A Historical and Legal Context

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UMI®
A Historical and Legal Context
of Faculty Academic Freedom in
American Higher Education
A Dissertation
Presented for the
Doctor of Philosophy
Educational Leadership
University of Mississippi
Susan Kay Price Lofton
May 2001
UMI Number: 3010956
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UMI Microform 3010956
Copyright 2001 by Bell & Howell Information and Learning Company.
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To the Graduate Council:
I am submitting herewith a dissertation written by Susan Price Lofton entitled “The Impact of
Historical and legal Context o f Academic Freedom in Higher Education on Educational Policy.”
I have examined the final copy o f this dissertation for form and content and recommended that it
be accepted in partial fulfillment o f the requirements for the degree o f Educational Leadership,
with a major in Higher Education.
Dr. TimothyXetzring, Major Professor
We have read this dissertation

and recommend its acceptance:
Accepted for the Council:
ABSTRACT
This historical study of academic freedom in higher education
accomplished three major objectives: investigation into the original and emerged
concept of academic freedom in higher education, identification and analysis of
significant historical and legal events which influenced academic freedom during
this same time period, and identification of societal and legal trends which
influenced education administrative policy decisions. Academic freedom of
faculty members, institutions, and scholastic sovereignty of students, though all
important, were considered to be separate issues by most learned educational
policy and theory experts. This dissertation fully explored the concept of
academic freedom of the university faculty and explored the concept as it
applied to students or institutions only when the two distinct concepts
commingled. The ideology surrounding intellectual liberties was exhibited
through paradigm shifts over time. Ideologies surrounding the concept of
academic freedom within academic settings have been manifested and well
documented since the age of Socrates. However, the concept of academic
freedom, as it applies to the faculty in the American university in the twentieth
century, was the focus of this dissertation. Educational philosophies impacting
academic freedom prior to 1900 were generalized in a single chapter;
subsequent scrutiny of the philosophies, laws, and legal precedents impacting
academic freedom after 1900 was then performed.
II
DEDICATION
During this long journey, I've lost some important loved ones along the
way. Mom, dad, and brother Keith ... there were nights that as I sat typing, I felt
your encouraging hands on my shoulders. Wish you could see me graduate.
To Gaye Ragland ... the best sister a girl could ever have. We are the
ying and yang of life! What would I do without your constant encouragement...
you've always managed to pick me up when I fall down. Thank you. I love you.
To Jean Walker, my partner in crime. We have now been in school
together since 1969! Why ... we have become old women! I will always treasure
our deep conversations and goat milk fudge and palm readers on Highway 49 ...
the small Cs of our doctoral curriculum!
To Mateline and Martin Lofton, my precious in-laws. Thanks for all the
constant encouragement and meals that you provided on class nights. How
iucky I am to have in-laws that I truly love.
To my special loves: husband, Jeffery Wade Lofton, and daughter
Julianne. Well guys, we finally hit the finish line! Jeffery, you really are the wind
beneath my wings. Julianne, you are a beautiful, confident young woman. I am
so proud of your accomplishments and so happy that you are proud of mine, too.
Thanks for all the nights you never complained about cold suppers and Mom
being gone. I love you both with all my heart.
Finally, I thank my Savior... who reminds me daily that in the scheme of
things, this isn’t such a big deal anyway.
Ill
Acknowledgment
I would like to acknowledge and thank my dissertation committee for their
support and assistance in this dissertation process. First, my committee Chair,
Dr. Tim Letzring, who is truly an outstanding chair and an outstanding educator.
Your support has extended through all semesters, for which I am very grateful.
Dr. Peggy Hewlett, a fellow faculty member at the University of Mississippi
School of Nursing, thank you for all your support, editing efforts and help in
keeping the tenses straight! Dr. Whitney Thompson, another fine editor.
Your prompt response and uplifting encouragements were needed and
appreciated. Finally, Dr. Jeff Buck, many thanks for stepping in at a late date to
serve on my committee.
I would also like to acknowledge and thank Dr. Anne Peirce, Dean,
University of Mississippi School of Nursing, my department chair, Dr. DeBrynda
Davey, and my fellow faculty members, for their continual support of my
educational endeavors.
IV
TABLE OF CONTENTS
Page
CHAPTER 1 Purpose 7
Limitations 9
Sources of Data 9
Methodology 10
CHAPTER 2 History of Academic Freedom Preceding Civil War 38
CHAPTER 3 Influence of Religious Fundamentalism, Post 57
Civil War through 1925
CHAPTER 4 Anti-Communism and McCarthyism, 1930-1952 73
CHAPTER 5 1952 through the Radical Sixties 86
CHAPTER 6 Radical Academic Left and Political Correctness,
1975 to present 98
CHAPTER 7 Impact on Policy: Summary and Conclusions 124
REFERENCES 135
APPENDIX A Time Line of Historical and Legal Events

Relating to Academic Freedom 152
APPENDIX B Permission to Publish 157
APPENDIX C AAUP 1925 Conference Statement, Abridged 159
APPENDIX D AAUP Statement of Principles on

Academic Freedom and Tenure, Abridged 170
APPENDIX E AAUP 1940 Conference Statement, Abridged 176
CHAPTER I
Introduction
The abstract notion of academic freedom has intrigued academicians for
centuries, while remaining a constant source of educational debate. Although
many educators link the concept solely to academic suppression, the abstraction
encompasses much more. Societal forces and historical events, along with
religious, intellectual and political issues, continually shape and redefine the
liberties educators are granted in the classroom and university campus.
Academic freedom of faculty members and scholastic sovereignty of
students, though both important, are considered to be separate issues by most
learned educational policy and theory experts. Individual faculty freedom and
institutional academic freedom are also two distinct concepts. This dissertation
was developed to fully explore the concept of academic freedom of the individual
university faculty member and explored the concept as it applied to students or
institutions only when the distinct concepts commingled.
The ideology surrounding intellectual liberties was manifested through
paradigm shifts over time. Ideologies evolve as a comprehensive set of beliefs
about the world, along with the principles that are needed to project these
beliefs. Although such ideologies surrounding the concept of academic freedom
within academic settings have been manifested and well documented since the
age of Socrates, the concept of academic freedom, as it applies to the American
university in the twentieth century, was the focus of this dissertation. The
decision was made to generalize the educational philosophies impacting
academic freedom prior to 1900 in a single chapter; subsequent close scrutiny of
the philosophies, laws, and legal precedents impacting academic freedom after
1900 was then performed. This dissertation predominantly focused on those
historical events after 1900 which shaped the concept of faculty academic
freedom, along with the legal rulings and complexities of the past 100 years
which continued to redefine the concept.
Statement of the Problem
The purpose of this historical study of academic freedom in higher
education was 1) to investigate and describe the original and emerged concept
of academic freedom in higher education as it relates to individual faculty
freedom, 2) to identify and analyze significant historical and legal events which
influenced academic freedom during this time period, and 3) to identify societal
and legal trends which may have influenced education administrative policy
decisions.
Significance of Study
This study provided educators information, facts, and data regarding the
history, legality, and context of academic freedom in higher education. This
historical and perspicacious study of educational canons served as a valuable
resource to students of higher educational programs, faculty of higher
educational programs, and academic administrators.
The field of education is a fitting example of the worth of
historical research because it is necessary to both know and understand
educational trends of the past in order to gain an outlook on present and
future directions.1
This historical study served to interpret the past, and extended a
perspective to contemporaneous issues in academia, by predicting parallels,
trends, and legal interpretations of the past century, as they related to faculty
academic freedom. Forecasting of probable societal and legal trends, with
expectations on the reshaping and redefining of faculty academic freedom,
provided educators with information for use in policy making and managerial
decisions in the academic environment.
This study differed from other perused dissertations involving various
aspects of academic freedom. This study utilized historical methodology, and
1Kerlinger, F.N., Foundations o f Behavioral Research. New York: Holt,

1973.
linked significant historical and legal events which influenced academic freedom
with educational policy patterns. This study focused solely on those aspects of
academic freedom which impacted individual faculty freedoms.
Limitations
This study primarily concentrated on those historical and legal events
since 1900, although prior events were summarized in Chapter 2. The study
focused on the American university setting, although international historical
influences which shaped the early American university was explored. Through
the historical research process, data were analyzed without the advantage of
being able to ask clarifying questions. The data contained time gaps in which no
significant findings on the subject appeared to exist. Primary data collected from
Germany required skills to overcome language and international access
obstacles, obtaining articles, speeches and copies of government acts from the
German Embassy, and networking with the German Embassy to obtain English
translations. Therefore, some detail of the German works may have been lost in
the translation process. Finally, the study was directed at individual faculty
freedom, and explored the concept of academic freedom as related to
institutional freedom or student academic freedom only when the concepts
commingled.
Sources of Data
Major sources of data for this study were The Constitution of the United
States o f America, The Constitution of Germany, various German government
acts and provisions, The Reich Laws, past and pending court cases concerning
academic freedom in the United States, United States Supreme Court opinions,
books, academic essays and musings about academic freedom, national and
international academic journals, law review journals, The Principal Statement of
the American Association of University Professors (Diebler, 1922J,2 and the
Commissbn on Academic Tenure in Higher Education. Recognizing the stronger
reliability provided by primary documentation, secondary sources were only
utilized when primary documentation was missing or limited, or when secondary
sources provided clear English language translations. Early philosophical texts
in German were studied solely through English translations; however, these
translations were published through reputable publishing houses and appeared .
highly consistent in the translation process.
2Deibler, F., “The Principles of Academic Freedom and Tenure of the

American Association of University Professors", The Annals o f the American
Academy o f Political and Social Science, Cl, (5), 1922.CC
10
Methodology
The methodology utilized in this study was that of historical research. The
writer determined that sufficient data existed to support the study’s purpose.
New data and known data were collected through primary and secondary
sources. Data sources were evaluated through external and internal criticism.
Data were not manipulated, nor were new data generated. A systematic, close
interpretation of the facts was conducted to gain a clearer understanding of
academic freedom for the university practice arena. This was largely
accomplished through adjunct reading sources and referrals - as one text was
read and perused, supporting references were also identified, explored and read
for factual clarity and factual consistency.
Findings were systematized in chronological order as the first step of the
historical research data interpretation, with each chapter apportioned a specific
and significant period of time. The following chapter organization was utilized:
Chapter I: Purpose, Methodology, Limitations, Sources of Data,
Review of related Literature
Chapter II History of Academic Freedom Preceding Civil War
Chapter III: Influence of Religious Fundamentalism on Academic
Freedom, Post Civil War through 1925
Chapter IV: Anti-Communism and McCarthyism, 1930-1952
11
Chapter V: 1952 through the Radical Sixties
Chapter VI: Radical Academic Left and Political Correctness,
1975 to Present
Chapter VII: Impact on Policy: Summary and Conclusions
The dynamics of historical events were placed along the time continuum
in order to examine the temporal relationship to the data. To ensure the integrity
of the study, strengthen reliability, and to get as close to the original events and
meanings as possible, primary data were used whenever available. The use of
these primary data sources also served to minimize distortion of data.
The methodological steps used in this historical research were those
outlined by nursing research expert M. Leininger, in Qualitative Research
Methods in Nursing (1985)3 and education research expert F. Kerlinger in
Foundations of Behavioral Research (19731.4 as follows:
1) defined the historical topic to be explored
2) outlined a preliminary hypothesis or purpose
3) obtained a broad outline of the topic
4) began building historical bibliography
5) gathered all significant data on academic freedom from variety of
3Leninger, M., Qualitative Research Methods in Nursing, Orlando: Grune

& Stratton, 1985.
4Kerlinger, F.N., Foundations o f Behavioral Research. New York: Holt,

1973.
12
sources
6) organized data on time and event continuum
7) addressed the evidence for veracity and meaning
8) evaluated and corroborated the evidence
9) formed conclusions and forecasted contextual shifts in academic
freedom in education for the next 25 years
Review of Related Literature
Although there have been volumes of academic musings written
regarding the concept of academic freedom, limited sequenced and substantive
materials on the subject were identified, particularly prior to 1960. Noted
academician Robert Standler (1999),5 in his recent article entitled Academic
Freedom in the United States, asserted “...there is a large volume of literature on
academic freedom, mostly written by professors, and mostly consisting of self
serving praise and unsupported assumptions.” 6 To determine the original intent
of academic freedom from both education and legal views, earliest theoretical
and intellectual writings were uncovered. Germany’s strong influence on
America’s concept of academic freedom were quickly apparent, and many
5Standler, R., Academic Freedom in the U.S.A., Internet: httpdtom/afree.

htm, 1999, p. 6.
6lbid.
13
Germanic sources of data were obtained and studied.
As the following historical and legal documents, books and philosophical
writings were examined and studied, it became evident that certain events and
writings yielded more influence on academic freedom than others. After judicial
consideration, those events deemed to have the greatest importance was placed
on a time and event continuum. Those events, while identified and recorded with
minimal reference statements in Chapter One, were written about in greater and
closer detail in chapters two through six.
Early Philosophical Writings
The reflections and ruminations of early educational philosophers,
prior to 1800, were examined prior to scrutinizing literature of the past 100 years
on academic freedom.The early philosophical works were explored in order to
fully grasp both the concept and historical significance of intellectual and
academic freedom. Findings and postulations were then extrapolated and
studied in relationship to the modern American university academic world.
The eminent reference work of constitutional jurisprudence Handbuch des
Staats Rechts der Bundesreoublik Deutschland 7was determined to be the
authoritative work placing the intellectual roots of academic freedom within the
7Oppermann, T., “Freiheit von Forschung und Lehre", Handbuch des

StaatsRechts der Bundesrepublik Deutschlancf, 6, Heidelberg: Muller, 1989.
14
age of Humanism and the Enlightenment.8 In this work, Thomas Oppermann9
asserted that the expulsion of the famous philosopher Christian W olff from the
University of Halle in 1723 served as a focal point at which the concept of
academic freedom moved from the theological perspective toward the university
(academic) setting.
Numerous historical writings also provided historical references to the
academic controversy of noted enlightened philosopher Immanuel Kant and King
Frederick the Great, King of Prussia. In 1794, Kant was admonished publicly by
the King because of Kant’s controversial publication, On the Radical Evil in
Human Nature (1794),10 in which Kant asserted that man is, by nature, an evil
being. Kant’s reputation among his colleagues and supporters was negatively
impacted because of the King’s admonishment, although his prestige as a free
thinker among men lived on.
Shortly thereafter, noted philosopher Johann Gottlieb Fichte, an ardent
supporter of free academic speech, was dismissed from his faculty position at
8Hahn, H., Education and Society in Germany, Oxford: Oxford

International Publishers, 1998.
9Oppermann, T., “Freiheit von Forschung und Lehre", Handbuch des

StaatsRechts der Bundesrepublik Deutschland1, 6, Heidelberg: Muller, 1989.
10Kant, I., On the Radical Evil in Human Nature, 1794, trans. McGregor,
New York: Abaris: 1979.
15
the very permissive University of Jena.11 Historical accounts on the reason for
the termination vary. Various historical accounts assert that Fichte was
dismissed for his avowed atheistic views while others assert that Fichte was
discharged because of his political leanings toward democracy1213. Richard
Dahrendorf (1969) Society and Democracy in Germany.14 S. Stirk (1946)
German Universities - Through English Eves.15 and C. Fufr (1989) Schools and
Institutions of Higher Education in the Federal Republic of Germany16 all
provided extensive, detailed historical depictions of University evolution, along
with corresponding educational tenet evolutions - namely, academic freedom.
"W ritings about the life of Fichte, as cited in Breazeale, 0., Fichte: Early
Political Writings [1790-1799], includes “Some Lectures Concerning the
Scholar’s Vocation”, Ithaca: Cornell University Press, 1988.
12Hoye, W., “The Religious Roots of Academic Freedom,” Theological

Studies, 58 (3), 1997.
13lbid.
14Dahrendorf, R., Society and Democracy in Germany, Oxford: Oxford

Publishers, 1969.
15Stirk, S., German Universities Through English Eyes, London: London

press, 1946.
16Fufr, C., Schools and Institutions o f Higher Education in the Federal

Republic o f Germany, Frankfurt: Frankfurt Press, 1989.
16
Books
Several available and renowned books provided some concretely
supported historical perspectives on academic freedom from an academic
perspective, such as the classic works of Walter Metzger (1955),17 Academic
Freedom in the Age of the University. Richard Hofetadter Academic Freedom in
the Aae of the College (1961),18their combined volume The Development of
Academic Freedom in the United States (1955),19 and Conrad Russell Academic
Freedom (1993).20 Paulo Freire’s combined works, particularly Paulo Freire on
Hioher Education: A Dialogue at the National University of Mexico (1994),21 and
Neil Hamilton (1998) Zealotry and Academic Freedom22 richly added historical
and philosophical support to this study, as did the recently published historical
17Metzger, W. “The 1940 Statement of Principles on Academic Freedom

and Tenure.” 53 Law & Contemporary Problems, 3,1990.
18Hofetadter, Richard, Academic Freedom in the Age of the College, New

York: Columbia University Press, 1961.
19Hofstadter, Richard & Metzger, Walter, The Development o f Academic

Freedom in the United States, New York: Columbia, 1955.
20Russell, Conrad. Academic Freedom. London and New York: Rutledge,

1993.
21Freire, P., Paulo Freire on Higher Education: A Dialogue at the National

University of Mexico, New York: Continuum, 1994.
“ Hamilton, N., Zealotry and Academic Freedom, Transaction Publishers:

New Brunswick and London, 1998.
17
work of Christopher Lucas, American Higher Education: A History (1994).23
Metzger and Hofstadter (1955)24 wrote the first two aforementioned books
as companion volumes. The authors deftly described the emergence of the
modern university in America in the context of an educational revolution. Early
philosophical and German influences were explored, along with the influences of
Darwinism and religious authority, which impacts educational reform. These two
volumes provided significant support regarding the impact on academic freedom
from historically significant events such as the Civil War, World War I, World
War II, the Vietnam War, and the establishment of the American Association of
University Professors (AAUP). The two authors then collaborated on an
additional volume, The Development of Academic Freedom in the United States
(1955)2Swhich further explored social and political issues surrounding the
concept.
John Cardinal Newman (1960) penned The Idea of a University.26 which
was composed of a series of lectures given during the founding year of the
Catholic University in Dublin, Ireland. Newman espoused the University to be:
23Lucas, C., American Higher Education: A History, St. Martin’s Griffin:

New York, 1994.
24Hofstadter, R.,& Metzger, W., The Development o f Academic Freedom

in the United States, New York: Columbia, 1955.
25Hofstadter, R.,& Metzger, W., The Development o f Academic Freedom

26Newman, John, The Idea of a University, New York: Columbia, 1960, p.

353.
18
... a place of teaching universal knowledge ...it is the diffusion and
extension of knowledge rather than the advancement... where inquiry is
pushed forward ... a seat of wisdom, a light of the world, a minister of the
faith, an Alma Mater of the rising generation.27
Newman was continually recognized in the literature as an early, vocal supporter
of academic freedom.
Conrad Russell, Professor of British History at King’s College, University
of London, and a respected member of the House of Lords, published numerous
articles which reflected personal musings on the subject of academic freedom,
which extolled academic freedom as the cornerstone of higher education. His
book, Academic Freedom (1993),28 was commissioned as a consequence of the
dispute between government and the universities during England's Educational
Reform Bill of 1988. The resulting volume served as a negotiated position
statement supported by both the government and the academics of the
universities. In this book, Russell (1993)29 outlined the educational ideals and
limitations surrounding academic freedom. However, significant historical
extrapolations and inferences were sparse and of little value in developing the
27Newman, John, The Idea o f a University, New York: Columbia, 1960, p.

353.
26Russell, Conrad. Academic Freedom. London and New York: Rutledge,

1993.
^Russell, Conrad. Academic Freedom. London and New York: Rutledge,

1993.
19
time line and specific, significant events for exploration in this dissertation.
Renowned educator and philosopher Paulo Freire authored several
volumes on educational philosophy and reform which championed the concept
of academic freedom in education. Freire (1995) penned his most notable work,
Pedagogy of the Oppressed after his imprisonment and subsequent exile from
Brazil.30 This exile was a direct result of his design and successful
implementation of a literacy program for the poor and uneducated masses in
South America. Later works by Freire included The Politics of Education:
Culture. Power and Liberation (1985)31 and Pedagogy in Process: Letters to
Guinea-Bissau (1978V 32 All of Freire’s works provided broad insights into the
context of academic freedom. Freire championed the cause of free speech and
due process for all persons involved in the educational process. His social views
particularly favored free speech and due process for the poor and downtrodden.
Freire advocated the right of open debate, critical academic and political debate,
and educational emancipation of the masses. Although most of Freire’s works
did not center on the exact concept of academic freedom, free speech issues
were always at the center of his philosophical musings. Freire’s work entitled
30Freire, P., Pedagogy o f the Oppressed, trans. Myra Bergman Ramos,

New York: Continuum, 1995.
31Freire, P., Education for Critical Consciousness, New York: Contiuum,

1993.
32Freire, P., The Letters to Guinea-Bisseau, New York: Seabury Press,

1978.
20
Paulo Freire on Higher Education: A Dialogue at the National University of
Mexico (1994)33 provided the most profound depth and debate regarding the
implications and repercussions of his pedagogical educational theory, which
maintained academic freedom as a primary tenet.
Neil Hamilton (1998)34 wrote Zealotry and Academic Freedom, which was
a rich source of legal and historical reference. Hamilton (1998)35 identified
“distinct waves of political zealotry” which shaped the concept of academic
freedom in the United States system of higher education, beginning with the
emergence of the university in this country following the Civil War.36 Many of
these shifts in educational ideology centered around Americans’ patriotic
feelings surfacing in World War I, World War II, and the Vietnam war.
Hamilton (1998),37 a chair in regulatory policy at the William Mitchell
College of Law, located in St. Paul, Minnesota, originally intended to write about
his personal struggle as the focus of five internal investigations of academic
speech from 1987 through 1991. However, the publication ultimately provided
“ Freire, P., Paulo Freire on Higher Education: A Dialogue at the National

"Hamilton, N., Zealotry and Academic Freedom: A Legal and Historical

Perspective, New Brunswick, U .S A and London: Transaction Publishing, 1998.
35lbid.
“ Ibid.
“ Hamilton, Neil. Zealotry and Academic Freedom: A Legal and Historical

21
accurate and detailed historical events in higher education in the United States.
Further, the book also served as an initial point for identifying the most
publicized and important court cases impacting academic freedom in the
university setting over the past 50 years.
J. Hahn (1998),3®noted academician and Chair of the German
Department at Oxford University, recently published Education and Society in
Germany, which provided a detailed analysis of trends in German education and
society since the emergence of German educator Wilhelm von Humboldt’s
concept of Bildung39. This publication rendered new insights into the
interrelationship of educational and social developments in Germany which
profoundly impacted the American university and the modem concept of
academic freedom in this country.
“ Hahn, H., German Thought and Culture: From the Holy Roman Empire
to the Present Day, Manchester: Manchester Press, 1985.
39Humboldt, W., Ideen zu einem Versuch, die grenzen der Wiksamkeit des
Staates zu Bestimmen, Franfbrt, [Suggestions for Defining the Limits of State
Effectiveness], a political essay penned in 1792, and translated in Hahn,
Education and Society in Germany, Oxford: Oxford International Publishers,
1998.
22
Supporting Publications
The writings of Wilhelm von Humboldt provided a foundation for the
national German concept of education, known as German Gymnasium.40
Although von Humboldt’s educational reform movement was largely limited to
Prussia, von Humboldt continued to be recognized as the founder of the modem
German university. The German university was very influential in the shaping of
the early curriculum of the American university4142. The Prussian Constitution of
1850 reflected the impact of von Humboldt’s influence in the body of the
document, which stated “science and it’s teachings shall be free” 43
The 1915 Report on the Committee on Academic Freedom and Tenure of
American Association o f University Professors (AAUP)44 was the first published
report on academic freedom developed by the Association. This policy statement
40Historical writings of Wilhelm Humboldt, 1792, as cited in Hahn, H.,

Education and Society in Germany, Oxford: Oxford International Publishers,
1998, p.1.
41Bruford, Cf. W.H., The German Tradition of Self Cultivation: Bildung from
Humboldt to Thomas Mann, Cambridge: Cambridge Press, 1975.
42Fuff, C., Schools and Institutions o f Higher Education in the Federal

43The Prussian Constitution of 1850, as cited in Standler, Robert,

Academic Freedom in the U.S.A., lnternet:http://www.rbs2.com/afree. htm, 1999.
“ American Association of University Professors policy statement: The

1915 Report on the Committee on Academic Freedom and Tenure, Policy
Documents and Reports, 77-78, 7th ed., 1990.
23
was the first American document to champion the rights of professors while
demanding a defined system of due process. This policy revealed that tenure
was an earned privilege and not the right of all professors. The AAUP supported
tenure as a judgment of merit, to be awarded at the end of a specified term.
Three years later, Thorstein Veblen (1918), a well known economist and
professor at Columbia University, published The Hioher Learning in America, a
long series of bound articles citing American capitalism as intrusive on the
American educational system.4S Veblen (1918) further espoused that capitalism
was an academic evil that would eventually be the downfall of educational
reform. Veblen’s works formed the core of early academic debate in this country,
particularly on issues about the influence of capitalism and private money on
free speech in higher education. Veblen, a great orator, stirred political
controversy where ever he spoke. The influence of his European education and
pro communistic political slant was always evident in both his writings and
oratories.
At about the same time that Veblen was espousing his views in America,
massive academic debate in Germany erupted as a result of a famous speech
by Max Weber (1919) Wissenschaft als Beruf [Scholarship as a Vocation].46 In
this speech, Weber claimed that as American universities were quickly reflecting
45Veblen, T., The Higher Learning in America: A Memorandum on the

Conduct o f Universities by Business Men, New York: Viking, 1918.
46Weber, M., Wissenschaft als Beruf [Scholarship as a Vocation], German

nationalist and anti-socialist political speech given in Germany, 1919.
24
German influences, so, too, were German universities reflecting American
influences, particularly with regard to the influence of money and capitalism on
academic rigor, or lack thereof.47 Weber also condemned the rising social need
for recruiting students, regardless of intellectual capability or capacity, as a
means of fattening the university coffers.
As these academic debates raged both in America and in Germany, a
new political influence was taking hold on German soil. Adolf Hitler was quickly
gaining power and prestige within Germany’s elite. As Hitler espoused rhetoric
which tightened government control over education, academicians began to
speak less of the need for academic freedom and more for the need of patriotic,
government sponsored speech in the classrooms48. Germany’s Enabling Act of
193349 served as a significant historical document impacting the concept of
academic freedom. On February 27,1933, a fire destroyed German’s Reichstag
building, and a state of emergency was declared. Adolf Hitler alleged that world
communist regimes had initiated the fire. President von Hindenburg immediately
suspended freedom of speech and assembly. On March 23 of the same year,
47Weber, M., Wissenschaft als Beruf [Scholarship as a Vocation], German

nationalist and anti-socialist political speech given in Germany, 1919.
48Jarausch, K., Students, Society, and Politics in Imperial Germany: The

Rise o f Academic llliberalism, Princeton: Princeton University Press, 1982.
49Germany: The Enabling Act o f 1933, political legislative act providing

dictatorial powers over education and teaching, 1933.
25
The Enabling A cf° of 1933 was passed, granting Hitler’s government dictatorial
powers over all aspects of education and teaching. Perusal of The Enabling Act
of 1933s1 revealed that through the Reich law, Germany re-introduced civil
service status for educators, with the purpose of establishing policy for the
exclusion of non-Aryan and politically undesirable teachers in the German
universities.
Even as late as 1949, the government of Germany continued to exhibit
strong control over educational settings. At that time, the German Constitutbn
declared that education was to be explicitly placed under the control of the
Federal Education Minister.52
Dahrendorf (1969) provided detailed analysis of the historical educational
events occurring during Hitler’s reign and through World War II.53 Another
excellent historical reference was discovered in Brufbrd (1975) 54 The German
Tradition of Self Cultivation: Bilduno from Humboldt to Thomas Mann. Bruford’s
“ Germany: The Enabling Act o f 1933, political legislative act providing

dictatorial powers over education and teaching, 1933.
51Ibid.
52Samuel, R.& Hinton, T., Education and Society in Modem Germany,

London: London Press, 1949.
“ Dahrendorf, R., Society and Democracy in Germany, Oxford: Oxford

Publishers, 1969.
^Brufbrd, Cf. W.H., The German Tradition o f Self Cultivation: Bildung from
26
writings served to reinforce facts surrounding historical events outlined in
Dahrendorfs works.
The 1940 Statement o f Principles on Academic Freedom and Tenure55
was presented by the American Association of University Professors (AAUP)
following a series of joint conferences, which were held to interpret the
principles set forth in the 1925 Conference Statement on Academic Freedom
and Tenure.56 As in the earlier 1925 conference statement, the 1940 57statement
focused on due process that the organization believed should be afforded
university professors as a safeguard for academic freedom.
In 1990, the AAUP set forth once again to refine policy statements
regarding academic freedom with the publication of their revised Statement on
Professional Ethicsr*. This policy statement was endorsed by the 73rd annual
meeting in June, 1987. The defining assertion, embedded in the body of the
policy, states that the primary responsibility of the professor is “to seek and to
“ American Association of University Professors policy statement:

Interpretive Comments on The 1940 Statement of Principles on Academic
Freedom and Tenure, Policy Documents and Reports, 77-78, 7med., 1990.
“ American Association of University Professors policy statement: 1925

Conference Statement on Academic Freedom and Tenure, Policy Documents
and Reports, 77-78, 7"* ed., 1990.
57lbid.
“ American Association of University Professors policy statement: The

1987 Statement on Professional Ethics, Policy Documents, 77-78, 7th ed., 1990.
27
state the truth as they see it.” 59
Legal Precedents
Regents v. Ely (1894) was an initial court case in America which
brought the legal context of academic freedom to the forefront.60 Philosopher
and academician Theodore Herfurth (1949) has written extensively on this case,
and his famous “sifting and winnowing” statement at the University of Wisconsin,
described the social and political influences of this case in detail.61 Herfurth’s
“sifting and winnowing” statement was the first published university policy
statement to support academic freedom, written and promoted by the faculty and
Board of Regents at the University of Wisconsin. Following Ely’s trial, the
University of Wisconsin became the leading university in America to explicitly
support academic freedom for faculty, and even today has maintained a center
of excellence for academic freedom issues. Ely’s own autobiography, Ground
"American Association of University Professors policy statement: The

1987 Statement on Professional Ethics, Policy Documents, 77-78, 7* ed., 1990.
60Regents v. Ely, University of Wisconsin Board of Regents v. Richard

Ely, 1894.
81Herfurth, T.,“Sifting and Winnowing”, Wisconsin Electronic Reader,

1949, Internet http://www.library.wise.edu/etext/WIReader/WER1035-
Chpt1.html
28
Under Our Feet (1938) also provided an exceptional, detailed synopsis of the
trial events and aftermath.62
Professor Richard Ely, Director of the Economics Department at the
University of Wisconsin, was accused by a member of that state’s Board of
Regents with supporting and instigating labor strikes. Ely produced numerous
and controversial publications on these labor strikes and other prominent social
issues, with his work often appearing in Harper’s Review magazine. Ely (1886)
produced a particularly contentious publication in Harper’s Review entitled
Socialism: An Examination of Its Strength and Weakness, with Suggestions for
Social Reform which became a primary focus of this legal controversy.63 The Ely
case became one of the first court cases involving freedom of speech of a
university faculty member.
The Scopes Monkey Trial (1925) was perhaps the most famous free
speech trial of the 20* century.64 Social reformers, known as rationalists,
challenged a Tennessee law forbidding the teaching of evolution in the
classroom. John Scopes, a young science teacher and football coach was
“ Ely, R., Ground Under Our Feet: An Autobiography, New York:

Columbia, 1938.
“ Ely, R., “Arbitration”, North American Review, 1886.
64Scopes, John Thomas v. The State 154 Tennessee (1 Smith) 105, 289
S.W. 363.,1925.
29
charged with recklessly teaching the theory of evolution in the classroom setting.
The American Civil Liberties Union (ACLU) had hoped to use the Scopes case to
test and defeat fundamental Christian interference in the classroom, although
the actual court decision left this issue ambiguous.
Kay v. Board o f Education, 18 N.Y. S. 2d 821,829 (1940),65 was filed
when noted philosopher Bertrand Russell’s academic appointment to the faculty
of the City College of New York was revoked by a federal judge because of
Russell’s outspoken anti-war sentiments and pro-socialist political views. The
case centered on both freedom of academic expression and due process for
faculty members.
Supreme Court cases mentioning academic freedom have been “few and
vague", as asserted by Hamilton (1998) in Zealotry and Academic Freedom66
The first use of the phrase “academic freedom" was identified in Adler v. Board
o f Education (1952)67 when Supreme Court Justice Douglas first penned the now
popular phrase. Justice Douglas used the phrase in the body of a dissenting
opinion. The Adler case was filed when a college professor challenged the
constitutionality of denying employment to professors who maintained
65Kay v. Board o f Education, 18 N.Y.S.2d 821, 829,1940.
“ Hamilton, N., Zealotry and Academic Freedom: A Legal and Historical

Perspective, New Brunswick, U .S A and London: Transaction Publishing, 1998,
p. 184.
67Adler v. Board o f Education, 342 U.S. 485, 508,1952.
30
membership in organizations that desired to overthrow the United States
government. The court ruled against Professor Adler and found in favor of the
university board.
Sweezy v. New Hampshire, 354 U.S. 234,263. (1957)66 was the first
precedent in which the United States Supreme Court ruled that the Constitution
provided special protection for academic freedom. Justices Warren, Black,
Douglas and Brennen provided strong statements on academic freedom of
faculty, including a statement which said “to impose any straight jacket upon the
intellectual leaders in our colleges and universities would imperil the future of
our nation”.69
Keyishian v. Board o f Regents, 385 United States 589, 603, (1967)70 was
the first legal precedent providing a popular legal statement by United States
Supreme Court Justice Brennan:
Our nation is deeply committed to safeguarding academic
freedom, which is of transcendent value to all of us and not merely
to the teachers concerned. That freedom is therefore a special
concern of the First Amendment, which does not tolerate laws that
“ Sweezy v. New Hampshire, 354 U.S. 234, 250,1957.
“ Ibid.
70Keyishian v. Board o f Regents, 385 U.S. 589, 603,1967.
31
cast a pail of orthodoxy over the classroom.71
The case involved a group of college professors who refused to sign a document
declaring non-communistic intentions. Subsequently, Professor Keyishian was
dismissed from his position at the State University of New York.
Pickering v. Board of Education, 391 United States 563 (1968)72 provided
the first account of the United States Supreme Court articulating a clear
statement about free speech for public employees, particularly relating to the
classroom environment. Pickering, a high school teacher, wrote a letter to the
local newspaper in which he criticized the local School Board’s handling of bond
proposals as a revenue source for schools. The United States Supreme Court
upheld that a teacher’s public speech on issues of public importance may not be
the basis for their dismissal.
Hetrick v. Martin, 480 F 2d 705, 706, 6th Cir. (1973) 73was filed by
Professor Hetrick against Eastern Kentucky University when her contract as a
tenure track assistant professor was not renewed. Professor Hetrick's contract
was not renewed as a direct result of her teaching methodologies and
71Keyishian v. Board o f Regents, 385 U.S. 589, 603,1967.
12Pickering v. Board o f Education, 391 United States 563,1968.
n Hetrick v. Martin, 480 F.2d 705, 709 (6thCir., 1973), cert, denied, 414
U.S. 1075,1973.
32
confrontational, anti-war classroom speeches. The Court of Appeals eventually
ruled that Professor Hetrick’s First Amendment rights were not restricted by the
school administration.
Wirsing v. University of Colorado, 739 F. Supp. 551, 553, a ffd without
opinion, 945 F. 2d 412 (10thCir.) cert, denied, 503 United States 906 (1992)74
was filed when the University of Colorado refused to grant merit pay to Professor
Wirsing after she refused to distribute student and teacher evaluation forms to
her students. Professor Wirsing claimed her professional opinion on the student
and teacher evaluative process, which was that teaching and learning cannot be
correctly evaluated by any standardized approach, prohibited her from doing
such. The Court eventually upheld the university’s administration decision to
withhold merit pay.
Cotter v. Board o f Trustees of University o f North Colorado, 971 P. 2d
687, Colorado Court o f Appeals (1998)75stemmed from a university professor
suing the Board of Trustees and the Dean of Liberal Arts for denying him tenure
and promotion. The professor alleged that the denial was in retaliation for his
public complaints about the administration. The court upheld the professor’s
claims, stating that the professor did not disseminate his complaints publicly, but
7*Wirsing v. University o f Colorado, 739 F. Supp. 551, 553, afTd without

opinion, 945 F. 2nd 412 (10th Cir.) cert denied, 503 United States 906,1992.
7SCotter, v. Board o f Trustees o f University o f North Colorado, 971 P. 2d

687, Colorado Court of Appeals, 1998.
33
in appropriate private forums. The court concluded that the professor was within
his rights as outlined in the First Amendment.
Edwards v. California University o f Pennsylvania, 156 F. 3d 488, 3rd
Circuit, (1998), cert, denied, 119 Supreme Court 1036 (1999) was originally filed
by a professor who claimed dismissal from his job because he shared personal
religious philosophy within the classroom setting.78 The court found that
Professor Edward’s rights of free speech and due process were not violated and
concluded with “a public university professor does not have a First Amendment
right to decide what will be taught in the classroom”.77
Each of the aforementioned legal cases were judged to represent the
most influential court cases involving free speech and academic freedom tenets
since the development of higher education universities in this country. These
cases were fully analyzed in subsequent chapters.
Dissertations
Several dissertations have been conducted to measure faculty perception
of academic freedom in a defined setting. However, no dissertations on the
76Edwards v. California University o f Pennsylvania, 156 F. 3d 488, 3rd

circuit, 1998, cert, denied, 119 Supreme Court 1036,1998.
77Edwards v. California University o f Pennsylvania, 156 F. 3d 488, 3rd

circuit, 1998, cert, denied, 119 Supreme Court 1036,1998, p. 11.
34
subject of academic freedom were uncovered which were historical in
methodology. No dissertations were discovered which were designed to study
the historical and legal context of academic freedom in the American university
setting. Literature searches extended back to 1940. However, no dissertations
using historical methodology or which were designed to link historical and legal
concepts with influence on educational policy were uncovered.
Time Event Continuum
1850 Prussian Constitution declared “Science and It’s Teachings

Shall Be Free”
1850 Legal concept of academic freedom originated in Germany
1876 Johns Hopkins University founded with design similar to

German universitiesat Gottingen and Berlin, emphasizing
scholarly research
1890 University of Chicago founded with similar design of Johns

Hopkins
1891 California Institute of Technology founded with similar

design of Johns Hopkins
1894 Trial of Richard T. Ely, Professor of Economics at

University of Wisconsin, accused of writing heretical social
and economic papers
1894 University of Wisconsin “sifting and winnowing” statement
1909 -1910 Educational reform movement in Germany, influenced by

the teachings of Wilhelm von Humboldt (1767-1835)
35
1915 Report of the Committee on Academic Freedom and Tenure
by American Association of University Professors,
establishing the first report on academic freedom developed
by American Association of University Professors
1918 Thorstein Veblen published The Higher Learning in America

presenting thesis of American Capitalism as source of
academic evil
1919 Max Weber delivered famous lecture, “Wissenschaft als

Beruf Scholarship as a Vocation), sparking massive German
academic debates in the subsequent decade
1925 Scopes Monkey Trial
1933 Reich law in Germany reintroduced civil service status for

educators, for purpose of excluding non-Aryan and
politically undesirable teachers
1936 Martin Heidegger’s inauguration speech as Rector of

Freiburg University
1937 No author, Academic Freedom. 46 Yale Law Journal, 670,

671 (1937)
1940 The Statement of Principles on Academic Freedom and

Tenure, published by the American Association of
University Professors
1940 Kay v. Board o f Education, 18 N.Y. S. 2d 821, 829.

Philosopher Bertrand Russell's academic appointment to
faculty of The City College of New York was revoked by
federal judge
1949 The German Constitution declared education to be under

the control of the Federal Education Minister, yet explicitly
stated that “art and science, research and teaching are free”
1950 McCarthy Congressional debates began
1952 Adler v. Board o f Education provided the first use of the

phrase “academic freedom” in an opinion by the United
36
States Supreme Court
1957 Sweezy v. New Hampshire, 354 U.S. 234, 263. United

States Justice Frankfurter provided clear definition of
academic freedom, declaring “the University can determine
for its e lf... on academic grounds... who may teach, what
may be taught, how it shall be taught, and who may be
admitted to study”, p. 22.
1957 Academic Freedom, the American Association of University

Professors, and the United States Supreme Court 45 AAUP
Bulletin 5,6,19-20 published
1967 Keyishian v. Board of Regents, 385 United States 589, 603,

provided popular legal statement by United States Supreme
Court Justice Brennan: “Our nation is deeply committed to
safeguarding academic freedom, which is of transcendent
value to all of us and not merely to the teachers
Amendment, which does not tolerate laws that call a pall of
orthodoxy over the classroom" (1967, p. 49).
1968 Pickering v. Board o f Education, 391 United States 563, in

which the government publicly criticized school
administration for political speech repression, and
formulated the Pickering balance test
1970 Interpretive Comments on the 1940 Statement of Academic

Freedom and Tenure, by the American Association of
1972 Clark v. Holmes, 474 F. 2d 928 7th Circuit, 1972
1973 Hetrick v. Martin, 480 F 2d 705, 706 (6th Circuit), 1973
1978 Regents of the University o f California v. Bakke, 438 U.S.

265, 312, 1978
1981 1982 Nordin, V. published, The Contract to Educate. 8 J. College

and University Law 141,142 - 149,167 -168, in which
Nordin provided the label “academic absention” to the
phenomena of judicial deference to schools and universities
1983 Katz, K. published The First Amendment’s Protection of
37
Expressive Aotivity in the University Classroom; a
Constitutional Myth. 16 University of California Davis Law
Review 857, 926
1987 Statement on Professional Ethics (revision) published by the

American Association of University Professors
1987 Yudof, M. published Three Faces of Academic Freedom. 32

Loyola Law Review 831, 837
1992 Wirsing v. University o f Colorado, 739 F. Supp. 551, 553,

a ffd without opinion, 945 F. 2d 412 (10thCir. 1991), cert,
denied, 503 United States 906
1990 DiBona v. Matthews, 269 Cal. Rptr. 882, Cal. Court of

Appeals, 1990
1991 Bishop v. Aronov, 926 F. 2d. 1066,11mCircuit, 1991
1991 D’Souza published Illiberal Education: The Politics of Race

and Sex on Campus
1992 Levin v. Harleston, 770 F. Supp. 895, affirmed, 966 F. 2d

Cir., 1992
1998 Cotter v. Board o f Trustees o f University o f North Colorado
1998 Edwards v. California University o f Pennsylvania, 156 F. 3d

488, 3rd Circuit, (1998), cert. Denied, 119 Supreme Court
1036
CHAPTER 2
HISTORY OF ACADEMIC FREEDOM, PRECEDING CIVIL WAR
From the onset of studies about the universities of the western world, the
concept of academic freedom continually re-emerged as a tenet of intellectual
inquiry and educational control. Even as early as 1290 A.D., the Registrar of the
Bishop of Lincoln wrote:
Anyone who does not wish to be circumvented or have his
rights prejudiced should look to himself in future, and be sure that
he does not go too far to accommodate these people of the
University in the matter of granting commissions or other things.
Observe the way in which they have begun to elevate themselves
in a spirit of pride against the Bishop and the church . . . Over the
question of the Chancellor’s commission and other things, saying
that they can in no way be cited before the bishop outside the town
of Oxford. In all these matters they have pleaded their alleged
customs, liberties, privileges, and statues. Therefore, it is
necessary to proceed with care so as not to condescend to them
too far.1
’A speech by the Registrar of the Bishop of Lincoln, around 1290 A.D.,

as cited in Russell, C., Academic Freedom. London and New York: Rutledge,
1993, p. 1.
39
Scholars have debated the origins of academic freedom for decades.
Many believed that academic freedom first emerged during the Renaissance and
the age of Enlightenment, with the beginning of the modem age. Others
asserted that academic freedom began with the Age of Reason.2 3
In the scholarly and notable reference work entitled Handbuch des
StaatsRechts der Bundesreoublik Deutchland. by Thomas Oppermann, the
following opinion was asserted:
The intellectual roots of academic freedom go back to
Humanism and the Enlightenment. They freed the scientific, rational,
unprejudiced thought, having no other obligations but the seeking of truth,
from the fetters of theological dogmatics. The founding of Halle ... marks
the beginning of the modern German University with its obligation to
freedom of thought, as opposed to its medieval predecessors.4
One of the earliest academic freedom controversies occurred at the University of
Halle in 1723. Christian Wolff, considered by many as the greatest philosopher
of his time, became embroiled in theological debates about the origin and
2Hoye, W., “The Religious Roots of Academic Freedom,” Theological

Studies, 58 (3), 1997.
3Hofistadter, R., Academic Freedom in the Age of the College, New York:
Columbia University Press, 1961.
4Hoye, W., “The Religious Roots of Academic Freedom," Theological

Studies, 58 (3), 1997, p.2.
40
authenticity of God, with theologians and faculty members at the university.5
Freedom of expression was determined differently for theologians and
philosophers. For example, the president of Harvard, John Leverett, stated in a
commencement address in 1711:
Without any manner of doubt whatsoever, all humane matters must be
tested by philosophy. But the same license is not permissible to
theologians.6
Because of his controversial views, Wolff was ordered by the King of Prussia to
leave Prussia within two days, and was forced to escape with his family to
Marsburg. After that departure, Wolff continued to speak out on controversial
matters and was eventually able to regain faculty status at a university.
Immanuel Kant, born in 1724 in Konigsberg, Germany, was
unquestionably one of the most eminent philosophers in the domain of moral
reasoning. The crux of Kant’s philosophy, frequently referred to as critical
philosophy, was contained in his works entitled The Critique of Practical

Studies, 58 (3), 1997, p.2.
61711 commencement address of Harvard President John Leverett, as

cited in Morrison, Samuel E., Harvard College in the Seventeenth Century,
Cambridge: Harvard Press, 1936, p. 168.
41
Reason7 and An Attempt at a Critique of Ail Revelation. 8
In 1755, after obtaining his doctorate, Kant began a long career as an
educator at the University of Konigsberg, first as professor of math and science,
and later as professor of philosophy. In 1770, Kant was made professor of logic
and metaphysics.9 Kant’s lectures consistently attracted large numbers of
followers and students. In his work The Critique of Practical Reason (1777),10
Kant wrote the following:
The world is progressing toward an ideal society in which reason
will bind every law giver to make his laws in such a way that they could
have sprung from the united will of an entire people, and to regard every
subject, in so far as he wishes to be a citizen, on the basis of whether he
has conformed to that w ill.11
7Kant, I., The Critique o f Practical Reason, published in 1770, trans.

McGregor, New York: Abaris, 1978.
8Kant, I., “An Attempt at a Critique o f All Revelation”, political paper

published in Konigsberg, around 1792, as cited in Hoye, W., “The Religious
Roots of Academic Freedom", Theological Studies, 58 (3), 1997.
9Hoye, W „ “The Religious Roots of Academic Freedom," Theological

Studies, 58 (3), 1997
10Kant, I., The Critique o f Practical Reason, published in 1770, trans.

"Microsoft Encarta, Immanuel Kant, Internet, http:/fwww. encarta.msn.

com., 1999, p.2.
42
Kant’s writings and unorthodox religious teachings were considered
highly controversial by leading members of society who were suspicious of any
theological debate that questioned the authority of God. In 1792, Frederick
William II, King of Prussia, forbade Kant to teach or write further on religious
subject matter. This edict came in the form of a very austere letter which
revealed the overwhelming authority politicians had over academics during this
time:
First, our gracious greetings, worthy, most learned, dear,
and loyal subject! Our most high person has for some time now
observed with great displeasure how you misuse your philosophy
to distort and disparage many of the principal and basic teachings
of the Holy Scriptures and of Christianity. We expected better
things of you, as you yourself must appreciate how irresponsibly
you have acted against your duty as a teacher of youth and against
our paternal purpose, with which you are very well acquainted. We
demand that you give immediately a most conscientious account of
yourself, and expect that in the future, to avoid our highest
disfavor, you will be guilty of no such fault, but rather, in keeping
with your duty, apply your reputation and your talents to the
progressive realization of our paternal purpose; if not, then you
must infallibly expect unpleasant measures for your continuing
43
obstinacy.12
Kant reluctantly obeyed this order until the death of the king five years later. At
that time, Kant resumed his controversial writings. His primary supporters and
most ardent followers remained his circle of close friends who were the liberal,
free-thinkers of his time.
Johann Gottlieb Fichte was a follower of Kant and emerged over time
into the role of noted German philosopher. Fichte, bom in 1762, to a poor,
working family, sought to obtain a degree in theology from a noteworthy
university. In the summer of 1790, Fichte agreed to tutor a young student in the
exploration and understanding of the great works of Kant. Fichte later recalled
that this mentoring endeavor revolutionized his personal philosophy and
changed his life, as he personally embraced Kant’s philosophy. Later, around
1791, Fichte traveled to Konigsberg to study under Kant. After beginning his
studies under Kant’s tutorials, Fichte was inspired to draft a paper on the
relation of critical philosophy and divine revelation. Kant, impressed by the depth
and strength of the Fichte paper, entitled An Attempt at a Critique of all
Revelation (1777)13 arranged for the manuscript to be published. Inadvertently,
12Kant, I., Der Streit der Facultaten [The Conflict of the Faculties], trans.
McGregor, New York: Abaris: 1979, p. 19.
13Kant, I., “An Attempt at a Critique o f All Revelation”, political paper

published in Konigsberg, around 1792, as cited in Hoye, 1997.
44
Fichte’s name was omitted from the paper, and readers assumed that the paper
was composed by Kant. After publication, when Kant announced the real author,
Fichte was immediately recognized as a great philosopher in his own right
(Fichte, 1971).14The public became aware of the authorship, and Fichte quickly
gained a reputation as an academic radical, because the manuscript involved a
subject that had yet to be breached by the philosophers of the day, including
Kant. The subject was the question of divine revelation and the doctrine
surrounding the Orthodox belief of original sin, and Fichte radically proposed
that man was not guilty of transgressions that he did not commit.
Fichte later anonymously published two more political works, Reclamation
of the Freedom of Thought from the Princes of Europe Who Have Oppressed It
Until Now.15 and Contribution to the Rectification of the Public s Judgement of
the French Revolution (1793. as cited in Schmidt, 1996).’8These two works
14Fichte, Immanuel H., ed., Fichtes Werke, 11 vols, [ reprint of the 19th
century edition of Fichte’s work edited by his son], Berlin: Walter de Gruyter &
Co, 1971.
15Fichte, J., Reclamation o f the Freedom o f Thought from the Princes of

Europe Who Have Oppressed It Until Now, political paper published around
1793, as cited in Schmidt, J., What is Enlightenment? Eighteenth Century
Answers and Twentieth Century Questions, Berkeley: University of California
Press, 1996.
16Fichte, J., Contribution to the Rectification of the Public's Judgement of

the French Revolution, 1793, as cited in Schmidt, J., What is Enlightenment?
Eighteenth Century Answers and Twentieth Century Questions, Berkeley:
University of California Press, 1996.
45
were politically charged and gave editorial views that were in direct opposition to
the views of society’s elite. The works were also recognized as the first purely
Fichte owned - his own political and philosophical views were expressed without
over influence of Kant or other philosophers.17 Fichte never viewed himself as an
academic philosopher; instead, he considered himself a lifelong learner, and
embraced his own role as that of a scholar.18
Fichte, while serving on faculty at the University at Jena, became
enmeshed in the Atheismusstreit, or atheism controversy, a major philosophical
debate of the time. In one of his early essays, Fichte claimed that God had no
existence apart from the order. 19This claim so angered members of the society
that Fichte was driven from his academic post and forced to flee to Berlin.20 This
is particularly impressive considering that the University at Jena was considered
17Bowman, C., “Johann Gottlieb Fichte(1762-1814)", Internet

Encyclopedia o f Philosophy, Internet, http://www.utm.edu/ research/iep/f/1999.
18Breazeale, D., Fichte: Early Political Writings [1790-1799], includes

“Some Lectures Concerning the Scholar’s Vocation”, Ithaca: Cornell University
Press, 1988.
19Fichte, J., essay entitled On the Basis of Our Belief in a Divine

Governance of the World. 1798, as cited in Breazeale, D., Fichte: Early Political
Writings [ 1790-1799], includes “Some Lectures Concerning the Scholar’s
Vocation”, Ithaca: Cornell University Press, 1988.
“ Fichte, Immanuel H., ed., Fichtes Werke, 11 vols, [ reprint of the 19m
century edition of Fichte’s work edited by his son], Berlin: Walter de Gruyter &
Co, 1971.
46
the acropolis for academic freedom.21 Fichte did manage to write and publish
The Vocation of Man in 1800, considered by many critics his best work. “ In this
work, Fichte responded boldly to all of his critics, particularly religious leaders,
and provided philosophical insight into his atheistic beliefs.
However, following his expulsion from Jena, Fichte worked with a
constant fear of being misunderstood and persecuted. This fear precipitated a
reluctance to publish and gave his critics fodder to minimize Fichte's importance
as a great early philosopher. This was an effulgent example of the impact of the
loss of academic freedom on free thought. Finally, in later years, Fichte was able
to work with those interested in reforming Germany’s educational process. As an
educational reform leader in Germany, Fichte was an early advocate of
combining teaching with practical work, and insisted that a combination of
traditional academics coupled with practical hands-on work best provided
students with a mechanism for obtaining self fulfillment. Until his death, Fichte
advocated separation of education from politics and the church.23
As national universities began to emerge in Germany, academic freedom

Studies, 58 (3), 1997.
22 Bowman, C., “Johann Gottlieb Fichte, Internet Encyclopedia of

Philosophy, Internet, http://Www.utm.edU/research/iep/f/fichtejg.htm, 1999.
“ Hahn, H., Education and Society in Germany, Oxford: Oxford

47
was reduced further.24 The authorities of the nation and state began to assert
more and more pressure on those in academia, requiring them to conform to
national standards and societal norms. Educational reform and an educational
renaissance began to emanate with the concept of the modem German
university. The major figure associated with this reform movement was Wilhelm
von Humboldt, bom in 1767, in Potsdam, Berlin. Humboldt was provided a
privileged education and eventually studied law while assimilating Kantian
thought and ideas. As the director of education and culture in Prussia, Humboldt
had close social ties to many great thinkers of the day, such as Schiller, Goethe,
Frederich Heinrich Jacobi, and the romantic philologist August Wilhelm
Schlegel.25 Humboldt eventually became the president of the first university
committed to freedom in teaching and formal research (located in Berlin). Much
of Humboldt’s reformative movement dealt with the perpetual fight for freedom of
expression within the classroom and corresponding diminished government role
and control.28
As a middle class, bourgeois society began to develop in Germany, more
and more of the day’s philosophers and educators began to clamor for equality

“ Ibid.
“ Jarausch, K., Students, Society, and Politics in Imperial Germany: The

Rise of Academic llliberalism, Princeton: Princeton University Press, 1982.
48
NOTE TO USERS
Page not included in the original manuscript are

unavailable from the author or university. The
manuscript was microfilmed as received
49
This is the best copy available.
UMI®
methodology.29
As the Humboldt reformation evolved, the term Bildung was formulated.
This new German educational philosophy was made up of three primary
tenets:30
1) Individualism: the ideal point at which man was free of ignorance
and had a corresponding freedom from the bonds of society,
religion and state.
2) Totality: there was ultimately an unfolding of man’s intellectual,
emotional and practical abilities.
3) Universality: initially viewed as a physical development, but later
viewed as man’s intellectual, emotional, physical and spiritual
perfection.
As these foundations were positioned, the concept of academic freedom became
an actual legal concept, known as Lehrfreiheit, or the right of faculty to teach any
subject (Standler, 1999).31 Further, the concept extended to two related areas: 1)

“ Flitner, A., & Giel, K. (eds), Schriften zur Anthropologie, Vol. 1, Stuttgart:
Cotta, 1960.
31Standler, Robert, Academic Freedom in the U.S.A., lntemet:http: //www.

rbs2. com/afree.htm, 1999.
50
Freiheit der Wissenschaft. the freedom of scientific research, and 2) Lemfreiheit:
the right of students to attend any lectures and the absence of class roll ca lls.32
The curriculum of the Prussian Gymnasium directed students toward
acquisition of language and comparative anthropology rather than on factual
knowledge acquisition.33 Students were free to choose their own subjects and
study at their own pace, as long as emphasis was placed on physical fitness and
fine arts. Educational colonies emerged, similar to military cadet schools, in
which academic and physical abilities were advocated. The acquisition of
culture, often through the teachings of noted philosophers, replaced the
teachings of theologians. The emphasis was on a united Germany, made up of
enlightened, civilized citizens. The German educational system attracted the
great thinkers of the day, both at the faculty member and student levels.
However, changes in the economic and social structure of Germany after
unification in 1871 significantly drove the country’s educational system into a
new direction. While Germany’s agricultural workforce declined markedly, the
country’s industrial work force skyrocketed. The educational system was forced
“ Standler, Robert, Academic Freedom in the U.S.A., Intemethttp: //www.

rbs2. com/afree.htm, 1999.

51
to respond to these societal changes.34As expected, there was an immediate
emergence of vocational education, changing the educational focus away from
idealism and humanism toward a new realism. Society now viewed man as the
product of his environment35
Once viewed as a great educational endeavor, Gymnasium was now
critically assailed by politicians and prominent members of society who claimed
that Gymnasium neglected history, geography, and national heritage. The Kaiser
was influenced by these critics, and required that the curriculum limit the
classics while increasing classes on German heritage. The children of the
wealthy and elite began to be chosen again for university educations. The
children of the middle class chose careers in industry.36
In the United States educational reform was also taking root. By 1900,
few citizens were graduates of higher education or had received any form of
university education. The college curriculum was generally viewed by early
Americans as a vehicle for preserving and transmitting social values and
"Hahn, H., Education and Society in Germany, Oxford: Oxford

"Hahn, H., Education and Society in Germany, Oxford: Oxford

"Jarausch, K., Students, Society, and Politics in Imperial Germany: The

Rise of Academic llliberalism, Princeton: Princeton University Press, 1982.
52
norms.37 However, even the earliest American settlers expressed a desire for
their own children to attend institutions of higher education. In October of 1636,
the General Court of Massachusetts, in the court’s eighth year of operation,
appropriated funding for the establishment of a college at a future site known as
Cambridge.38 The name of the college became Harvard, and the very earliest
published college rules clearly revealed the institution’s primary aim:
Every one shall consider the main end of his life and studies to
know God and Jesus Christ, which is eternal life ... and therefore to lay
Christ in the bottom, as the only foundation of all sound knowledge and
learning... each scholar to read the scripture twice daily so that he shall
be ready to give such an account of his proficiency therein ... every
student to attend diligently all lectures and tutorials and obey unfailingly
the college’s statutes and regulations, and eschew profanity and
association with dissolute company...39
Frederick Rudolph, author of a Carnegie Foundation sponsored
37Levenburg, N., “A Brief History of Curriculum Reform in the United

States”, Distance Learning Dynamics, Internet,
http://Www.dldynamics.com/publications/history.htm, 2001.
“ Lucas, C., American Higher Education: A History, New York: St. Martin’s
Press, 1994.
“ Morrison, S., 1638, as cited in Lucas, C., American Higher Education: A

History, New York: St. Martin’s Press, 1994. p. 104.
53
curriculum book on the history of American education, summarized America's
educated population as follows:
The college educated among the original thirteen ... colonies...
numbered around twenty five hundred. Only a handful of colleges existed
in the 1700's. The central purpose of the colleges was to preserve their
European, Calvinist foundations, producing learned clergy and literate
people.40
Eight other colleges were founded prior to the American Revolution,
sharing the same primary canon: cultivating civic leaders and preparing a more
proficient clergy. Some educational reformers, such as Benjamin Franklin, were
highly critical of these early American universities, claiming that these schools
were designed for the idle rich, and were viewed as no more than a finishing
school.41 In addition to Harvard, these schools were:
1) William and Mary (founded in 1693)
2) The Collegiate School at New Haven (founded in 1701 and later
renamed Yale)
3) The College of Philadelphia (founded in 1740 and later renamed the
University of Pennsylvania)
40Rudolph, as quoted in Levenburg, N., "A Brief History of Curriculum

Reform in the United States”, Distance Learning Dynamics, Internet,
http://taww.dkJynamics.com/publications/history.htm, 2001, p. 3.
41Lucas, C., American Higher Education: A History, New York: St. Martin’s
Press, 1994, p. 109.
54
4) The College of New Jersey (founded in 1746 and later renamed
Princeton)
5) The College of Rhode island (founded in 1764 and later renamed
Brown University)
6) King’s College (founded in 1754 and later renamed Columbia
University)
7) Queen’s College (founded in 1766 and later renamed Rutger’s
College)
8) Dartmouth College (founded in 1769)42
As in Germany, the social pressures and emerging technology began to
drive the educational model in a new direction. Courses began to crop up such
as sun/eying, navigation, commerce and government. Benjamin Franklin’s
academy, the Academy of Pennsylvania, was one of the pioneer schools to
develop a train of thought that the student should graduate with useful,
productive and employable skills.43 Thomas Jefferson’s 1824 educational
experiment at the University of Virginia was centered around student choice,
allowing the students to choose from among different courses - ancient
languages, modem languages, natural philosophy, mathematics, moral
42Lucas, C., American Higher Education: A History, New York: St. Martin's
Press, 1994, p. 105.
43Wright, E., Benjamin Franklin: His Life As He Wrote It, Harvard:

Cambridge, 1989.
55
philosophy, history, anatomy and medicine, and law .44 Jefferson, in his later
years, was named as president of William and Mary College. A liberal free
thinker and a well read philosopher who had studied the works and writings of
Kant and Fichte, Jefferson desired that the curriculum be shaped by
philosophers of open mind. He worked to diminish the role of the clergy in the
teaching ranks. 45 46 Eventually, Jefferson actually abolished clerical teaching
positions, selecting replacements from public administration.47
During these same late decades of the 1800's, Americans who desired a
university education with a curriculum built around the German philosophy of
gymnasium, generally traveled to Europe for an education in England or France.
Johns Hopkins University was established in the United States in 1876, founded
along the same designs as the universities in Germany.48 Soon other university
“ Ibid.
4SEllis, J., “American Sphinx: The Contradictions of Thomas Jefferson”,

Internet, http://memory.locgov/amnen/mtjhtml/mQessayl.html, 2000.
46Randall, W., Thomas Jefferson: A Life, New York: Holt, 1993.
47Levenburg, N., “A Brief History of Curriculum Reform in the United

States”, Distance Learning Dynamics, Internet,
http://www.dldynamics.com/publications/history.htm, 2001.
“ Standler, R., Academic Freedom in the U.S.A., Intemet:http://www. rbs2.

com/afree.htm, 1999.
56
models followed, such as the California Institute of Technology in 1891, with
very similar design and philosophy of Johns Hopkins.
The economy of the northern states after the Civil War was left mainly
unscathed, while the economy of the southern states was in shambles. The
higher educational system of this country reflected the economy of the times.
Northeastern universities flourished, while universities and colleges located in
the south shared little in the educational transformations taking place in northern
districts. Nationally, there was an estimated 62,000 students enrolled in some
type of college in 1870, and only twenty years later that figure had expanded to
157,000. By 1910 the number of students enrolled in colleges and universities
would surpass 355,000.49 The abundance of students reflected in these figures
resided outside of the southern states. Southern colleges such as the University
of Mississippi, the University of North Carolina at Chapel Hill, Wake Forrest
University, and South Carolina State College faced tremendous challenges in
remaining open semester by semester. The University of Alabama had been
burned to the ground by Union troops. A few of these same schools actually
managed to survive and slowly rebuild and eventually began to flourish, such as
the University of Mississippi. However, the majority of southern schools closed
due to lack of financial stability and felling enrollments. Others managed to keep
their doors open, but became narrow, intolerant enclaves, shut away from
Press, 1994, p. 140.
57
American culture and rarely open to any outside ideas or conflicting thoughts.
The schools in America generally reflected the societal norms of their
geographic location. Southern schools were very distrustful of federal funds
which may impact state rights, while northern schools were more open to liberal
viewpoints and enjoyed the monetary contributions of industries and businesses.
As America moved toward the turn of a new century, theological debates began
to strongly influence the curriculums of existing American institutions of higher
learning, and this influence was identified and explored in Chapter III.
58
CHAPTER 3
INFLUENCE OF RELIGIOUS FUNDAMENTALISM ON
ACADEMIC FREEDOM, POST CIVIL WAR THROUGH 1925
Many early university professors in the United States were originally
trained in theology. Theological debates permeated the classrooms and both the
faculty members and administrators shared similar views of God and church.1
As a result, issues surrounding academic freedom rarely surfaced. There was a
blanketed intolerance by American citizens for new ideas or for criticism of
mainstream theological views. Instructors were rated more on their stance on
moral issues than on capabilities in the classroom. By hiring only those
applicants who espoused politically correct and conservative views, well within
the confines of societal acceptance, university administrators were able to
maintain rigid control of the classroom. Yale, Princeton, Amherst, Brown, Oberlin
and Wesleyan all reviewed the religious qualifications of all faculty applicants.2
As Americans moved toward the event of World War I, an accelerated
technology and expanding business culture emerged. Along with this new
business climate, new focus was placed on higher education in this country.
German universities, long known for their foundations of scholarly inquiry and
1Hamilton, Neil. Zealotry and Academic Freedom: A Legal and Historical

2lbid.
59
scientific research, continued to cast heavy influence on the emerging
universities in this country.3 More than nine thousand Americans had studied at
German universities during the nineteenth century - approximately 200 before
1850 and more than 2,000 during the peak decade of 1880.4 The German
university undertook the challenge of training new professors as learned
scholars and research scientists. The end result was an emergence of true
scholars - leaders in the field of law, medicine, philosophy, science and
theology. Wilhelm von Humboldt’s educational reformation in Germany
continued to evolve. Any student wishing to enter an institution of higher
education had to pass the examination of the Gymnasium, or the classical
secondary school. The German state maintained strict control through this
examination and in 1872, laws were passed that gave absolute rights to the
German state for supervision of all educational programs.5
American scholars reacted with envy, and began to express contempt for
many American universities and colleges. Also, as fewer men were drawn
toward the teaching profession, a profession plagued with low wages and
3Lucas, C., American Higher Education: A History, New York: St. Martin s
Press, 1994.
4Metzger, W., Academic Freedom in the Age o f the University. New York
and London: Columbia University Press, 1955, p. 95.
5Fufr, C., Schools and Institutions of Higher Education in the Federal

60
compensation, those academicians who were driving the American model
forward became a more powerful entity. Johns Hopkins was among the first
American universities to put together a truly eminent faculty, under the direction
of the president, Daniel Coit Gilman. This famed faculty included Richard Ely,
Josiah Royce, Thorstein Veblen, Woodrow Wilson, Henry Adams and John
Dewey (Metzger, 1955, p. 103).8 Of the fifty three professors who were on
faculty at Johns Hopkins in 1884, nearly all had studied at a German university
and thirteen had obtained doctoral degrees.7
Many of the pre-civil war college presidents had aged toward retirement,
and a new breed of educators and academic reformers entered the scene. Men
such as Andrew White of Cornell, John Howard Raymond of Vassar, William
Watts Folwell of the University of Minnesota, Walter Hill of the University of
Georgia, and Charles Elliot of Harvard were among this new elite.8 These
leaders believed that the use of institutions of higher learning for the primary
tenet of molding and influencing clergy was very outdated.
A significant development in American higher education also emerged at
sMetzger, Walter, Academic Freedom in the Age of the University. New

York and London: Columbia University Press, 1955, p. 103.
7lbid
Press, 1994, p. 183.
61
this point in history with the development of the state universities and land grant
colleges. The precedent for federal land grants can be traced as far back as the
Northwest Ordinance of 1787.9 Higher education institutions were established
under the provisions of the Land Grant Acts, also known as the Morrill Acts of
1862 and 1890. These laws authorized the granting of thirty thousand acres of
land to each state and required that the money gained from the use of these
land grants would be used for the endowment, maintenance and support of at
least one college, with an emphasis on liberal and practical education, such as
related to agriculture and mechanic arts. The second Morrill Act, ratified on
August 30,1890, provided for the division of land grant subsidies between
institutions for white students and institutions for black students in those states
where segregation was enforced.10 In effect, this second bill served as a
compromise over an earlier highly controversial bill that would have required
that blacks be admitted to colleges funded under the earlier Morrill Act. States
were now required to establish similar in nature educational programs for black
students. However, particularly throughout the south, black institutions generally
received no more than the legally required funds, and black schools were often
woefully inadequate. Race relations in the south provided no prospect for black
9Lucas, C., American Higher Education: A History, New York: St. Martin s
Press, 1994, p. 183.
10Marrou, H., A History o f Education in Antiquity, New York: Mentor press,

1964.
62
entry into southern white colleges.11
In the eras of the 1880s and 1890s, prosperous businessmen began to
control the administration of American universities, primarily through coercion
with large monetary gifts and endowments. Many academicians, particularly
those associated with teaching economics, began to speak out about the
unrestrained capitalism that was invading the United States. By 1880 some
seeds of discontent were beginning to take root on American academic soil. In
1878, Vanderbilt University in Tennessee hired a young evolutionist named
Alexander Winchell, as a professor of science. Winchell’s published research
suggested that the origin of man predated the biblical time period of Adam and
Eve. As a direct result of his work, Winchell was dismissed from the university.12
Winchell left quietly, and completed a rather bland career in academia in
another part of the country, never really leaving a substantial mark on American
education.
One of the most renowned and prominent academic freedom cases in the
United States occurred during this turbulent time of the 1890s and involved
Richard T. Ely, one of the aforementioned academic economists. Ely, born in
1854 in Ripley, New York, was an early graduate of Columbia University, and
11Marrou, H., A History o f Education in Antiquity, New York: Mentor press,

1964.
12Hofstadter, R., & Metzger, W., The Development o f Academic Freedom

63
later studied at the University of Halle, and later obtained his doctorate of
philosophy at the University of Heidelberg. After a short teaching stint at Johns
Hopkins University, where he served as professor of politics and economics, Ely
was appointed as the Director of the School of Economics at the University of
W isconsin.13
While in this position, Ely began to speak out publicly about the plight of
the working man. Ely’s growing interest in the labor movement became
legendary. Around this same time, Ely was selected as the president of the
American Economic Association (AEA). This organization was known for its
embodiment of socialist principles and social reform.
Ely called upon a local businessman, W. A. Tracy, to unionize the
employees in his printing shop. Oliver Wells, a regent at the university, became
an outspoken opponent of Ely and his economic viewpoints. Wells considered
Ely to be a socialist, and strongly opposed his political writings and politically
charged class debates. Wells eventually filed public charges against the
professor, and also printed a scathing letter in the New York Post, for the
purpose of ousting Ely’s socialist views to the public. When an initial public
hearing was held on August 20,1894, in the Law Building at the University of
Wisconsin, scores of Ely’s students, faculty colleagues, and supporters were
13Ely, R., Ground Under Our Feet: An Autobiography, New York:

Columbia, 1938.
64
present.14
One of the most interesting charges stemming from this hearing was the
contention that Ely had willfully indoctrinated his students with socialist ideas.
Every pamphlet, book, lecture and class note was scrutinized, although the
Board of Regents failed to prove that Ely was guilty of this charge. Ely received
many letters of support from colleagues nationwide, all in ardent support of both
the man and the charges which invaded the sacraments of academic freedom. In
one such letter, Benjamin Andrews, president of Brown University, wrote “...for
your noble university to depose [E ly]... would be a great blow to freedom of
university teaching in general and at the development of political economy in
particular”.15
Ely became particularly interested in studying the labor struggle occurring
in Pullman, Illinois. Years earlier, corporate tycoon George Pullman developed
over four thousand acres of land in Illinois, for the purpose of building a town to
house a workforce needed to make Pullman railway cars. As the economy
began to slow, fewer orders were placed for the Pullman cars, and the company
began to lay off workers and reduce wages. Even before the lay offs, wages
14Richard Ely 1938 hearing transcript: The University of Wisconsin Board

of Regent Richard Ely Collection, Manuscript Division, Wisconsin Historical
Society, August 21,1894.
15The University of Wisconsin Board of Regent Richard Ely Collection,

Manuscript Division, Wisconsin Historical Society, August 21,1894.
65
were notoriously low. Employees could barely manage to cover basic living
expenses. The town’s workers were forced by geography to buy Pullman store
food, live in Pullman rental properties, and even pay to attend Pullman schools.
The workers began to organize a boycott of railways that used Pullman cars.
Eventually, the President of the United States, Theodore Roosevelt, called upon
the Army to help restore order and force employees back to work, siding with the
employer in this labor dispute. One of the country’s first organized labor unions
resulted from this strike.16
Ely was an early advocate of Christian socialism, and encouraged the
church and labor unions to speak out against capitalism. Together with fellow
activists and socialists Frederick Dennison Maurice and Charles Kingsley, Ely
went on to write many pro- labor articles which continued to enrage members of
the University of Wisconsin’s Board of Regents.1718
Sadly, during his hearing, Ely stated that the charges against him were
untrue, and that if true, he deserved to be dismissed from the faculty. He soon
began to retreat from his controversial views, and many historians believe that a
16lllinois Labor Historical Society, The Pullman Papers, 28 E. Jackson,

Chicago, Illinois 60604,2000.
17Ely, R., “Pullman: A Social Study", Harper’s Review, February, 1885.
18Ely, R., Ground Under Our Feet: An Autobiography, New York:

Columbia, 1938.
66
fear of dismissal stemmed Ely’s verbal flow of new ideals and freedoms.19
Although Ely won the battle, he seemingly lost his courage to speak out without
fear of reprisal. Yet the greatest accomplishment that occurred as a result of the
charges against Ely was the development of a public policy statement at the
University of Wisconsin declaring the institution to be a strong supporter of
academic freedom. This statement stands today as a hallmark of achievement:
As regents of a university with over one hundred instructors
supported by nearly two millions of people who hold a vast
diversity of views regarding the great questions which at present
agitate the human mind, we could not for a moment think of
recommending the dismissal or even the criticism of a teacher even
if some of his opinions should, in some quarters, be regarded as
visionary. Such a course would be equivalent to saying that no
professor should teach anything which is not accepted by
everybody as true. This would cut our curriculum down to very
small proportions. We cannot for a moment believe that knowledge
has reached its final goal, or that the present condition of society is
perfect. We must therefore welcome from our teachers such
discussions as shall suggest the means and prepare the way by
which knowledge may be extended... In all lines of academic
19Hansen, L., The R..T. Ely Trial and Academic Freedom, Internet:
http://www.ssc.wisc.edu/**whansen/sift-win.html, 1999.
67
investigation, it is of the utmost importance that the investigator
should be absolutely free to follow the indications of truth wherever
they may lead...Whatever may be the limitations which trammel
inquiry elsewhere we believe the great state University of
Wisconsin should ever encourage that continual and fearless
sifting and winnowing by which alone the truth can be found.20
Although this very powerful statement conjures up an image of open
mindedness and creative expression, the reality of the times was quite different.
Educational historian Frederick Jackson Turner is quoted 21as recalling members
of the Board of Regents at the University of Wisconsin mulling over book lists
submitted by professors and using red pens to strike out those with viewpoints
outside of the societal mainstream. Many college presidents used every
opportunity to remind professors of their responsibility to adhere to popular
viewpoints and to behave in a gentlemanly fashion, avoiding all controversy.22
For those professors who defended academic freedom and viewed open
classroom expression as not only a right but a responsibility, classroom
autonomy became a noble goal. At this same point in history, faculty salaries
20The University of Wisconsin, Board of Regents Report, September 18,

1894, The University of Wisconsin Board of Regent Richard Ely Collection,
Sifting and Winnowing, Manuscript Division, Wisconsin Historical Society, 2001,
p. 28.
Press, 1994.
“ Ibid
68
were very low, about the same as a skilled industrial worker.23 Professors were
frequently dismissed at the whim of the college president, and often with no
compelling reason. A group of prominent professors from respected universities
in America had begun to meet to discuss such tenets as job security, tenure, and
academic freedom. These professors represented the best and the brightest
from the American Sociological Society, the American Political Science
Association, and the American Economic Association.24
In 1915, as an extension of the meetings conducted by the
aforementioned professors, the American Association of University Professors
was formed. In spite of great amounts of public criticism, the organization
developed its initial policy statement.25 College and university professors were
banned from obtaining membership during the first few decades of the
organization’s inception. The Bureau of Education declared the initial policy
statements on academic freedom to be quite noteworthy, and distributed
thousands of free copies to faculties around the nation, helping spur early
membership interest. The original policy statement called for professors to be
Press, 1994.
24Deibler, F., “The Principles of Academic Freedom and Tenure of the

American Association of University Professors", The Annals o f the American
Academy o f Political and Social Science, Cl, (5), 1922.
25The American Association o f University Professors 1915 General

Declaration o f Principles o f Academic Freedom, Policy Documents and Reports,
77-78, 7* ed„ 1990.
69
allowed the freedom to openly speak their opinion, and not only echo public
opinion. The policy statement tied academic freedom to three requirements:
1) need for academic research, 2) need for adequate instruction, and 3) the
development of public service experts. The desire to place research as a central
component of the policy showed another example of the German influence on
higher education formation in this country. The 1915 policy statement also
provided a justification for tenure and defined a probationary term of no greater
than ten years. This was the earliest step in defining due process for professors,
and the committee called for any professor or assistant professor with ten years
of sen/ice or more to be provided any and all charges for dismissal in writing and
to be afforded a fair trial before a faculty committee of peers. The greatest
benefit of the early policy was probably the bold support of free extramural
utterance. Although the early committee members were tom over voicing support
for professors to openly belong to a political party or affiliation, there was a
strong stance on the professor’s right to openly speak about political and social
issues without fear of reprisal.26
World War I brought about a wave of patriotism that extended over
college campuses. Many of the existing professors, often educated in Germany,
had zealous views of the role of the United States in this armed conflict. Several
even publicly called for America to take a stance as Germany’s ally. A
“ Metzger, W., “The 1940 Statement of Principles on Academic Freedom

and Tenure", 53 Law & Contemporary Problems, 3,1990.
70
movement to force professors to swear national allegiance began to emerge on
many campuses. State after state also enacted legislation calling for teachers at
all levels to pledge loyalty to their educational institutions.27 Historically, times of
war have brought out deep rooted feelings of patriotism, followed closely by
periods of control over freedom of speech issues. Low tolerance for views that
involved questioning reasons for war time involvement also emerged. Campus
freedom of expression issues were generally not exempt from this phenomena.
Even the American Association of University Professors (AAUP) issued a policy
statement outlining grounds for dismissal of any professor based on the
professor’s attitude and conduct related to the war effort.28 The committee cited
the following legitimate grounds of dismissal for university professors: 1)
conviction of disobedience to any statute or lawful executive order relating to the
war, 2) propaganda designed, or unmistakably tending to cause others to resist
or evade the compulsory service law or the regulations of the military authority,
3) actions designed to dissuade others from lending voluntary assistance to the
efforts of the government, and 4) violating the obligation to refrain from public
discussion of the war and in their private discourse with neighbors, colleagues
and students, to avoid all hostile or offensive expressions concerning the United
Press, 1994.

Perspective, New Brunswick, U.S.A. and London: Transaction Publishing, 1995.
71
States or its government.29
The committee further suggested that trustees exercise magnanimity in
dealing with pacifists, avoiding the penalty of dismissal upon the first offense of
the professor under scrutiny, and that dismissal proceedings for any professor
be handled in a judicial manner.30
As the era of 1920 emerged, social changes and beliefs long rooted in
America began to swiftly change. Americans danced to the Jazz Age, while
coffee houses advanced the social causes of a new breed of radical thinkers.
Campuses nationwide experienced a wave of intellectual experimentation that
was unique and revolutionary. In the American south, a battle between
traditional, Victorian ethics and the new, radical thinkers began to emanate.
Many religious fundamentalists considered the Darwin theory of evolution as the
greatest single threat to Christian morality.31 By 1925, many southern states had
already passed specific laws prohibiting teaching the theory of evolution in any
classroom setting. Tennessee passed the Butler Law, named after the governor,
which was another such law prohibiting teaching of any theory that denied the
story of divine creation, or that taught theory of man descending from a lower
“ American Association of University Professors policy statement:

Academic Freedom in Wartime Policy Statement o f 1918, AAUP Bulletin, 35-42,
1918.
“ Metzger, W., Academic Freedom in the Age o f the University. New York
and London: Columbia University Press, 1955.
31Darwin, Charles, On the Origin o f the Species by Means of Natural

Selection, London: London Press, 1869.
72
order of animals. The American Civil Liberties Union (ACLU), located at the time
in New York, decided to initiate a court case to test the constitutionality of such
state law s.32 Several leading citizens of the small mining town of Dayton,
Tennessee, led by a transplanted Yankee from New York who served as the
manager of the mine, decided that such a trial would be very beneficial in
bringing trade, money and commerce to their town. These citizens convinced a
young science teacher, 24-year-old John T. Scopes, to join their cause, and a
trial began on July 10,1929.33
John Dean, an iconoclastic law dean from Knoxville, and William
Jennings Bryan represented the prosecution, while Clarence Darrow, a well
known, charismatic elderly lawyer, represented Scopes and the ACLU. Although
Scopes was found guilty by the jury, approximately one year later the Tennessee
Supreme Court reversed the decision.34 Scopes made public statements
regarding his sentiment about the court decision, stating that he would continue
to teach and speak out about evolutionary theory, and that any other action
32Bjorklun, E., “Evolutionsism and Creationism in the Public Schools

Curriculum: The Academic Freedom Issue”, Religion and Public Education, 19
(1), 1992.
“ Larson, E.J., Trial and E rror The American Controversy Over Creation
and Evolution, New York: Oxford University Press, 1985.
MScopes, John Thomas v. The State 154 Tennessee (Smith) 105, 289
S.W. 363.,1925.
73
would be a direct violation of his academic freedom.35
In summary, Germany continued to yield influence over American higher
education, but the universities being built in the United States were slowly
emerging into well planned academic institutions. As in Germany, research and
scientific inquiry were the primary tenets of universities such as Johns Hopkins.
The aftermath of the Civil War saw less federal funds going into schools located
in southern states, and within the south economic post war problems prohibited
many students from entering the college arena. As the new century emerged,
higher education was slowly opened to more students from middle class
America. University professors began to seek a more respected professional
image while shaking off the confines of strict theological influences. The
American Association of University Professors was formed, providing
academicians with a mechanism for pushing educational reforms forward. This
organization became invaluable in the decades ahead, when the age of
McCarthyism shook America, as discussed in Chapter IV.
“ Larson, E.J., Trial and Error. The American Controversy Over Creation
and Evolution, New York: Oxford University Press, 1985.
74
CHAPTER 4
THE PERIOD OF 1930 THROUGH 1952:
ANTI-COMMUNISM AND THE AGE OF MCCARTHY
The eras of 1930 and 1940 took a definite toll on American higher
education. No longer was higher education generally affordable for those who
actively pursued it. Instead, only the nation’s elite and wealthy - few in numbers -
enrolled in colleges and universities. Never in this nation’s history had there
been such a dramatic distinction between the haves and the have nots.
American writer Upton Sinclair published a scathing 1923 book entitled The
Goose-step: A Study of American University. 1 In this volume, Sinclair wrote:
Slaves in Boston's great department store, in which Harvard
University owns twenty-five hundred shares of stock, be reconciled to
your long hours and low wages and sentence to die of tuberculosis ...
because upon the wealth you produce some learned person has prepared
for mankind full data on the strong verb in Chaucer... men who slave
twelve hours each day in front of blazing white furnaces of Bethlehem,
Midvale and Illinois Steel, cheer up and take a fresh grip on your shovels
- you are making it possible for mankind to acquire exact knowledge
'Sinclair, U., The Goose Step: A Study o f American Education, New York:
Albert & Charles Boni Publishing, 1936.
75
concerning 'the beginnings of the Epistolary Novel in the Romance
Languages'. 2
The population masses, particularly those in the working class just
struggling to survive, began to unite in their disdain for higher education and
began to clamor for ways to educate hard working young men and women from
low socio-economic status. By 1936, following unprecedented unemployment in
this country, the federal government responded by pouring over ninety-three
million dollars into student assistance for higher education.
In January, 1933, in Berlin, Germany, Adolf Hitler became chancellor with
an absolute majority.3 The Reichstag - the lower chamber of the federal
parliament of Germany since 1871 - was dissolved with Hitler claiming absolute
power. A new election date was eventually established and set for March 5,
1933. Prior to the elections being held, a fire was suspiciously set which
destroyed the parliament building. Hitler declared a state of emergency, and he
went on to very narrowly win the necessary seats needed for the Nazi party to
take over government control in Germany.4
Almost immediately, Hitler suspended most basic rights such as freedom
2Sinclair, U., The Goose Step: A Study of American Education, New York:
Albert & Charles Boni Publishing, 1936, p. 90-91.
3Dahrendorf, R., Society and Democracy in Germany, Oxford: Oxford

Publishers, 1969.
4Bruford, Cf. W.H., The German Tradition o f Seif Cultivation: Bildung from
76
of speech and all trade unions and opposing political parties, such as the
communist party, were destroyed. All government workers who were not of
Aryan descent were fired from their posts, including all Jewish educators and
professors. Jewish teachers were systematically excluded from any public
teaching at universities, and numerous clauses, or quota law, decreased
admissions of Jews to institutions of higher learning to 1.5 percent of all student
enrollment. Jews were not allowed to attend any classes which included the
arts, drama, or film enterprises.5
Martin Heidegger, in his speech as Rector at Freiburg University, further
eulogized the Nazi Party when he outright rejected the concept of academic
freedom in favor of service to the German nation.6 Heidegger was joined by
many outstanding German scientists and researchers who also believed that
non - Aryans be rejected in any form of academic or research service. Only a
few short years later, in 1949, the German constitution would explicitly state that
art, science, research and teaching should be considered free, yet would place
all education under the tight control of the Federal Educational Minister. When
Hitler came to power, the educational system in Germany began to unravel.
Parent - teacher associations were banned, and in their place the Hitler Youth
Movement came to power. Classroom teachings were monitored by these Aryan
5Germany: The Enabling Act o f 1933, political legislative act providing

dictatorial powers overeducation and teaching, 1933.

77
youth, and any professor who spoke out in even the smallest forum was often
severely reprimanded. At the secondary level, boys and girls were segregated,
and the only students that entered the Gymnasium were males. Elementary
primers were filled with stories glorifying Hitler’s concepts and identifying non-
Aryans as enemies of the state. Classic literature was rewritten from a socialist
viewpoint, and curriculums, even at the university level, were completely
revised. Biology became known as the race science, geography became
geopolitics, with emphasis on the fatherland, and health education became a
study of racial superiority. Aryan teachers were recruited, and these teachers
were required to attend training that was a form of political indoctrination. Even
long term university faculty were required to attend such training, and the
training included rejection of academic freedom in the classroom in favor of a
complete submergence into national patriotism and a lockstep mentality.7 s
Interestingly, at the same time, the United States, known for individual
freedom, began a unique campaign to silence the voice of dissent in this
country. Suddenly, student groups, campus newspapers, and extracurricular
clubs, sororities and fraternities were scrutinized and watched carefully for any
signs of submissive behaviors. This is the time period in which positions such as
dean of students and student affairs offices originated. Anti-Semitism became an
7Hahn, H., Education and Society in Germany,Oxford: Oxford International

Publishers, 1998.
3Jarausch, K., Students, Society, and Politics in Imperial Germany: The

Rise o f Academic llliberalism, Princeton: Princeton University Press, 1982.
78
open feature on many campuses, as Jews around the world sought political and
social refuge in many institutions of higher learning.9 For the first time in
American educational history, academics were barred from membership in
academic organizations, and many professors were dismissed from their
teaching roles. The University of California was the first university to bar
members of the Communist party from service on the faculty, while in 1936,
Professor Morris Schappes, a well respected faculty member at City College of
New York (CCNY), became the first tenured faculty member to be fired for
radical political positions in the classroom.10
In 1940, the Rapp-Coudert Committee of the New York State legislature
formed a task force to seek out and expose subversives on the faculty of the
municipal college system.11At the same time, on February 26,1940, the College
of the City of New York had offered Bertrand Russell, a well known but highly
controversial British logician and mathematician, a faculty position.12 Bishop
William Manning, of the Protestant Episcopal Church, immediately sent out
Press, 1994.

11Lucas, C., American Higher Education: A History, New York: S t Martin’s

Press, 1994.
12Standler, Robert, Academic Freedom in the U.S.A., Internet: http ://www.

rbs2.com/afree.htm, 1999.
79
public letters opposing this teaching proposal, due to Russell’s radical stance on
the institution of marriage, birth control and divorce. Russell had developed a
strong reputation for speaking out on radical issues, and had even been fined
and dismissed from Cambridge University in England in 1916 due to his anti-war
protests.13
In New York, a student’s mother filed a law suit, Kay v. Board of
Education, 18 N.Y.S.2d 821, 829,1940, against the Board of Higher Education
over the board’s decision to offer a teaching contract to Russell. After just two
days of testimony, a federal judge decided for the plaintiff, and revoked the
appointment of Russell to the faculty.14The case remained a strong and often
cited example of outrageous errors of civil procedure and spawned an outcry
from academicians throughout the United States.
That same year, in 1940, the American Association of University
Professors issued the 1940 Statement of Principles on Academic Freedom and
Tenure. This policy was actually a revision of the organization’s 1925
Conference Statement. A selection from this important policy statement
described the organization’s commitment to academic freedom:
The purpose of this statement is to promote public understanding
and support of academic freedom and tenure and agreement upon
Press, 1994.
14Kay v. Board o f Education, 18 N.Y.S.2d 821, 829,1940.
80
procedures to assure them in colleges and universities. Institutions of
higher education are conducted for the common good and not to further
the interest of either the individual teacher or the institution as a whole.
The common good depends upon the free search for truth and its free
exposition. Academic freedom is essential to these purposes and applies
to both teaching and research. Freedom of research is fundamental to the
advancement of truth. Academic freedom in its teaching aspect is
fundamental for the protection of the rights of the teacher in teaching and
of the student to freedom in learning. It carries with it duties correlative
with rights.15
Some of the most striking components of this policy were 1) the call for
teachers to be well informed of any academic freedom impediment at the time of
their academic appointment, 2) the precise terms of appointment be provided in
writing and be in the possession of both the faculty member and the institution
before consummation of appointment, 3) a probationary period not to exceed
seven years, 4) an extension of academic freedom to the faculty member in
probationary period equal to those faculty that have successfully completed the
probationary period, 5) determination of non-reappointment or termination to be
considered by a peer review in collaboration with the governing body of the
institution, and 6) due process extended to the faculty member facing
15American Association of University Professors policy statement: The

1940 Statement o f Principles on Academic Freedom and Tenure, Policy
Documents and Reports, 77-78, 7* ed., 1990.
81
termination or non-reappointment.
It is interesting to note that this policy statement was issued shortly after
the termination of appointment of Bertrand Russell from City College of New
York. However, many other faculty terminations were occurring around the
nation. Forty other college and university professors were terminated from
employment in 1940 for refusing to divulge their own political beliefs when
accused of having communist sympathy.16
A wave of cold war hysteria in this country mirrored much of the same
hysteria found in Germany. On March 22,1947, President Harry Truman signed
an executive order which created a loyalty security program, and which gave
government authority for imposing economic sanctions and fines against
communists, communist sympathizers, and even suspected communists. Many
states set up commissions to scrutinize the affairs of any suspected communist,
and purges were even accomplished in public and private libraries, where books
believed to be subversive were removed. Ultimately, almost every state formed
an investigative body to ferret out communist teachers within their state schools.
The Senate Judiciary Committee on Internal Security, often referred to as the
McCaren Committee, announced an intention to root out leftist and communist
supporters on college and university campuses as a means of protecting
America’s students. The committee contended that over three thousand
Press, 1994.
82
communistic thinkers could be found in the academic faculty ranks in America.17
One of the most flagrant violations of the First Amendment and academic
freedom occurred with the formation of the House Un-American Activities
Committee in 1938. This committee, although established in 1938, did not begin
most activities until 1945, when it was re-established as an investigative ad hoc
committee. The committee began a remorseless crusade which mocked
American democracy. The committee was formulated under the auspices of
Mississippi representative John E. Rankin, a noted anti-Semite. The methods of
operation included blacklists, character assassination, and intimidation.
The initial committee investigator was Edward F. Sullivan, Director of the
American-Ukranian Educational Institute.18 Ironically, Sullivan had been
associated with the Nazi-based Ukranian fascist movement in 1933, and was
later the featured speaker at a national conference in which he provided a pro-
Hitler, anti-democratic diatribe. Later, as his past came to light, Sullivan was
replaced on the committee by J.B. Matthews, a radical political thinker who had
conformed to the committee’s political expectations. Criminals and ex-convicts
were brought before the committee and these witnesses were considered
experts by the committee. Names were given to the committee, and the accused
17 Hamilton, Neil. Zealotry and Academic Freedom: A Legal and Historical

18Kahn, Albert, T he Record of the House Un-American Activities

Committee”, Publications Committee Literature Division, Arts, Sciences and
Professions, Progressive Citizens o f America, 39 Park Avenue, New York 16,
New York, 1999.
83
were not even allowed to confront their accusers.
On May 23,1945, Professor Clyde R. Miller, of Columbia University, was
listed by the committee as a dangerous American. The committee singled this
professor out because of his membership in professional organizations which
sought to combat anti-Semitism. The transcript of the committee shows their
investigator stating the following to Professor M iller
You better go back and tell your Jewish friends that the Jews in
Germany stuck their necks out too far and Hitler took care of them... the
same thing is going to happen here unless they watch their step.19
This incredible form of injustice and paranoia became collectively known
as the Era of McCarthyism, after Republican Senator Joseph McCarthy. The
name was applied because of the series of congressional hearings led by
Senator McCarthy, aimed at identifying, exposing and penalizing any known pro-
Communist who held American citizenship. These hearings propelled a sense of
paranoia distrust throughout America, and many Americans who held public
positions - such as actors, politicians, and educators - lived in fear of retribution
for any voiced opposition to the congressional campaign.
Professor Owen Lattimore, an expert on Mongolia at Johns Hopkins
University, was an early victim of McCarthyism tactics. Lattimore knew that if he
19Kahn, Albert, “The Record of the House Un-American Activities

Committee", Publications Committee Literature Division, Arts, Sciences and
Professions, Progressive Citizens of America, 39 Park Avenue, New York 16,
New York, 1999, p. 76.
84
became a symbolic target, and that if his colleagues quit associating with him,
that “it would be a long step toward successful intimidation of all university
research and teaching ...this attack would be an all out effort to knock me out of
circulation and to terrorize others”.20
Joseph McCarthy, United States Senator from Wisconsin, began a
campaign against Lattimore in March, 1950. McCarthy was the chairman of the
Senate Committee on Government Operations. Supporters of McCarthy’s
committee could even be found in the ranks of academia, such as Harvard
University President James Bryant Conant and conservative philosopher William
F. Buckley. Buckley even made public statements about the superstitions
surrounding the issue of academic freedom.21
McCarthy made many false character accusations against Lattimore,
accusing Lattimore of supporting pro-communist political activities and pro
communist political views. Though no accusation was ever found to have merit,
Lattimore found that the time, effort and money needed to fight each slanderous
attack was very costly and time consuming. Lattimore was afforded minimal due
process during the hearings, and was often asked detailed questions about

Perspective, New Brunswick, U.S.A. and London: Transaction, 1995, p. 143.
Press, 1994.
85
events that had occurred more than fifteen years earlier.22 The committee,
under the direction of McCarthy, was unable to find any credible evidence
against Lattimore. Instead, the committee brought false perjury charges against
the professor, based on his inability to recall minor details under oath. A grand
jury indicted Lattimore on seven counts in the winter of 1952. Higher courts
eventually dismissed all counts against him, but Lattimore’s personal and
professional reputation was in ruins. Although Johns Hopkins originally took a
neutral stance regarding Lattimore’s difficulties, eventually the university
abolished Lattimore’s department.23 Faculty members had to set up a fund to
help support Lattimore during this time, and yet most of his colleagues refused to
be seen with Lattimore or to associate with him. Lecture invitations dried up, and
Lattimore spent the remainder of his academic career in unremarkable positions
with little financial or social support. Although Lattimore won the court battle, he
lost the personal battle.24
At the university level, many professors were also falsely accused of
subversive behaviors. Often professors who were at odds with administration
were singled out for investigation. Even accusations from anonymous sources
22Lattimore, O., Ordeal by Slander, Boston: Little Brown & Company,

1950.
23lbid.

86
were investigated.25 This became a very tense and emotionally draining time
period for the academic professorate in America. Often, the only way a professor
was able to maintain his academic position was through submitting to a public
sworn oath of loyalty to the institution and to the United States, and agreeing to
limit classroom speech to only approved topics of conversation. At the University
of California alone, thirty-one dismissal of faculty cases occurred because of
refusal to sign a public oath.26
Owen Lattimore eventually summed up this discouraging era of
McCarthyism best when he spoke the following, “McCarthyism had the effect of
intimidating scholars, inhibiting the freedom with which they stated their facts
and conclusions on controversial issues, and harming quality of their w ork".27
Not until the middle to late fifties did the era of McCarthyism subside. By that
time, many fine academic careers had been totally destroyed. Yet this age of
paranoia was to be rapidly replaced by two decades of liberalism, with loud,
chaotic and often disorderly political dialogue heard around the country. This
time period is referred to in Chapter 5 as the radical sixties.
2SHamilton, Neil. Zealotry and Academic Freedom: A Legal and Historical

26lbid.
27Lattimore, O., Ordeal by Slander, Boston: Little Brown & Company,

1950, p. 209.
87
CHAPTER 5
1952 THROUGH THE RADICAL SIXTIES
The 1950 era saw interesting court cases surrounding the issue of
academic freedom. Adler v. Board o f Education o f the City o f New York1was
such an example. Adler, an educator in New York, challenged the
constitutionality of the Feinberg Law, which had developed during the age of
McCarthyism for the purpose of uncovering subversive public employees. The
Feinberg Law of New York State provided:
Any person who is a member of an organization advocating the
unlawful overthrow of the government of the United States shall not be
eligible for employment in the public schools of the state. The Board of
Regents, after full notice and hearing, is to make a list of such subversive
organizations, according to the law. The law retains the right to a full
hearing for anyone fired or denied employment with representation by
counsel and the right to judicial review.2
The court was charged with determining whether the Feinberg Law
violated the due process clause of the Fourteenth Amendment. By a six to three
1Adler v. Board of Education, 342 U.S. 485, 508,1952.
2Adler v. Board of Education of the City of New York LANDMARK

EXPRESSION http://lawbooksusa.com/cconlaw/adlervboarddof education.htm,
2001.
88
vote, the court said no. Justice Minton delivered the opinion of the court, and in
the court’s opinion stated that the Feinberg Law constituted an abridgement of
the freedom of speech and assembly of persons employed in the public school
system in the state of New York. Minton asserted that “under our laws, it is clear
that persons have the right to assemble, speak, think and believe as they w ill”.3
However, Minton went on to state that the Feinberg Law in no way prohibited
these freedoms, as the employee had the right to end employment at any time.
Justice Black, dissenting, provided a powerful statement for educators:
This is another of those rapidly multiplying legislative enactments
which make it dangerous - to think or say anything except what a
transient majority happen to approve at the moment. Basically these laws
rest on the belief that government should supervise and limit the flow of
ideas into the minds of men... the Constitution guarantees freedom of
thought and expression to everyone in our society. All are entitled to it ...
none needs it more than the teacher”.4
Justice Douglas, concurring with Justice Black as one of the three
dissenters, provided the first use of the term academic freedom in the courts.
Douglas stated that the “Feinberg Law’s system of spying and surveillance
3Adler v. Board of Education of the City of New York LANDMARK

EXPRESSION http://lawbooksusa. com/cconlaw/adlervboarddof education.htm,
2001, p. 22.
4lbid, p. 26.
89
cannot go hand in hand with academic freedom.” 5
The Service Men’s Readjustment Act of 1944, commonly referred to as
the G.l. Bill, and Public Law 550, both underwrote the cost of college education
for thousands of returning World War II veterans. As a result of this, more and
more older students were seen in the classroom setting. Many of these veterans
were skeptical of the laws and governance of higher education and led other
students in verbally confronting regulations that had been in place in the
academic setting for decades. The federal government’s investment in higher
education increased dramatically during the 1950s and 1960s. Many academics
viewed this federal aid as excessive, and as a cause for losing university
autonomy.6
In 1957, another landmark court decision took place which influenced
academic freedom. Paul Sweezy, an instructor of economics at Harvard
University, helped organize the Harvard Teacher’s Union in Boston,
Massachusetts. Sweezy was noted around the campus for his leftist views
including his support for the anti-Cold War Progressive Party political ticket. In
late 1953, Sweezy championed a lecture on Marxism at the University of New
Hampshire. Because of this lecture, New Hampshire Attorney General Louis C.
5Hamilton, N., Zealotry and Academic Freedom: A Legal and Historical

Perspective, New Brunswick, U.S.A. and London: Transaction Publishing, 1998,
p.186.
Press, 1994.
90
Wyman subpoenaed Sweezy to a state investigation charging him with
subversive activities. Wyman insisted that Sweezy reveal his personal political
views, and demanded that Sweezy provide the names of colleagues who
supported his ideas. Noting the treatment of the Hollywood citizens who lost
their careers during the McCarthy hearings, Sweezy refused to cooperate with
the investigation and chose to assert his First Amendment privilege of pleading
self-incrimination. Sweezy choose to remain silent and was eventually convicted
of contempt. His case was appealed through both the state and the federal court
systems. In June 1957, the Supreme Court of the United States reversed the
conviction and this court case was seen by many as the final end of
McCarthyism7.
During the court hearing, Paul Sweezy provided the following profound
statements:
It is often said: If a person is not a Communist and has nothing to
fear, why should he not answer whatever questions are put to him and be
done with it? The answer, of course, is that some of us believe these
investigations are evil and dangerous, and we do not want to give our
approval to them, either tacitly or otherwise. On the contrary, we want to
oppose them to the best of our ability, and persuade others to do likewise,
with the hope of eventually abolishing them altogether. Our reasons for
7Simon, J., “Sweezy v. New Hampshire: The Radicalism of Principle”,

Monthly Review, April, 2000.
91
opposing these investigations are not...trivial. They have deep roots in
principle and conscience...If all this is so, and if the very first principle of
the American constitutional form of government is political freedom -
which I take to include freedoms of speech, press, assembly, and
association - then I do not see how it can be denied that these
investigations are a grave danger to all that Americans have always
claimed to cherish.8
Chief Justice Warren and Justices Black, Douglas, and Brennen
joined in reversing Sweezy’s conviction and provided the court with the following
strong statements regarding academic freedom:
The essentiality of freedom in the community of American
universities is almost self evident. No one should underestimate the vital
role in a democracy that is played by those who guide and train our youth.
To impose any straight jacket upon the intellectual leaders in our colleges
and universities would imperil the future of our nation. No field of
education is so thoroughly comprehended by man that new discoveries
cannot be made. Particularly is that true in the social sciences where few,
if any, principles are accepted as absolutes. Scholarship cannot flourish
in an atmosphere of suspicion and distrust. Teachers and students must
always remain free to inquire, to study and evaluate, to gain new maturity
8 Sweezy v. New Hampshire, 354 U.S. 234, 250,1957.
92
and understanding; otherwise our civilization will stagnate and die.9
The court did, though, outline four essential freedoms of a university
institution, which would eventually influence the freedoms experienced by
individual university professors: 1) to determine who may teach, 2) to determine
what may be taught, 3) to determine how it shall be taught and 4) to determine
who may be admitted to study.10This court case specifically addressed due
process which extended into the academic setting and also helped to provide a
court documented basis for the end of the witch hunts associated with the era of
McCarthyism.
Just one year later, in 1957, the American Association of University
Professors developed a policy entitled the A.A.U P. Statement on Procedural
Standards and Faculty Dismissal Proceedings. This policy provided five tenets
as follows:
1) The primary responsibilities of professors is to seek and to state the
truth as they see it and to devote their energies to improving scholarly
competence, practicing intellectual honesty.
2) Professors should encourage the free pursuit of learning in their
students while holding before them the best scholarly and ethical
standards.
3) Professors have obligations that derive from common membership from
9Sweezy v. New Hampshire, 354 U.S. 234, 250,1957.
,0lbid.
93
the community of scholars and should respect and defend the free inquiry
of associates, while not discriminating against or harassing colleagues.
4) Professors seek to be effective teachers and scholars and should
recognize their rights to criticize and seek revisions of institutional
policies.
5) Professors have the rights and obligations of other citizens, and should
speak or act as a private citizen in such a way as to avoid the impression
of speaking for the university, while promoting conditions of free inquiry
and academic freedom.11
The first sustained student-led attack on academic freedom began during
the radical sixties. Similar to the religious fundamentalism which impacted
academic freedom earlier in the century, the student ideologies of the 1960s
also embraced the common theme that the academic powers in the United
States had been created in order to oppress the powerless.12
The Vietnam War provided an impetus for campus unrest throughout the
nation. By mid1960s, even many socially responsible academicians had become
outspoken regarding the role of the United States in the Vietnam War. Marxism
and pro-Maoist communistic viewpoints began to emerge and be heard on

1958 Statement on Procedural Standards in Faculty Dismissal Proceedings,
Policy Documents and Reports, 11,12,1990, p.4.

94
campuses throughout the country. This student movement evolved from
innocuous public speeches, campus organized activities, and nonviolent political
demonstrations into more coercive and militaristic tactics. Students became
vocal in their desire to take over universities and to provide teaching to all levels
of society, free of charge. Between 1965 and 1967, there was dramatic increase
in the call for revolution.13
Two uprisings occurred in the late sixties at Columbia University and New
York State University which were copied by college students nationwide. The
Columbia incident occurred in 1968, with students seizing control of the
administrative building and several classroom and faculty offices.14A school
dean was held captive for more than twenty-four hours while professors in
classrooms were punched, spit on, and verbally assaulted. A student strike
resulted in the university being closed for one month, and with major damage
occurring to property on university grounds. The New York State University
incident occurred when an ambassador to the United Nations from South
Vietnam was prevented from speaking on campus and physically affronted.15

Press, 1994.

95
In 1969, during just the spring and summer months, 292 protests and
demonstrations occurred in American universities, with 24 percent involving
either violence or destruction of school property. During these same months, 84
bombings and arson events occurred, while 3,652 students were arrested.16
Students began to use many tactics to stop freedom of expression by any
professor who verbalized support of the university setting. There was no
comprehensive study ever conducted on the impact of student zealotry during
the sixties on university governance, curricular change, methods of teaching,
scholarship climate, or academic freedom.17 However, many faculty who taught
during this radical time, have stated that they suffered from mental stress and
their teaching methodology and ideology suffered.
In 1967 another landmark court case involving academic freedom took
place. The Feinberg Law was once again challenged. A professor, along with
three of his colleagues at the University of Buffalo in New York, were required by
the university to sign Feinberg’s certificates stating that they were not members
of the Communist Party. Professor Keyishian led the others in refusing to sign,
resulting in Keyisian’s dismissal from the university faculty.18 Professor

Perspective, New Brunswick, U.S.A. and London: Transaction Publishing, 1998,
p. 36.

'aKeyishian v. Board of Regents, 385 U.S. 589, 603, 1967.
96
Keyishian challenged the constitutionality of the Feinberg Law in the state courts
and lost the case. Professor Keyishian then appealed the court decision to the
Supreme Court level, and surprisingly won on appeal. In the United States
Supreme Court’s ruling, Justice Brennan delivered the following statements:
Our nation is deeply committed to safeguarding academic freedom,
which is of transcendent value to all of us and not merely to the teachers
concerned. That freedom is, therefore, a special concern of the first
amendment, which does not tolerate laws that cast a pall of orthodoxy
over the classroom. The vigilant protection of constitutional freedoms is
nowhere more vital than in the community of American schools...the
classroom is peculiarly the marketplace of ideas. The nation’s future
depends on leaders trained through wide exposure to that robust
exchange of ideas which discovers truth out of a multitude of
tongues, than through any kind of authoritative selection.19
The final landmark court case of the sixties regarding academic freedom
was Pickering versus Board of Education o f Township High School District 205,
Will County.20 High school teacher Man/in L. Pickering was fired from his
teaching position by the local board of education because of his public stance on
a proposed tax increase. Pickering had submitted a letter to the local newspaper
opposing the way in which the Board of Education had handled bond proposals
19Keyishian v. Board of Regents, 385 U.S. 589, 603,1967.
20Pickering v. Board of Education, 391 United States 563,1968.
97
for bringing new revenues into the school system. Pickering also stated in the
letter his disappointment with the superintendent of the school’s prevention of
teachers speaking out in opposition to the bond issue. The Board of Education
provided Pickering a hearing as part of due process. The Board charged that
Pickering’s statements in the letter were false, and impugned the integrity of the
Board. At the state level, the Illinois court supported the Board’s findings, and
concluded that Pickering’s letter was detrimental to the best interest of the
schools and he was not protected by the First Amendment. Upon appeal, the
Illinois Supreme Court also upheld Pickering’s firing, supporting the earlier
court’s decision for non-entitlement under First Amendment protection. However,
the Supreme Court of the United States sided with Pickering and recognized that
the core of this decision rested with the Free Speech Clause of the First
Amendment.21 The Court indicated in general terms that statements by public
officials, including school teachers, must be afforded First Amendment
protection, and that a teacher’s exercise of freedom of speech on public issues
may not be used as basis for dismissal from public employment (Pickering v.
Board o f Education, 391 United States 56 3,1968).22
The term McCarthyism has continued to invoke fear and trepidation in the
hearts of academicians and freethinkers. The era of McCarthyism resulted in the
loss of many brave professors and negatively impacted the classroom curriculum
21Pickering v. Board o f Education, 391 United States 563,1968.
“ Ibid.
98
and American educational system. Following World War II, American schools
saw a sudden change in the student population. Older students of different racial
and ethnic backgrounds entered American higher educational classrooms.
These older students had more life experiences and different educational
values. As students were viewed as consumers, their power on campus
expanded. The students became more vocal in their demands and educational
needs, and student activism emerged. The era of student activism was the first
example of widespread dissent which erupted from within the actual university
setting. In their desire to be heard, students quickly moved from non-violent to
violent tactics. Although student freedoms strongly emerged and flourished,
faculty voices were diminished. Classroom dialogue was often one-sided and
student- led. Administrations yielded many curriculum development decisions to
student groups, in fear of physical retribution and campus destruction. When
faced with legal challenges on academic free speech issues, the courts
continued to generally rule in favor of educational administrations rather than in
favor of the rights of individual professors. The next two decades brought about
even greater challenges for college campuses in America. “Political correctness"
became the new academic buzz-word, and shaped both policy and court
decisions.
99
CHAPTER 6
THE DECADES OF 1970-2000
The American Association of University Professors ushered in the decade
of the seventies with the organization’s Interpretive Comments on The 1940
Statement o f Academic Freedom and Tenure.1A joint committee, made up of
members of both the American Association of University Professors and the
American Association of University Colleges, came together at a conference in
1969, to reconsider the earlier version of the American Association of University
Professors Academic Freedom and Tenure policy statement. Their conclusions
were published approximately one year later. During the association’s fifty-sixth
annual meeting in April 1970, the newer interpretive comments were adopted as
policy.2
The major changes associated with the newer interpretive comments
were:
1) Strong policy statements about the 1940 language which discouraged
’American Association of University Professors policy statement: The

1970 Interpretive Comments on The 1940 Statement of Academic Freedom and
Tenure, Policy Documents and Reports, 11,12,1990.

100
controversial views by professors. Controversy was recognized as uthe
heart of free academic inquiry”.
2) The need for professors to continue to avoid persistently placing
intrusive material into class content which has no relation to the class,
simply to instigate controversy.
3) Church-related institutions should no longer depart from the principles
of academic freedom.
d) Administrations should recognize that professors are citizens and
should be accorded the same freedoms.
4) Professors should avoid speaking out on controversial matters as a
voice of their institution.
5) Professors should be granted due process in all dismissal procedures,
and due process should be granted to probationary as well as tenured
professors.
One of the most interesting interpretations stemmed from
paragraph C of the original 1940 policy statement, which expressed a rather
narrow view of free speech among college and university professors.3The
committee members now articulated that a professor’s utterances in the
classroom or even outside of the classroom should not stand alone as reasons
for dismissal, and should rarely be a determining factor in whether a professor

1970 Interpretive Comments on The 1940 Statement o f Academic Freedom and
Tenure, Policy Documents and Reports, 11,12,1990, paragraph C, p. 6.
101
was deemed fit or unfit for the academic position. Although within the policy
statement professors were discouraged from consistently introducing
controversial material into the classroom, especially when the material had little
or no relevance to the subject being taught, the policy statement did not
discourage controversial stands and classroom utterances. A significant portion
of the interpretive statements continued to support due process for university
professors, particularly those at the rank of a full time instructor or higher. The
policy statement called for professors to be given adequate notice of contract
non-renewal, tiered to reflect years of service to the institution.4
The courts have continued to use the policy statements set forth by the
American Association of University Professors as a guideline for legal issues
surrounding free speech and particularly for issues surrounding employment
contracts and tenure in the university setting. Many courts have recognized that
the same employment contractual rights and responsibilities observed in private
sector are not appropriate or reasonable for the university setting. Some judges
stated feelings of incompetence when asked to make judgements on the merits
of academic decisions.5 Most courts simply refused to consider cases
concerning academic freedom in the classroom and/or the determination of who
4Metzger, W., “The 1940 Statement of Principles on Academic Freedom

and Tenure”, 53 Law & Contemporary Problems, 3,1990.

Perspective, New Brunswick, U.S.A. and London: Transaction Publishing, 1998
102
was fit to teach. For example, in Clark v. Holmes, the Supreme Court stated that
the court could not be construed to be a license to establish curriculum
contents.6 Another example of the court’s refusal to intervene in academic
matters was Dinnan v. Regents o f the University System o f Georgia, in which the
court refused to accept a professor’s claim that he was not afforded privileges of
academic freedom. The court declared that no issues of constitutionality were
raised.7 However, the decades of the seventies, eighties and nineties
contained a number of court rulings that appeared to be very contradictory.
Peter Byrne, a professor at the Georgetown University Law Center, expressed:
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 problems are fundamental:
There has been no adequate analysis of what academic freedom the
Constitution protects or why it protects it. Lacking the definition or guiding
principle, the doctrine floats in law, picking up decisions as a hull does
barnacles.8
6Clark v. Holmes, 474 F. 2d 928 (7th Circuit), 1972.
7Dinnan v. Regents o f the University System o f Georgia, 661 F.2d 426

(11mCircuit Court), 1981.
8Byme, P., “Academic Freedom”, 99 Yale Law Journal 251, pp. 252-253,
1989.
103
Historically, American education changed rapidly during this time period.
As court battles about free speech in academia were erupting, Americans saw
enrollment at public universities soar, with a corresponding drop in private
university enrollment. Generally, the courts treated private institutions differently
than public universities, particularly concerning student regulatory and religious
matters. Private institutions historically received less regulation from the federal
and state governments. The courts often determined that the Federal
Constitution did not apply to most private higher educational institutions. Private
institutions were legally able to prohibit student demonstrations, or expel a
student or faculty member with little provision of due process. 9ln private
institutions, student and faculty contractual agreements with the institution
tended to be viewed as favorable to the institution, while diminished and
ambiguous individual rights were afforded to students and faculty.10
Larger numbers of minorities and women were attending college, and
larger numbers of minorities and women were also seeking graduate degrees.11
The number of part-time students and older students, with different learning
styles and needs, also rose. As the number of minorities escalated, the call for
9Kaplan, W ., & Lee, B., The Law o f Higher Education, 3rd Ed., San
Francisco: Jossey-Bass, 1995, p. 46.
10Kaplan, W ., & Lee, B., The Law of Higher Education, 3rd Ed., San
Francisco: Jossey-Bass, 1995.
"Lucas, C., American Higher Education: A History, New York: St. Martin’s
Press, 1994.
104
greater student governance and control of classroom teachings became more
prominent. At many institutions of higher learning, minority students actually
made up the majority of entering college freshmen.12
Federal funding for student loans, grants, scholarships and stipends
magnified during the seventies. Much of this federal money was successfully
aimed at providing lower income students a viable means for completing a
college education. Numerous academicians began to question the role of the
federal government in such educational endeavors, as the realization emerged
that an inappropriate, dependent relationship of academia toward the
government was emerging. An equally disturbing and uneasy alliance was
forming between academic institutions and corporate business and industry.
Often the money bestowed on the universities was unequal. Even within a single
academic setting some popular departments received huge funding while less
popular programs received little to no funding. Regularly, those programs that
were steeped in science and technology were the main benefactors, and
education programs and those involved in the arts were often overlooked. Rarely
did the corporate partnerships which influenced research grants and money
raise any ethical concerns at the university administrative level. Many
academicians charged that the federal government would best meet citizen
needs by funding public universities while leaving the matters of institutional
Press, 1994.
105
governance in the hands of the institution itse lf.13
As the influence of federal government on higher education in America
grew, so did a new form of zealotry - political correctness. Academician Paul
Walters, President of the American Association of University Professors in 1986,
asserted the following in his presidential address to the organization:
The most dangerous threats to academic freedom... is that which
comes from within the professorate itself. For we bring to the academy
our own deeply held political, religious, economic, and social convictions,
and convictions which make some of us rise in anger against colleagues
whom we see as leftist, rightish, racist, sexist, atheist, or anti-Semitic. But
insofar as we, educators and scholars, deny academic freedom to others,
just as far do we sanction others who would deny it to us.14
Numerous court cases emanated during this period of political
correctness, again stemming from alleged free speech violations. The first such
case was Clark v. Holmes 474 F.2d 928 7mCir. (1972), in which a Northern
Illinois University professor sought redress when dismissed from his faculty
Press, 1994.
14American Association of University Professors 1986 presidential

speech, as cited in Hamilton, N., Zealotry and Academic Freedom: A Legal and
Historical Perspective, New Brunswick, U.S.A. and London: Transaction
Publishing, 1998, p. 55.
106
position.1SThis professor, who was nontenured, was fired because of
accusations of numerous confrontations with colleagues and lack of
confidentiality (he belittled colleagues in front of students). Professor Clark
claimed that by the same rules as handed down by the court in Pickering v.
Board ofEducatbn 16, the university had violated his free speech rights. Yet the
court refused to apply Pickering v. Board ofEducatbn to Professor Clark’s case,
declaring that Professor Clark’s disputes with the university involved him as a
teacher, not as a private citizen.17The Seventh Circuit Court of Appeals
declared that the university was within its rights when dismissing Professor
Clark, because the university had an obligation to maintain discipline and
harmony among coworkers, and that the employee relationship calls for loyalty
and confidence.18
Hetrick v. Martin was another example of the court’s unwillingness to
become entangled in academic freedom disputes at the university level.19
Hetrick, an untenured instructor at a state university, revealed to her freshman
class that she was an unwed mother (to clarify, she was a divorced mother of
two). She also led feisty class discussions on the Vietnam War and the system
15Clark v. Holmes 474 F.2d 928 7th Cir. 1972.
'6Pbkering v. Board o f Education 391 U.S. 563,1968.
17lbid.
18C/ark v. Holmes, 474 F.2d 928 7th Cir. 1972.
'9Hetrick v. Martin, 480 F.2d 705 6? d r., 7973.
107
of military draft in this country. As a direct result of her teaching methodologies
in the classroom and her confrontational classroom speech, Hetrick was
dismissed from her teaching position.20 Hetrick sued her employer
unsuccessfully. The 6th Circuit Court of Appeals declined to parallel the teaching
methodologies of an untenured college instructor with First Amendment rights.2'
In the court's response, the following was written:
We do not accept the plaintiffs assertion that the school
administration abridged her First Amendment rights when it refused to
rehire her because it considered her teaching philosophy to be
incompatible with the pedagogical aims of the university. Whatever may
be the amorphous ‘academic freedom' guaranteed to our nation’s
teachers .... it does not encompass the right of a nontenured teacher to
have her teaching style insulated from review from her superiors ... just
because her methods and philosophy are considered acceptable
somewhere in the teaching profession.22
Until this point in time rarely did the courts fail to support the institution’s
right to dismiss faculty - often with minimal or no due process - over the
individual rights and freedoms of the academic professors. Two prominent
publications stemmed from this obvious legal slant. The first was Professor
20Hetrick v. Martin, 480 F.2d 705 6* d r., 1973.
21Ibid.
“ Ibid, p. 24.
108
Virginia Nordin’s publication in College and University Law, entitled “The
Contract to Educate”. 23 In this article Professor Nordin provided the label
academic absention to the phenomena of judicial obeisance to universities. The
second article was published in 1983 in the University o f California Davis Law
Review by Professor K. Katz, entitled “The First Amendment’s Protection of
Expressive Activity in the University Classroom: A Constitutional Myth”.24
Expressing ideology similar to Nordin’s, Katz maintained that there was very little
academic freedom or freedom of speech and expression afforded to America’s
professors by the courts.
As individual professors began to weigh in on this issue, others banded
together to impose their own social, political and religious beliefs on their
collegial faculty. More and more often, any professor who spoke outside of the
current political mainstream, particularly those with politically conservative
philosophies, were privately and publicly chastised.25 Historically, when freedom
of expression in the classroom was overshadowed by the urgency for political
correctness, a sense of hostility and intolerance influenced the tenets of
23Nordin, V. “The Contract to Educate”, 8 Journal o f College & University

Law, 141, 142-149, 167-168, 1982.
24Katz, K. “The First Amendment’s Protection of Expressive Activity in the

Classroom: A Constitutional Myth", 16 University o f California Davis Law Review
857,1983.

109
academic freedom. Hamilton reported that a recent survey by the American Bar
Association revealed that many law students in this country believed they would
be penalized if they expressed political views different from those of their
professor. Almost half of the survey respondents had witnessed episodes of
intolerance in the classroom. Fifty one percent of the respondents believed that
specific tactics were used to suppress differing views, including chastising
students in class and lowering grades.26
This paradigm shift in ideology brought a renewed policy effort from the
American Association of University Professors in the form of a 1987 Statement
on Professional Ethics.27 This statement defined the duty of professional
competence and included the following six tenets:
1) To strive above all to be effective teachers and scholars
2) To devote energies toward the development and improvement of
scholarly competencies
3) To hold before students the best scholarly standard and ethical
standards of the discipline
4) To practice intellectual honesty
261996 survey completed by the General Practice of the American Bar

Association, as cited in Hamilton, N., Zealotry and Academic Freedom: A Legal
and Historical Perspective, New Brunswick, U.S.A. and London: Transaction
Publishing, 1998.
27American Association of University Professors policy statement: 1987

Statement on Professional Ethics, Policy Documents and Reports, 11,12,1990.
110
5) To acknowledge academic debt
6) To exercise critical self-discipline and judgement in using, extending,
and transmitting knowledge28
Further, the policy statement called for professors to never allow self interests to
compromise their freedom of inquiry, and to work toward promotion of conditions
of free inquiry and to educate the public regarding academic freedom issues.29
Although many academicians were bolstered by AAUP’s attempt to
support the professors and rally enthusiasm for academic freedom, most
educators of the last decade agreed that there was a collective apathy and
joylessness in the classroom. Educational historian Page Smith wrote of this
collective apathy when he described the current academic university setting as a
“metaphorical desert caused by a flight away from the teaching profession, a
mediocrity in academic research, and an uneasy alliance between universities
and corporations and government.” 30
Three legal challenges erupted during this past decade which provided
excellent examples of the academic professor’s struggle for individual freedom
during this repressive decade. The first was Wirsing v. University of Colorado,

Statement on Professional Ethics, Policy Documents and Reports, 11,12,1990.
29lbid.
“ Viewpoints of Page Smith, as discussed in Lucas, C., American Higher

Education: A History, New York: St. Martin’s Press, 1994, p. 277.
111
739 F. Supp. 551,553.31 A tenured professor in education at the University of
Colorado expressed her belief that no established evaluation tool could be used
successfully to measure the teaching-learning relationship with absolute validity.
Professor Wirsing expressed her belief about student-faculty evaluations to the
dean, and refused to provide evaluation forms to her students at semester end.
Professor Wirsing argued that if she was forced to do so, she would be violating
her own belief system regarding teaching-learning evaluations. Professor
Wirsing was subsequently denied a pay increase and the university informed
Professor Wirsing that the decision to not grant her a merit pay increase was the
direct result of her refusal in this matter. Believing that her right to academic
freedom had been violated, Professor Wirsing sued the university in court. The
court decided against Professor Wirsing, stating that while she had a
constitutionally protected right under the First Amendment to disagree with the
policies of the University of Colorado, she had no right to evidence her
disagreement by failing to impose the duty bestowed upon her as a condition of
employment. The court went on to contend that Professor Wirsing had every
right to use the university’s evaluation tool as a classroom example of what was
wrong with teaching-learning evaluations, and to openly criticize the use of the
tool. The court found that the university’s requirement for the use of the tool was
unrelated to course content and therefore in no way interfered with academic
31Wirsing v. University of Colorado, 739 F. Supp. 551,553.
112
freedom.32 Although Professor Wirsing appealed the decision, the lower court
decision was affirmed.33
Several court cases occurred within a five year period of time
demonstrates a court bias toward liberalism and political correctness. Bishop v.
Aronov, 926 F. 2d. 1066,11th Circuit, 1991 was a landmark case involving
academic freedom and freedom of religion.34A professor of exercise physiology
at a university in Alabama occasionally referred to his own religious beliefs and
his belief in the concept of God during classroom discussions. Professor Bishop
also organized an after-school optional meeting to discuss evidences of God in
physiology. Professor Bishop never led students in prayer, nor did he distribute
religious materials or read from the Bible. Nevertheless, a student made
complaints to the university regarding Professor Bishop’s class comments and
optional after-class lecture. The university responded to the student complaint
by sending Professor Bishop a letter demanding that he immediately cease
interjecting his personal religious beliefs in classroom conversations and also
that he cease providing any optional lectures that were religious-based.
Professor Bishop claimed that the university was infringing upon his religious
rights and his right of academic freedom. Surprisingly to many in the academic
32Wirsing v. University of Colorado, 739 F. Supp. 551,553,1990, affirmed

without opinion, 945 F. 2d 4 1 2 ,10mCir., 1991.
“ Ibid.
MBishop v. Aronov, 926 F. 2d. 1066,11mCircuit, 1991, p. 8.
113
community, the district court agreed with Professor Bishop, stating that the
“university had created a forum for a free interchange of ideas". However, the
appeal court reversed the lower court decision and upheld the rights of the
university.35
In an almost identical case, Edwards v. California University of
Pennsylvania, 156 F. 3d 488, 3d Circuit, 1998, cert. Denied, 119 Supreme Court
1036, which eventually reached the level of the Supreme Court, Professor
Diawar M. Edwards, a tenured professor, sued the California University of
Pennsylvania, alleging that several of his civil rights had been violated.36 Prior to
filing the legal suit, Professor Edwards had developed a class syllabus in which
he listed suggested readings that were fundamentally religious based and which
had conservative content. The readings contained discussions on issues of bias,
censorship, and religious freedom. After students complained to administration
that the reading assignments were inappropriate, Professor Edward’s
department chairperson spoke out against the use of such material in the
syllabus during a faculty meeting. Professor Edwards and the department
chairperson enjoined in a heated debate in which the chairperson claimed that
Professor Edwards appeared to be better suited to teach in a fundamentalist
college rather than remaining on faculty at a public university. Professor
25Bishop v. Aronov, 926 F. 2d. 1066,11* Circuit, 1991.
36Edwards v. v. California University o f Pennsylvania, 156 F. 3d 488, 3d

Circuit, 1998, cert. Denied, 119 Supreme Court 1036.
114
Edwards was later reassigned to teach different classes and was called before
the university administration to discuss his shortcomings without being given
adequate notice or a copy of the written complaints. Professor Edwards
contended that the university had restricted his choice of classroom materials,
criticized his classroom and teaching performance, and had suspended him
briefly with pay, all while not providing him due process. Although prior to the
trial the court dismissed his charges relating to due process, the court did move
ahead with Professor Edward’s First Amendment and retaliation claims. A jury
verdict was delivered in favor of the university and against Professor Edwards.
The decision was affirmed upon appeal.37 The most interesting aspects of this
particular case were the statements made by the court concerning academic
freedom. The court contended that although a professor’s out-of-classroom
conduct and utterances were clearly protected by the First Amendment, a
professor’s First Amendment rights did not extend to in-class conduct.38
However, in DiBona v. Matthews, 269 Cal. Rptr. 882, Cal. Ct. App. 1990,
the court ruled in favor of a professor who believed that his First Amendment
rights had been violated.39 Professor DiBona, a drama teacher at San Diego
Community College selected a very controversial play to be performed in the
37Edwards v. v. California University of Pennsylvania, 156 F. 3d 488, 3d

Circuit, 1998, cert. Denied, 119 Supreme Court 1036.
“ Ibid.
33DiBona v. Matthews, 269 Cal. Rptr. 882, Cal. Ct. App. 1990.
115
college’s drama complex for the public. This play involved a black policeman
who shot a white suspect after the suspect yelled racial slurs at the policeman.
The play paralleled an actual court case that was taking place at the same time
in the college community, where a young black male was charged with the
murder of a white police officer. The local religious community voiced opposition
to the play production because of the vulgar language and controversial content.
The college administration requested that the play be canceled.40
Professor DiBona sued the university, stating that his rights regarding
selection of the play under academic freedom had been infringed upon. The
court agreed, stating that the college’s decision to cancel the play because of
the religious community’s voiced concerns was not valid.41
In the case of Levin v. Haheston, 770 F. Supp. 895, affirmed, 966 F. 2d
85, 2d Cir., 1992, the court once again ruled in favor of an educator who had
expressed unpopular societal views.42 Professor Levin, a tenured professor at
the City College of the City University of New York, had engaged in what some
thought to be controversial research. In his publications, Levin stated that blacks
were less intelligent on average than whites. He also vocalized his opposition to
affirmative action. As a direct result of his controversial stance, students began
^Kaplan, W ., & Lee, B., The Law o f Higher Education, 3rd Ed., San
41DiBona v. Matthews, 269 Cal. Rptr. 882, Cal. Ct. App. 1990.
*2Levin v. Harleston, 770 F. Supp. 895, affirmed, 966 F. 2d 85, 2d Cir.,

1992.
116
to demonstrate outside of his classrooms, often shouting so loudly that classes
were disrupted and dismissed. These demonstrations were held in direct
violation of the university’s policy prohibiting non-approved student
demonstrations that interrupted classes.43
Professor Levin, on numerous occasions, wrote the administration asking
that the demonstrations be stopped, to no avail. The university administration
instead took two steps to stop the melee. First, the students in Professor Levin’s
classes received letters from administration in which they were given the choice
of independent class work rather than attending class and completing Professor
Levin’s assigned readings. Second, the president of the university established
an ad hoc committee to examine the factors surrounding the melees. The
committee was charged with examining university policies relating to the matter
at hand and determining if Professor Levin’s tenured status could be revoked.
The committee was further required to determine disciplinary procedures which
could be warranted against Professor Levin. Professor Levin filed charges
against the university on the following terms: 1) the university’s failure to enforce
the student demonstration policy, 2) the creation of the special student
assignments, and 3) the undertaking of the ad hoc committee breached his
rights under the government’s Constitutional Free Speech and Due Process
43 Levin v. Haheston, 770 F. Supp. 895, affirmed, 966 F. 2d 85, 2d Cir.,

1992.
117
Clause.44 The district court issued a lengthy opinion favoring the plaintiff. The
court stated that there was no question that Professor Levin's speech in the
classroom was protected expression, and acknowledged that the ad hoc
committee proceedings caused Professor Levin to curtail his speech and
utterances because of fear of retaliation by the university administration.45
This case was considered a landmark case in academic freedom for
several reasons. The court recognized the relationship between academic
freedom and the urgency to maintain political correctness in an academic
position. The court also emphasized strong support of academic freedom in
faculty research, even providing the constitutional basis for such. Additionally,
the court clearly viewed academic freedom of speech in publications and
speeches of community concern differently from expectations of academic
freedom regarding classroom assignments, teaching methodologies or selection
of course materials and books.46
Two other court cases provided findings that influenced freedom of
speech of individual professors. The first, Waters v. Churchill, did not involve an
44Levin v. Haheston, 770 F. Supp. 895, affirmed, 966 F. 2d 85, 2d Cir.,

1992.
45Lewn v. Haheston, 770 F. Supp. 895, affirmed, 966 F. 2d 85, 2d Cir.,

1992.
118
academic setting.47 A nurse who worked at a department of veteran Affairs
Medical Center (V.A.), was dismissed based on a third party report that she had
made disparaging remarks about the hospital facility and hospital management
practices to a co-worker. The case eventually reached the supreme court, where
the justices filed four opinions with different perspectives on Water’s First
Amendment rights. The aspect of this case that most significantly influenced
individual rights of faculty was the court’s statement that courts should be
deferential to employer when applying the Pickering factors. Thus, the employer
may reasonably dismiss an employee if the employee’s speech has the potential
to disrupt the workplace.48
The second case, Jefferies v. Harieston, involved a tenured professor and
Chair of the Black Studies Department at the City College of New York.49
Professor Jefferies made a controversial off campus speech while serving as a
spokesperson for the State Education Commissioner. During this speech,
Professor Jefferies made remarks against individuals and derogatory remarks
against specific ethnic groups. As a result of the speech, Professor Jefferies
received institutional disciplinary action, resulting in a demotion. Initially, the
lower courts ruled in favor of Professor Jefferies, who had claimed violation of
47Wafers v. Churchill, 114 S. Ct. 1878,1994.
‘“’Kaplan, W ., & Lee, B., The Law o f Higher Education, 3rd Ed., San
49 Jefferies v. Harieston, 820 F. Supp. 741 (SDNY), 1993.
119
his free speech rights. However, these decisions were handed down prior to the
Waters v. Churchill case. On appeal, the Supreme Court reviewed the Jefferies
case and sent the case back to the district court to re-evaluate, using criteria
determined in the Churchill case. The court finally determined that the
university’s concern about potential campus disturbances that may occur as a
direct result of Professor Jefferies speech was enough to outweigh Professor
Jefferies free speech concerns.50
Throughout the past decade, a fight ensued between left-wing liberals
who embraced political correctness and right wing academic conservatives who
resented having societal views imposed upon their speech. This fight stemmed
from an aftermath of egalitarianism trends that swept our nation after the
turbulent sixties. Political correctness was originally defined as the requirement
of equal public respect for all ethnic groups, genders, sexual orientations, age
groups, and minorities.51 Often overused, “a substitute phrase that captures the
issue is difficult to formulate". “ Although in principle most Americans agreed
with the concept, and the concept at origin appeared to be unobjectionable and
innocuous, the abstract has been difficult to put into practice in the academic
setting. Academic freedom and First Amendment rights were considered prize
“ Kaplan, W ., & Lee, B., The Law of Higher Educatfan, 3rd Ed., San
51Hamilton, N., Zealotry and Academic Freedom: A Legal and Historical

“ Ibid., p. 55.
120
possessions by university professors who were reluctant to discourage open
classroom dialogue possibly containing unpopular views.
As politically astute minority groups have developed on campus, pressure
has been applied to university administrators to maintain speech and teaching
methodologies which are considered to be politically correct. Inclusive language
has become a common mantra. For example, the term man or he was to be
avoided when referring to mankind. Athletic teams have been renamed, and
mascots such as rebels have been replaced for more sanguine symbols.53 Book
lists and suggested class readings have been challenged by both liberal and
conservative groups. Feminist pedagogy has changed the face of many
previously male dominant curriculums, while large sums of money have been
channeled into minority and women’s programs. Campus debates over such
issues as affirmative action, free speech issues, academic politics,
multiculturalism, ethnic separatism, and feminist activism heightened.54
Dinesh D’Souza, a Dartmouth College newspaper editor of conservative
political persuasion, published a controversial book in 1991 entitled Illiberal
Education: The Politics o f Race and Sex on Campus.55 D’Souza contended that

Press, 1994.
“ D’Souza, D., Illiberal Education: The Politics o f Race and Sex on

Campus, New York: Free Press, 1991.
121
university standards of excellence and justice were dismantled with the many
university affirmative action programs throughout the country. D’Souza argued
that affirmative action and preferential treatments for ethnic minorities lowered
academic standards in the university setting. D’Souza further charged that many
leftist academic radicals used harassment and intimidation to demote viewpoints
and discussions with campus conservatives.56 This same view was espoused
by Kimball (1990) who did not oppose celebrating the contributions of different
cultures on campus if opposing views were not subject to ridicule and
punishment.57
Academicians with a more leftist perspective argued that affirmative
action and preferential admissions of students were necessary so that people
from all walks of life could actively participate in creating meaningful university
curriculums and learning experiences. The two opposing sides slowly began to
encroach common middle ground through open campus dialogue, campus
meetings, and active participation in cross cultural activities. Many institutions
devised campus codes of conduct, often with student input from various minority
groups, which enforced strong penalties for hate behavior and conduct. These
“ D’Souza, D., Illiberal Education: The Politics o f Race and Sex on

Campus, New York: Free Press, 1991.
57Kimball, R., Tenured Radicals: How Politics Has Corrupted Our Higher
Education, New York: Harper Collins Press, 1990.
122
penalties were viewed as a means to derail negative campus behaviors.58
The federal courts weighed in on the issue by consistently stating the
need for university administrations to be careful not to stop students from freely
assembling as a means of stopping offensive “hate” speech. The term “hate”
speech was described as “verbal and written words and symbols which
conveyed a grossly negative assessment of a ... population or group based on
race, gender, ethnicity, religion, sexual orientation or disability ... usually highly
derogatory or degrading, and the language is typically coarse”. S9 The courts
generally agreed that verbal attacks on campus groups or individuals actionable
fell under the rights guaranteed by the First Amendment.60
The Association of University Professors also weighed in on the issue,
first in 1991 and again in 1994. In 1991, the AAUP provided a very weak policy
statement which upheld minority stances on campus, while barely speaking to
free speech issues. In 1994, the AAUP issued another statement voicing
concerns about the due process provided to university professors who had been
the targets of sexual harassment complaints. The AAUP stated “at it’s best the
academic work environment... consists in robust exchange of ideas. Ideas
Press, 1994.
“ Kaplan, W ., & Lee, B., The Law of Higher Education, 3rd Ed., San
Francisco: Jossey-Bass, 1995, p. 508-509.
123
whose expression may be feit to be intimidating, hostile or offensive cannot be
prohibited on the sheer ground that they are felt to be so."61
Since the establishment of policies under the Civil Rights Act of 1964 and
the Federal Equal Opportunity Commission, numerous other court cases
emerged during the past 10 years emanating from sexual harassment or ethnic
and racial harassment charges. Nonetheless, the majority of those cases
involved student rights and had little bearing on academic freedom as it applied
to professors in the university setting.
Liberal campus activists began to look more closely at the ramifications of
restricting freedoms of speech while right- winged academic conservatives
revisited more courses of study to include minority perspectives.62 The last two
decades erupted into an almost constant battle between liberal and conservative
Americans. This fight spilled over from politics into the academic arena, which
historically was not an uncommon phenomenon. The conservative Americans
were often influenced by religious beliefs and tenets of the Christian faith. The
liberal Americans often sided with the American Civil Liberties Union and
socially permissive groups such as abortion rights activists. The debates and
fights among the two sides continued to present time.

Statement on Academic Freedom and Sexual Harassment, Policy Documents
and Reports, 11,12,1990.
Press, 1994.
124
The academic beliefs of the past thirty years influenced university
administrative policy in many ways. More and more special interest groups
clamored to be heard and demanded their constitutional rights on the college
campus. Any perceived infringement of these rights often resulted in laborious
legal actions. University administrators developed policies to combat these
expensive endeavors. Courts tended to often side with university administrations
and individual administrator’s decisions on such issues as faculty promotion and
retention. Faculty contractual agreements received even less emphasis during
the past ten years, and the issue of tenure became the focus of heated debate.
As universities received less federal funding from a conservative-led congress,
faculty positions became more competitive. Those faculty who worked at the
highest pay scale, or who did not bring in sufficient external funding from
research were often not retained.63
The impact of the legal and societal events of the past thirty years on
educational policy manifested in diminished open dialogue in the university
classroom. Recent student populations were not exposed to an abundance of
free-thinking or radical viewpoints. Reading and writing assignments were often
channeled toward either conservative or liberal ideology, often depending upon
the historical mission and philosophy of the university. Further exploration of the
impact on educational policy culminated in Chapter 7.
Francisco: Jossey-Bass, 1995, p. 508-509.
125
CHAPTER 7
IMPACT ON POLICY: SUMMARY AND CONCLUSIONS
Academic policy referred to the expansive issues, principles and values
that influenced the actions of higher education, while academic politics referred
to the agenda actions designed to influence allocation of resources.1 Every
higher educational institution developed mission and values from which policy
progressed.2 The scarcity or abundance of resources also played a major role in
shaping policy and influencing the academic environment of the university
campus. University administrators realized that the key to evolving into a
powerful institution of learning was linked closely to research productivity,
external grant funding, and enhanced tuition income.
Both politics and policy were intertwined with academic freedom. Political
environments have shaped historical events in this country since America’s
inception. In turn, historical events impacted early American higher education
policy. The most striking evidence centered around times of war. The Civil War
resulted in two geographically distinct educational systems in this country. Post
’Mason, D., Talbott, S., & Leavitt, J., Policy and Politics for Nurses, 2d ed.,
Saunders: Philadelphia, 1993.
2lbid„ p. 330.
126
war schools located in northern states flourished, while those located in
southern states faced severely limited funds and sharply declining enrollments.
World Wars I and II were strong influences on the American educational
system. During both wars, professor's personal lives were scrutinized in detail.
Those professors who had non-traditional political views, or who opposed the
war, were often singled out for institutional hearings or dismissal from their
faculty positions. This resulted in diminished creativity and exchange of views in
the classroom, which impacted the quality of higher education.
The patriotic fever surrounding World War II, and the political rhetoric
against any views other than democracy, led America into the paranoid tactics
witnessed in the McCarthy hearings. The years of 1950- 1955 yielded perhaps
the most negative impact on academic freedom and educational policy than any
other. Most academicians of the time were frightened of losing their faculty
positions and careers.3 The McCarthy hearings served as a reminder of the
fragility of academic freedoms provided to professors.
The American Association of University Professors adopted a policy
statement on the governance of colleges and universities in October, 1966.4
This policy statement was reviewed and revised by the American Association of
Press, 1994.
4American Association of University Professors policy statement:

Statement on Government o f Colleges and Universities, 1966, Reviewed and
revised, April, 1990, Policy Documents and Reports, 11,12,1990.
127
University Professors Council in April, 1990. Although the policy was not
intended to serve as a blueprint for university governance on every campus, and
did not speak to relationships with outside or government agencies, the policy
did provide influence on American general educational policy at the university
level. Section B, page 3, asserts the following:
The general educational policy, i.e., the objectives of an institution
and the nature, range and pace of its efforts, is shaped by the institutional
charter or by law, by tradition and historical development, by the present
needs of the community of the institution, and by the professional
aspirations and standards of those directly involved in its work ... when an
educational goal has been established, it becomes the responsibility
primarily of the faculty to determine appropriate curriculum and
procedures of student instruction.5
The Vietnam War ushered in a different educational policy influence.
University administrators were forced to acknowledge the power of student
demonstrations. Many avenues for student speech were provided as a means of
containing the literal destruction of college and university campuses. Suddenly,
student freedoms were elevated, while faculty freedoms were diminished.
Faculty who did not agree with various student groups on campus faced student
sAmerican Association of University Professors policy statement:

Statement on Government of Colleges and Universities, 1966, Reviewed and
revised, April, 1990, Policy Documents and Reports, 11,12,1990, Section B, p.
3.
128
demonstrations in the classroom, and students often shouted down faculty
lectures within the classroom. Again, as with previous American wars, limited
perspectives outside of the popular political views of the time were tolerated.6
Educational policies within the past two decades were guided by two
similar phenomenons: issues surrounding hate- speech and political
correctness. Since 1980, universities increasingly were forced to confront the
legal and political hate- speech problem.7 Many educational institutions
established specific rules of conduct in order to regulate harassment or abusive
behaviors directed at members of minority groups such as blacks, Hispanics,
homosexuals, Jews, and females.8 Institutional policies were not limited to
speech, but included regulations of clothing, such as the elimination of T-shirts
with swastikas, confederate flags or Ku Klux Klan insignia. Many campus
administrators also severely limited similar types of materials that could be
placed on college bulletin boards, such as fliers and electronic mail messages
that contained derisive words or comments. Student newspapers and radio
stations were subjected to various regulations about what could and could not
Press, 1994.
7Kaplan, C., & Schrecker, E. Regulating the Intellectuals: Perspectives on

Academic Freedom, New York: Praeger, 1983.
8Olivas, M., “The Political Economy of Immigration, Intellectual Property,

and Racial Harassment: Case Studies of the Implementation of Legal Changes
on Campus”, Journal of Higher Education, 63, 570,1992, 580-584.
129
be verbally transmitted over the airwaves and written in print.9
Under the third free speech article of the United States Constitution,
speech could not be prohibited merely because persons who heard or viewed it
were offended by the message. Both extremely conservative groups and
extremely liberal groups challenged the concept of university administrations
molding campus speech through institutional policy. Yet, to date, no campus-
based free speech v. hate- speech case has reached the United States Supreme
Court.10 However, this court, in non-academic related cases, was clear in
distinguishing between fighting words and fighting actions. While the provision of
free speech principles provided under the United States Constitution did not
allow for strong restriction on what may be spoken, actions such as destruction
of property or physical attack were not within the constitutional protections
accorded free speech.11
Since the development of higher education facilities in this country, the
American court system has traditionally taken a hands-off approach to most
academic matters.12 In the classic 1978 court case of Regents v. Bakke, the
9Kaplan, W ., & Lee, B., The Law of Higher Education, 3rd Ed., San
10lbid.
11Olivas, M., “The Political Economy of Immigration, Intellectual Property,

and Racial Harassment: Case Studies of the Implementation of Legal Changes
on Campus”, Journal o f Higher Education, 63, 570,1992, 580-584.
12Haskell, R., “Academic Freedom, Promotion, Reappointment, Tenure

and the Administrative Use of Student Evaluation of Faculty (SEF)”, Education
130
court ruled very specifically in citing the four essential freedoms of the university
administration: 1) to determine who may teach, 2) what may be taught, 3) how it
shall be taught, and 4) who may be admitted for study.13 This court case set the
stage for most subsequent court decisions in academia.
Generally, higher education administrations were granted substantial
latitude in developing educational and institutional policy without regard to the
individual academic freedom of the university professors. Although educators set
academic standards through such avenues as the establishment of course
requirements and course curricula, the courts clearly and consistently favored
university governing boards as the definitive legal adjudicators of academic
standards.14
Haskell (1997) asserted that the four freedoms outlined in the Sweezy
case 15were strictly attached to institutional policy and not to individual higher
education administrators.16 However, in the majority of American court rulings,
judges often sided with individual administrators, even those clearly functioning
Policy Analysis Archives, Volume 5 (21), 1997.
13Sweezy v. New Hampshire, 354 U.S. 234, 250, 1957.

:5Sweezy v. New Hampshire, 354 U.S. 234, 250,1957.

131
outside of institutional policy. Haskell (1997) further asserted that the courts
tended to recognize an individual administrator’s decision on academic matters
as if the administrator’s actions were based on strict institutional policy.17
This concept was very important to recognize, because of the impact of
such a concept on academic freedom. Imbedded in this concept was the notion
that faculty handbooks, faculty agreements, and faculty contracts provided little
value in court.
Following the decade of the sixties, emphasis was clearly placed on
student governance in educational administrative policy. As more non-traditional
students entered college, student governance became ever more important to
the student population. Older students, particularly minority students, clamored
for more input into the educational process. Students were viewed as consumers
of an educational product, and colleges competed for students to increase
enrollments and therefore bring in more money.
As part of the increased emphasis on student governance, university
administrators assigned increasing importance to student evaluation of faculty.
Often the faculty member’s student- based evaluations were used in tenure or
promotion decisions, with some faculty jobs placed in jeopardy as the result of
poor student evaluations. The use of such evaluative methodology was also
linked to the dire need of institutions to maintain student enrollment, increase

and the Administrative Use of Student Evaluation of Faculty (SEF)", Education
132
student tuition monies, while reducing the number of tenured faculty as a means
of controlling institutional expense.18 Copeland and Murray (1996) contended
that because of this administrative approach, courts should no longer assume
that individual administrators work for the common good of the university or
always act in good faith, and that the courts should not assume altruistic
institutional motives that were reminiscent of the earlier decade of the sixties.19
In conclusion, as early as 1290 A.D., the notion of academic freedom
could be found in the literature.20 The early references often centered around
disputes between church and state. Controversies at the University of Halle, in
Prussia, perhaps provided the earliest example of university faculty unrest.
These controversies involved debates between theologians and early
philosophers. Freedom of speech issues moved to the forefront of these
debates. In the eighteenth century most of the leading philosophers and
educational reformers were educated in Prussia, later to become Germany. The
educational reform movement in Germany quickly spilled over to the United
States, still in the academic infancy stage. Several early revolutionary figures in
this country became strong proponents of American educational programs, such
19Copeland, J.D., & Murray, J.,"Getting Tossed From the Ivory Tower”,
Missouri Law Review, 61, 233-237.
20A speech by the Registrar of the Bishop of Lincoln, around 1290 A.D.,
as cited in Russell, C., Academic Freedom. London and New York: Rutledge,
1993, p. 1.
133
as Benjamin Franklin and Thomas Jefferson. Often the early higher educational
models were designed after those in Germany. Johns Hopkins University,
located in Maryland, was established in 1876, and exhibited the same curricular
design as leading German universities.
The Civil War set back academic expansion in America through the loss
of student enrollment and the destruction of many academic institutions in the
southern states. World War I ushered America into a new technological and
business world. Universities were charged with producing graduates that could
work in the evolving fields of industry and science. World War II produced the
Government Issue (G.l.) Bill, which provided college tuition money for thousands
of returning soldiers. The infusion of G.l. Bill money on institutions of higher
learning allowed expansion and improvement of existing educational programs
throughout the country.
Following World War II, Americans who expressed anti-democratic
political views became the victims of intense congressional investigations.
These investigations ruined many academic careers. Shortly thereafter, the
Vietnam War erupted and produced a very different influence on America’s
academic environment. College students demanded and received political power
on campuses nationwide. The student movement resulted in broader student
freedoms, but often diminished the freedom of speech of the university faculty
members. The 1980s and 1990s brought about an academic ideology fight
between conservatives, often associated with the fundamentalist Christian
134
religion, and liberals. Conservative Americans clamored for stricter control of
textbooks and class assignments, while liberal Americans called for elimination
of institutional and classroom policy designed predominantly by white males.
The two sides fought over freedom of speech issues and control of the
curriculum in the classrooms of America. The results of the conflict ranged from
banned books to liberal pedagogy. There were no quick or clear answers to this
debate.
Throughout the history of American education, the issue of academic
freedom for educators continually surfaced. In times of social anxiety, such as
war time or political unrest, fear and intimidation often erupted in the university
setting. This caused disruption of professional academic freedoms. Some great
voices arose out of these periods, such as those of Richard Ely, Frederick
Jackson Turner, Owen Lattimore, Katherine Katz, Virginia Nordin, and Walter
Metzger. These pioneers were among those who led educators in the perpetual
struggle for academic freedom.
At first glance, academic freedom appeared to be adequately addressed
in the United States Constitution. However, academic freedom became a difficult
concept to define, even through the courts. J. Peter Byrne, professor at
Georgetown University, best described the inherent problem of academic
freedom as follows:
The First Amendment protects academic freedom. This simple
proposition stands explicit or implicit in numerous judicial opinions, often
135
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,
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 why it protects it. Lacking definition or guiding principle, the doctrine
floats in law, picking up decisions as a hull does barnacles.21
This dissertation examined those legal barnacles, while also
identifying societal and historical events which further impacted academic
freedom. While completing this memorable task, the value of academic freedom
to every university professor became increasingly apparent. Each and every
university professor has an ethical obligation to study the history of academic
freedom in education, and to recognize the serious and consequential fights for
this freedom which were conducted by many brave leaders in our profession.
21Byme, J. Peter, “Academic Freedom”, 99 Yale Law Journal, 251, 252-

253, 1989.
136
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137
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APPENDIX A
154
APPENDIX A
Time Line of Historical and Legal Events Relating to Academic Freedom
Time Event Continuum
1850 Prussian Constitution declares “Science and It’s Teachings

Shall Be Free"
1850 Legal concept of academic freedom originated in Germany
1876 Johns Hopkins University founded with design similar to

German universitiesat Gottingen and Berlin, emphasizing
scholarly research
1890 University of Chicago founded with similar design of Johns

Hopkins
1891 California Institute of Technology founded with similar

design of Johns Hopkins
1894 Trial of Richard T. Ely, Professor of Economics at

University of Wisconsin, accused of writing heretical social
and economic papers
1894 University of Wisconsin “sifting and winnowing" statement
1909 1910 Educational reform movement in Germany, influenced by

the teachings of Wilhelm von Humboldt (1767-1835)
1915 Report of the Committee on Academic Freedom and Tenure

by American Association of University Professors,
establishing the first report on academic freedom developed
by American Association of University Professors
1918 Thorstein Veblen published The Higher Learning in America

presenting thesis of American Capitalism as source of
academic evil
155
1919 Max Weber delivered famous lecture, “Wissenschaft als
Beruf Scholarship as a Vocation), sparking massive German
academic debates in the subsequent decade
1925 Scopes Monkey Trial
1933 Reich law in Germany reintroduced civil service status for

educators, for purpose of excluding non-Aryan and
politically undesirable teachers
1936 Martin Heidegger’s inauguration speech as Rector of

Freiburg University
1937 No author, Academic Freedom. 46 Yale Law Journal, 670,

671 (1937)
1940 The Statement of Principles on Academic Freedom and

Tenure, published by the American Association of
1940 Kay v. Board of Education, 18 N.Y. S. 2d 821, 829.

Philosopher Bertrand Russell's academic appointment to
faculty of The City College of New York was revoked by
federal judge
1949 The German Constitution declared education to be under

the control of the Federal Education Minister, yet explicitly
stated that “art and science, research and teaching are free”
1950 McCarthy Congressional debates began
1952 Adler v. Board of Education provided the first use of the

phrase “academic freedom” in an opinion by the United
States Supreme Court
1957 Sweezy v. New Hampshire, 354 U.S. 234, 263. United

States Justice Frankfurter provided clear definition of
academic freedom, declaring “the University can determine
for itse lf... on academic grounds ... who may teach, what
may be taught, how it shall be taught, and who may be
admitted to study”
156
1957 Academic Freedom, the American Association of University
Professors, and the United States Supreme Court 45 AAUP
Bulletin 5, 6,19-20 published
1967 Keyishian v. Board of Regents, 385 United States 589, 603,

provided popular legal statement by United States Supreme
Court Justice Brennan: “Our nation is deeply committed to
safeguarding academic freedom, which is of transcendent
value to all of us and not merely to the teachers
Amendment, which does not tolerate laws that call a pall of
orthodoxy over the classroom” (1967, p. 49).
1968 Pickering v. Board of Education, 391 United States 563, in

which the government publicly criticized school
administration for political speech repression, and
formulated the Pickering balance test
1970 Interpretive Comments on the 1940 Statement of Academic

Freedom and Tenure, by the American Association of
1972 Clark v. Holmes, 474 F. 2d 928 7mCircuit, 1972
1973 Hetrick v. Martin, 480 F 2d 705, 706 (6th Cir. 1973)
1978 Regents of the University of California v. Bakke, 438 U.S.

265, 312, 1978
1981 Nordin, V. published, The Contract to Educate. 8 J. College

and University Law 141,142 -149,167 -168, in which
Nordin provided the label “academic absention" to the
phenomena of judicial deference to schools and universities
1983 Katz, K. published The First Amendment's Protection of

Expressive Activity in the University Classroom: A
Constitutional Mvth. 16 University of California Davis Law
Review 857, 926
1987 Statement on Professional Ethics (revision) published by the

1987 Yudof, M. published Three Faces of Academic Freedom. 32

Loyola Law Review 831, 837
157
1992 Wirsing v. University of Colorado, 739 F. Supp. 551, 553,
affd without opinion, 945 F. 2d 412 (1 OthCir. 1991), cert,
denied, 503 United States 906
1990 DiBona v. Matthews, 269 Cal. Rptr. 882, Cat. Court of

Appeals, 1990
1991 Bishop v. Aronov, 926 F. 2d. 1066, 11mCircuit, 1991
1991 D'Souza published Illiberal Education: The Politics of Race

and Sex on Campus
1992 Levin v. Harteston, 770 F. Supp. 895, affirmed, 966 F. 2d

Cir., 1992
1993 Jefferies v. Harteston, 820 F. Supp. 741 (SDNY), 1993
1994 Waters v. Churchill, 114 S. Ct. 1878, 1994
1998 Cotter v. Board of Trustees of University of North Colorado
1998 Edwards v. California University o f Pennsylvania, 156 F. 3d

488, 3rd Circuit, (1998), cert. Denied, 119 Supreme Court
1036
158
APPENDIX B
159
APPENDIX B
Copy of Permission to Publish American Association of

University Professors policy statements.

1012 Fourteenth Street, NW, Suite 500
Washington, D.C. 20005
1-800-424-2973
Permission granted in writing, March, 2001.

(Original copy maintained on file by Susan P. Lofton)
160
APPENDIX C
161
APPENDIX C
American Association of University Professors policy statement:
The 1925 Conference Statement on Academic Freedom and Tenure
General Declaration of Principles (Abridged)
The term “academic freedom” has traditionally had two applications to the
freedom of the teacher and to that of the student, Lehrfreiheit and Lemfreiheit. It
need scarcely be pointed out that the freedom which is the subject of this report
is that of the teacher. Academic freedom in this sense comprises three
elements: freedom of inquiry and research; freedom of teaching within the
university or college; and freedom of extra-mural utterance and action. The first
of these is almost everywhere so safeguarded that the dangers of its
infringement are slight. It may therefore be disregarded in this report.
The second and third phases of academic freedom are closely related,
and are often not distinguished. The third, however, has an importance of its
own, since of late it has perhaps more frequently been the occasion of
difficulties and controversies than has the question of freedom of intra-academic
teaching. All five of the cases which have recently been investigated by
committees of this Association have involved, at least as one factor, the right of
university teachers to express their opinions freely outside the university or to
engage in political activities in their capacity as citizens. The general principles
which have to do with freedom of teaching in both these senses seem to the
committee to be in great part, thought not wholly, the same. In this report,
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therefore, we shall consider the matter primarily with reference to freedom of
teaching within the university, and shall assume that what is said thereon is also
applicable to the freedom of speech of university teachers outside their
institutions, subject to certain qualifications and supplementary considerations
which will be pointed out in the course of the report.
An adequate discussion of academic freedom must necessarily consider
three matters: (1) the scope and basis of the power exercised by those bodies
having ultimate legal authority in academic affairs; (2) the nature of the
academic calling; (3) the function of the academic institution or university.
Basis of Academic Authority
American institutions of learning are usually controlled by boards of
trustees as the ultimate repositories of power. Upon them finally it devolves to
determine the measure of academic freedom which is to be realized in the
several institutions. It therefore becomes necessary to inquire into the nature of
the trust reposed in these boards, and to ascertain to whom the trustees are to
be considered accountable.
Can colleges and universities that are not strictly bound by their founders
to a propagandist duty ever be included in the class of institutions as being in a
moral sense proprietary? The answer is clear. If the former class of institutions
constitute a private or proprietary trust the latter constitute a public trust The
trustees are trustees for the public. In the case of our state universities this is
self-evident. In the case of most of our privately endowed institutions, the
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situation is really not different. They cannot be permitted to assume the
proprietary attitude and privilege, if they are appealing to the general public for
support. Trustees of such universities or colleges have no moral right to bind
the reason or the conscience of any professor. It follows that any university
which lays restrictions upon the intellectual freedom of its professors proclaims
itself a proprietary institution, and should be so described whenever it makes a
general appeal for funds; and the public should be advised that the institution
has no claim whatever to general support or regard.
The Nature of the Academic Calling
The above-mentioned conception of a university as an ordinary business
venture, and of academic teaching as a purely private employment, manifests
also a radical failure to apprehend the nature of the social function discharged
by the professional scholar. While we should be reluctant to believe that any
large number of educated persons suffer from such a misapprehension, it seems
desirable at this time to restate clearly the chief reasons, lying in the nature of
the university teaching profession, why it is to the public interest that the
professional office should be one both of dignity and of independence.
If education is the cornerstone of the structure of society and if progress
in scientific knowledge is essential to civilization, few things can be more
important than to enhance the dignity of the scholar’s profession, with a view to
attracting into its ranks men of the highest ability, of sound learning, and of
strong and independent character. This is the more essential because the
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pecuniary emoluments of the profession are not, and doubtless never will be,
equal to those open to the more successful members of other professions. It is
not, in our opinion, desirable that men should be drawn into this profession by
the magnitude of the economic rewards which it offers; but it is for this reason
the more needful that men of high gifts and character should be drawn into it by
assurance of an honorable and secure position, and of freedom to perform
honestly and according to their own consciences the distinctive and important
function which the nature of the profession lays upon them.
Indeed, the proper fulfillment of the work of the professorate requires that
our universities shall be so free that no fair-minded person shall find any excuse
for even a suspicion that the utterances of university teachers are shaped or
restricted by the judgment, not of professional scholars, but of inexpert and
possibly not wholly disinterested persons outside of their ranks. The lay public
is under no compulsion to accept or to act upon the opinions of the scientific
experts whom, through the universities, it employs. But it is highly needful, in
the interest of society at large, the what purport to be conclusions of men trained
for, and dedicated to, the quest for truth, shall in fact be the conclusions of such
men, and not echoes of the opinions of the lay public, or of the individuals who
endow or manage universities. To the degree that professional scholars, in the
formation and promulgation of their opinions, are, or by the character of their
tenure appear to be, subject to any motive other than their own scientific
conscience and a desire for the respect of their fellow-experts, to that degree the
165
university teaching profession is corrupted; its proper influence upon public
opinion is diminished and vitiated; and society at large fails to get from its
scholars, in an unadulterated form, the peculiar and necessary service which it
is the office of the professional scholar to furnish.
The responsibility of the university teach is primarily to the public itself,
and to the judgment of his own profession; and while, with respect to certain
external conditions of his vocation, he accepts a responsibility to the authorities
of the institution in which he serves, in the essentials of his professional activity
his duty is to the wider public to which the institution itself is morally amenable.
So far as the university teacher’s independence of thought and utterance is
concerned - though not in other regards - the relationship of professor to
trustees may be compared to that between judges of the Federal courts and the
Executive who appoints them. University teachers should be understood to be,
with respect to the conclusions reached and expressed by them, no more
subject to the control of the trustees than are judges subject to the control of the
President with respect to their decisions; while of course, for the same reason,
trustees are no more to be held responsible for, or to be presumed to agree with,
the opinions or utterances of professors than the President can be assumed to
approve of ail the legal reasoning of the courts. A university is a great and
indispensable organ of the higher life of a civilized community, in the work of
which the trustees hold an essential and highly honorable place, but in which the
faculties hold an independent place, with quite equal responsibilities - and in
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relation to purely scientific and educational questions, the primary responsibility.
The Function of the Academic Institution
The importance of the academic freedom in most clearly perceived in the
light of the purposes for which universities exist. These are three in number.
A. To promote inquiry and advance the sum of human knowledge.
B. To provide inquiry and advance the sum of human knowledge.
C. To provide general instruction to the students.
D. To develop experts for various branches of the public service.
Let us consider each of these. In the earlier stages of a nation's intellectual
development, the chief concern of education institutions is to train the growing
generation and to diffuse the already accepted knowledge. The modern
university is becoming more and more the home of scientific research. There
are three fields of human inquiry in which the race is only at the beginning;
natural science, social science, and philosophy and religion, dealing with the
relations of man to outer nature, to his fellow men, and to ultimate realities and
values.
The second function - which for a long time was the only function - of the
American college or university is to provide instruction or students. It is scarcely
open to question that freedom of utterance is as important to the teacher as it is
to the investigator. No man can be a successful teacher unless he enjoys the
respect of his students, and their confidence in his intellectual integrity. It is
clear, however, that this confidence will be impaired if there is suspicion on the
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part of the student that the teacher is not expressing himself fully or frankly, or
that college and university teachers in general are a repressed and intimidated
class who dare not speak with that candor anc courage which youth always
demands in those whom it is to esteem. The average student is a discerning
observer, who soon takes the measure of his instructor. It is not only the
character of the instruction but also the character of the instructor that counts;
and if the student has reason to believe that the instructor is not true to himself,
the virtue of the instruction as an educative force is incalculably diminished.
There must be in the mind of the teacher no mental reservation. He must give
the student the best of what he has and what he is.
The third function of the modern university is to develop experts for the
use of the community. If there is one thing that distinguishes the more recent
developments of democracy, it is the recognition by legislators of the inherent
complexities of economic, social, and political life, and the difficult of solving
problems of technical adjustment without technical knowledge. The recognition
of this fact has led to continually greater demand for the aid of experts and these
subjects, to advise both legislators and administrators. The training of such
experts has, accordingly, in recent years, become an important part of such
experts has, accordingly, in recent years, become an important part of work of
the universities; and in almost every one of our higher institutions of learning the
professors of the economic, social, and political sciences have been drafted to
an increasing extent into more or less unofficial participation in the public
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service. It is obvious that here again the scholar must be absolutely free not
only to pursue his investigations but to declare the results of his researches, no
matter where they may lead him or to what extent they may come into conflict
with accepted opinion. To be of use to the legislator or the administrator, he
must enjoy their complete confidence in the disinterestedness of his conclusions.
It is clear, then, that the university cannot perform its threefold function without
accepting and enforcing to the fullest extent the principle of academic freedom.
The responsibility of the university as a whole is to the community at large, and
any restriction upon the freedom of the instructor is bound to react injuriously
upon the efficiency and the morale of the institution, and therefore ultimately
upon the interests of the community.
An inviolable refuge from such tyranny should be found in the university.
It should be an intellectual experiment station, where new ideas may germinate
and where their fruit, though still distasteful to the community as a whole, may
be allowed to ripen until finally, perchance, it may become a part of the accepted
intellectual food of the nation or of the world. One of its most characteristic
functions in a democratic society is to help make public opinion more self-critical
and more circumspect, to check the more hasty and unconsidered impulses of
popular feeling, to train the democracy to the habit of looking before and after. It
is precisely this function of the university which is mot injured by any restriction
upon academic freedom; and it is precisely those who most value this aspect of
169
the university’s work who should most earnestly protect against any such
restriction.
Since there are no rights without corresponding duties, the considerations
heretofore set down with respect to the freedom of the academic teacher entail
certain correlative obligations. The claim to freedom of teaching is made in the
interest of the integrity and of the progress of scientific inquiry; it is, therefore,
only those who carry on their work in the temper of the scientific inquirer who
may justly assert this claim. The university teacher, in giving instruction upon
controversial matters, while he is under no obligation to hide his own opinion
under a mountain of equivocal verbiage, should, if he is fit for his position, be a
person of a fair and judicial mind; he should, in dealing with such subjects, set
forth justly, without suppression or innuendo, the divergent opinions of other
investigators; he should cause his students to become familiar with the best
published expressions of the great historic types of doctrine upon the questions
at issue; and he should, above all, remember that his business is not to provide
his students with ready-made conclusions, but to train them to think for
themselves, and to provide them access to those materials which they need if
they are to think intelligently.
In their extramural utterances, it is obvious that academic teachers are
under a peculiar obligation to avoid hasty or unverified or exaggerated
statements, and to refrain from intemperate or sensational modes of expression.
But subject to these restraints, it is not, in the committee’s opinion, desirable that
170
scholars should be debarred from giving expression to their judgements upon
controversial questions or that their freedom of speech, outside the university,
should be limited to questions falling within their own specialties. It is clearly not
proper that they should be prohibited from lending their active support to
organized movements which they believe to be in the public interest. And,
speaking broadly, it may be said int he words of a non-academic body already
once quoted in publication of the Association, that “it is neither possible nor
desirable to deprive a college professor of the political rights vouchsafed to
every citizen.”
It is, it will be seen, in no sense the contention of this committee that
academic freedom implies that individual teachers should be exempt from all
restraints as to the matter or manner of their utterances, either within or without
the university. Such restraints as are necessary should in the main, your
committee holds, be self-imposed, or enforced by the public opinion of the
professions.
Practical Proposals
As the foregoing declaration implies, the ends to be accomplished are
chiefly three:
1. To safeguard freedom of inquiry and of teaching against both covert and
overt attacks, by providing suitable judicial bodies, composed of members
of the academic profession, which may be called into action before
university teachers are dismissed or disciplined, and may determine in
171
what cases the question of academe freedom is actually involved.
2. By the same means, to protect college executives and governing boards
against unjust charges of infringement of academic freedom, or of
arbitrary and dictatorial conduct - charges which, when they gain wide
currency and believe, are highly detrimental to the good repute and the
influence of universities.
3. To render the profession more attractive to men of high ability and strong
personality by insuring the dignity, the independence, and the reasonable
security of tenure, of the professional office.
172
APPENDIX D
173
APPENDIX D
1940 Statement of Principles on Academic Freedom and Tenure (Abridged)
The purpose of this statement is to promote public understanding and
support of academic freedom and tenure and agreement upon procedure to
assure them in colleges and universities. Institutions of higher education are
conducted for the common good and not to further the interest of either the
individual teacher ( The word “teacher” as used in this document is understood
to include the investigator who is attached to an academic institution without
teaching duties) or the institution as a while. The common good depends upon
the free search for truth and its free exposition.
Academic freedom is essential to these purposes and applies to both
teaching and research. Freedom in research is fundamental to the advancement
of truth. Academic freedom in its teaching aspect is fundamental for the
protection of the rights of the teacher in teaching and of the student to freedom
in learning. It carries with it duties correlative with rights.
Tenure is a means to certain ends; specifically; (1) freedom of teaching and
research and of extramural activities, and (2) a sufficient degree of economic
security to make the profession attractive to men and women of ability. Freedom
and economic security, hence, tenure, are indispensable to the success of an
institution in fulfilling its obligations to its students and to society.
174
ACADEMIC FREEDOM
a. Teachers are entitled to full freedom in research and in the publication of
the results, subject to the adequate performance of their other academic
duties; but research for pecuniary return should be based upon an
understanding with the authorities of the institution.
b. Teachers are entitled to freedom in the classroom in discussing their
subject, but they should be careful not to introduce into their teaching
controversial matter which has no relation to their subject. Limitations of
academic freedom because of religious or other aims of the institution
should be clearly stated in writing at the time of the appointment.
c. College and university teachers are citizens, members of a learned
profession, and officers of an educational institution. When they speak or
write as citizens, they should be free from institutional censorship or
discipline, but their special position in the community imposes special
obligations. As scholars and educational officers, they should remember
that the public may judge their profession and their institution by their
utterances. Hence they should at all times be accurate, should exercise
appropriate restraint, should show respect for opinions of others, and
should make every effort to indicate that they are not speaking for the
institution.
175
Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission.
ACADEMIC TENURE
After the expiration of a probationary period, teachers or investigators
should have permanent or continuous tenure, and their service should be
terminated only for adequate cause, except in the case of retirement for age, or
under extraordinary circumstances because of financial exigencies.
In the interpretation of this principle it is understood that the following represent
acceptable academic practice:
1. The precise terms and conditions of every appointment should be stated
in writing and be in the possession of both institution and teacher before
the appointment is consummated.
2. Beginning with appointment to the rank of full-time instructor or a higher
rank, the probationary period should not exceed seven years, including
within this period full-time service in all institutions of higher education;
but subject to the proviso that when, after a term of probationary service
of more than three years in one or more institutions, a teacher is called to
any other institution it may be agreed in writing that the new appointment
is for a probationary period of not more than four years, even though
thereby the person’s total probationary period in the academic profession
is extended beyond the normal maximum of seven years. Notice should
be given at least one year prior to the expiration of the probationary
period if the teacher is not to be continued in service after the expiration
of that period.
3. During the probationary period a teacher should have the academic
freedom that all other members of the faculty have.
4. Termination for cause of a continuous appointment, or the dismissal for
cause of a teacher previous to the expiration of a term appointment,
should, if possible, be considered by both a faculty committee and
governing board of the institution. In all cases where the facts are in
dispute, the accused teacher should be informed before the hearing in
writing of the charges and should have the opportunity to be heard in his
or her own defense by all bodies that pass judgment upon the case. The
teacher should be permitted to be accompanied by an advisor of his or
her own choosing who may act as counsel. There should be a full
stenographic record of the hearing available to the parties concerned. In
the hearing of charges of incompetence the testimony should include that
of teachers and other scholars, either from the teacher’s own or from
other institutions. Teachers on continuous appointment who are
dismissed for reasons not involving moral turpitude should receive their
salaries for at least a year from the date of notification of dismissal
whether or not they are continued in their duties at the institution.
5. Termination of a continuous appointment because of financial exigency
should be demonstrably bona fide.
1940 INTERPRETATIONS
At the conference of representatives of the American Association of
177
University Professors and of the Association of American Colleges on November
7 - 8,1940, the following interpretations of the 1940 Statement of Principles on
Academic Freedom and Tenure were agreed upon:
1. That its operation should not be retroactive.
2. That all, tenure claims of teachers appointed prior to the endorsement
should be determined in accordance with the principles set forth in the
1925 Conference Statement on Academic Freedom and Tenure.
3. If the administration of a college or university feels that a teacher has not
observed the admonitions of paragraph (c) of the section on Academic
Freedom and believes that the extramural utterances of the teacher has
been such as to raise grave doubts concerning the teacher's fitness for
his or her position, it may proceed to file charges under paragraph (a) (4)
of the section on Academic Tenure. In pressing such charges the
administration should remember that teachers are citizens and should be
accorded the freedom of citizens. In such cases the administration must
assume full responsibility, and the American Association of University
Professors and the Association of American Colleges are free to make an
investigation.
178
APPENDIX E
179
APPENDIX E
American Association of University Professors of the 1940 Statement on
Principles of Academic Freedom and Tenure
1970 INTERPRETIVE COMMENTS (Abridged)
Following extensive discussions on the 1940 Statement of Principles on
Academic Freedom and Tenure with leading educational associations and with
individual faculty members and administrators, a joint committee of the AAUP
ans the Association of American Colleges met during 1969 to reevaluate this key
policy statement. On the basis of the comments received, and the discussions
that ensued, the joint committee felt the preferable approach was to formulate
interpretations of the Statement in terms of the experience gained in
implementing and applying the Statement for over thirty years and of adapting it
to current needs.
The committee submitted to the two associations for their consideration
the following “Interpretive Comments”. These interpretations were adopted by
the Council of the American Association of University Professors in April 1970
and endorsed by the Fifty-sixth Annual Meeting as Association policy.
1. The Association of American Colleges and the American Association of
University Professors have long recognized that membership in the
academic profession carries with it special responsibilities. Both
associations either separately or jointly have consistently affirmed these
responsibilities in major policy statements, providing guidance to
180
professors in their utterances as citizens, in the exercise of their
responsibilities to the institution and to students, and in their conduct
when resigning from their institution or when undertaking government-
sponsored research. Of particular relevance is the Statement on
Professional Ethics, adopted in 1966 as Association policy.
2. The intent of this statement is not to discourage what is “controversial."
Controversy is at the heart of the free academic inquiry which the entire
statement is designed to foster. The passage serves to underscore the
need for teachers to avoid persistently intruding material which has no
relation to their subject.
3. Most church-related institutions no longer need to desire the departure
from the principle of academic freedom implied in the 1940 Statement,
and we do not endorse such a departure.
4. This paragraph is the subject of an interpretation adopted by the sponsors
of the 1940 Statement immediately following its endorsement which reads
as follows:
If the administration of a college or university feels that a teacher
has not observed the admonitions of paragraph (c) of the section
on Academic Freedom and believes that the extramural utterances
of the teacher have been such as to raise grave doubts concerning
the teacher’s fitness for his or her position, it may proceed to file
charges under paragraph (a)(4) of the section on Academic
181
Tenure. In pressing such charges the administration should
remember that teachers are citizens and should be accorded the
freedom of citizens. In such cases the administration must assume
full responsibility, and the American Association of University
Professors and the Association of American Colleges are free to
make an investigation.
Paragraph (c) of the 1940 Statement should also be interpreted in
keeping with the 1964 “Committee A Statement on Extramural Utterances”
(AAUP Bulletin 51 (1964): 29), which states inter alia: The controlling principle is
that a faculty member's expression of opinion as a citizen cannot constitute
grounds for dismissal unless it clearly demonstrated the faculty member’s fitness
for the position. Moreover, a final decision should take into account the faculty
member’s entire record as a teacher and scholar.”
Paragraph V of the Statement on Professional Ethics also deals with the nature
of the “special obligations” of the teacher. The paragraph reads as follows:
As members of their community, professors have the rights and
obligations of other citizens. Professors measure the urgency of
other obligations in the light of their responsibilities to their subject,
to their students, to their profession, and to their institution. When
they speak or act as private persons they avoid creating the
impression of speaking or acting for their college or university. As
citizens engaged in a profession that depends upon freedom for its
182
health and integrity, professors have a particular obligation to
promote conditions of free inquiry and to further public
understanding of academic freedom.
Both the protection of academic freedom and the requirements of
academic responsibility apply not only to the full-time probationary as well
as to the tenured teacher, but also to all others, such as part-time faculty
and teaching assistants, who exercise teaching responsibilities.
5. The concept of “rank of full-time instructor or a higher rank" is intended to
include any person who teaches a full-time load regardless of the
teacher’s specific title.
6. In calling for an agreement “in writing" on the amount of credit for a faculty
member’s prior service at other institutions, the Statement furthers the
general policy of full understanding by the professor of the terms and
conditions of the appointment. It does not necessarily follow that a
professor’s tenure rights have been violated because of the absence of a
written agreement on this matter. Nonetheless, especially because of the
variation in permissible institutional practices, a written understanding
concerning these matters at the time of appointment is particularly
appropriate and advantageous to both the individual and the institution.
7. The effect of this subparagraph is that a decision on tenure, favorable or
unfavorable, must be made at least twelve months prior to the completion
of the probationary period. If the decision is negative, the appointment for
the following year becomes a terminal one. If the decision is affirmative,
the provisions in the 1940 Statement with respect to the termination of
services of teachers or investigators after the expiration of a probationary
period should apply from the date when the favorable decision is made.
8. The freedom of probationary teachers is enhanced by the establishment
of a regular procedure for the periodic evaluation and assessment of the
teacher’s academic performance during probationary status. Provision
should be made for regularized procedures for the consideration of
complaints by probationary teachers that their academic freedom has
been violated.
9. A further specification of academic due process to which the teacher is
entitled under this paragraph is contained in the Statement on Procedural
Standards in Faculty Dismissal Proceedings, jointly approved by the
American Association of University Professors and the Association of
American Colleges in 1958. This interpretive document deals with the
issue of suspension, above which the 1940 Statement is silent.
10. The 1958 Statement provides: “Suspension of the faculty member during
his proceedings is justified only if immediate harm to the faculty member
or others is threatened by the faculty member's continuance. Unless
legal considerations forbid, any such suspension should be with pay.” A
suspension which is not followed by either reinstatement or the
opportunity for a hearing is in effect a summary dismissal in violation of
184
academic due process.
11. The concept of “moral turpitude" identifies the exceptional case in which
the professor may be denied a year’s teaching or pay in whole or in part.
The statement applies to that kind of behavior which goes beyond simply
warranting discharge and is so utterly blameworthy as to make it
inappropriate to require the offering of a year’s teaching or pay. The
standard is not that the moral sensibilities of persons in the particular
community have been affronted. The standard is behavior that would
evoke condemnation by the academic community generally.
185
VITA
Susan Kay Price Lofton, born in Jackson, Mississippi on October 27,
1956, is the daughter of Sidney-Harold and Joyce Yvonne Price (deceased). She
is married to Jeffery Wade Lofton, and has one daughter, Julianne Kay Lofton.
A member of the last four year graduating class at the University of
Mississippi School of Nursing, Dr. Lofton graduated with Bachelor of Science in
Nursing in 1978. Dr. Lofton graduated with a Master of Science from the
University of Southern Mississippi in August, 1991. The emphasis of her Masters
degree was Community Health Nursing. Dr. Lofton received her Doctor of
Philosophy in Educational Leadership from the University of Mississippi in May,
2001. She worked as a clinical nurse for many years at the Veteran Affairs
Medical Center in Jackson, Mississippi, and was the first recipient of that
facility’s Excellence in Nursing Award in May, 1985. Dr. Lofton is certified as a
Clinical Nurse Specialist in Gerontological and Community Health Nursing.
Dr. Lofton is a member of Phi Kappa Phi and Sigma Theta Tau, and the
National Honor Society for Nursing. She currently serves as Assistant Professor
of Nursing at the University of Mississippi School of Nursing, where she received
the Faculty of the Year awards for 1996,1997,1999,2000, and the University of
Mississippi Nursing Alumni Chapter Faculty of the Year award in May, 1988. She
is an active member of the Baptist Medical-Dental Missions International
Program. Dr. Lofton has authored numerous health related publications and has
presented scholarly work at the national and international level.
186

A Historical and Legal Context

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INFORMATION TO USERS

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of Faculty Academic Freedom in

American Higher Education

Presented for the

Susan Kay Price Lofton

Bell & Howell Information and Learning Company

Dr. TimothyXetzring, Major Professor

We have read this dissertation

Accepted for the Council:

This historical study of academic freedom in higher education

concept of academic freedom in higher education, identification and analysis of

influenced education administrative policy decisions. Academic freedom of

faculty members, institutions, and scholastic sovereignty of students, though all

important, were considered to be separate issues by most learned educational

academic freedom of the university faculty and explored the concept as it

applied to students or institutions only when the two distinct concepts

commingled. The ideology surrounding intellectual liberties was exhibited

through paradigm shifts over time. Ideologies surrounding the concept of

documented since the age of Socrates. However, the concept of academic

freedom, as it applies to the faculty in the American university in the twentieth

century, was the focus of this dissertation. Educational philosophies impacting

academic freedom prior to 1900 were generalized in a single chapter;

subsequent scrutiny of the philosophies, laws, and legal precedents impacting

academic freedom after 1900 was then performed.

your encouraging hands on my shoulders. Wish you could see me graduate.

To Jean Walker, my partner in crime. We have now been in school

the small Cs of our doctoral curriculum!

iucky I am to have in-laws that I truly love.

To my special loves: husband, Jeffery Wade Lofton, and daughter

beneath my wings. Julianne, you are a beautiful, confident young woman. I am

being gone. I love you both with all my heart.

Finally, I thank my Savior... who reminds me daily that in the scheme of

things, this isn’t such a big deal anyway.

I would like to acknowledge and thank my dissertation committee for their

support and assistance in this dissertation process. First, my committee Chair,

Dr. Peggy Hewlett, a fellow faculty member at the University of Mississippi

Your prompt response and uplifting encouragements were needed and

University of Mississippi School of Nursing, my department chair, Dr. DeBrynda

Davey, and my fellow faculty members, for their continual support of my

CHAPTER 2 History of Academic Freedom Preceding Civil War 38

CHAPTER 3 Influence of Religious Fundamentalism, Post 57

Civil War through 1925

CHAPTER 4 Anti-Communism and McCarthyism, 1930-1952 73

CHAPTER 5 1952 through the Radical Sixties 86

CHAPTER 6 Radical Academic Left and Political Correctness,

CHAPTER 7 Impact on Policy: Summary and Conclusions 124

APPENDIX A Time Line of Historical and Legal Events

APPENDIX B Permission to Publish 157

APPENDIX C AAUP 1925 Conference Statement, Abridged 159

APPENDIX D AAUP Statement of Principles on

APPENDIX E AAUP 1940 Conference Statement, Abridged 176

The abstract notion of academic freedom has intrigued academicians for

centuries, while remaining a constant source of educational debate. Although

liberties educators are granted in the classroom and university campus.

Academic freedom of faculty members and scholastic sovereignty of

students, though both important, are considered to be separate issues by most

university faculty member and explored the concept as it applied to students or