Russell. The court based its decision on books published by Russell that supported the idea of "temporary childless marriages" by university students, and it held that his appointment would undermine "the morals of students."
168. Id. at 827, 831.
169. See supra note 36 and accompanying text.
170. Frankfurter was involved in several challenges to academic freedom at Harvard. In May 1921, Austen Fox, a member of the Board of Overseers, submitted a statement complaining about an article that Professor Zachariah Chafee, Jr. had published in the Harvard Law Review that was critical of the conviction of Jacob Abrams and several codefendants. That conviction was for distributing leaflets, which urged munitions workers to stop producing war material that could be used against revolutionary forces in Russia, and for endorsing a petition for pardon submitted to the President of the United States. ARTHUR E. SUTHERLAND, THE LAW AT HARVARD: A HISTORY OF IDEAS AND MEN 1817-1967, at 252-55 (1967). Fox's complaint, together with a petition for pardoning Chafee signed by Dean Pound, Frankfurter, and other faculty was referred to the Visiting Committee of the Law School, which held what became known as "the Trial at the Harvard Club."
171. Id. at 255. In the end the committee found no impropriety in Chafee's signing the petition for the pardon of Abrams and that any erroneous statements in the article were minor and could be corrected in a future issue of the law review. No further action was recommended or taken.
172. Id. In 1927, Professor Frankfurter published an article in the Atlantic Monthly criticizing as unjust the trial of Nicola Sacco and Bartolomeo Vanzetti, who were convicted for murdering a shoefactory paymaster and his guard. Dean Wigmore of Northwestern Law School published an article disagreeing with Frankfurter. The governor appointed a committee of three that included President Lowell of Harvard, the president of MIT, and a retired judge to advise him on clemency in the case. The committee reported that Sacco and Vanzetti had been properly convicted. The governor denied clemency, and they were executed. Despite his disagreement with Frankfurter about the fairness of the trial, Lowell resisted calls from alumni to dismiss Frankfurter, explaining that in his judgment only moral turpitude would justify dismissing a professor.
173. Id. at 261-62. In 1934, two popular economics instructors active in left-wing politics were given terminal appointments rather than appointments with the possibility of tenure. Eight senior professors, including Frankfurter, were asked by Harvard President James Conant to look into the matter. The Committee of Eight concluded that no political bias had been involved in the appointment decisions, but that the two instructors had been denied a fair review. They recommended that the university give them appointments with the possibility of tenure. Conant refused to follow the recommendations of the Committee. He did ask the Committee, however, to review promotion procedures generally. He was concerned that without a limit on the length of nontenured appointments, mediocre faculty would be kept on. The Committee recommended the process mat still prevails at Harvard: nontenured faculty stay a maximum of eight years. Then it is up or out, based first on a formal review and vote by their department. Affirmative departmental recommendations are reviewed by an ad hoc committee of outside scholars, and the final decision is made by the president and governing board. MORTON KELLER & PHYLLIS KELLER, MAKING HARVARD MODERN: THE RISE OP AMERICA'S UNIVERSITY 66-68 (2001).
174. 342 U.S. 485, 509, 510, 511 (1952) (Douglas, J., dissenting).
175. Id. at 508. Justice Frankfurter dissented as well, but on jurisdictional grounds.
176. Id. at 497-98 (Frankfurter, J., dissenting).
177. Id. at 508, 511 (Douglas, J., dissenting).
178. Id. at 510.
179. Id.
180. 344 U.S. 183 (1952).
181. Id. at 191.
182. Id. at 196 (Frankfurter, J., concurring) (observing that public opinion can be "disciplined and responsible" only if "habits of open-mindedness and of critical inquiry" are acquired in a citizen's formative years). Justice Frankfurter added that it was not hyperbole to regard teachers from primary grades to the university as the "priests of our democracy."
183. Id. In contrast, Chief Justice Roberts, writing for the Court in Parents Involved in Community Schools v. Seattle School District No. 1, drew a firm line between higher education and elementary and secondary schools: "In upholding the admissions plan in Grutter⋯ this Court relied upon considerations unique to institutions of higher education, noting that in light of 'the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."' 127 S. Ct. 2738, 2754 (2007) (quoting Grutter v. Bollinger, 539 U.S. 306, 329 (2003)). He declined to extend the Grutter holding to elementary and secondary schools.
184. Id.
185. Wieman, 344 U.S. at 196 (noting that faculty need "conditions for the practice of a responsible and critical mind" if they are to "fulfill their function by precept and practice").
186. Id. at 197 (quoting Hearing Before the House Select Comm. To Investigate Tax-Exempt Foundations and Comparable Organizations, 82d Cong. (1952) (statement of Robert M. Hutchins, Assoc. Dir. of the Ford Found.)). Harold Shapiro, former president of Princeton, expanded on this understanding when he described a university as "a place where the achievements, hopes, and interests of our recovered past meet and interact with those of the present as we shape our cultural traditions for the future. The contemporary research university [can] be thought of as holding a continuing conversation with both past and future generations regarding those matters that are truly significant." HAROLD T. SHAPIRO, A LARGER SENSE OF PURPOSE: HIGHER EDUCATION AND SOCIETY 10 (2005).
187. Wiemah, 344 U.S. at 197 (quoting Hearing Before the House Select Comm. To Investigate Tax-Exempt Foundations and Comparable Organizations, 82d Cong. (1952) (statement of Robert M. Hutchins, Assoc. Dir. of the Ford Found.)).
188. See supra text accompanying note 40.
189. 347 U.S. 483 (1954).
190. 354 U.S. 234 (1957) (plurality opinion).
191. Id. at 250.
192. Id. at 254-55. Sweezy also refused to answer questions about the Progressive Party. The Court upheld Sweezy's refusal to answer those questions as well, and noted that in the 1948 election the Progressive Party had offered a slate of candidates headed by Henry Wallace, a former vice president of the United States.
193. Id. at 242-44, 255.
194. Id. at 255.
195. Id. at 254-55.
196. Id. at 250.
197. Id. at 262 (Frankfurter, J., concurring).
198. Id. at 263. The two universities were known as "Open Universities" because they admitted black as well as white students. CONFERENCE OF REPRESENTATIVES OF THE UNIV. OF CAPE TOWN AND THE UNIV. OF THE WITWATERSRAND, THE OPEN UNIVERSITIES IN SOUTH AFRICA iii (1957) [hereinafter CONFERENCE REPORT]. The conference was convened because the government of South Africa had announced that it intended to prohibit students of different races from attending universities together.
199. Id. The report invoked academic freedom to argue that universities should be able to decide for themselves whom to admit.
200. Id. at 7-9. It cited Brown v. Board of Education for its holding that separate educational facilities are inherently unequal.
201. Id. at 43. In 1959, the South African government passed a law that barred universities from admitting "non-white persons." Extension of the University Education Act 45 of 1959.
202. Justice Frankfurter's adoption of "the four essential freedoms" was used as precedent by Justice Powell in 1978 in his opinion announcing the judgment of the Court in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
203. See infra notes 167-77 and accompanying text. In 1981, in Widmar v. Vincent, 454 U.S. 263 (1981), Justice Powell, this time writing for a majority of the Court, again favorably cited Frankfurter's Sweezy opinion.
204. Id. at 276 ("[We do not] question the right of the University⋯ 'to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'"). In 2003, a majority of the Court in Grutter v. Bollinger, 539 U.S. 306 (2003), held that Michigan Law School had a compelling interest in attaining a diverse student body, and cited Powell's opinion in Bakke as precedent. 539 U.S. at 329, 332-33. In Grutter, Justice Thomas, joined by Justice Scalia, criticized the "constitutionalization" of academic freedom that began with the concurring opinion of Justice Frankfurter in Sweezy: "I doubt that when Justice Frankfurter spoke of government intrusions into the independence of universities, he was thinking of the Constitution's ban on racial discrimination."
205. Id. at 356 (Thomas, J., dissenting). Justice Frankfurter clearly was thinking about the need to have a diverse student body - that was the impetus for the report from the Conference of the Open Universities that had taken place earlier the same year that Sweety was decided.
206. See supra notes 59-62 and accompanying text.
207. See, e.g., Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Cir. 2000) (en banc) ("[Academic freedom] inheres in the University, not in individual professors⋯.").
208. Sweezy, 354 U.S. at 249-50 (plurality opinion).
209. Id. at 250.
210. Id. at 261 (Frankfurter, J., concurring).
211. Id. at 260-61.
212. Id at 260.
213. Adler v. Bd. of Educ, 342 U.S. 485, 504 (1952).
214. In particular, Justice Frankfurter stated: [I]n view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of these amendments vividly into operation⋯. ⋯ It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers must fulfill their function by precept and practice, by the very atmosphere which they generate; they must be exemplars of open-mindedness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bounds of understanding and wisdom⋯. Wieman v. Updegraff, 344 U.S. 183, 195-97 (1952) (Frankfurter, J., concurring).
215. The universities in South Africa were state-aided, but not state-controlled. Each was controlled by a lay council, of which not more than one-third of the members were public officials. The faculty senates were given specified powers over academic matters. CONFERENCE REPORT, supra note 125, at 1. This was the governance context in which the report spoke of the freedoms of the university.
216. 385 U.S. 589 (1967).
217. Id. at 592-93: During the intervening decade, Justice Douglas, writing for the Court in Griswold v. Connecticut, 381 U.S. 479 (1965), confirmed the constitutional position of academic freedom. In the course of announcing that there is a constitutional right of privacy, Justice Douglas used academic freedom as an example of a constitutional right - like privacy - that is not mentioned in the Constitution: "The right of freedom of speech and press includes not only the right to utter or to print, but ⋯ freedom of inquiry, freedom of thought, and freedom to teach ⋯ indeed the freedom of the entire university community." 381 U.S. at 482 (internal citations omitted). It is noteworthy that Justice Douglas did not describe academic freedom as an institutional right, but as one that belongs to the entire community, a phrase that presumably includes the faculty.
218. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 387-90 (2004).
219. Keyishian, 385 U.S. at 603.
220. 391 U.S. 563 (1968).
221. 291 N.E. 517 (Mass. 1892).
222. Id. at 517-18.
223. The right-privilege distinction was already eroding by the time Pickering was decided.
224. See, e.g., Olson v. Regents of the Univ. of Minn., 301 F. Supp. 1356, 1359 (D. Minn. 1969).
225. Pickering, 391 U.S. at 568.
226. Id. at 574.
227. 461 U.S. 138 (1983).
228. Id. at 147.
229. Id. at 150.
230. Id. at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring)).
231. See supra notes 114-15 and accompanying text.
232. NLRB v. Yeshiva Univ., 444 U.S. 672, 689 (1980). For a discussion of Yeshiva, see infra text accompanying notes 215-228.
233. 247 F.3d 69 (3d Cir. 2001).
234. Id. at 79.
235. 215 F.3d 1162 (10th Cir. 2000).
236. See id at 1166-67;
237. see also Hong v. Grant, 516 F. Supp. 2d 1158 (CD. Cal. 2007) (finding that faculty criticism of the hiring process and use of too many adjuncts to teach departmental courses does not pass the public-concern test). For a discussion of Hong, see infra notes 292-98 and accompanying text.
238. See infra text accompanying notes 280-83.
239. Garcetti v. Ceballos, 547 U.S. 410, 413 (2006).
240. Id. at 414.
241. Id.
242. Id. at 414-15.
243. Id. at 415.
244. Id. at 426.
245. Id. at 423 ("Ceballos' [claim if adopted] would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business.").
246. Id. at 438 (Souter, J., dissenting).
247. 435 U.S. 78 (1978).
248. 438 U.S. 265 (1978).
249. Horowitz, 435 U.S. at 79-80.
250. See Id. at 89-90.
251. Id. at 90.
252. Id.
253. Bakke, 438 U.S. at 271, 275.
254. Id. at 272.
255. Id. at 311-12.
256. Id. at 312.
257. Id. at 313.
258. Id. at 320.
259. 474 U.S. 214 (1985).
260. Id. at 217.
261. Id. at 215.
262. Id. at 215-16.
263. Id. at 216.
264. Id.
265. Id.
266. Id. at 225.
267. Id.
268. Id at 227.
269. Id. at 226.
270. Id. (quoting Bishop v. Wood, 426 U.S. 341, 349 (1967)). In Bishop, the Court held that a city employee had no right to a pretermination hearing.
271. Id. at 350.
272. Id.
273. See supra note 11 (acknowledging the scholarly debate over whether academic freedom is an individual or an institutional right).
274. Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985) (internal citations omitted).
275. Piarowsky v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625, 629 (7th Cir. 1985) ("[Academic freedom] is used to denote both the freedom of the academy to pursue its ends without interference from the government ⋯ and the freedom of the individual teacher ⋯ to pursue his ends without interference from the academy ⋯.").
276. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 9 (Philip Babcock Gove ed., 1968) ("1: the school of philosophy founded by Plato; 2: a school above the elementary level⋯; 3: a society of learned individuals united for the advancement of the arts and sciences ⋯.").
277. Ewing, 474 U.S. at 225 (emphasis added).
278. 493 U.S. 182 (1990).
279. Most internal disputes over academic freedom at private colleges and universities are not subject to constitutional norms because there are no public actors and, therefore, there is no state action. In University of Pennyslvania v. EEOC, the EEOC went to court to enforce its subpoena for university records, which provided the necessary state action.
280. Id. at 183-88. The Court in its opinion makes clear that it is prepared to act in an appropriate case to protect the academic freedom of faculty at a private university from state intrusion: "Obvious First Amendment problems would arise where government attempts to direct the content of speech at private universities. Such content-based regulation of private speech traditionally has carried with it a heavy burden of justification."
281. Id. at 198 n.6. The Court adds that government attempts to direct the content of speech at public educational institutions raise particularly complicated First Amendment issues because "government is simultaneously both speaker and regulator."
282. Id. Judge Posner has acknowledged the difficulty of resolving these First Amendment issues and noted, "It is, to be sure, a considerable mystery why government is in the business of owning and operating colleges and universities in the first place. The mystery is not public support of education, but public operation." RICHARD POSNER, FRONTIERS OF LEGAL THEORY 88 (2003). Posner would prefer having government get out of the business of operating universities, thereby removing such issues as affirmative action from the constitutional agenda.
283. Id.
284. Univ. of Pa., 493 U.S. at 185-86.
285. Id. at 197.
286. Id. at 198.
287. Id.
288. Id.
289. Professor J. Peter Byrne considers NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), which upheld antitrust limitations on NCAA football television contracts, to be a good example of the Court rejecting arguments for deference because it saw no direct connection with academic concerns. I. Peter Byrne, Constitutional Academic Freedom After Grutter: Getting Real About the "Four Freedoms" of a University, 77 U. COLO. L. REV. 929, 941 (2006).
290. Univ. of Pa., 493 U.S. at 200-01;
291. cf. Califano v. Jobst, 434 U.S. 47 (1977) (holding constitutional, because they were not direct infringements of the right to marry, those sections of the Social Security Act that specify a dependent child's benefits terminate upon marriage to an individual not entitled to benefits under the Act).
292. 539 U.S. 306 (2003).
293. Id. at 343.
294. Id. at 329.
295. Id. at 323.
296. Id. at 328.
297. Id. at 314-15.
298. Id. at 328.
299. Id. at 329 (emphasis added).
300. See Keyishian v. Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 603 (1967).
301. See, e.g., Urofsky v. Gilmore, 216 F.3d 401, 410 (4th Or. 2000) (en banc) (stating that academic freedom "inheres in the University, not in individual professors").
302. 444 U.S. 672 (1980).
303. See, e.g., Van Alstyne, supra note 9 (providing a comprehensive survey of academic freedom decisions of the Court that does not include Yeshiva).
304. Minn. State Bd. for Cmty. Colls, v. Knight, 465 U.S. 271 (1984). For a discussion of Knight, see infra notes 230-33 and accompanying text.
305. Yeshiva, 444 U.S. at 686.
306. Id. at 688. The dissenters agreed that faculty should have primary responsibility for academic matters, but were concerned that lay boards nonetheless might ignore the faculty.
307. See Id. at 697-98 (Brennan, J., joined by White, Marshall, & Blackmun, JJ., dissenting).
308. Yeshiva, 444 U.S. at 675.
309. Id.
310. Id.
311. Id. at 675-76. Most universities, by contrast, have faculty senates that are made up of faculty only.
312. See Kaplan, supra note 99, at 191 (referring to a 2001 survey of higher-education governance, which found that 72.3% of the institutions have regular meetings of the full faculty, 58.6% have faculty senates made up of faculty only, and only 16.2% have senates composed of faculty, students, and staff).
313. Yeshiva, 444 U.S. at 676.
314. Id. at 676 n.4.
315. Id. at 677.
316. Id. at 680.
317. Id. at 680-81.
318. Compare, e.g., Fla. Mem'l Coll., 263 N.L.R.B. 1248, 1252-53 (1982) (holding that the faculty in question are not managerial employees because "unlike Yeshiva, the curriculum is not within the faculty's absolute control, since all decisions involving course offerings must be approved by the Academic Council, almost one-half of whose voting members are administrators, and other auricular proposals must be approved by the dean of academic affairs or the board of trustees. While the faculty members generally determine the content of their own courses, even this basic academic function is carried out in collaboration with the dean of academic affairs insofar as the selection of textbooks is concerned. The faculty has no effective control over admissions policy or matters relating to the retention, suspension, probation, or expulsion of students or to graduation requirements. ⋯ The faculty is also without any substantial authority with respect to such matters as hiring, tenure, promotions, grievances, or sabbaticals⋯. There is no tenure at the College ⋯ [and t]he president has unilaterally determined that the contracts of at least five faculty members would not be renewed, and he did so in apparent disregard of the procedures set forth in the faculty handbook regarding such decisions."), with Lewis & Clark Coll., 300 N.L.R.B. 155, 157, 161-62 (1990) (holding that the faculty in question are managerial employees and noting that the recommendations of committees composed predominantly of faculty members were usually followed in areas such as admissions requirements and curriculum, and that faculty views were followed in sixty-five of sixty-seven promotion cases and fifty-two of fifty-seven tenure decisions).
319. 465 U.S. 271, 273 (1984).
320. Id. at 274-75 (noting that under the Public Employees Labor Relations Act (PELRA), employers may neither "meet and negotiate" nor "meet and confer" with any members of their bargaining unit except through their exclusive representatives).
321. Id. at 287. Justice Brennan in dissent argued: If the First Amendment is truly to protect the "free play of the spirit" within our institutions of higher learning, then the faculty at those institutions must be able to participate effectively in the discussion of such matters as, for example, curriculum reform, degree requirements, student affairs, new facilities, and budgetary planning. The freedom to teach without inhibition may be jeopardized just as gravely by a restriction on the faculty's ability to speak out on such matters as by the more direct restrictions struck down in Keyishian.
322. Id. at 297 (Brennan, J., dissenting).
323. See CLAUDIA GOLDIN & LAWRENCE F. KATZ, THE RACE BETWEEN EDUCATION AND TECHNOLOGY 283 (2008) (American higher education grew strong because of its diversity, competition, and decentralization);
324. Philip O. Altbach, The American Academic Model in Comparative Perspective, in IN DEFENSE OF AMERICAN HIGHER EDUCATION 1, 17 (Philip G. Altbach et al. eds., 2001) (noting that diversity is a central organizing principle of American higher education);
325. see also Keller, supra note 98, at 171 ("Daytona Beach Community College with 10,000 students needs a different governance scheme man does Eckerd College with 1,500 students, and Iowa State University should exhibit a different form of governance from Grinnell College."). Private colleges and universities dominated higher education in its early years. JERGEN HERBST, FROM CRISIS TO CRISIS: AMERICAN COLLEGE GOVERNMENT, 1636-1819, at 189-90 (1982). By 2005, however, 65% of the nation's 1.29 million faculty members were at public institutions. 54 CHRON. HIGHER EDUC., Aug. 31, 2007, at 25. Of the 696,660 associate degrees awarded during the 2004-2005 academic year, 79% were from public institutions, 7% from private nonprofits, and 15% from private for-profits; of the 1,439,214 bachelor degrees, 65% were from public institutions, 32% from private nonprofits, and 3% from private for-profits.
326. Id. at 20.
327. On the current Court, Justices Breyer, Ginsburg, and Scalia all have been tenured faculty members, and Justice Kennedy taught law regularly when he was on the Ninth Circuit. Important lower-court academic freedom opinions decided by former academics include: Urofsky v. Gilmore, 216 F.3d 401, 426 (4th Cir. 2000) (Wilkinson, C.J., concurring);
328. Feldman v. Bahn, 12 F.3d 730, 732-33 (7th Cir. 1993) (Easterbrook, J.);
329. and Piarowsky v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625 (7th Or. 1985) (Posner, J.).
330. Robert K. Carr, Academic Freedom, the American Association of University Professors, and the United States Supreme Court, 45 AAUP BULL. 5, 19 (1959). The AAUP also did not think that the case would be decided on academic freedom principles.
331. Id.
332. A number of courts have recognized that they should give considerable deference to the academic judgments of institutions to deny tenure, but less deference to decisions to dismiss tenured faculty. See, e.g., Vanasco v. National-Louis Univ., 137 F.3d 962, 968 (7th Cir. 1998) ("[TJenure decisions are often based on 'the distinction between competent and superior achievement' Such decisions necessarily rely on subjective judgments about academic potential. Universities should not be allowed to use the subjective nature of the tenure process to camouflage discrimination. However, we must not second-guess the expert decisions of faculty in the absence of evidence that those decisions mask actual but unarticulated reasons for the University's action." (quoting Kuhn v. Ball State Univ., 78 F.3d 330, 331 (7th Cir. 19%)));
333. Beitzel v. Jeffrey, 643 F.2d 870, 875 (1st Cir. 1981) ("Given the university's overall mission, the creation and transmission of knowledge, the very need for strong procedural protections to prevent the wrongful dismissal of a tenured teacher concomitantly suggests a need for wide discretion in making the initial tenure award.").
334. See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 43 (2d Cir. 2000) (upholding tenure denial in Title VII case where the provost overturned a favorable vote by a closely divided ad hoc committee on tenure on the ground that the candidate's scholarship did not meet university standards after discussing the work with other scholars in the candidate's discipline);
335. see also supra notes 90-91 and accompanying text (describing the lengthy one-way ratchet process recommended in the Statement on Government).
336. 1940 Statement, supra note 75, at 6. The 1970 Interpretive Comments add: "Extramural utterances rarely bear upon the faculty member's fitness for his or her position. Moreover, a final decision should take into account the faculty member's entire record as a teacher and scholar."
337. Id.
338. In 2003, the AAUP Council approved a statement, On the Relationship of Faculty Governance to Academic Freedom, which provides: The academic freedom of faculty members includes the freedom to express their views (1) on academic matters in the classroom and in the conduct of research, (2) on matters having to do with their institution and its policies, and (3) on issues of public interest generally, and to do so even if their views are in conflict with one or another received wisdom. AAUP POLICY DOCUMENTS & REPORTS 141, 142 (10th ed. 2006) (emphasis added).
339. See, e.g., Matthew W. Finkin, Intramural Speech, Academic Freedom, and the First Amendment, 66 TEX. L. REV. 1323, 1349 (1988) ("Surely a teacher in a state college is entitled to some academic freedom in criticizing school programs with which he is in disagreement." (quoting with approval State ex rel. Ball v. McPhee, 94 N.W.2d 711, 719 (Wis. 1959)));
340. Rabban, supra note 9, at 294-97;
341. Ailsa W. Chang, Note, Resuscitating the Constitutional "Theory" of Academic Freedom: A Search for a Standard Beyond Pickering and Connick, 53 STAN. L. REV. 915, 945-48 (2001) (defining "intramural speech" as "complaints about university admissions standards, grading policies, tenure policies, peer review standards, personal treatment by colleagues and other administrative actions").
342. Finkin, supra note 240, at 1337 n.74 (citing Academic Freedom and Tenure: Eastern Washington College of Education, 43 AAUP BULL. 225, 235 (1957) (dismissal of a faculty member for criticizing the administration violates academic freedom)). Finkin identifies the Report on the University of Missouri, 8 AAUP BULL. 46, 52 (1922), as an example of AAUP recognition that academic freedom protects intramural speech, but that report turns more on the failure to give the faculty member involved a hearing prior to his dismissal than on expanding academic freedom to cover intramural speech.
343. See Finkin, supra note 240, at 1336 (discussing 1915 investigation of University of Utah for firing two faculty for "speaking in a very uncomplimentary way about the administration" and for "speaking very disrespectfully of the Chairman of the Board of Regents").
344. Rabban, supra note 9, at 295.
345. See Minn. State Bd. for Cmty. Colls, v. Knight, 465 U.S. 271, 283 (1984).
346. See Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985).
347. See Mumford v. Godfried, 52 F.3d 756,761-62 (8th Cir. 1995).
348. See Honore v. Douglas, 833 F.2d 565,567, 569 (5ft Ck 1987).
349. See Mabey v. Regan, 537 F.2d 1036, 1050 (9th Cir. 1976);
350. see also Powell v. Gallentine, 992 F.2d 1088, 1090-91 (10th Cir. 1993) (publications of allegations of grade fraud by an adjunct professor);
351. Johnson v. Lincoln Univ. of the Commonwealth Sys. of Higher Educ, 776 F.2d 443, 452 (3d Cir. 1985) (sending a letter to the university's accreditor criticizing low academic standards);
352. Scallet v. RosenUum, 911 F. Supp. 999, 1018 (W.D. Va. 1996), (advocacy of diversity in a faculty meeting), aff'd, 106 F.3d 391 (4th Cir. 1997). But cf. dinger v. N.M. Highlands Univ., 215 F.3d 1162, 1167 (10th Cir. 2000) (advocacy in die faculty senate of a "no confidence" vote with respect to four members of the Board of Regents, and criticism of a proposed academic reorganization for conflicting with faculty handbook do not pass the Comtek public-concern test).
353. See supra notes 153-56 and accompanying text.
354. Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 106-13 (1998) (identifying three reasons for avoiding institution-specific solutions: (1) a general preference for large categories; (2) a preference for juridical categories, rather than nonlegal ones like libraries, the arts, and schools; and (3) a preference for principle over policy).
355. See, e.g., Katyal, supra note 9, at 566 ("Many institutions that may be tempted to plead educational autonomy in admissions challenge cases do not use faculty at all in their processes - the admissions decisions are being made by administrators who may lack understanding about the educational dynamics of the university. And, in some of those universities, the administrators' decisions are not reviewed by the faculty after they are made, at any time, to ensure that the choices are consistent with the best education the university can offer." (citations omitted)).
356. See, e.g., Burson v. Freeman, 504 U.S. 191, 211 (1991) (upholding limits on campaign materials near polling places where government serves as administrator of elections);
357. Rust v. Sullivan, 500 U.S. 173, 192-200 (1991) (govemment-as-speaker);
358. Pell v. Procunier, 417 U.S. 817, 822-23 (1974) (government-as-military);
359. Pickering v. Bd. of Educ, 391 U.S. 564, 568 (1968) (government-as- employer).
360. See ROBERT C. POST, CONSTRRUNONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 199-267 (1995).
361. Id. at 200.
362. Id. at 1.
363. See Byrne, supra note 10, at 254 ("All too often, courts fail to recognize that universities are fundamentally different from business corporations, government agencies, or churches⋯. Our universities require legal provisions tailored to their own goals and problems.").
364. See Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring).
365. See Trotman v. Bd. of Trs. of Lincoln Univ., 635 F.2d 216,218-19 (3d Cir. 1980) ("Our society assumes, in almost all cases with good reason, that different views within the academic community will be tested in an atmosphere of free debate. It is the dialectic process which underlies learning and progress.");
366. see also Ronald Dworkin, We Need a New Interpretation of Academic Freedom, in THE FUTURE OF ACADEMIC FREEDOM 181, 189 (Louis Menand ed., 1996) ("Professors and others who teach and study in a university have an⋯ uncompromising responsibility. They have a paradigmatic duty to discover and teach what they find important and true, and mis duty is not⋯ subject to any qualification about the best interests of those to whom they speak. It is an undiluted responsibility to the truth⋯. ").
367. Cf. supra note 227 and accompanying text (distinguishing between die pyramidal hierarchies of industry and the shared authority of universities in the context of NLRB v. Yeshiva University, 444 U.S. 672, 680 (1980)). The Court has distinguished the function of universities from otfier public agencies in other cases as well.
368. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion) ("No one should underestimate die vital role in a democracy mat is played by those who guide and train our youth⋯. Scholarship cannot flourish in an atmosphere of suspicion and distrust Teachers and students must always remain free to inquire, to study and to evaluate, to gam new maturity and understanding; otherwise our civilization will stagnate and die.");
369. Wieman v. Updegraff, 344 U.S. 183, 196 (1952) (Frankfurter, J., concurring) ("It is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion. Teachers ⋯ cannot carry out meir noble task if the conditions for die practice of a responsible and critical mind are denied to them. They must have the freedom of responsible inquiry, by thought and action, into die meaning of social and economic ideas, into die checkered history of social and economic dogma.").
370. Trs. of Dartmouth Coll. v. Woodward (The Dartmouth College Case), 17 U.S. (4 Wheat.) 518 (1819).
371. See Id. at 654 (holding that New Hampshire legislative acts that took over control of Dartmouth College violated the no-impairment-of-contracts provision of the Constitution).
372. See GOLDIN & KATZ, supra note 233, at 283 ("[T]he true hallmarks of the American higher education system relative to its counterparts in other nations have been its decentralized control, the enormous competition between and within the public and private sectors, and its laissez faire orientation.").
373. 500 U.S. 173 (1991).
374. Id. at 198-99.
375. Id. at 194.
376. See, e.g., Chen, supra note 9, at 964 ("Universities serve a different function than any other governmental institution or any other governmental employer⋯. They are created as institutions of bom teaching and research, which advance social interest in producing educated citizens and increasing understanding across multiple academic disciplines⋯. [U]niversities encourage and develop critical thinking processes in their students and the ability to challenge accepted wisdom, which leads not only to a better educated citizenry but also meaningfully facilitates self-governance in a democratic society." (citations omitted)). Even Lawrence Rosenthal has acknowledged that "Garcetti involved speech made by public employees acting as agents of the government. It is far from clear that scholarly work can be described in a similar fashion." Rosenthal, supra note 9, at 97 (arguing that managerial control over public-employee speech is essential).
377. See Rust, 500 U.S. at 199-200 ('This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression. [W]e have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society mat the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment⋯." (internal citations omitted)).
378. 531 U.S. 533 (2001).
379. Id. at 544.
380. Cf., e.g., Rankin v. McPherson, 483 U.S. 378, 395 (1987) ("tT]he government's power as an employer to make hiring and firing decisions on the basis of what its employees and prospective employees say has a much greater scope than its power to regulate expression by the general public").
381. * Visitors of the Univ. of Va., 515 U.S. 819, 828 (1995).
382. 454 U.S. 263 (1981).
383. Id. at 278-79 (Stevens, J., concurring). Judge Frank Easterbrook made a similar observation in Feldman v. Bahn, 12 F.3d 730, 732-33 (7th Cir. 1993): Teachers ⋯ speak and write for a living and are eager to protect both public and private interests in freedom to stake out controversial positions. Yet they also evaluate speech for a living and are eager to protect both public and private interests in the ability to judge the speech of others and react adversely to some. They grade their students' papers and performance in class. They edit journals, which reject scholarly papers of poor quality. They evaluate their colleagues' academic writing, and they deny continuing employment to professors whose speech does not meet their institution's standards of quality. "The government", as an abstraction could not penalize any citizen for misunderstanding the views of Karl Marx or misrepresenting the political philosophy of James Madison, but a Department of Political Science can and should show such a person the door⋯. Every university evaluates and acts on the basis of speech by members of the faculty⋯.
384. 529 U.S. 217 (2000).
385. Id. at 242-43.
386. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("[T]he government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'" (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)));
387. Piarowsky v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625, 630 (7th Cir. 1985) (holding that internal disputes over academic freedom may be resolved on the ground that the institution's limitations were reasonable).
388. 429 U.S. 274 (1977).
389. Id. at 287.
390. 696 F.2d 476 (6th Cir. 1983). Smith refused to teach a course assigned to him after he received an unfavorable rating for his teaching of a basic course in his field. A committee of peer faculty approved assigning him to teach the course, but recommended against dismissal as too severe a sanction. The following year when Smith was again assigned the course, he advised at the last minute that he would not teach it, and that he would appeal the assignment. Smith's lawyer agreed that Smith would teach the class during the appeal, but Smith again failed to appear. After notice and a hearing. Smith was terminated by a vote of a faculty committee.
391. Id. at 477-78;
392. see also Stastny v. Bd. of Trs. of Cent. Wash. Univ., 647 P.2d 496 (Wash. Ct. App. 1982) (upholding the termination of a tenured associate professor who repeatedly failed to teach classes).
393. See Regents of the Univ. of Mich. v. Ewing, 474U.S. 214, 225 (1985).
394. A board should not be able to select the most compliant faculty.
395. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (emphasis added).
396. See supra notes 70-74 and accompanying text. A recent violation of the custom occurred at West Virginia University (WVU). In April 2008, the provost and the dean of the business school resigned their administrative positions after the report of an independent panel found that they had improperly granted a degree to the daughter of the governor, who had not completed the necessary coursework. On May 5, 2008, the faculty senate passed a resolution of no-confidence in die president and asked that he resign as well. Robin Shulman, WVU President Clings to Job After Faculty Vote, WASH. POST, May 8, 2008, at A2. On June 6, 2008, Mike Garrison, the president of WVU, announced that he would step down in September. Paul Fain, Questions Follow a Political President's Fall, CHRON. HIGHER EDUC., June 20,2008, at All.
397. See 1915 Declaration, supra note 12, at 865.
398. See supra note 104.
399. See Statement on Government, supra note 83, at 138 ("The president must at times, with or without support, infuse new life into a department⋯.").
400. Rabban, supra note 9, at 286.
401. Id.
402. Brief for the Respondent at 29, Univ. of Pa. v. EEOC, 493 U.S. 182 (1990) (No. 88-493) ("Where a university is alleged to have infringed an individual's rights, it can invoke legitimate academic considerations to justify its actions, but it has no constitutional shield.'").
403. Cf. Rabban, supra note 9, at 283-87 (disagreeing with Byrne's opposition to judicial review of internal university disputes and noting that a good model for judicial review exists in cases in which faculty claim that universities have violated Title VII prohibitions on employment discrimination or the First Amendment).
404. See, e.g., Smith v. Losee, 485 F.2d 334 (10th Cir. 1973) (overturning decision by the university president to refuse to support tenure because of candidate's "anti-administration" attitude, despite affirmative vote by faculty);
405. cf. Chen, supra note 9, at 972 ("[I]t is not clear why courts ought to trust academic administrators, many of whom are subject to the same political pressures (public and private) as other public officials, particularly where something as vital as speech is concerned.").
406. 516 F. Supp. 2d 1158 (CD. Cal. 2007).
407. Id. at 1161.
408. Id. at 1164.
409. Id at 1166-67 (internal citations omitted).
410. Id. at 1168.
411. Id. at 1168, 1170. The Seventh Circuit also has relied on Garcetti to deny constitutional protection to speech by a faculty member about a university's use of his grant funds.
412. See Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).
413. Hong, 516 F. Supp. 2d at 1169.
414. Byrne, for example, advocates "a very limited role in protecting faculty against their schools." Byrne, supra note 10, at 2SS. However, he did qualify his position somewhat by later adding that "constitutional academic freedom ought not to protect institutions resembling universities but which ⋯ recognize no role for faculty in governance."
415. Id. at 338.
416. Wieman v. Updegraff, 344 U.S. 183, 196 (1952) (Frankfurter, J., concurring);
417. see also George Washington, Farewell Address (Sept. 19, 1796), reprinted in 1 AMERICAN STATES PAPERS: SPEECHES AND MESSAGES OF THE PRESIDENTS OF THE UNITED STATES TO BOTH HOUSES OF CONGRESS 34, 36 (1833) ("Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of government gives force to public opinion, it is essential that public opinion should be enlightened.").