1 For discussion of the development and meaning of the concept of academic freedom generally, see Hofstadter, R. & Metzger, W., The Development of Academic Freedom in the United States (New York, Columbia Univ. Press, 1955)Google Scholar; Joughin, L. (ed.) Academic Freedom and Tenure (Madison, Wisc., Univ. of Wisconsin Press, 1969)Google Scholar; Emerson, T.I., The System of Freedom of Expression (1970) ch. XVIGoogle Scholar; Alstyne, W. Van, “The Specific Theory of Academic Freedom and the General Issue of Civil Liberties” (1972) 140 Annals of American Academy of Political and Social Science 404Google Scholar (hereinafter cited as “Van Alstyne, Annals”); C.A. Wright, “The Constitution on the Campus” (1969) 72 Vand. L. R. 7027; “Developments in the Law: Academic Freedom” (1968) 87 Harv. L. R. 7045; Alstyne, W. Van, “The Constitutional Rights of Teachers and Professors” (1970) Duke L.J. 841CrossRefGoogle Scholar (hereinafter cited as “Van Alstyne, Duke”).

2 An analysis of the rejection of the freedom of learning aspect of academic freedom contained in the German concept of lernfreiheit is beyond the scope of this article. However, some of the possible reasons for this doctrine's failure to take as strong a hold in the United States as did lehrjreiheit are discussed infra at nn. 31 and 32.

3 The author served as General Counsel of the AAUP from 1972–1974. Since many of the ideas contained in this article may be in conflict with some AAUP positions, it is imperative to state and emphasize that the views expressed herein are the personal views of the author and in no way should be viewed as reflecting those of the AAUP.

4 “AAUP, The 1915 Declaration of Principles” reprinted in Joughin, op. cit. supra n. 1, at pp. 157–158. For an explanation of the pre-1975 history of academic freedom in the United States, see R. Hofstadter & W. Metzger, op. cit. supra n. 1.

5 The 1940 Statement was a joint product of the AAUP and the Association of American Colleges, and was endorsed by both organizations in 1941. In subsequent years it has been endorsed by numerous other organizations involved with higher education. The 1940 Statement has been published in AAUP Policy Documents and Reports (1973) 1 and in L. Joughin, op. cit. supra n. 1, at p. 33.

6 See generally, Brown, R.S., Loyalty and Security (1958)Google Scholar; Gellhorn, W., Individual Freedom and Government Restraint (1956)Google Scholar; Morris, , “Academic Freedom and Loyalty Oaths” (1963) 23 L. & Contemp. Prob. 487.CrossRefGoogle Scholar The federal government instituted loyalty tests as a condition for employment of federal civil servants, government contractors and their employees, labour leaders, seamen and others. States prescribed similar tests for teachers, lawyers, doctors, clergymen, social workers, librarians, veterinarians, state and local civil servants and so on. See R.S. Brown, op. cit. supra at pp. 21–119 and 164–183. One state even went so far as to require loyalty oaths of professional boxers and wrestlers. Id., at p. 118.

7 See e.g., Elfbrandt v. Russell 384 U.S. 11, 86 S.Ct. 1238 (1968); Wieman v. Updegraff 344 U.S. 183, 72 S.Ct. 215 (1952); Shelton v. Tucker 364 U.S. 479, 81 S.Ct. 247 (1960); Cramp v. Board of Pub. Inst. 368 U.S. 278, 82 S.Ct. 275 (1961); Baggett v. Bullett 377 U.S. 360, 84 S.Ct. 1316 (1964); Whitehill v. Elkins 389 U.S. 54, 88 S.Ct. 184 (1967); Keyishan v. Board of Regents 385 U.S. 589, 87 S. Ct. 675 (1967); Sweezy v. New Hampshire 354 U.S. 254, 77 S.Ct. 1203 (1957).

8 See, Elfbrandt v. Russell, Weiman v. Updegraff, Baggett v. Bullett and Cramp v. Board of Pub. Inst. (preceding note). Similarly where the Court upheld an anti-subversion statute directed at teachers in Adler v. Board of Education 342 U.S. 485, 72 S. Ct. 380 (1952), Justice Black's forceful dissent did not rely on a special status for teachers. See also the dissents in Kleindeinst v. Mandel 408 U.S. 810, 92 S. Ct. 2576 (1972); and the majority opinion in Barenblatt v. United States 360 U.S. 109, 79 S. Ct. 1081 (1959).

9 See Shelton v. Tucker, Sweezy v. New Hampshire, Whitehill v. Elkins, and Keyishan v. Board of Regents, supra n. 7. Cf. Kleindeinst v. Mandel, supra n. 8.

10 Wieman v. Updegraff, supra n. 7 (Frankfurter, J. concurring); Sweezy v. New Hampshire, supra n. 7, at p. 1214 (Frankfurter, J. concurring). Justice Frankfurter, a former law professor, was the principal exponent of academic freedom language in the cases in which he participated. Indeed, in Shelton v. Tucker, supra n. 7, in which he dissented from a majority decision, that relied in part on Justice Frankfurter's own language in his Wieman concurrence, invalidating a state statute compelling every teacher in a state supported school or college to file annually an affidavit listing every organization to which he had belonged or regularly contributed within the past five years, Justice Frankfurter felt compelled in his dissent to state that he is “one who has strong views against crude intrusions by the state into the atmosphere of creative freedom in which alone the spirit and mind of a teacher can fruitfully function”. 364 U.S., at p. 490, 81 S.Ct., at p. 253. He went on to conclude, however, that in his judgment the particular statute involved in this case was valid, in part because of, as well as despite, academic freedom interests. He stated: “If I dissent from the Court's disposition in these cases [which he did], it is not because I put a low value on academic freedom [citing his concurrences in Weiman and Sweezy]. It is because that very freedom in its most creative reaches, is dependent in no small part upon the careful and discriminating selection of teachers. This process of selection is an intricate affair, a matter of fine judgment, and if it is to be informed, it must be based upon a comprehensive range of information”. Id., at pp. 495–96, 81 S.Ct. 256.

11 See Adler v. Board of Educ. 342 U.S. 485, 75 S.Ct. 380 (1966) (dissent of Douglas, J.). But note Justice Black's dissent in the same case which does not rely on any special status for teachers. See supra n. 8. In Justice Black's vigorous and lengthy dissent in Barenblatt v. United States 360 U.S. 109, 79 S.Ct. 1081 (1959), there are also two brief references to a special status for academicians. 360 U.S. 144, 79 S.Ct. 1102.

12 Supra n. 7.

13 Id., 385 U.S. 603, 87 S.Ct., 683.

14 See T. I. Emerson, op. cit. supra n. 1, at pp. 610–611; Van Alstyne, Annals, at pp. 143–145. In addition to the cases discussed in the text concerning extra-mural activities of university professors, the Supreme Court has dealt with what might be viewed as incidents of academic freedom in a number of other cases. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Supreme Court struck down a state statute prohibiting the teaching of a modern foreign language to a child before he had complete the eighth grade, and in Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court held a statute unconstitutional that required all children in the state to attend the public schools. Both opinions, however, were written in the language of the then prevailing constitutional doctrine of substantive (or economic) due process without specific reference to concepts of academic freedom. More recently, the Court held that a state statute prohibiting the teaching of Darwinian evolution in the public high schools of a state violated the First Amendment's prohibition of the “establishment of religion”. Epperson v. Arkansas, 393 U.S. 97 (1969). Although the Epperson majority opinion cited the Keyishan language quoted above in the text and referred to Meyer and Pierce in terms of rights of liberty of teachers and pupils, the opinion expressly declined to base itself on such doctrines, but rather determined the case on the basis of the establishment of a religion clause. It should be noted that invalidating the Arkansas statutes on the basis of the Meyer, Pierce and Keyishan precedents would, in my opinion, have been quite difficult to accomplish as Meyer and Pierce were concerned with the rights of parents and private schools and their teachers, not public schools and their teachers, and Keyishan and the other cases discussed in the text were concerned with universities and, even in that context, do not represent a constitutional doctrine of academic freedom. See also, Pickering v. Board of Educ. 391 U.S. 563 (1968). Recently, a number of lower court decisions have been concerned with the issue of constitutional rights, or lack thereof, of public high school teachers to determine what and how they teach free from restrictions of higher authorities. See, Keefe v. Geanakos 418 F. 2d 359 (1969); Maillous v. Kiley 323 F. Supp. 1387, affirmed, 448 F. 2d 1242 (1971); Ahern v. Board of Educ. 456 F. 2d 399 (1972); Parducci v. Rutland 316 F. Supp. 352 (1970); Birdwell v. Hazelwood School Dist. 352 F. Supp. 613 (1972); Nigosian v. Weiss 343 F. Supp. 757 (1971); Webb v. Lake Mills Comm. School Dist. 344 F. Supp. 791 (1972). Compare Presidents' Council v. Community School Bd. 457 F. 2d 289 (1972). These lower court cases presently, however, are conflicting and confused both in result and theory. See Goldstein, S.R., Law and Public Education (Indianapolis, Ind., Bobbs-Merrill Co., Inc., 1974) 71–110.Google Scholar See also, Kutner, , “The Freedom of Academic Freedom: A Legal Dilemma” (1971) 48 Chi-Kent L. R. 168Google Scholar; Nahmod, , “Controversy in the Classroom: The High School Teacher and Freedom of Expression” (1971) 39 Geo. Wash. L. R. 1032Google Scholar; O'Neil, , “Libraries, Liberties and the First Amendment” (1973) 42 U. Cin. L. R. 209Google Scholar; Van Alstyne, Duke, supra n. 1; Note, (1973) 48 N.Y.U.L.R. 1176.

15 As will be discussed, infra, at n. 28, a similar position has been taken by Professor Van Alstyne, Annals.

16 Machlup, F., “On Some Misconceptions Concerning Academic Freedom” (1955) 41 AAUP Bulletin 753–84Google Scholar, reprinted in L. Joughin, op. cit., supra n. 1, at pp. 177, 194–95.

17 The arguments for, and premises of, academic freedom rights in relation to professionally related activities of research and teaching are discussed infra in this article. It should be noted here, however, that one such argument, the “fringe benefit” argument of Professor Jones, might also be applied to extra-mural activities. See text infra at nn. 32–33 for a discussion of this position.

18 It should be noted that in dealing with universities we are not discussing an area where the government or any other agency has a monopoly over employment opportunities. The issue in the text must also be carefully distinguished from the converse problem, whether it is significant that government in restricting the activities of an individual is acting in its usual governmental role of regulating the citizenry generally or in its special proprietary role of managing a governmentally owned institution and controlling the conduct of the employees of that institution. This distinction is very significant and, indeed, is crucial. See Sweezy v. New Hampshire 354 U.S. 324, 249, 77 S.Ct. 1203, 1211 (1967) (plurality opinion); T.I. Emerson op. cit. supra n. 1, at p. 618. The failure of Justice Fortas to recognize this distinction in his reliance on Meyer v. Nebraska 262 U.S. 390 (1923) and Pierce v. Society of Sisters 268 U.S. 510 (1925), in his dictum in Epperson v. Arkansas 393 U.S. 97 (1969) (see supra n. 14) is inexplicable, and, in my judgment, unjustifiable.

19 See, e.g., Cleveland Bd. of Educ. v. La Fleur 94 S.Ct. 791 (1974); Griggs v. Duke Power Co. 401 U.S. 424 (1971); Civil Rights Act of 1964, Title VI 42 U.S. C 2000e-2 (9).

20 The concept that the governance of the university resides in the faculty as well as the administration and board of trustees finds expression in the United States in the doctrine of “shared responsibility”. See 1966 Statement on Government of Colleges and Universities, jointly formulated and issued by the AAUP, the American Council on Education, and the Association of Governing Boards of Universities and Colleges, published in AAUP Policy Documents and Reports (1973) 35 and in L. Joughin, op. cit. supra n. 1, at p. 90.

21 Cleveland Bd. of Educ. v. La Fleur, supra n. 18.

22 See Pordum v. Board of Regents 491 F. 2d 1281 (1974); Wishart v. McDonald 367 F. Supp. 530 (1973); Acanfora III v. Board of Educ. 359 F. Supp. 843 (1973); In re Grossman 127 N.J. Super. 13, 316 A. 2d 39 (1974). Compare Fisher v. Snyder 476 F. 2d 375 (1973).

23 Compare Wishart v. McDonald, Acanafora III v. Board of Educ., and In re Grossman (preceding note). But see Burton v. Cascade School Dist. 353 F. Supp. 254 (1973).

24 365 F. Supp. 855 (N.D. Miss 1973).

25 Compare Pierce v. Society of Sisters 268 U.S. 510 (1925) with Norwood v. Harrison 413 U.S. 455 (1973).

26 AAUP Policy Documents and Reports (1973) 2 and in L. Joughin, op. cit. supra n. 1, at p. 36.

27 AAUP Policy Documents and Reports (1973) 4. See also, id., at pp. 3, 14; Van Alstyne, Annals, at pp. 153–155.

28 Van Alstyne, Annals. In this article, Professor Van Alstyne states that, in his view, the AAUP limitation is premised on the belief that a professor's freedom of extra-mural conduct is based on special academic freedom rights rather than general civil liberties. Consistent with the thesis of this article, Professor Van Alstyne advocates that extra-mural conduct freedom should not be considered part of academic freedom but rather as part of the general civil liberties of citizens who just happen to be academics. Ibid.

29 See R. Hofstadter & W. Metzger, op. cit. supra n. 1, at p. 386.

30 For a brief statement of one view as to the reasons for the lack of development of the German concept of student academic freedom in the United States, see Jones, H.M., “The American Concept of Academic Freedom” (1959–1960) 29 The American Scholar 1Google Scholar, reprinted in L. Joughin, op. cit. supra n. 1, at pp. 224, 225.

31 See R. Hofstadter & W. Metzger, op. cit. supra n. 1, at ch. VIII; H.M. Jones (preceding note), at pp. 227–228.

32 “The American Concept of Academic Freedom”, supra n. 30, at p. 233.

33 1940 Statement of Principles on Academic Freedom and Tenure, AAUP Policy Documents and Reports (1973) 2.

34 See also O'Neil, , “Libraries and the First Amendment” (1973) 42 U.Cin.L.R. 246–247Google Scholar, 252, for a similar argument concerning librarians.

35 This presumption concededly ignores the actual fact that university faculty typically get little or no professional training in teaching. The assumption that a professor is a “professional” as to teaching may, therefore, be wrong if one adheres to the normal usage of the term. For purposes of this article, however, this presumption is accepted arguendo.

36 Of course, professors, individually or collectively, as members of society, may properly contribute to the determination of the societal will in such matters.

37 Emerson, T.I., The System of Freedom of Expression (1970)Google Scholar ch. XVI.

38 See supra n. 14.

39 Supra n. 37, at p. 618.

40 See supra n. 14 and cases cited therein.

41 A confused exception to this statement appears to exist in a number of lower court cases concerning the rights of student editors of university newspapers. See, e.g., Joyner v. Whiting 477 F. 2d 456 (1973); Panarella v. Birenbaum 32 N.Y. 2d 108, 343 N.Y. S. 2d 333 (1973). But see Close v. Ederle 424 F. 2d 988 (1st Cir.) (1970), certiorani denied 400 U.S. 903. See also Zucker v. Panitz 299 F. Supp. 102 (1969). The cases are conflicting, however, and the rationale for supporting the right of editors to subsidized speech is not convincing. See S.R. Goldstein, op. cit. supra n. 14, at pp. 383–414.

42 Miami Herald Pub. Co. v. Tornellow 94 S.Ct. 2831 (1974). Compare Columbia Broadcasting v. Democratic Committee 412 U.S. 94 (1973); but see Red Lion Broadcasting Co. v. FCC. 395 U.S. 367 (1969).

43 Supra n. 37, at pp. 618–626.

44 See e.g., W. Van Alstyne, Duke, supra n. 1; Nahmod, supra n. 14.

45 Cf. Jones, supra n. 30, at pp. 236–240.

46 See Sweezy v. New Hampshire 354 U.S. 246, 250, 77 S.Ct. 1203, 1211–1212 (1957).

47 It should be noted here that academic freedom, perhaps, may be attempted to be justified without regard to its conduciveness to producing desirable societal results. Under such a view academic freedom would be viewed as an essential part of research, and research viewed as an end in itself needing no further justification. On such a basis, however, it would be difficult to claim societal support for research efforts, and, indeed the justification normally given for academic freedom in research is based on the view that it does produce desirable societal results, at least in the long run. See, e.g., the quotation from Professor Jones supra at text accompanying n. 32; AAUP, A Statement of the Association's Council: Freedom and Responsibility, AAUP Policy Documents and Reports (1973) 61.

48 For a statement of this view as a legal doctrine to support a constitutional right of academic freedom in teaching, see Van Alstyne, Duke supra n. 1, at pp. 856–858; Nahmod, supra n. 14; Note, (1973) 48 N.Y.U.L.R. 1176. See also Goldstein, S.R., “Reflections on Developing Trends in the Law of Student Rights” (1970) 118 U.Pa.L.R. 612, 614–615CrossRefGoogle Scholar; Nahmod, , “Beyond Tinker: The High School as an Educational Public Forum” (1970) 5 Harvard Civil Rights — Civil Liberties Law Review 278.Google Scholar

49 385 U.S. 599, 603, 87 S.Ct. 675, 683 (1967): “The classroom is peculiarly the market-place of ideas”. The United States Supreme Court has long used the simile of a market-place of ideas as a basic concept of the First Amendment protection of freedom of speech and the press.

50 Massachusetts (Colony) Laws and Statutes, 1647, Ch. 88.

51 Compare Van Alstyne, Duke supra n. 1, at pp. 856–857.

52 Id., at pp. 856–857. Compare Epperson v. Arkansas, 393 U.S. 97, 115–116, 89 S.Ct. 266, 276 (1969) (Stewart, J. concurring).

53 It is no mere coincidence that all the recent court cases of conflicts between individual teachers and school authorities concerning controversial teaching involve teachers teaching what the school authorities do not want taught, rather than refusing to teach what the school authorities affirmatively want to be taught. See the cases and authorities cited supra n. 14. It obviously represents points of conflict about which all parties feel quite deeply.

54 AAUP Policy Documents and Reports (1973) 2, reprinted in L. Joughin, op. cit. supra n. 1, at p. 36. This sentence appears in the paragraph that defines academic freedom in the classroom and thus is precisely on point here. The 1970 Interpretative Comments, AAUP Policy Documents and Reports (1973) 3, state the following concerning the sentence quoted in the text: “Most Church-related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure”. It would appear that this interpretative comment suggests unhappiness with the 1940 statement provision but not a rejection of it.

55 The attempt to apply a market-place of ideas model to institutions who clearly view value inculcation as a major part of their educational function has produced confusion in some of the most important American legal literature on academic freedom. The most striking example of this confusion is found in literature that first states generalizations about academic freedom that are explicitly concerned with higher education and then applies them, without further explicit analysis, to cases or situations that involve education below the college level. See, e.g., T.I. Emerson, op. cit. supra n. 1, at pp. 623–625; Van Alstyne, Annals, supra n. 1, at pp. 143–144 n. 5. Compare Shelton v. Tucker 364, U.S. 480, 486–487, 81 S.Ct. 247, 257 (1960). But see, “Developments in the Law: Academic Freedom” (1968) 87 Harv. L. R. 1045, 1050, 1054. In addition to the problem of value inculcation as affecting the validity of the market-place of ideas ideal of higher education, one must consider the very substantial part that professional education, i.e., training of students for particular professions, plays in American higher education. See text supra, at nn. 31–32. The specific training goals of professional education are far removed from the idealized academy in which the market-place of ideas is central. Whether independently of this, a market-place concept may be a good pedagogical device for professional training is also open to question. On the other hand, leaving curriculum decisions concerning professional education to individual faculty members, or at least, to the faculty as a group, may be argued to be sound on premises other than those of the marketplace of ideas. The argument would be that faculty members should know the best methods of professional preparation as they are generally themselves part of the profession for which the student is being trained. There are, however, a number of difficulties with this argument. First, in a number of areas, a portion, at least, of the faculty involved in professional training are not drawn from the profession. Even more significantly, in a number of fields, such as law, the field most familiar to the writer, though nominally a part of the profession, faculty members are often quite removed from the profession and it is just their different inclinations, ideas and attitudes that have prompted them to teach rather than to participate directly in professional work. Lastly, even if the faculty is really part of the profession, it still may be questioned whether membership in the profession makes one a professional in the pedagogy of training future members of that profession. Compare supra n. 35,

56 See, e.g., Stacy v. Williams 306 F. Supp. 963 (1969); Smith v. Univ. of Tennessee 300 F. Supp. 777 (1969); Brooks v. Auburn Univ. 296 F. Supp. 188 (1969), affirmed, 412 F. 2d 1171.

57 See Tinker v. Des Moines Ind. Comm. School Dist. 393 U.S. 503 (1969); Joyner v. Whiting, 477 F. 2d 456 (1973); Panarella v. Birenbaum 32 N.Y. 2d 108, 343 N.Y. S. 2d 333 (1973).

58 See Kutner, , “The Freedom of Academic Freedom: A Legal Dilemma” (1971) 48 Chi-Kent L.R. 168, 187–189.Google Scholar See also AAUP, A Statement of the Association's Council: Freedom and Responsibility, AAUP Policy Documents and Reports (1973) 61.