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郭国汀律师专栏
·达赖喇嘛代表流亡政府及全体藏民与中国政府和平谈判理所当然----兼与王希哲兄商榷
·三一四西藏暴乱事件的真相
·布什总统再度敦促中国(中共)与达赖喇嘛对话
·达赖喇嘛抵美国西图参加为期五天的慈善的科学基础大会,据称150000门票全部售出
·布什总统出席奥运开幕式已不确定
·达赖喇嘛今天重申不抵制奥运会
·布什总统决意出席奥运开幕式并非仅由于他性格顽固
***(47)人权律师法律实务
·郭国汀:中国人没有基本人权——2008年加拿大国会中国人权研讨会专稿
·我为何从海事律师转向人权律师?
·盛雪专访郭国汀从海事律师转变成人权律师的心路历程
·我从海事律师转变成人权律师的思想根源
·郭国汀律师受中共政治迫害的直接原因
·我从海事律师转变成人权律师的心路历程
·成为一名人权律师!---郭国汀律师专访
·一个中国人权律师的真实故事
·世界人权日感言/郭国汀
·人权漫谈/南郭
·人权佳话
·保障人权律师的基本人权刻不容缓
·不敢或不愿为法轮功作无罪辩护的律师,不是真正的人权律师!
·人权律师辩护律师必读之公正审判指南(英文)
·我为什么推崇中国人权律师浦志强?
·巴黎律师公会采访中国人权律师郭国汀
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·人权律师的职责与使命----驳李建强关于严正学力虹案件的声明
·驳斥刘路有关六四屠城的荒唐谬论
·李建强律师与郭国汀律师的公开论战
·李建强与郭国汀律师的论战之二
·英雄多多益善!郭国汀
·英雄辈出的时代刘路千万别走错路 郭国汀
·答康平伙计关于郭律师与李建强之争
·揭穿刘荻的画皮----南郭与[三刘]之争不属刘家私事而是中国民主运动的公事
·刘荻的灵魂竟是如此[美丽] !
·废除或修改煽动颠覆国家政权罪思想监狱中国律师集体第一议案的诞生
·团结起来共同对敌 答刘路先生的公开信
·敦促刘路公开辩污的公开函
·敦促刘路公开辩污的最后通牒
·我为法轮功抗辩——答刘路质询函
***自由人权宪政共和民主之路争论
·中国人缺少宽容精神么?
·郭国汀评价刘晓波诺奖
·关于刘晓波是否合格人选答阮杰函
·郭国汀评刘晓波之伪无敌论
·中共怪异重判刘晓波的意图旨在克意扶持默契能控的民运‘领袖’
·质疑刘晓波先生盛赞俞可平民主论 郭国汀
·我愿意出任刘晓波2006/guoguoting/68
·郭国汀与刘晓波先生关于人民起义权利的对话
·刘晓波案之我见
·郭国汀预言刘晓波与中共之间的默契
·刘晓波虚伪有余而真诚不足
·强烈谴责中共专制暴政公然践踏法律枉法刑拘刘晓波先生!
·为什么应当支持刘晓波?
·郭国汀邀请刘晓波公开论战的函
·告别自由中国论坛网友公开函
·郭国汀:质疑一个刘晓波超过全部民运人士
***(48)人权律师思想辩护策略论战
·律师应当如何为颠复及煽动颠复国家政权罪抗辩?----就如何为郭泉、谢长发、刘晓波、谭作人等民主斗士抗辩答网友咨询
·辩护律师为法轮功讲真相案件辩护的基本原则 郭国汀
·真正的刑辩大律师! 郭国汀
·深入骨髓的奴性!
·《九评共产党》是没有价值的政治大字报?
·如何识别网警共特?----答毕时园伙计的质疑
·中共网络别动队业已渗透大量西方中文网站
·什么是南郭之一不怕死二不爱钱?
·答草兄及建强兄质疑
·答张鹤慈先生质疑
·刘荻为何害怕这篇文章? 中国知识分子死了!
·郭国汀答小乔函
***(49)重大人权案件辩护
·民运英雄杨天水危在旦夕
·强烈谴责中共暴政企图暗杀冯正虎先生的流氓下三滥作为!
·关注声援支持人权律师刘士辉,强烈抗议流氓暴政的政治迫害人权律师!
·呼吁全球华人关注支持民族英雄郭泉博士
·真正的知识分子英雄郭泉博士
·决不以出卖灵魂出卖人格尊严为代价打官司
·严正警告流氓无赖中共匪帮
·南郭警告胡锦涛别再玩火!
·强烈谴责中共暴政枉法滥捕自由作家谭作人先生
·胡锦涛最害怕最恨谁?
·为申曦(曾节明)作证的证明函
·论颠覆及煽动颠覆国家政权罪
·颠覆国家政权罪的法理解析
·中共阉法院认定的颠覆国家政权案件"犯罪事实"简析
·关注声援支持中国知识分子英雄郭泉博士
·我为郭泉博士抗辩
·敬请各界朋友关注声援支持民主斗士郭泉教授
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·烈女邓玉娇传记六则
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·强烈谴责胡锦涛及中共专制暴政枉法杀害英雄义士杨佳!
·杨佳精神不朽 抗暴当走退党之路
·岂能将英雄义士杨佳与希特勒、哈尔曼、唐永明相提并论?!
·杨佳案7名涉案警察证人和杨佳的母亲必须出庭作证
·郭国汀预言死刑将造就更多杨佳
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美国的学述自由:Academic Freedom in the USA

Academic Freedom in the USA
   by Ronald B. Standler
   Table of Contents
   Introduction

   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 ...
   Academic Abstention
   Is Academic Freedom different in different disciplines?
   Conclusion
   Short bibliography
   
   Introduction
   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.

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