Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that statements made pursuant to the official duties of public employees are not shielded by the First Amendment from employer discipline, despite a warning from three dissenting justices that the holding could imperil First Amendment protection of academic freedom in public college and universities. This article responds to the invitation in Garcetti to identify constitutional interests that support academic freedom and that are not fully accounted for by public-employee speech jurisprudence. It also argues that, contrary to common understanding, academic freedom is about more than faculty research and speech in the classroom; academic freedom is also about the freedom of faculties to govern their institutions in a way that accords with academic values. Part I traces the emergence of the governance dimension of academic freedom from 1915, when the American Association of University Professors (AAUP) credited the German ideal of academic freedom as the inspiration for its Declaration of Principles on Academic Freedom and Academic Tenure. Part II examines the development beginning in the 1950s of constitutional protection for academic freedom. It documents how the constitutional understanding of academic freedom has been compromised by its failure to encompass governance as at the heart of the ideal. Part III uses the broad understanding of academic freedom to reconceptualize academic freedom within the First Amendment. Because academic freedom was never justified as a benefit for faculty, but for its value to the First Amendment and to the nation, there is no basis for carving out an exception to Garcetti for faculty. There are good reasons, however, to develop a jurisprudence for the role of government-as-educator, and to distinguish that role from the roles of either government-as-sovereign and government-as-employer. Because of the distinctive nature of the academic workplace, constitutional academic freedom should protect not only a professor’s speech, but her power, as a member of a governing faculty, to be the architect of a place of study and learning that can facilitate the core university tasks of producing and disseminating new knowledge

2016 James P. While Lecture on Legal Education: Legal Education Reconsidered

The title of my talk, “Legal Education Reconsidered,” is not meant to suggest that legal education needs to be reconsidered. On the contrary, I will explore why the many criticisms of legal education made over the past six years combined with a significant decline in the legal job market have led many people—including many college students and recent graduates—not only to reconsider legal education, but to draw the conclusion that it is no longer a worthwhile investment. Even worse, a growing number of faculty and deans have become disheartened about their chosen life’s work and as a consequence have lost sight of the value of an American legal education

A Need for Caring

Review of AIDS AND THE LAW: A GUIDE FOR THE PUBLIC. Edited by Harlon L. Dalton, Scott Burris, and the Yale AIDS Law Project. New Haven: Yale University Press. 1987. Pp. vii, 382

Governing Board Accountability: Competition, Regulation and Accreditation

This article examines the three primary ways in which the governing boards of American colleges and universities are held to account: (1) competition; (2) regulation, including state nonprofit corporation laws, tax laws, and licensing laws; and (3) accreditation. It begins by tracing how lay (meaning nonfaculty) governing boards became the dominant form of governance in American higher education. It argues that governing boards provide American institutions of higher education with an exceptional degree of autonomy from state control and that, together with the shared governance approach that gives faculties primary responsibility for academic matters, they have been a vital factor in producing the leading system of higher education in the world. The article concludes with recommendations for improving board oversight including avoiding the reputational harm caused by excessive compensation or conflicts of interest, recognizing that the public expects the nondistribution constraint to be extended to such academic goods as admissions and graduation requirements, and understanding the risk posed by increased government control of accrediting bodies

Accreditation Reconsidered

Higher education is one of the most successful sectors in the nation at a time when much of the economy is struggling. Its quality has been buoyed by a long tradition of investment, both public and private, and by a healthy degree of autonomy from governmental control. America’s three governance innovations, citizen governing boards, shared governance, and accreditation, also have encouraged both quality and institutional autonomy in higher education. Accreditation has been a particularly important contributor to the institutional diversity and vitality of American colleges and universities. Most nations have a ministry of education that oversees institutions of higher education. But, such centralized control too often stifles innovation and quality. By contrast, the United States has long relied on private accreditors that use periodic peer assessments to support continuous quality improvement. Legal accreditation at the moment is out of step with most of higher education accreditation because of arbitrary limits placed on the participation of legal educators by the Council of the ABA Section on Legal Education and Admissions to the Bar. It is time for legal education to have a system of accreditation that is grounded on peer assessment, dedicated to improving, and not just assessing, the quality of legal education, and guided by the same peer governance structure that has worked so well for the rest of American higher education

Regulating Human Gene Therapy

Scientific developments have moved the public debate on genetic engineering to the issue of human gene therapy. Because so many important societal values must be weighed in deciding which, if any, of the first protocols for human gene therapy should be approved, it is obviously important to look closely at who will make the decision to approve or disapprove the protocols

The Judiciary and Education Reform: A Reassessment

Professor Areen examines the judicial attempt to provide equal educational opportunity, and questions the basic premises upon which judicial intervention is based. The author concludes that judicial efforts to equalize educational opportunity have been misdirected. The goals sought to be attained by judicial intervention must be reconsidered before an effective education can be provided for all

Advance Directives Under State Law and Judicial Decisions (Medical Decision-Making and the ‛Right to Die’ After Cruzan)

In the decision of the United States Supreme Court in Cruzan v. Director, Missouri Department of Health on June 25, 1990, a majority of the Court announced that it will leave to the states the question of what legal requirements may be imposed on decisions to discontinue treatment for incompetent patients. Almost every state now recognizes some form of written advance directive, be it living wills or appointments of proxy decision-makers. The problem with directives is thus increasingly not legal as much as it is practical: very few people prepare advance directives

In Memoriam: Professor Frank Flegal

Essay memorializing Professor Frank Flegal, who had taught courses involving federal courts, civil procedure, civil litigation and torts. He also had served as an associate dean of the law school from 1975 to 1979