Wednesday, December 17, 2014

New Release: Lee on the History of Academic Freedom at American Universities

New from Lexington Books: Academic Freedom at American Universities: Constitutional Rights, Professional Norms, and Contractual Duties (November 2014), by Phillip Lee (University of the District of Columbia David A. Clarke School of Law). A description from the press:

This book details the legal and historical development of
institutional and professorial academic freedoms to better understand
the relationship between these concepts. While some judges and scholars
have focused on the divergence of these protections, this book
articulates an aligned theory that brings both the professorial and
institutional theories together. It argues that while constitutionally
based academic freedom does its job in protecting both public and
private universities from excessive state interference, or at the very
least it asks the right questions, it is inadequate because it fails to
protect many individual professors in the same way. This solution
entails using contract law to fill in the gaps that constitutional law
leaves open in regard to protecting individual professors.

law is an effective alternative to constitutional law for three
reasons. First, unlike constitutional law, it covers professors at both
public and private universities. Second, it allows for the consideration
of the custom and usage of the academic community as either express or
implied contract terms in resolving disputes between universities and
professors. Third, contract law enables courts to structure remedies
that take into account the specific campus contexts that give rise to
various disputes instead of crafting broad remedies that may ill fit
certain campus environments.

proposed reconceptualization of academic freedom merges constitutional
protection for institutions and contractual protection for individual
professors. This combined approach would provide a more comprehensive
framework than is currently available under the predominantly
constitutional paradigm of academic freedom.
A few blurbs:

Philip Lee makes a major and welcome contribution to the
burgeoning literature on academic freedom through his current and cogent
analysis of major court cases. He devotes special and justifiable
attention to the singular role of the American Association of University
Professors, which providentially observes its centennial this very
year. The constitutional evolution of academic freedom which Lee traces
through the past century also receives meticulous understanding in the
broader context of higher education law and policy. Perhaps most notable
is a concluding chapter which uniquely addresses contract (rather than
constitutional) law as an alternative basis for protecting free
expression on the university campus. -- Robert O'Neil

In Academic Freedom at American Universities Philip
Lee skillfully details how conceptions of academic freedom in higher
education have developed over time. Further, he proposes a stronger
legal defense of academic freedom, based in contract law. This book is a
must-read for anyone interested in legal, historical, and political
issues around academic freedom in higher education. -- Natasha Kumar Warikoo

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