Responses
Nancy Discussion:

Academic freedom has been used in higher education institutions across the nation since the inception of the Declaration of Principles on Academic Freedom and Academic Tenure in 1915 (Kaplin & Lee, 2014, p. 288). This declaration was later refined in 1940 by the American Association of University Professors to the Statement of Principles on Academic Freedom, which defines academic freedom as allowing faculty members the freedom to research and publish, the freedom to speak and write, and the freedom to teach what they see fit for the student’s education and experience (Kaplin & Lee, 2014, p. 288). For private and public higher education institutions, faculty members are protected by the First Amendment from governmental censorship and other governmental actions that may interfere with their freedom of speech, press, and association (Kaplin & Lee, 2014, p. 275).

When looking at academic freedom within the legal system, it can be evaluated under constitutional law or contract law. For public and private institutions, contract law limits both private and public institutions over their faculty members. Constitutional law prevents interference by external governmental bodies for institutional freedom, and also furthers the freedom of faculty from the institution itself (Kaplin & Lee, 2014, p. 287). In today’s courts, academic freedom is decided on by federal and state courts through the use of constitutional or common law when filing for or settling a lawsuit. Kaplin & Lee (2014) stated that since the 1970s there has been a heavy emphasis on the legal norms of academic freedom rather than the professional norms through academia (p. 290). With a push toward using academic freedom within professional norms, higher education institutions and administrators can further shape the roles and flexibility of its faculty members on campus, and further strengthen the institution’s mission and goals (Kaplin & Lee, 2014, p. 286).

References:

Kaplin, W. A. & Lee, B. A. (2014). The Law of Higher Education. (5th ed.). Indianapolis, IN: John Wiley and Sons.

Elizabeth discussion:

Academic freedom, both in terms of legal rights, and academic rights, has existed as an important concept in higher education in the United States. Although existing in some aspects of higher education even earlier, it was first widely recognized and formalized in by the American Association of University Professors, AAUP, in 1915. The most standard definition in the United States that still reflects current views on academic freedom can be seen in the American Association of University Professor’s 1940 Statement of Principles on Academic Freedom and Tenure. Academic freedom is most commonly defined as the freedom to, “conduct research and propound ideas without external interference” (White, 2010, p. 800). The AAUP’s statement further extrapolates its purpose for their statement by asserting that it is “to promote public understanding and support of academic freedom and tenure and agreement upon procedures to ensure them in colleges and universities” (AAUP, 1970, p. 14). This professional statement is viewed as a set of standards to uphold and can sometimes be referenced in litigation related to academic freedom under the pretense of academic custom and usage. Although these professional ideals and standards are recognized throughout many faculty and administrators throughout the country, there is a difference between these definitions and legal definitions of academic freedom in the United States.

Legal definitions and interpretations of academic freedom point to specific laws and policies that may impact academic freedom litigation. One of the most common constitutional protections related to academic freedom and cited in such cases is freedom of speech (Kaplan & Lee, 2014). Most freedom of speech cases boil down to the courts determining whether the professor was speaking on behalf of the institution or as a private individual. Special consideration is also given to whether or not the professor’s speech in question related to their field of study, expertise, knowledge and the course content they are delivering. The American Association of University Professors mention’s the significance that the context of the speech can have on questions of threats to academic freedom (Kaplan & Lee, 2014). For example, if a mathematics professor were to discuss political opinions on controversial topics such as abortion, gun rights, etc., in the classroom, that did not tie into their mathematical curriculum and expertise, they would not necessarily have a strong argument in depending their right to academic freedom if their speech in this instance was in question. In addition to constitutional protections, courts also review contract between faculty and the institution to apply contract law (Kaplan & Lee, 2014). This can be an important consideration in academic freedom questions at a private institution, as sometimes other federal laws and regulations, such as freedom of speech do not apply as widely to private institutions as they do to public institutions of higher education.

References

American Association of University Professors. (1970). 1940 statement of principles on academic freedom and tenure. Retrieved from https://www.aaup.org/sites/default/files/1940%20Statement.pdf

Kaplin, W. A. & Lee, B. A. (2014). The law of higher education. (5th ed.). Indianapolis, IN: John Wiley and Sons.

White, L. (2010). Fifty years of academic freedom jurisprudence. Journal of College and University Law, 36(3), 791–842.