美国的学述自由：Academic Freedom in the USA
Academic Freedom in the USA
by Ronald B. Standler
Table of Contents
History of academic freedom
Two kinds of academic freedom
Judicial recognition of academic freedom
Criticism of legal basis for academic freedom in First Amendment
Is the First Amendment a proper basis for Academic Freedom?
special privileges in egalitarian democracy
No protection for wayward professor
Academic freedom does not apply to ...
Is Academic Freedom different in different disciplines?
The conventional wisdom, including statements by the U.S. Supreme Court, has academic freedom as a legal right, derived from the First Amendment to the U.S. Constitution. I believe that this conventional wisdom is wrong.
I am not the only attorney holding this unconventional view. One scholarly article on academic freedom in the USA, written by a professor at the Georgetown University Law Center, began:
The First Amendment protects academic freedom. This simple proposition stands explicit or implicit in numerous judicial opinions, often proclaimed in fervid rhetoric. Attempts to understand the scope and foundation of a constitutional guarantee of academic freedom, however, generally result in paradox or confusion. The cases, shorn of panegyrics（speech praising someone）, are inconclusive, the promise of rhetoric reproached by the ambiguous realities of academic life.
The problems are fundamental: There has been no adequate analysis of what academic freedom the Constitution protects or of why it protects it. Lacking definition or guiding principle, the doctrine floats in law, picking up decisions as a hull does barnacles.
J. Peter Byrne, "Academic Freedom", 99 Yale Law Journal 251, 252-253 (1989).
Academic freedom is an amorphous(having no fexed form or shape) quasi-legal concept that is neither precisely defined nor convincingly justified from legal principles. These two defects make the law of academic freedom difficult to understand. I have no doubt that academic freedom is important and desirable. My concern is that professors in the USA may believe that academic freedom is a valid legal doctrine with power and vitality, when – in fact – it is often only empty rhetoric by professors and judges.
In practice, the notion of academic freedom is invoked to justify statements by faculty that offend politicians, religious leaders, corporate executives, parents of students, and citizens. Such offense is easy to understand, given that professors are often intellectual risk-takers, ahead of their time, and loyal to Truth – wherever it may lead and whoever it may offend – instead of loyal to money, political or corporate power, and dogma(important belief that people are expected to accept without reasoning).
History of academic freedom
In medieval Europe, universities were self-governing enclaves that were outside the civil law. Some of this isolation survives today in poorly articulated views that universities are somehow immune(unable to be harmed because of special qualities in oneself) from law. Perhaps the fact that large universities have their own police department gives some support to the notion of independence. Regardless of whatever myths may circulate in academic communities, the same law applies to colleges and universities in the USA that applies to people in other settings in the USA. See Healy v. James, 408 U.S. 169, 180 (1972)("At the outset we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment.")
The legal concept of academic freedom originated in Germany around 1850, so it is not an ancient concept. The Prussian Constitution of 1850 declared that "science and its teaching shall be free." In Germany, academic freedom is known as Lehrfreiheit – the right of faculty to teach on any subject. There are two related concepts in Germany: (1) Freiheit der Wissenschaft, freedom of scientific research, and (2) Lernfreiheit, the right of students to attend any lectures, and the absence of class roll calls. This kind of academic freedom has never been a major issue in the USA, owing to differences between the two countries:
• In Germany, there are no required classes for university students, and just one examination to obtain the Diplom degree.
In the USA, curriculum is rigidly controlled by faculty, and students must attend all of the required classes and a minimum number of "elective" classes, to qualify for a degree. There is typically at least one examination in every class in the USA.
• The German constitution of 23 May 1949, Art. 7 explicitly declares that education and all teaching is under the control of the Federal Education Minister. The German constitution of 23 May 1949, Art. 5, cl. 3 explicitly mentions that "Art and science, research and teaching are free."
In the USA, the federal constitution does not mention education; only a few state constitutions (e.g., California and Michigan) mention education.
Americans during the 1800's who desired a doctoral degree typically went to Europe and studied at a university in England, France, or Germany. In 1876, Johns Hopkins University in Baltimore was founded along the design of German universities at Göttingen and Berlin, which emphasized scholarly research by professors. Other universities in the USA were soon founded along the same lines: for example, the University of Chicago in 1890 and the California Institute of Technology in 1891.
During this time, older American institutions of higher education (e.g., Harvard, Princeton) evolved to include the German idea of a university as a place for scholarly research, as well as teaching of undergraduates. In 1915, the newly formed American Association of University Professors issued their first report on academic freedom.
Two kinds of academic freedom
There are two distinctly different kinds of academic freedom, which should have distinct names:
1. Individual academic freedom protects an individual professor.
2. Institutional academic freedom protects universities from interference by government, a right that applies to the community of scholars, not to individual faculty.
The following people have commented on the problem of using "academic freedom" to mean two different concepts.
1. Judge Posner, writing for the unanimous panel of three judges in Piarowski v. Illinois Community College, 759 F.2d 625, 629 (1985), cert. denied, 474 U.S. 1007.
2. Prof. Walter P. Metzger, 66 Texas Law Review 1265, 1266-67, 1314 (1988).
3. Prof. J. Peter Byrne, 99 Yale Law Journal 251, 255, 257 (1989).
Individual Academic Freedom
A general expression of individual academic freedom is included in the "1940 Statement of Principles on Academic Freedom and Tenure" by the American Association of University Professors (AAUP). This Statement by the AAUP has no legal effect, but the AAUP publicly censures colleges and universities that they believe have violated academic freedom. However, all major colleges and universities have adopted this Statement, or a variation of this Statement, which is contained in the faculty policy manual of each college or university, and is incorporated by reference in the employment contract between the university and each individual faculty member.
In many cases, individual academic freedom is simply part of academic tradition – the routine way that faculty committees, department chairmen, and deans operate when they make judgments about who to hire, who to promote, who gets tenure(the right to stay in a job without needing to have a new contract of employment), who gets larger salary increases, and who gets their employment terminated.
ASIDE: In my ten years as a professor, the most egregious(especially and noticeably bad;blatant) violations of academic freedom that I saw were committed by department chairmen who had spent all of their previous professional career as an employee of either industry or a government laboratory: these chairmen had neither understanding nor respect for academic freedom, they saw professors as mere employees who they rigidly managed.