Van Alstyne, William W.

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Foreword: Freedom and Tenure in the Academy

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LAW AND CONTEMPORARYPROBLEMSVolume 53 Summer 1990 Number 3FOREWORDWILLIAM W. VAN ALSTYNE*Nineteen ninety is the 75th anniversary of the first declaration of principleson academic freedom by a professional assocation in the United States. The1915 Declaration' was issued by the American Association of UniversityProfessors ("AAUP") within two years of its own genesis just prior to WorldWar I. Nineteen ninety is also the 50th anniversary of the more authoritativesuccessor to that Declaration, the Statement of Principles on AcademicFreedom and Tenure of 1940, jointly sponsored by the AAUP and theAssocation of American Colleges.2 The 1940 Statement has been endorsedby over 135 additional learned societies and educational associations in thehalf century since its appearance. It is frequently incorporated into facultyhandbooks, and it has been cited by a number of state and federal courts,including the Supreme Court. By these means it has achieved a certain legalcachet. This 1990 issue of Law & Contemporary Problems commemorates thesenotable academic freedom anniversaries. Most of the articles that appearhere address contemporary problems of academic freedom and tenure, withcritical attention to the 1940 Statement.The balance of the articles in this symposium address contemporaryproblems of academic freedom from a different perspective. This perspectivealso commemorates an anniversary, which matches the actual release date ofCopyright © 1990 by Law and Contemporary Problems* William R. Perkins Professor of Law, Duke University School of Law. The editors gratefullyacknowledge the support of the Academic Freedom Fund of the American Association of UniversityProfessors in the publication of this volume.1. AAUP, General Report of the Committee on Academic Freedom and Tenure, I AAUP Bull 17(December, 1915) ("1915 Declaration"); see Appendix A, 53 L & Contemp Probs 393 (Summer1990).2. 1940 Statement of Principles on Academic Freedom and Tenure ("1940 Statement"), in PolicyDocuments and Reports 3 (AAUP, 1984); see Appendix B, 53 L & Contemp Probs 407 (Summer 1990).Additionally, because of its pertinence to some of the articles in this symposium concerned withdimensions of student academic freedom (as well as professional academic freedom), the 1967 JointStatement on Student Rights and Freedoms is republished at Appendix C, 53 L & Contemp Probs411 (Summer 1990).LAW AND CONTEMPORARY PROBLEMSthis issue of Law & Contemporary Problems, Spring 1991: the 200th anniversaryof the Bill of Rights, the oldest constitutionally entrenched body of basic civilrights law in the world. Parts of the Bill of Rights have had a substantial effecton conditions of academic freedom in the United States, albeit principallyduring the twentieth century and largely only since World War II.In some countries (West Germany, for instance), academic freedom hasreceived some degree of express constitutional standing in the nation'sexplicit basic law. 3 In this country, in contrast, it never has-that is, notexpressly through any "academic freedom" clause. But even so, major partsof the Bill of Rights have over time proved quite serviceable in resolvingacademic freedom disputes in the United States. Indeed, in a practical way, acertain synergy has grown up, as it were, between the principles articulated inthe 1915 and 1940 Statements on academic freedom and particular provisionsof our Constitution, a development also worked out largely since the 1940Statement came of age. This development is also reviewed in this issue of Law& Contemporary Problems. Several articles take up the matter not simplyhistorically or generally, moreover, but quite specifically and concretely, interms of current campus disputes.There is a good deal of intellectual trafficking among the documents,principles, and neighboring 1990-1991 anniversaries brought together in thissymposium. Varieties of academic freedom will be found to draw sustenancefrom certain constitutional provisions, but sometimes rather weakly. The1940 Statement may fill some interstices, yet may also leave a great deal out ofaccount. Contemporary academic freedom problems in our universities posehard tests and generate strong differences in how best to respond to theseproblems. Differences in custom, differences in institutional practice,differences in public and professional expectations, differences in judicialattitude, and large degrees of constitutional uncertainty abound. Even so, onbehalf of those who contributed their talent and energy to this project, asspecial editor for this issue, I am confident the reader will find this anexcellent resource. A little more than a quarter century ago, Law &Contemporary Problems provided the first professional journal symposium reviewon academic freedom in the United States.4 It is all the more appropriate onthat account that we should return to it again in 1990-1991.3. See, for example, Article 5 of The Basic Law of the Federal Republic of Germany(Grundgesetz fir die Bundesrepublik Deutschland von 23 Mai 1949 (BGBI. 1, BGBI. III Nr. 100-1))(§ 1 protecting a general freedom of speech; § 3 separately and expressly protecting freedom in art,science, research, and teaching).4. See Academic Freedom: The Scholar's Place in Modern Society, 28 L & Contemp Probs (Summer1963) (Hans W. Baade and Robinson 0. Everett, eds). Since then, of course, the subject has beenaddressed in other symposia, most recently in the Symposium on Academic Freedom, 166 Tex L Rev (June1988) (Julius Getman and Jacqueline Mintz, eds). See also the many listings in Janet Sinder, AcademicFreedom: A Bibliography, 53 L & Contemp Probs 381 (Summer 1990). Among earlier general workson the subject, perhaps rightly best known is Richard Hofstadter & Walter P. Metzger, eds, TheDevelopment of Academic Freedom in the United States (Columbia Univ Press, 1955).[Vol. 53: No. 3

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Foreword: Freedom and Tenure in the Academy

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