The Specific Theory of Academic Freedom and the General Issue of Civil Liberties*

• Author: William W. Van Alstyne
• DOI: 10.1177/000271627240400112
• Published date: 01 November 1972
• Date: 01 November 1972
• Subject Matter: Articles

140

The

Specific

Theory

of

Academic

Freedom

and

the

General

Issue

of

Civil

Liberties*

By

WILLIAM

W.

VAN

ALSTYNE†

ABSTRACT:

Academic

freedom

has

been

blurred

in

law

and

in

popular

usage.

Its

clarification

should

enable

the

Supreme

Court

to

grant

it

explicit

protection

under

the

Constitution

as

an

identifiable

subset

of

First

Amendment

freedoms.

Its

identification

with

the

professional

endeavors

of

faculty

mem-

bers,

moreover,

should

reduce

the

tendency

of

institutions

to

intrude

upon

the

aprofessional

personal

liberties

of

the

faculty

even

while

adequately

protecting

the

extramural

professional

pursuits

of

the

faculty

and

assuring

them

of

equal

protection

in

their

interests

as

private

citizens.

Adjustments

of

standards

by

the

American

Association

of

University

Professors,

more

definitely

distinguishing

the

special

accountability

of

faculty

members

for

the

integrity

of

their

professional

endeavors

from

their

roles

as

private

citizens,

is

long

overdue.

William

Van

Alstyne

is

Professor

of

Law

at

Duke

University.

He

is

past

General

Counsel

of

f the

American

Association

of

University

Professors

and

currently

serves

as

Chairman

of

Committee

A

on

academic

freedom

and

tenure.

* This

article

is

the

revised

product

of

a

manuscript

presented

in

the

course

of

a

symposium

on

academic

freedom

in

the

spring

of

1972

at

the

University

of

Texas,

under

a

grant

from

the

Council

of

Learned

Societies.

The

author

is

especially

grateful

to

Professor

Edmund

Pincoffs

for

his

support

and

encouragement

and

to

the

several

participants

whose

comments

provided

the

basis

for

certain

revisions.

It

is

not

possible

accurately

to

credit

the

various

sources

that

have

helped

to

inform

this

essay,

especially

those

that

did

so

indirectly,

that

is,

in

espousing

quite

different

views

of

academic

freedom

than

those

offered

here.

Most

espe-

cially

helpful

in

thinking

about

the

subject,

however,

were

the

many

Committee

A

Case

Reports

scattered

throughout

the

volumes

of

the

American

Association

of

University

Pro-

fessors

(AAUP)

Bulletin,

the

brief

essay

by

Arthur

Lovejoy

in

Encyclopaedia

of

the

Social

Sciences

(1937),

s.v.

&dquo;academic

freedom,&dquo;

the

splendid

volume

by

Richard

Hofstadter

and

Walter

Metzger,

The

Development

of

Academic

Freedom

in

the

United

States

(New

York:

Co-

lumbia

University

Press,

1955),

and

Fritz

Machlup’s

trenchant

address,

&dquo;On

Some

Misconcep-

tions

Concerning

Academic

Freedom,&dquo;

AAUP

Bulletin

41

(1955),

p.

753.

There

were

several

other

very

helpful

materials

too

numerous

to

mention

here.

t

Because

portions

of

this

essay

bear

directly

on

certain

standards

of

the

American

Asso-

ciation

of

University

Professors

(AAUP),

it is

of

more

than

customary

importance

to stress

that

my

statement

of

views

is

wholly

personal.

141

A HALF-CENTURY

ago,

the

Con-

stitution

was

misconstrued

to

pro-

vide

no

positive

law

support

for

John

Stuart

Mill’s

Essay

on

Liberty.

Inso-

far

as

the

free

exercise of

political

lib-

erty

was

tied

to

a

job,

neither

profes-

sors

nor

policemen

could

safely

pursue

their

civil

liberties

without

anxiety

that

they

would

be

fired.

The

utter

inse-

curity

of

liberty

and

status,

even

against

abridgments

by

government

itself,

was

underscored

by

the

laconic

dictum

of

Oliver

Wendell

Holmes,

Jr.,

in

1892:

The

petitioner

may

have

a

constitutional

right

to

talk

politics,

but

he

has

no

consti-

tutional

right

to

be

a

policeman....

There

are

few

employments

for

hire

in

which

the

servant

does

not

agree

to

sus-

pend

his

constitutional

right

of

free

speech,

as

well

as

of

idleness,

by

the

implied

terms

of

his

contract.

The

servant

cannot

com-

plain,

as

he

takes the

employment

on

the

terms

which

are

offered

him.’

The

point

was

not

lost

on

the

academic

profession

in

the

dismal

outcome

of the

Scopes

Monkey

trial,

in

1927:

[Scopes]

had

no

right

or

privilege

to

serve

the

state

except

upon

such

terms

as

the

state

prescribed....

In

dealing

with

its

own

employees

engaged

upon

its

own

work,

the

state

is

not

hampered

by

the

limita-

tions

of

...

the

Fourteenth

Amendment

to

the

Constitution

of

the

United

States.2

AN

OVERVIEW

It

was

exactly

during

this

same

pe-

riod

that

American

professors,

familiar

with

the

tradition

and

values

of

Lehr-

freiheit

in

German

universities,

began

to

domesticate

it

and

to

propound

the

concept

of

&dquo;academic

freedom&dquo;

as

a

principle

worthy

of

general

respect

to

fill

up

the

void

of

the

positive

law

in

this

country.

Given

the

circumstances

-given

the

surprising

success

of

the

infant

American

Association

of

Univer-

sity

Professors

(AAUP),

founded

in

1915

and

at

once

startled

by

the

extent

to

which

its

good

offices

were

sought

by

aggrieved

faculty

members-it

is

not

remarkable

that

an

ineluctable

tend-

ency

developed

to

expand

upon

aca-

demic

freedom

to

make

it

perform

a

larger

service.

From

the

solid

and

fortified

arguments

sustaining

academic

freedom

as

a

logical

imperative

if

acade-

micians

were

to

fulfill

the

cardinal

ex-

pectation

laid

upon

their

professional

employment,

the

principle

was

pressed

into

the

larger

field

of

civil

liberties

whether

or

not

such

liberties

were

pro-

fessionally

linked.

In

the

absence

of

other

sources

of

employment

security

protecting

professors

from

dismissal

in

pursuing

conventional

political

activities

off-the-job

and

on

their

own

time,

or

entering

into

ordinary

public

assemblies

and

taking

personal

positions

on

social

issues

simply

as

private

citizens

and

not

as

professional

scholars

or

researchers,

academic

freedom

offered

itself

as

an

irresistibly

attractive

umbrella.

Gradu-

ally,

the

phrase

slipped

away

from

a

close

association

with

protection

of

the

academic

in

his

professional

endeavors

and

assumed

a

new

synonymy

with

the

general

civil

liberties

of

academics-

and

especially

their

general

political

liberties.

Accordingly,

the

protection

of

an

academic

in

respect

to

the

exercise

of

his

aprofessional

political

liberties

was

argued

into

position

as

a

subset

of

academic

freedom.

The

effort

so

far

succeeded

that

it

has

long

been

routine

for

AAUP

Committee

A

Reports

to

de-

scribe

the

dismissal

of

professors

on

ac-

count

of

aprofessional

political

activity

as

a

violation

of

their

&dquo;academic

free-

dom.&dquo;

Professor

Fritz

Machlup

accu-

rately

reports

the

situation

in

the

new

Encyclopaedia

of

Higher

Education:

&dquo;Academic

freedom

(in

its

modem

con-

ception,

though

not

in

the

past)

in-

1.

McAuliffe

v.

Mayor

of

New

Bedford,

155

Mass.

216, 220,

29

N E.

517,

518

(1892).

2.

Scopes

v.

State,

154

Tenn.

105,

111-12,

289

S.W

363,

364-65

(1927).