FACULTY ACADEMIC FREEDOM: A LEGAL ANALYSIS Thesis for the Degree of Ph. D. MICHIGAN STATE UNIVERSITY WILLIAM R. WILKIE 1969 1'1”" This is to certify that the thesis entitled Faculty Academic Freedom: A Legal Analysis presented by WILLIAM R . WILKIE has been accepted towards fulfillment of the requirements for Ph.D. degree in Higher Education gAUflOIE \AA (Mmfimt Date _4_/2_3 0-169 ABSTRACT FACULTY ACADEMIC FREEDOM: A LEGAL ANALYSIS By William R. Wilkie Faculty Academic Freedom, once an educational and an emergent constitutional right, seeks delineation and evaluation not only by the representatives of the pro- fessional faculty, but also by the courts. Because faculty academic freedom was an extra-legal issue for much of its existence, a scarcity of material exists on the legal issues involved in faculty academic freedom. Furthermore, substantive material Justifying academic freedom as a constitutionally protected right is virtually non-existent. This legal analysis is designed not only as a historical perspective for the development of faculty academic freedom as a legal issue, but also as a means of updating the major litigation available in the hOpe of establishing a definitive position for faculty academic freedom as a right protected by the United States Consti- tution. Derived from several sources, the study proposes that faculty academic freedom is composed of the four following essential elements: William R. Wilkie Freedom of speech, Free association, Freedom to inquire, Freedom of teaching. Proceding from these four constituent elements, the analyst examines the hypothesis that, Academic freedom is a constitutional right protected by the First and Fourteenth Amendments to the United States Constitution. Having identified the elements of faculty academic freedom, the analystattemptS‘moverify each element as a constitu- tionally protected right through precedent, analogy, and inference. Summation After validating each element of academic freedom as a constitutionally protected right, the hypothesis that faculty academic freedom is a constitutional right is accepted. This is not to say that each element of academic freedom is equally protected. Nevertheless, each element has been recognized as being constitutionally protected. Two major implications of faculty academic freedom as a constitutional right are as follows. First, since unification of the professional faculty into a professional group or guild has failed to produce a locus of power for the protection of academic freedom, constitutional pro- tection of faculty academic freedom may effectively replace former more futile efforts. Secondly, the demise of the tenure system, which originally developed as a means of William R. Wilkie implementing and sustaining academic freedom, will occur unless its Justification is altered. The protection of academic freedom by an external authority and the elimina- tion of the tenure system may hasten a more competitive milieu conducive to the free interplay of ideas within colleges and universities. FACULTY ACADEMIC FREEDOM: A LEGAL ANALYSIS by William R. Wilkie A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Administration and Higher Education 1969 ACKNOWLEDGMENTS Two individuals must be thanked in this acknowledg— ment. Dr. George Johnson will never understand the impact which he has had on me as a model in the preparation of this document. Nonverbal as well as verbal expectations produced a result which neither of us might have antici- pated. Secondly, and finally, there must be a special place for a wife who is willing to sacrifice, exhibit patience, and provide the necessary support to complete a document such as this. Thank you Carolyn for sharing this momu- mental occasion with me. 11 TABLE OF CONTENTS Page ACKNOWLEDGMENTS . . . . . . . . . . . . ii Chapter I. THE PROBLEM: ITS NATURE AND IMPORTANCE 1 Purpose and Design 5 Hypothesis . . . . . 6 Scope and Limitations 6 Procedures for Analysis. 8 Definition of Terms . . . . . 9 Summary . . . . . . . . . . . 12 Overview. . . . . . . . . . . 13 II. A HISTORICAL PERSPECTIVE . . . . . . I“ III. ACADEMIC FREEDOM: A CONSTITUTIONALLY PROTECTED RIGHT . '. . . . . . . . 42 First Amendment Interpretations . . . AA Bad Tendency Test . . . . . . . uu Clear and Present Danger. . . . . A6 Balancing Test . . . . . . . . A8 Absolute Test . . . . . . . . A9 Fourteenth Amendment Interpretation. . 53 Freedom of Speech. . . . . . . . 55 Freedom of Association . . . . . . 68 Freedom to Inquire . . . . . . . 83 Freedom to Teach . . . . . . o . 90 IV. . SUMMATION . . . . . . . . . . . 97 BIBLIOGRAPHY . . . . . . . . . . . . . 102 iii CHAPTER I THE PROBLEM: ITS NATURE AND IMPORTANCE Academic freedom . . . does not exist because of a peculiar solicitude for the human beings who staff our academic institutions. It exists, in— stead, in order that society may have the benefit of honest Judgment and independent criticism which otherwise might be withheld because of fear of offending a dominant social group or transient social attitude.l Since the birth of the American Association of Uni- versity Professors in 1915, definitive statements and pro- fessional sanctionsinumabecome the focal point for the development of academic freedom in American higher educa- tion. Academic freedom, once an educational and an emergent constitutional right, seeks delineation and evalu- ation not only by the representatives of the professorial faculty, the American Association of University Professors (AAUP), but also by the courts. Moreover, the surprising increase in cases appearing in the AAUP Bulletin since 1915, and the recent attention by the courts, are evidence of a growing concern with academic freedom. What does academic freedom embody? What is the relationship between the faculty member and the administrator, the faculty and lClark Byse and Louis Joughin, Tenure in American Higher Education, (Ithaca: Cornell University Press, 1959), p- “- ‘1! ~.k\ the student? Are faculty members a privileged group in our society? The success of higher education is con- tingent upon the answers to the preceding and other important questions. The essential nature of academic freedom is to be found in its definition. The 1915 Statement on Academic Freedom developed by the original committee for the found- ing of the American Association of University Professors ascertained that academic freedom was comprised of three elements: 1. freedom of inquiry and research; 2. freedom of teaching within the university or college; 3. freedom of extramural utterance and action.2 Although other definitions of academic freedom exist in the literature, they do not vary in substance--only in emphasis and language. As a basis for comparison, Fritz Machlup defines the term academic freedom as follows: Academic freedom consists chiefly in the absence of, or protection from, such restraints of pres— sures . . . as are designed to create in the minds of academic scholars (teachers, research workers, and students in colleges and universi- ties) fears and anxieties that may inhibit them 2"Report of the Committee of the American Association of University Professors on Academic Freedom and Tenure," School and Society, III (1916), 109. from freely discussing, teaching, or publishing whatever Opinions they have reached. Robert Maclver writes this definition of academic free- dom: Academic freedom is a right claimed by the ac— credited educator, as teacher and investigator, to interpret his findings and to communicate his conclusions without being subjected to any inter— ference, molestation, or penalization because these conclusions are unacceptable to some consti- tuted authority within or beyond the institution. Hereuis the core of the doctrine of academic free— dom. Academic freedom is not an end unto itself; it is the means by which scholars and teachers accumulate and dis- seminate knowledge. Knowledge, not only for the scholar and teacher's sake, but for the sake of society. Com- mitted to the search for truth, the scholar, of necessity, requires the freedom to search and to report his findings in an environment amenable to his revelations. Even though American academic freedom has been de- pendent upon tenure and due process for its existence, they are neither necessary nor sufficient for the scholar and teacher in his pursuit of truth. Academic freedom itself is a means to the end--truth. Tenure and due process are instruments through which the end--academic freedom-- 3Fritz Machlup, "On Some Misconceptions Concerning Academic Freedom," AAUP Bulletin, IV (1955), 753. ”Robert M. MacIver, Academic Freedom in Our Time (New York: Gordian Press, 1955), p. 6. is secured and preserved. The idiosyncrasy of American academic freedom is that the scholar has been forced to utilize artificial means of protection. Scholars in American higher education never experienced federal, state or local protection even within the confines of their institution. On the other hand, American teachers and scholars have considerably more freedom of extramural movement and involvement than the German model provided. Surveying the literature and court decisions, one discovers that the law has not always concerned itself with these issues in higher education. However, the opin- ions of the court now form an explicit body of definitive statements on the major issues of academic freedom. As the issues of academic freedom become more explicit, pro- fessorial and executive administrative role expectations of faculty grow more divergent. As William Murphy, a professor of law, points out, since professors expect to maintain their rights as citizens and gain faculty pri- vileges as a member of an educational community, they have become distraught over the increasing restrictions on academic freedom.5 Furthermore, punishment or dismissal of faculty by an institution for behavior protected by the Constitution has accentuated the conflict. If society is to benefit from the functions of an institution of higher 5William Murphy, "Academic Freedom--An Emerging Con- stitutional Right," Law and Contemporary Problems, XXVII (Summer, 1963), A69. education, then that society must evaluate its toleration Of new ideas, the testing of Opinions in Open competition, and the discipline of rethinking its assumptions.6 Purpose and Design A thorough legal examination of academic freedom in public institutions Of higher education utilizing the ex— pressed and implied relationships between faculty and their institutions of higher education, is the primary purpose of this study. It should be noted that this analysis is limited to public institutions of higher edu- cation because constitutional issues involving academic freedom necessarily implies a violation through govern- mental action. The private institution of higher educa- tion does have a right to restrict, by consent, essential elements of academic freedom. The demise Of legal and educational conflicts over issues fundamental to the effective functioning of American higher education is a second purpose of this study. Uti- lizing the research materials available, each component of academic freedom, as defined by the study, will be examined to include a review of its legal origins; an analysis Of major litigation, including the dissenting Opinions; up- dating the litigation tO its current legal status; and most importantly, verification Of the hypothesis. 6Thomas I. Emerson, "Toward a General Theory of the First Amendment," Yale Law Journal, LXXII (1963), 882. Hypothesis This study examines one primary hypothesis, stated as follows: Academic freedom is a constitutional right protected by the First and Fourteenth Amendments to the United States Constitution. If verified, the hypothesis has important implications for faculty and administrators in higher education. Redress and prosecution are two present and probably outcomes if this hypothesis is supported. Unless educational leaders familiarize themselves with the law and its relationship to higher education, fuel will be added to a fire which already borders on burning out of control. The executive administrator's responsibilities include assuming an advisory role for higher education to the courts. He should articulate and substantiate a consensus for educa- tors on issues relevant to the court and his institution. Scope and Limitations American higher education adapted two conceptions Of academic freedom which professors imported from German universities: (l) Lernfreiheit, student academic freedom, and (2) Lehrfreiheit, faculty academic freedom.7 During the middle nineteenth century Lernfreiheit received the primary attention of academicians. The twentieth century brought 7Richard Hofstadter and William P. Metzger, The Development Of Academic Freedom in the United States (New York: Columbia University Press, 1965), p. 386. with it a rising concern for Lehrfreiheit, which has pre- vailed for half a century. For an institution Of higher education to function effectively, academic freedom must include both student and faculty academic freedom. Never— theless, the focus of this study will be limited to a legal analysis Of the latter concept. Henceforth, the term academic freedom will embody the American interpre- tation of Lehrfreiheit unless otherwise specified. Philosophically academic freedom encompasses a number Of concepts which are explored in Chapter II, but legally, certain conflicts have arisen because of administrative ruling, legislative action and/or judicial interpretation. In narrowing this analysis to the basic legal issues in- volved in academic freedom, I have selected four points of law from the literature: 1. Freedom Of speech; 2. Free association; 3. Freedom to inquire; A. Freedom to teach. Society has legitimatized a distinct role expecta— tion for the university professor which departs from the traditional secondary and elementary teacher role expecta- tion. Therefore, academic freedom, as defined here, be- comes a concept which is limited to higher education. Procedures for Analysis In the case of legal analysis, the procedures and sources are of primary significance to the researcher. Below is an outline of the steps which are followed in the subsequent text. It is anticipated that a logical and precise position will be developed for each component of academic freedom through these procedures. 1. Assuming that the court's position on the four points of law prior to involvement with higher education is relevant to an understanding of the conflict, the development of each concept is traced from its origins to its first judicial encounter with academic freedom in higher education. 2. Of particular importance are the concurring and dissenting Opinions of relevant litigation during the period immediately following the first encounter to the present. Each major case will be analyzed and updated to its current status in the courts. 3. Finally, through the use Of precedent and inference the analysis will reject or accept each element Of academic freedom as a constitutional right. Only after accepting all four elements Of academic freedom as con- stitutionally valid, can the analysis conclude that academic freedom is a right protected by the United States Constitution. The legal sources utilized in this study include: Federal and State Constitutions; Federal and State Legis- lation; Federal and State decisions; Legal encyclopedias (Corpus Juris Secundum); and Legal reference texts (Black's Law Dictionary and the United States Constitution Anno- taififl). Definition of Terms Included in the following are terms which must be explicitly defined for the purposes of this legal research: 1. Public university. The public or private char- acter and the control of a college or university are deter- mined from its articles Of incorporation, and the statute 8 A authorizing its formation and other relevant facts. college or university is usually deemed to be a public institution or corporation and subject, as such, to the plenary control of the state, where it was instituted by the state and maintained out of state funds.9 2. Professor. Webster's Dictionary defines a pro- fessor as a public teacher of any science or branch Of learning especially in a university, college, or other seminary. Likewise, the collective grouping of all 8Corpus Juris Secundum, Vol. X (Brooklyn: The American Law Book Co., 19587, p. 1328. 9Russell v. Trustees of Purdue University, 168 N.E. 529 (19255- lO professors at a single university or college is defined as the faculty.10 3. Constitutional Law. Constitutional law rests upon the fundamental conception Of the supreme law Of the 1and,expressed in written form in accordance with which all private rights must be determined and all public authority administered.ll A. Contract. "A contract is a promise or a set of promises for the breach of which the law gives a remedy, as the performance Of which the law in some way recognizes as a duty."12 5. Doctrine Of clear andypresent danger. In theory, the "Doctrine of Clear and Present Danger" protects expres- sion even when the expression might seriously interfere with the attainment of present social objectives.l3 Actually, the doctrine broadens the expression in which a citizen might engage. The criteria for the doctrine is eloquently articulated by Justice Holmes: 1OWebsterfs Third New International Dictionary (Springfield, Massachusetts: G & C Merriam Company, 196“), p. 1811. 11words and Phrases, Vol. VII-A (St. Paul: West Publishing 00., 1965), p. A85. 12American Law Institute, Restatement of the Law of Contracts (St. Paul: American Law Institute Publishers, 19327, p. 1. l3Emerson, Op. cit., p. 910. ll The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent.lu 6. Doctrine of balancinginterests. The doctrine of balancing interests first proposed in the Douds case and subsequently in Barenblatt purports to give weight to the constitutionally protected freedom of expression. This is accomplished by "weighing the probably effects of the statute upon the free exercise Of the right Of speech and assembly against the congressional determina- tion. . . ."15 7. Substantive due process. While the exact mean- ing and scope of the phrase "due process Of law" is 11- lusive, several basic components do exist. More specifi- cally, the phrase due process of law, when applied to substantive rights, as distinguished from procedural rights, means that a state has no right to deprive a per- son Of life, liberty or property by an act having no reasonable relation to any proper governmental purpose, or which is so far beyond necessity Of case as to be an 16 arbitrary exercise of governmental power. lu§gheggk v. United States, 2u9 U.S. u7, 52 (1919). 15Communications Association v. Douds, 339 U.S. 382, uoo (1950). “""" l6Valley_Nationa1 Board of Phoenix v. Glover, 159 P. 2d 292, 298I(1945). l2 8. Procedural due process. Procedural due process requires an orderly proceeding, adapted to the nature of the case in which the citizen has an Opportunity to be heard and to defend, enforce and protect his rights. Its essential elements are "notice and opportunity to be heard and to defend in orderly proceeding adapted to the nature of the case, and the guarantee of due process requires that every man have the protection of day in court and benefit Of general law."17 Summary This study is designed to analyze the role of the law, its relationship to academic freedom and the four most evident conflicts in public higher education: free speech, free association, free inquiry, and freedom to teach. Each legal conflict within academic freedom will be reviewed to include: its legal origins, an analysis of relevant cases, and an updating to its current legal status. Whether the hypothesis, "academic freedom is a constitutional right protected by the First and Fourteenth Amendments to the United States Constitution," is verified or rejected, faculty and administrators will have a current legal analysis of academic freedom. l7Henry Campbell Black, Black's Law Dictionary (St. Paul: West Publishing CO., 19517, p. 590. 13 Overview The succeeding chapter will establish a historical context for academic freedom and background for the re- mainder of the study. The basic elements Of academic freedom will be carefully analyzed and the legal elements distinguished from the educational elements. Chapter III will analyze the four elements of academic freedom: free— dom of speech, association, inquiry and teaching, respec- tively. The final chapter will be a summation based on the analysis. CHAPTER II A HISTORICAL PERSPECTIVE While the preceding chapter included a brief intro— duction and overview of the study, the following chapter's primary purpose is to sketch a backdrop for the subsequent defense Of the hypothesis. Since the primary concern of this thesis is the current status of academic freedom, the period from 1915 to the present is examined in more depth. This backdrop is not intended as a detailed history or an extensive discussion of the philosophical basis for academic freedom. Rather, the sketch highlights the explicit developments of academic freedom. Historically, American academic freedom is a func- tion of the intellectual developments of the post-Civil War period. However, two exceptions exist. First Thomas Jefferson, the father Of the University of Virginia, articulated a philosophy of academic liberty which freed faculty from sectarian influence at the University of Virginia in the early 1820's. A letter addressed to William Short characterizes the latent hostility directed at the tritheistic clergy in defense of Thomas Cooper: The serious enemies are the priests of the dif— ferent religious sects, to whose spells on the human mind its improvement is ominous. . . . They 1A l5 pant to reestablish by law the holy inquisition which they can now only infuse in the public Opinion.1 A second letter which Jefferson addressed to Roscoe alludes to a conception of free thought that Jefferson believed should prevail at the University of Virginia: This institution will be based on the illimit- able freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error as long as reason is left free to combat it.2 Not only his defense of Thomas Cooper, but also his pro- posal for classroom teaching reflect an enlightened view- point for his time period. Although an idealist, Jefferson is unwilling to commit himself fully to a viewpoint which might infringe on his personal beliefs. For example, Jefferson justifies an infringement of liberty when teach- ing government. The Visitors, and especially Jefferson, believed their experience and expertise in government validates their restrictions placed on the teaching of government. Thomas Cooper, the second exception, authored a defense of academic freedom in 1832. More definitive in his defense of academic freedom than Jefferson, Cooper, as President of the University of North Carolina, defends 1Roy J. Honeywell, The Educational Work of Thomas Jefferson (Cambridge: Harvard University Press, 1931), p. 154. 2H. A. Washington, Writings of Thomas Jefferson, Vol. VII, p. 196. l6 himself against the hostile Southern public and his own board of control. Again, the issue is religious, but the document has value for its historical as well as legal argument. Dr. COOper's closing remarks to the Board of Trustees are indicative of the forcefulness and ration- ality Of his defense: Sir, this Board is acting as the agent of the Legislature in this affair and I claim from them and from you, for myself and all other citizens Of this State, the right of entertaining in private, and professing and defending in public, peaceably, by all fair and reasonable argument, any Opinion whatever on any subject whatever without excep- tion, within the illimitable extent of human inquiry, I claim it as one of the RIGHTS OF MAN, before political constitutions were invented or prOposed. I claim it as a right clearly Of this State in particular. A right, that cannot be refused or withheld without prostituting the Constitution of the Country at the foot of undele- gated, discretionary authority.3 Although these are only two examples of the conflict over academic freedom prior to the Civil War, they are the two most outstanding instances Of not only a violation, but also an articulation of academic freedom. Lacking the facilities for pursuance of graduate and research programs in higher education, American scholars sought this experience elsewhere. Character- ized by extensive freedoms within the university com- munity, the German University lured American scholars to its renowned faculty. Freedom, for both the faculty and 3Thomas Cooper, Dr. Cooper's Defense before the Board of Trustees (Columbia, South Carolina: Times and Gazette, December 14, 1882), p. 17. 17 the students, had a surprising effect on the displaced American scholar. Having assimilated both techniques and knowledge, the scholars returned to America with a by- product—~a concern for student academic freedom. Before assuming that academic freedom was imported directly from Germany in its original state, a true con- text for academic freedom in Germany must be established. While Lernfreiheit, student freedom to learn, and Lehrfreiheit, faculty freedom to teach and conduct research, coexisted on the German university campus, they were non— entities within the German society.“ Although tolerant of intellectual pursuits within the confines of the academic community, the German state would not tolerate inter- ference by the academician in social and political affairs. Therefore, a conception of academic freedom traversed the globe, only to be mutated by American educators. Two forces in American higher education during the transplanting Of the Germanic conceptions influenced the direction Of change: In sum, two forces were dialectically Opposed in the antebellum colleges. The first was a concep- tion of education that tended to make the college a monolithic institution. The second-—Of in- creasing power as time went on-—was an intramural spirit of revolt and reform which, in challenging authority in a system fundamentally authoritarian, “Richard Hofstadter and Walter P. Metzger, The Development of Academic Freedom in the United States (New York: Columbia University Press, 1955), pp.3889 391. 18 acted as one Of the agents which eventually destroyed that system. Out of these Opposing forces and the introduction Of a new variable, the Germanic conception of higher education, evolved the concept of a university. In 1869, the appoint- ment of Charles W. Eliot as President of Harvard and the birth of Cornell University under Andrew D. White marked the advent of a new period in higher education: The Uni- versity Era.6 As catalytic as this era was for change in higher education, the faculty and administration expressed little or no interest in the issues of academic freedom. Pos- sibly, this apathy may be attributed to the scholarly pre- occupation with the scientific revolution stimulated by Darwinism in this period. Becuase natural science has remained somewhat free and tolerant through its indiffer- ence to the values it disrupts, academic freedom cannot directly attribute its growth to the scientific contro- versy Of the late nineteenth century.7 The question then becomes "what did stimulate the increased interest in academic freedom by faculty late in the nineteenth century?" Wealthy entrepreneurs, intrigued 51bid., p. 303. 6Richard Hofstadter and DeWitt Hardy, The Development and Scope of Higher Education in the United States (New York: Columbia University Press, 19627: pp. 29-56. 71bid., p. 203. 19 by higher education, endowed colleges and universities proliferously during the late eighteen hundreds, but they also established informal eXpectations for the performance and involvement Of the faculty and the institution. While investigating the social issues Of the time, especially economic, social scientists provoked the wrath Of these wealthy entrepreneurs by their Objective analysis of social ills. These analyses often directly implicated many benefactors and in turn violations of academic free- dom became rather commonplace.8 The harassment of social science faculty, the increasing external control of col- leges and universities, and the introduction of American academic freedom culminated in 191“ in a call to action by an elite group of the Johns Hopkins faculty. Outraged by the new developments in higher education, the faculty members solicited the cooperation of other professorial staff on the major compuses in the United States. In 1915, with the establishment of the American Association of University Professors (AAUP), the first national prO- fessorial association became a reality. The "Call for the Meeting for Organization Of a National Association of University Professors," issued in 8Hofstadter and Metzger, Op. cit., pp. A20-H51. For an extensive discussion of the 'Theory of Conspiracy" see Hofstadter and Metzger, who point to the relationship be- tween criticism Of social order and dismissals from insti— tutions of higher education. 20 191A, describes the purpose of such an Association as follows: 1. to facilitate a more effective COOperation among the members Of the profession in the discharge of their special responsibilities as custodians of the interests of higher edu- cation and research in America; 2. to promote a more general and methodical dis- cussion of problems relating to education in higher institutions of learning; 3. to create means for the authoritative expres- sion Of the public Opinion Of college and university teachers; A. to make collective action possible; and 5. to maintain and advance the standards and ideals Of the profession.9 Even though the policing function for academic freedom was not mentioned specifically as one of the primary func- tions of the AAUP, they soon became immersed in the vio- lations of academic freedom within individual institutions. Committee A, a title which this renowned committee carries to this day, was charged with the responsibility Of inves- tigating these violations. Within the first year Committee A undertook major investigation of five reported violations of academic freedom. Hence, the Official birth of academic freedom in America was accompanied by an Official baptism. With the advent of the American Association Of Uni- versity Professors, academic freedom in America took the 9"Call for the Meeting of Organization of a National Association of University Professors," AAUP Bulletin, II (1916), ll. 21 initial step toward an official substantive existence. Essentially, the 1915 statement on academic freedom estab- lishes a basis for academic freedom within the academic community, including the nature and context in which it functions. Beyond this, several "practical prOposals" on tenure and due process for dismissal are outlined. It is a milestone, as the first official statement on aca- demic freedom in American higher education. Ambiguous as it may seem to some, it provided higher education with a loose framework which allowed for flexibility and insti- tutional interpretation. Since many presidents and governing boards would have reacted violently to a docu- ment which inhibited their decision-making power, the 1915 statement's strength lies in its ambiguity. It will take years of patient practical experience before the AAUP will create a document which is explicit and yet acceptable to college and university administrators. While all three elements Of academic freedom-- freedom of inquiry and research, freedom of teaching, and freedom of extramural utterances and action-~are necessary if the academician is to function effectively, the latter two have constituted by far the majority of the violations Of academic freedom. In fact, of the first five cases investigated by Committee A, all five had as the sub- stantive issue, the right of a faculty member to express his views outside of the university community. 22 Less than a year after the formulation of Committee A, Professor A. A. Young, the chairman, declared that evaluation Of the Committee A investigations might justify 10 Subsequently, a change in emphasis for the Committee. academic tenure became a second focus Of the academic freedom committee. Two years later, Committee A again concluded that they should devote their attention to vio- lations of tenure as well as substantive academic freedom 11 However, the Official committee report had one issues. dissenter whose basis for dissent included: (1) it is un- wise to shift emphasis from academic freedom to academic tenure; (2) it should be the aim of the Association to secure vindication and reinstatement Of professors unjustly dismissed from their posts; and (3) the overemphasis Of tenure will result in the retention Of incompetent men.12 World War I and the subsequent oppression of free speech was an indirect indication of the future position of academic freedom within our legal system. The Schenck and Abrams cases were two landmarks for the free speech issue. The Schenck case introduced one Of the most famous principles Of law in the interpretation of the Oppression of free speech. Justice Holmes states: 10A. A. Young, "Report Of Committee A," AAUP Bulle- tin, II (1916), 17. 11"Report of Committee A," AAUP Bulletin, IV (1918), 16-28. 12Ibid., p. 28. 23 The character of every act depends upon the cir— cumstances in which it is done. . . . The question in every case is whether the words are used in such circumstances and of such nature as to create a "clear and present danger" that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.1 The clear and present danger doctrine served as a guide for the Supreme Court and many Of its decisions regarding free expression until the middle of the 1950's. Justice Holmes, in Abrams, spoke indirectly about an element of academic freedom--free expression: The test of truth is the power of thought to get itself accepted in the competition of the market. And that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our experiment. Every year if not every day we have to wager our salvation upon some prOphesy based on imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death. Unless they so imminently threaten the immediate interference with the lawful and pressing purposes Of the law that an immediate check is required to save the country. Although the court spoke on free expression in 1919 and early 1920, the issue of academic freedom itself was not to become a substantive legal issue until the 1950's. The American Association of University Professors did not perceive academic freedom as a legal issue to be handled by the courts; therefore, there was little if any l3§ghgggk v. United States, 2A9 U.S. A7, 52 (1919). 1A Abrams v. United States, 2A9 U.S. 616, 630 (1919). 2A encouragement by any professorial associatiOn to involve the court system in what was considered essentially an extra—legal issue. Within the first five years Of existence the AAUP guidelines had not received formal recognition by any other educational association. Between 1922 and 1925, the AAUP in conjunction with several associations including: American Association of University Women, Association of American Colleges, Association of Governing Boards, Associ— ation of American Universities, Association of Land Grant Colleges, Association of Urban Universities, National Association of State Universities, and the American Council on Education, constructed a document on academic freedom I acceptable to all groups. In 1925, a conference held by the American Council on Education finalized and approved the report on academic freedom.15 Compared to the AAUP's 1915 statement on academic freedom, the 1925 Conference Report is more explicit and clarifies the position of the approving organizations on academic freedom and tenure. Substantively, less atten- tion is devoted to justification Of academic freedom in the 1925 statement. In its place, qualifiers are added to each of the three elements of academic freedom enumer- ated in the 1915 statement. Furthermore, a fourth ele- element on the discussion of controversial topics in the 15"1925 Conference Statement on Academic Freedom and Tenure," AAUP Bulletin, XI (1925), 99-101. 25 classroom, but outside Of a professor's speciality is included. Academic tenure, recognized as an integral provision in the protection Of academic freedom was also incorporated into the 1925 statement. While extra-legal due process clauses make the document more explicit, additional qualifiers provide the administrators with specific exceptions that justify termination. The significance Of the 1925 Conference Statement was lauded as much as four years later, when in 1929 the following statement appeared in the AAUP Bulletin: The mere enumeration of educational bodies that participated in the 1925 Conference indicates that considerable pro- gress has been made in the formulation and general recogni- tion Of the principles governing academic freedom and "16 tenure. . . Although the 1925 conference is at least a tacit recognition that the claims of the AAUP are valid, critics such as L. L. Thurstone claim, In the past we have relied on the moral affects Of the reports of the American Association Of Uni- versity Professors. These reports are frankly limited to factfinding in the hope that the publi- cations Of facts will gradually have some effect in changing the policies of colleges. It is a matter of general observation that the reports of the AAUP have no teeth. Frequently the moral ef- fect is insignificant, especially in those situa— tions where the trustees defy the professors or simply ignore the reports.1 16H. R. Fairclough, "Report from Committee A," AAUP Bulletin, XI (1929), 99. 17L. L. Thurstone, "Academic Freedom," AAUP Bulle- tin, XVI (1930), A5A. 26 The preceding two quotations point out the extreme posi— tions which are taken by members of the AAUP during the late 1920's and very early 1930's. Thurstone, a critic of the AAUP, points to the lack of power and authority which the AAUP may wield over an individual institution. While the first statement indicates at least a nominal commitment to the principles of the AAUP, violations of the procedures and principles of academic freedom in- creased during the period from 1928 to 1932. 1928 1929 1930 1931 1932 Cases withdrawn 2 6 11 7 18 Cases rejected or requiring no investigation or published notice 1A 3 9 A2 39 Cases in which statements have been published or planned, without visits 6 6 3 7 3 Cases in which visits of inquiry have been made or planned 2 7 6 9 12 Cases otherwise handled _5 _3 9 lg 10 Total cases 29 25 38 75 82' Although a professional guild, the membership of the AAUP expressed varying and extreme positions as well as being satisfied and dissatisfied with the position which the AAUP had taken in the past. Those,who with Thurstone, called for more stringent action by the AAUP were rein- forced for their efforts, when in 1931 the AAUP approved the use of a non-recommended list for institutions which consistently Violate the principles of academic freedom 27 and tenure.18 However, the AAUP remained essentially true to the spirit and purpose of its founders and their modus Operandi, characterized by the following quotation: Our work will have a more effective influence if we concern ourselves primarily with the establish- ment of proper standards and only secondarily with the question of remedizing individual cases of justice. It rarely happens that anything the association can do can be Of much direct service to the injured parties. It will achieve most if it tries to bend its forces toward making repeti— tions Of the kind of offenses that have occurred in the past impossible.1 The 1929 stock market crash and its subsequent ef- fects on the financial affairs of colleges and universi- ties throughout the United States was tO influence the number of violations of academic freedom and tenure. Al— though the number Of cases increased for Committee A, the number of violations for academic freedom did not increase significantly. Violations of tenure and the procedures established by the 1925 Statement Of the AAUP were the primary source for the increase. Nevertheless, the AAUP was obligated to investigate the violations of tenure and to recommend action or non-action for each case sub- mitted. With the impending crises in Western Europe and the increasing violations of academic freedom in the German 18L. L. Thurstone, "The Thurstone Plan for Enforcing the Principles of Freedom and Tenure," AAUP Bulletin, XXIII (May, 1932), 361-363. 19Extracts from Committee Reports and Official Ad- dresses, AAUP Bulletin, VIII (December, 1922), 22-A6. 28 universities, the first articles on the loyalty oath crises began to appear in the AAUP Bulletin. Prompted by the anachronistic nature Of the 1925 Statement on Academic Freedom and Tenure several conferences began in 1936 be- tween the AAUP and the Association of American Colleges. Henry N. Wriston, in his 1939 annual report, indicated that the 1925 Statement was designed for adoption by boards of trustees and intended as a program of rules governing their future actions. However, in the interven- ing fourteen years only six or seven boards of trustees in the entire United States have adopted the statement.20 Therefore, the committee designed the 1938 Statement, which was presented and approved by the AAUP and Association of American Colleges in 19140.21 The 1938 Statement is not stated as a group of rules; it invites approval rather than adoption. As an educational document, it is designed to influence, but is not a code to be enforced.22 The 1938 Statement, or 19A0 document which was finally accepted, reflected the current trends in higher education and its subsequent responsibilities for colleges and universities as well as the academician. There are four changes from the 1925 Statement which characterize 20Henry N. Wriston, "Academic Freedom and Tenure," AAUP Bulletin, XXIV (1939), 328-329. 21"Statement of Principles, 19Ao," AAUP Bulletin, XXVII (19A1), Ao-u3. 22Wriston, op. cit., p. 329. 29 this updating. First, the term agreement is used in the 19AO Statement. In order to avoid the aura of a con- tractual relationship, the 19AO document implies an agree- ment between cooperating agencies. Secondly, the preamble points out, "institutions of higher education are conducted for the common good and not to further the interests of the individual teacher or the institution as a whole." Thirdly, the recognition that academic freedom "carries with it duties correlative with rights" provides a new context for Operationalizing academic freedom. Finally, tenure is defined as "a means to certain ends" and not an end unto itself. With these changes in the context and the preamble Of the 19A0 Statement, the AAUP established a document which was carried as a standard in the battle between the academician and the institutional administra- tions which saw fit to violate these principles and pro- cedures established by the AAUP.23 The spirit Of the 19A0 Statement on academic freedom and tenure is reflected by Hans Kahn in an article en- titled, Academic Freedom in Our Time. Different from academic freedom as a duty of the teacher is academic freedom as a right of the teacher, the right to speak the truth as he undere stands it. This right is no professional right of the teacher, it is part Of the general right to freedom of every Citizen, the freedom to think for himself and to express his thoughts by word and in print. The academic teacher does not possess more rights than any other citizen. He 23Ibid.. pp. 331-333. 30 has only greater duties. Everyone has the right to speakZEhe truth. This is the meaning of his calling. After twenty-five years of experience, the Association could echo the words Of Hans Kahn, but these words had also earned the respect of administrators and trustees in educational institutions throughout the United States. Backed by the patience, consistent and persistent efforts of Committee A, the AAUP had fabricated a place for itself in the history of American higher education. Caution, a byword of the academician during the late thirties and early forties, was precipitated by the increas- ing social disequilibrium within the United States; which in turn arose because of the magnitude of the conflict in Western EurOpe. Francis M. Vreeland encouraged the Associa- tion to face its responsibilities and tO preserve free expression within the academic community. Possibly because of the Associations youth and inexperience during the First World War and its subsequent statements on Academic Free- dom in wartime, Vreeland proposed strengthening chapter cooperation between faculty committees, trustees, and denominational representatives to discuss academic freedom within colleges and universities.25 While Vreeland's posi- tion was historically documented, the actual conditions 2“Hans Kahn, "Academic Freedom in Our Time," AAUP Bulletin, xxv (1939), 183-18A. 25Francis M. Vreeland, "Freedom of Speech During Periods Of Stress," AAUP Bulletin, XXVII (19A1), 552. 31 during World War II never reached the stage of repression which prevailed during World War I. However, if the reader were to glance at the statistics presented in the Committee A report of 19A6, it would appear that a de- creasing degradation Of higher education occurred.26 In fact, the figures are evidence Of the Association's vitality. According to Kirkland, the present chairman of Committee A: They reflect the growing appreciation on the part of professors and scholars that in the Association they have an effective instrument to redress of injustice. The response to violations Of generally accepted principles Of academic freedom and tenure is no longer apathy or resignation; it is an appeal to Committee A.27 The figures also reflect an expansion of the Association's efforts to teacher's colleges and other avenues of higher education. Although Vreeland's predictions of public instability and its ultimate effects on academic freedom in educational institutions did not come to fruition during World War II, certain reasons denote a change of times between the repression Of academic freedom during World War I and World War II. First, institutions of higher education were given additional financial support by the federal government for research and teaching. Secondly, professors were hired as civilian employees of the 26George POpe Shannon, "Report Of Committee A for 19A6," AAUP Bulletin, XXXIII (l9A7), 59—60. 27Edward C. Kirkland, "Annual Report of Committee A," AAUP Bulletin, XXXI (19A6), 7-8. 32 government for either educational or research tasks, thereby diminishing the violations of academic freedom and tenure due to financial exigencies. Thirdly, persecution of foreign or alien professors teaching within educational institutions had languished. Finally, an increased under- standing of the conception of academic freedom and its benefits to society existed. Anticipating the worst forms Of oppression during the post-war era against returning faculty, the AAUP foresaw extensive violations of academic freedom and tenure. Fortunately, with the G. 1. Bill and other sources of incomes from the federal government during the post-war period, educational institutions found them- selves in dire need of all the professorial assistance available. Hence, the late 19A0's conclude a thirty-five year period of growth, frustration, and elation for American academic freedom. Characterized by dedicated and per- sistent effort, the AAUP served a segment of the academic community which formerly had little or no voice in the functioning Of a university or college. Its role, how- ever, was to be challenged. Potent new forces, litiga— tion, communism, and other social forms of Oppression during the 1950's, forced a reexamination of the ends and means Of academic freedom. On October 2A—25, 19A7, an astute member of the Council of the AAUP requested a discussion of the follow- ing questions: 33 1. In View of the present international situation and the presidential directive, do you think the American Association of University Pro- fessors would recognize membership in the Communist party, if proven and admitted, as sufficient grounds for dismissal? 2. If a university administration had convincing proof of the membership Of a faculty member in the Communist party, based on confidential evidence furnished by the F. B. I., evidence that could not be made public nor revealed to the accused, would this be adequate proof that would obviate the necessity for a hearing in which "the accused should have the opportunity to face his accusers?" 3. In the event that an administration should have such evidence as the above which it con- siders reliable but which is confidential, and which a representative faculty committee considers to be reliable proof, would this meet the requirement in the Association'328 statement of academic freedom and tenure? Prophetic as these questions may seem today, few members of the academic profession anticipated the extent of repression which was heaped upon academic freedom during the next decade. The threat of communistic infiltration into the colleges and universities mobilized two comple- mentary governmental organizations: The United States Congress and state legislatures. The House Committee on Un—American Activities, the notorious brain child Of Joseph McCarthy, terrorized academicians by their inuendos and persistent insinuations of Communist membership in actual or front organizations for the Communist Party. 28George Pope Shannon, "Report Of Committee A for 19A7," AAUP Bulletin, XXXIV (19A8), 119. 3A Emanating from the assault against academicians by the House Un-American Activities Committee was a reliance on the Fifth Amendment privilege. Whether legally or illegally, Clark Byse concluded, that there are four reasons why a professor might invoke the privilege: l. The witness believes it is unethical to give testimony concerning third persons who, in his opinion, were completely innocent of any wrong doing. 2. The witness sincerely opposes the investigation, believing that it is not a genuine inquiry, but public defamation intended to extirpate from the colleges not subversion but dissent. 3. The witness is unwilling to make a public admission of his past mistakes, especially in the light of the strong public reaction which association with communism evokes today. A. The witness fears that his truthful answers might conflict with the testimony of others who have appeared before the committee and thus result in perjury prosecution.29 Invoking the Fifth Amendment privilege had ramifications for his relationship with his college or university. How- ever, did it necessarily incriminate a professor and justify his immediate dismissal? The question is debat- able; nevertheless, the claim Of privilege before Con- gressional Committee would be cause for concern by his institution.3O Although it is not necessarily an admis- sion of guilt, administrations have frequently referred 2901ark Byse, "Teachers and the Fifth Amendment," AAUP Bulletin, XXVI (1955). A66-A77. 3°Ib1d., p. A68. 35 to a statement made by the Association Of University Pro- 6,31 that professors owe their colleagues fessors in 195 "complete candor and perfect integrity," and that the "invocation of the Fifth Amendment placed upon a pro— fessor a heavy burden of proof Of his fitness to hold a teaching position." The question then arises whether a professor, who openly admits membership in a Communist affiliated organi- zation and states candidly his ideological allegiancies to the Communist doctrine, is fit for membership in the academic community. Immediately, our minds focus on the indoctrination of the youthful and tender minds of our undergraduates. Statements such as the following by Hofstadter and Metzger, reveal the character of American colleges and universities. In many of our American colleges, and especially in the first two years of the course, the student's character is not yet fully formed, his mind is still relatively immature. In these circumstances it may reasonably be expected that the instructor will present scientific truth with discretion, that he will introduce the student to new conceptions gradually, with some consideration for the student's preconceptions and traditions and with due regard to character building, 33 Bound by the traditions of our educational system, 31"Academic Freedom and Tenure in the Quest for National Security," AAUP Bulletin, XXXXII (1956), A9—107. 32Ralph F. Fuchs, "Intellectual Freedom in the Educational Process," AAUP Bulletin, XXXXII (1956), A81. 33Hofstadter and Metzger, Op. cit., pp. A10-A11. 36 administrators and boards of trustees were reluctant to retain avowed Communists on their staffs, regardless of their performance in the classroom or laboratory. How- ever, exceptions tO this position were taken by several prominant educators including Fritz Machlup, former President of the AAUP, when he stated: To maintain a healthy state of thought and opinion in the country, it is desirable for adherents Of communism, like those of other forms of revolution— ary thoughts, to present their views, especially in colleges and universities!1 so that they may be checked by Open discussion.3 While both positions have some validity, the point which distinguishes these two views is the individual conception Of a university community. The former is based on the premise that colleges and universities are re- sponsible for the trasnmission of a cultural heritage. The latter position aligns itself with John Milton's statement from On Liberty, "Let truth and falsehood grapple, who ever knew truth put to the worse, in a free and Open encounter." A moot point juxtaposed to the forthright omission of membership in and sympathy with the Communist Party is the "guilt by association" controversy. By participating in an organization which served as a front for the Com- munist Party, is a faculty member perforce sympathetic to the Communist cause and unfit for an academic appointment? 3“Fritz Machlup, "On Some Misconceptions Concerning Academic Freedom," AAUP Bulletin, XXXXI (1955), 753. 37 Academicians as well as the courts have enunciated view- points which are subject to disagreement. Briefly, the Supreme Court at the height Of these controversies in 1952 stated in the Adler v. Board Of Education, That while people have a right to assemble, speak, think, and believe as they will, a teacher works in a sensitive area in a classroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern that the school authorities have the right and duty to screen the Officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present as well as one's conduct, may properly be considered in determin- ing fitness and loyalty.35 Although this decision was upheld fOr fourteen years, the Elfbrandt case, in which absolute guilt by association was refuted by the Supreme Court when the state of Arizona penalized knowing membership even though the individual did not subscribe to the organizaiton's unlawful ends,36 reflects the most recent position of the court. It was mentioned earlier that two governmental forces functioned as a catalyst for the present develOp- ments. While Congress's contribution must not be diminished, the state legislature through formal legisla- tion and informal pressure harassed scholars and teachers within their respective states by demanding loyalty oaths 35Adler v. Board Of Education, 382 U-S- “85’ “93 (1952). 36 Elfbrandt v. Russel, 38A U.S. 11 (1966). 38 for employment. Specifically, the loyalty oath contro- versy in California was precipitated by the proposed Tenny Bills.37 Hoping to avoid legislative control of any aspect of California higher education, the Cali— fornia Regents passed their own version of a loyalty oath. The University of Washington's loyalty oath controversy, the Feinberg Law of New York state and numerous forms of state legislation could be mentioned as examples of state legislative intervention with academic freedom in higher education. Two unlikely consequences of the repression during the 19A8-1958 decade were the concerns shown by the courts in the activities and abuses Of judicial procedures as well as a heightened reliance on the courts by the aca- demician expecting refuge and redress. While the AAUP had always been reluctant to make academic freedom a legal issue, their unwillingness to investigate violations be- tween 19A8 and 1955, left faculty with only one effective alternative--the courts. This is a rather startling development in the light of Robert Carr's statement: It is certainly not to say that the Association ag- gressively seeks, or is entirely sure that it even wants, to have the principles it promoted incorporated into American constitutional law by the Supreme Court. After all, what the Court gives, it can take away. However, in spite Of 37David Gardner, The California Oath Controversy (Berkeley: University Of California Press, 1967), pp. 9-12, 21. 39 the Association's contention, legal advising to the Supreme Court would seem a logical extension Of the traditional function of the AAUP.38 The same year in which Carr's statement appears in the Bulletin, the AAUP submitted its first Amicus Curise brief for the Barenblatt case.39 Since the Barenblatt case the question of academic freedom as a constitutional right has received considerable attention from educators and writers.“0 As history closes in on the present, apparently there is sufficient interest in academic freedom as a legal issue to warrant recommendations not only from edu- cators, but also from the courts. David Fellman, Chairman of Committee A, states: Though I have made this point in previous reports I think I ought to indicate once more that we must face the fact that more and more aspects of academic freedom and tenure are getting involved in litigation, and that increasingly, courts are being called upon to pass judgment upon some of our most accute problems."l . If educators cannot bring influential Opinions to the court, the courts will make decisions without consideration of the educational VieWpoint. 38Robert K. Carr, "Academic Freedom, The American Association of University Professors, and the United States Supreme Court," AAUP Bulletin, XXXXV (1959), 5-6. 39Barenblatt v. United States, 360 U.S. 109 (1959). uoWilliam P. Murphy, "Academic Freedom--An Emerging Constitutional Right," Law and Contemporagy Problems, XXVIII (Summer, 1963), AA7-A86C ulDavid Fellman, "Report of Committee A, 1963-6A," AAUP Bulletin, L (19A6), 126. A0 As with many social institutions and documents within our contemporary society, the 19AO Statement on Academic Freedom and Tenure is in the last stages of disrepute. David Fellman pointed out the weaknesses of the 19A0 State- ment when he related its use in Koch's case at the Uni- versity Of Illinois. Fellman saw the 19A0 Statement as a multi-lateral declaration resulting from lengthy and de- tailed negotiations between the AAUP and Association of American Colleges. As is often the case in such negotia- tions, the 19A0 Statement is a series Of compromises be- tween those engaged in the negotiations.“2 With the demise of the 19AO Statement, Fellman sees three courses of action for the American Association of University Professors and academic freedom: 1. To continue to try to live with the present rule as Committee A understands it. 2. To modernize where necessary the 19A0 State- ment, accompanying this effort by consultation with other educational associations, which might yield us the unquestionable valued ele- ment of multiple adoption. 3. To proceed on our own power to frame and seek to enforce whatever Body Of principles we regard as appropriate. 3 As the prime defenders of academic freedom in the past, there are no historical developments which would indicate u2David Fellman, "Report Of Committee A for 1962- 63," AAUP Bulletin, LL (196A), 127. For a more thorough analysis of the 19A0 Statement see: "Report of the Self- Survey Committee of the AAUP," AAUP Bulletin, L1 (1965). ”31bid., p. 128. A1 a change in the AAUP's role as guardians of academic free- dom for the future. Therefore, the faculty and the admin- istration must comprehend the function, philosophy, and Objectives Of the American Association of University Pro- fessors in order to understand academic freedom in our contemporary American society. Furthermore, academic free- dom's legal status must constantly be updated and evaluated in the future. CHAPTER III ACADEMIC FREEDOM: A CONSTITUTIONALLY PROTECTED RIGHT On two occasions during the last fifty years, the law has been analyzed to determine the place, if any, of academic freedom within the framework of our legal system. In 1937, the Yale Law Journal perused the then present case law to determine the relationship Of academic free- dom to the law. Their conclusions were as follows: It is extremely difficult to frame a legal action through which the courts can give relief against such unwarranted limitations on academic freedom. Academic freedom is not a "property" right, or a constitutional privilege, or even a legal term defined by a history Of judicial uses and separately listed in the digests and words and phrases. In 1961, when David Fellman's article appeared, "Academic Freedom in American Law,"2 he concluded that the law had remained essentially static with regard to the substan- tive issues of academic freedom. In fact, it was difficult to find a judicial Opinion in which the term "academic freedom" was even used. 1"Academic Freedom and the Law," A6 Yale Law Journal 67 (1937), 671. 2David Fellman, "Academic Freedom in American Law," Wisconsin Law Review (1961), 3. A2 A3 The state of academic freedom and its relationship to the law as seen by these legal analysts is one with a dubious, if not nonexistent, future. However, these analysts have made one common error. Their legal analysis centered on a wholistic conception of academic freedom as Opposed to a legal analysis of the essential elements of academic freedom. Neither analyst defines the composi- tion of academic freedom, and once having determined those substantive elements, sought through the traditional legal methods of precedent and analogy to relate each element to the United States Constitution. After legally validating each element Of academic freedom, the researcher might conclude that the concept of academic freedom was in fact a constitutional right protected by the First and Four- teenth Amendments of the United States Constitution. Not having relied on this method Of analysis, academicians and legal researchers have assumed that academic freedom was not subject to the same restrictions as the other basic freedoms protected by the Constitution. If in fact academic freedom is composed of the free- dom to seek the truth through research, the freedom to teach in the classroom, the freedom of speech or extra— mural utterance, and a fourth element, juxtaposed to the other three elements, free association; we have the basis for Constitutional protection of academic freedom if each element can be validated as a Constitutionally protected AA right. The reader himself must draw his conclusion from the evidence presented in the following chapter. However, one's conclusions on the issue of academic freedom should not be limited exclusively to the following proof. Ideally, a balance should be maintained, whereby the essential rights of the scholar—teacher are respected and the proper procedures Observed. Before proceeding to the analysis, two legal ques- tions must be resolved. First, the four predominant interpretations of the First Amendment will be briefly outlined to establish a context for the analysis. Secondly, the Fourteenth Amendment, which protects the First Amend- ment Freedoms against legislative action of a state as well as the federal government, is explored. First Amendment Interpretations Bad Tendenpy Test In 1925, the "bad tendency" test established its reputation in the Gitlow case where the defendant was charged with criminal anarchy because he wrote and know- ingly distributed a document which advocated, advised, and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means. Designed primarily as a device through which legislatures could limit the speech of an individual leading to overt action in conflict with A5 governmental practice, this doctrine virtually eliminated freedom Of expression. As stated in the Gitlow case: A state in the exercise of its police power may punish those who abuse this freedom by utterance inimical to the public welfare, tending to cor- rupt public morals, incite to crime, or d§sturb the public peace is not open to question. Furthermore the court instructed the legislature in Gitlow to "extinguish the spark without waiting until it has enkindled the flame or blazed into conflagration."u How- ever, the "bad tendency" test falls into almost immediate disrepute, when a member of the Communist Labor Party was convicted for violating the California Criminal Syndica- 5 tion Act in Whitney v. California, the Court returned to Justice Holmes's "clear and present danger test" which had first been advocated in the Schenck case.6 Strange as it may seem, after over twenty years the "bad tendency" doctrine was again urged upon the Supreme Court in Dennis v. United States.7 Never having been formerly overruled, the opinion given by Justice Vinson implies rather explicitly that the "clear and present 3Citlow v. New York, 268 U.S. 652 (1925). “ibid., p. 669. SWhitney v. California, 27A U.S. 357 (1927). 6 Schenck v. United States, 2A9 U.S. A7, 52 (1919). 7Dennis v. United States, 341 U.S. A9A (1951). A6 danger" doctrine of Holmes and Brandeis has clearly taken 8 precedent over the "bad tendency" doctrine. Clear and Present Danger The Schenck case arose from the defendent's violation of the 1917 Espionage Act on insubordination, conspiracy to commit a violent act against the United States and finally the unlawful transmission of material through the mail. EXpounding in the Schenck case, Justice Holmes out- lines the basis for the "clear and present danger" inter— pretation Of the First Amendment: The question in every case is whether the words are used in such circumstance and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.9 Further clarification of the "clear and present danger" interpretation is presented in the concurring opinion given by Justices Brandeis and Holmes. Directing his attention to the standard by which the court would deter- mine when a danger would be considered clear, Justice Brandeis stated: The wide difference between advocacy and incite- ment, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was 8Ibid., pp. 505-508. 9Schenck v. United States, Op. cit., p. 52. A7 advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.lO However, even with this clarification, the "clear and present danger" doctrine possesses serious limitations. First, the doctrine is subject to a wide range Of interpre- tations as to the definition of clear and present danger. Many environmental, societal, attitudinal and historical factors must be considered before a specific interpreta- tion can be made. Secondly, no written standard can be provided by the court to function as a guide for the free- dom of expression before the fact.11 Chief Justice Vinson in Dennis resoundingly over- rules the "clear and present danger" doctrine by accepting Chief Justice Learned Hand's interpretation: "In each case the (courts) must ask whether the gravity of the 'evil,‘ discounted by its improbability, justifies such invasion Of free speech as is necessary to avoid the danger."12 Furthermore, Justice Vinson capstones the analysis Of the "clear and present danger" doctrine with the following summary: And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally 10Whitne v. California, Op. cit., p. 357. 11For further discussion on the clear and present danger interpretation, see: Thomas I. Emerson, Toward a General Theory of the First Amendment (New York: Random House, 1963), pp. 50-53. l2geppi§ v. United States, op. cit., p. 511. A8 restrained, because it comprises only the prepara- tion. It is the existence of the conspiracy which creates the danger. If the ingredients Of the reaction are present, we cannot bind the Government to wait until the catalyst is added.1 Balancing Test When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty Of the courts is to determine which of these two conflicting interests demands the greater protectifin under the particular circumstances pre- sented.1 As Thomas Emerson notes, "Whereas, the 'bad tendency' test accords no weights to the values of free expression, and the 'clear and present danger' test gives them weight only in a limited area, the 'ad hoc balancing' test pur- ports to give them full weight."15 Supported initially by Chief Justice Vinson in Doudsl6 and later in a concur- ring opinion by Justice Frankfurter in Dennis,17 the "balancing" test seeks to fulfill exactly the purpose de- fined in the Opening quotation. Nevertheless, the doc- trine has a number of serious limitation which include: 1. Can the courts circumvent through the judicial process the basic limitations placed on a 13Ibid., p. 511. 1“American Communications Association v. Douds, 339 U.S. 382, 399 (1950). 15 16American Communications Association v. Douds, Op. cit., p. A00. l7Dennis v. United States, Op. cit., pp. 517-556. Emerson, Op. cit., p. 53. A9 state and federal legislation by the United States Constitution? 2. Uniformity and impartiality must function as basic assumptions concerning the decision made by the court. However, the "ad hoc balancing" doctrine is more easily inclined to a prejudicial viewpoint in favor Of govern- ment action. 3. No parameters exist for the balancing doctrine. Faced with an increased security crisis, the judicial or legislative system could theore- tically approve Of additional abuses against the basic First Amendment freedom. A. By the inherent vagueness within the balanc- ing doctrine, the First Amendment freedoms can not be assured to the individual. Since the Court does not determine ahead Of time its modus Operandi, the individual is left guess- ing as to the decisions of the court.1 In spite of the criticism listed, the "ad hoc balancing" doctrine has been used regularly by a majority of the courts in many important First Amendment cases. Absolute Test The commentators on Supreme Court decisions involv- ing the First Amendment have classified Justices Black and Douglas as "absolutists" because of the interpretation which they have bestowed on the First Amendment. Growing out of what is apparently a concern for the increasing number of legislative abuses Of the First Amendment free- doms, Justice Black and Douglas argue vehemently for a standard which develOped through a balancing of interests 18Laurent B. Frantz, "The First Amendment in the Balance," Yale Law Journal, LXXI (1962), lAAl-lAA3. 50 when the Constitution was originally adOpted. Therefore, there is neither a legislative nor a judicial prerogative to balance interests again in favor of one group or another.19 While self-preservation has been used by the courts as one justification for the use of a "balancing" as Opposed to an "absolute" test, Justice Black is of the Opinion that preservation of our present system can be accomplished only through strict adherence to the First Amendment. The First Amendment means to me, however, that the only constitutional way our Government can preserve itself is to leave its people the full- est possible freedom to praise, criticize, or discuss, as they see fit, all governmental policies and to suggest, if they desire, that even its most fundamental postulates are bad and should be changed; therein lies the security of the Republic, the very foundation Of consti- tutional government. In the Barenblatt case, a former graduate student at the University Of Michigan is called before the Sub- committee Of the House of Representatives Committee on Un-American Activities and asked to testify concerning his membership in the Communist Party. Refusing to testify, on the basis of the First, Ninth, and Tenth Amendments, the defendant appealed his case to the Supreme Court which affirmed the decision as a balance of in- terests in favor of Congress. Dissenting in this Opinion, ngonigsberg v. State Bar, 366 U.S. 36, 61 (1960). 2OBarenblatt v. United States, 360 U.S. 109, 185-86 (19587. 51 Justice Black reflects on the nature Of the "balancing" test as opposed to the "absolute" test: To apply the Court's balancing test under such circumstances is to read the First Amendment to say, "Congress shall pass no law abridging free- dom Of speech, press, assembly, and petition, unless Congress and the Supreme Court reach the joint conclusion that a balance of interest Of the Government in stifling these freedoms is greater than the interest of the people in hav- ing them exercised. This is closely akin to the notion that neither the First Amendment nor any other provision Of the Bill of Rights should be enforced unless the Court believes it is reason- able to do so. Not only does this violate the genius of our written Constitution, but it runs expressly counter to the injunction to Court and Congress made by Madison when he introduced the Bill Of Rights. 1 The commentator's term "absolute" is a misnomer if taken literally. Both justices reflect a stricter inter- pretation of the First Amendment than the advocates of "balancing," but they do not recommend an interpretation which excludes completely the legislative right to control the First Amendment freedoms. For example, Justice Black concurring in Wieman alludes to the fact that "governments need and have ample power to punish treasonable acts. But it does not follow that they must have ample power to punish thoughts and speech as distinguished from acts."22 Furthermore, Justice Black states, "There are, of course, cases suggesting that a law which primarily regulates con- duct but which might also indirectly affect speech can be 21Ibid., p. 193. 22Wiemap v. Updegraff, 3AA U.S. 183, 193 (1952). 52 upheld if the effect on speech is minor in relation to the need for control of the conduct."23 As may be apparent to the reader, the "absolute" test is also a broader interpretation Of the First Amend- 2” Consequently, it has ment than the "balancing" test. been subject to abuse in the interpretation. None of the Justices have defined the test narrowly enough to alleviate this criticism. Critics of the "absolute" test25 realize at least two ways in which "freedom of speech is narrower than an unlimited license to talk": First, specific forms of speech within certain contexts have been accepted as being beyond the SCOpe of constitutional pro- tection.26 Secondly, "regulating statutes, not intended to control the content Of speech but incidentally limit- ing its unfettered exercise" are valid exceptions accord— ing to the Court.27 23Barenblatt v. United States, Op. cit., p. 1A1. 2“Emerson, Op. cit., pp. 57-58. 25See Justice Harlan in Konigsberg, 366 U.S. 36, A9 (1960); Kenneth L. Karts, "Legislative Facts in Constitu- tional Litigation," Supreme Court Review, LXXV (1960), 26See Schenck v. United States, 2A9 U.S. A7 (1919); Dennis v. United States, 3A1 U.S. A9A (1951); Yates v. United States, 35A U.S. 298 (1957). 27See Konigsberg v. State Bar, 366 U.S. 36, 51, 52 (1960); Schneider v. United States, 308 U.S. 1A7 (1939); Communication v. Douds, 337 U.S. 382 (1950). 53 While I have outlined briefly four theories of the First Amendment which have been advocated by the members of the Supreme Court at one time or another, there are only two which remain as viable alternatives. The two latter interpretations have enough substantiation to be considered for this analysis of academic freedom. Never— theless, the analysis must ultimately rely on the inter— pretation of the First Amendment presently in vogue with the members of the Supreme Court. Fourteenth Amendment Interpretation Preceding the adoption of the so-called Civil War Amendments, Thirteen,Fourteen, and Fifteen, the United States Constitution only restricted Congress against potential infringement of the basic freedoms through the Bill Of Rights. None of the restrictions, which the authors Of the Bill Of Rights felt were necessary to pro- tect the people against the federal government, were imposed on state or local legislation. Therefore, the adoption Of the Fourteenth Amendment clearly outlined specific protections, which unforeseen to the original designers, would function as a basis for the protection against arbitrary state action in future Supreme Court decisions. Originally, the Fourteenth Amendment did not incorporate any Of the Bill of Rights?8 In fact, if it 28Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" Stanford Law Review, II (19A9), 5. 5A had, in all probability the Amendment never would have passed. States, at that point in time, jealously guarded any limitations Of their power exerted by the federal government. Nevertheless, through the Fourteenth Amendment and the Due Process clause, a body of legal doctrine has evolved which incorporates the entire First Amendment liberties under its protection against arbitrary state action. This evolution began with the doctrine Of sub- stantive due process. As Wallace Mendelson, a Constitu- tional Law scholar, indicates, "these Civil War Amendments in a sense are an extension Of the Bill of Rights plainly directed against intrusion by the states upon basic pro- cedural and substantive liberties Of the individual."29 From Mendelson's basic premise a majority Of the Supreme Court in Gitlow incorporated the freedom of speech and press under the Fourteenth Amendment: For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental per- sonal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.30 29Wallace Mendelson, The Constitution and the Supreme Court (New York: Dodd, Need and Company, 1965), p- 277. ' 3Ogi£lgw v. People of the State of New York, A5 U.S. Supreme Reporter 625: 630 (1925). 55 The progression from the position of the Court in Gitlow to a position which entirely incorporates the First Amendment is facilitated by the demeanor Of the Courts. "Not satisfied with making the clear and present danger test a part Of the doctrine Of the substantive due pro- cess, the Court took a further step by declaring;that the Fourteenth Amendment actually incorporated the First Amend- ment."31 Conflicts regarding the interpretation Of the Four- teenth Amendment still exist and will continue until the Court formulates a decisive Opinion. But for the purpose of this analysis the author concludes that the First Amendment freedoms are protected against stage legislative action through either the Due Process clause of the Four- teenth Amendment or the more liberal interpretation which incorporates a part or all of the Bill Of Rights into the Fourteenth Amendment. Freedom of Speech The framers of the Constitution could not prognosti- cate societal changes or the maturation Of justice. There— fore, constitutional interpretation is presently amplified 31Stanley Morrison, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" Stanford Law Review, II (19A9), 169. See also the following cases: Gros ean v. American Press CO. , 2A7 U. S. 233 (1936); Herndon VA Low 301 U.S. 2A2 (1937); Lowell v. Griffin, 303 U. S. AZ193 8); Schneider V. State, 308 U. S. 1A7 (1939); CantwellLl v. Connecticut, 310 U.S. 297 (19A0); Murdock v. Pennsylvania, 319 U.S. 105 (19A3); West Virginia State Board Of Educa- tion v. Barnett, 319 U.S. 62A (19A3). 56 by the Court to incorporate behavior which is consistent with the intended purpose of the Constitution. Each of the four elements Of academic freedom——freedom of speech, freedom Of association, freedom of inquiry and freedom Of teaching-~will be analyzed to ascertain the constitutional validity of each element and through them the validity of academic freedom. Historically, freedom Of speech, especially freedom Of extramural utterance, has long been a nemesis to the American Association of University Professors. However, within the last fifteen years the issue emerged as a legal conflict between the faculty member and his institution, state, or the federal government. While free speech for each citizen isrmnsabsolute, the average citizen enjoyed a privileged position as compared to the faculty of our colleges and universities. Initially, the courts seemed to either avoid the substantive legal issues of free speech for faculty or the courts generally ruled in favor of limitations on speech, especially if a faculty member was interested in retaining his position as an employee of a public institution. Gradually the Supreme Court has assumed a more amiable position regarding free speech for faculty, so much so that we may be venturing into a new era Of constitutionally protected speech for faculty. 57 To facilitate the analysis of freedom Of speech, I prOpOse to dichotomize free speech into two distinct issues: 1. Intramural speech, and 2. Extramural speech For purposes of this analysis intramural speech is defined as speech, whether on or off campus, which is directly re- lated to a professor's discipline. Extramural speech is defined as speech, either in the formal classroom or off campus, where the faculty member represents neither his institution nor his profession. In our present context we will discuss only the latter issue--extramural speech. Since intramural speech is so closely aligned to another section--freedom of teaching--the analysis of intramural speech is postponed until that issue is before us. The issue Of free speech for our citizenry was not tested in the courts until 1917, likewise repression of faculty free speech was not contested until the early nineteen fifties, when the Adler case arose in the State of New York. Adler appealed to the Supreme Court on the grounds that the Feinberg Law violated his rights of speech and assembly. The Civil Service law required the Board of Regents to enforce paragraph 12—a entitled "Ineligibility." Paraphrasing paragraph l2-a, no person employed in the public schools, colleges, or any other educational institution shall be continued in service who: 58 (A) By word of mouth or writing willfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any state or Of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or (B) Prints, publishes, edits, issues, or sells any book, paper, document or written or printed matter in any form containing or advocating, advising, or teaching the doctrine of any poli- tical subdivision thereof should be overthrown by force, violence, or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein. 2 The United States Supreme Court in an Opinion written by Justice Minton affirmed the decision of the New York Court Of Appeals. Its majority opinion supported the position that faculty or teachers do have a right to assemble, speak, think and believe as they will, however, it is equally clear that they have no right to work for the State in the school system on their own terms.33 Justice Black and Douglas, diametrically Opposed to this opinion, articulate an eloquent argument for freedom of speech for faculty, I have not been able to accept the recent doctrine that a citizen who enters the public service can be forced to sacrifice his civil rights. I cannot for example find in our constitutional scheme the power of the state to place its employees in the category of second-class citizens by denying them freedom of thought and expression. The Constitution 32Adler v. Board of Education, op. cit., pp. A87-A88. 33Ibid., p. A92. See alSo: Communications Assembly v. Douds, 339 U.S. 382 (19A9); and United Public Workers v. Mitchell, 330 U.S. 78 (19A7). 59 guarantees freedom of thought and expression to everyone in our society. All are entitled to it; and none needs it more than teachers.3 Free speech according to Justices Black and Douglas is an absolute right not susceptible to impingement. To restrict speech indirectly represses creative ideas, hence, limit- ing the develOpment of our society. The arguments proposed in the Adler case reflect the Court's concern over the protection and preservation of our present governmental system against unlawful overthrow. While this argument has validity, its methods Of implica- tion--repression of speech--needs periodic evaluation to assure the most effective means of guarantying meaningful and lawful change in our society. The above quotations reflect two conflicting posi- tions in the annals Of the Court on the free speech issue. First, it is impossible for a teacher within our public educational system to forfeit his right to the freedom Of belief, speech, or association. Secondly however, when he accepts a teaching position, he also assumes certain responsibilities regarding his extramural speech in the classroom. Each position, in and of itself, seems justi- fied and accurate, but as the two issues become inter- twined, it becomes more difficult to balance one justi- fiably against the other. 3L’Ibid., p. 508. 60 Justice Black concurring in Wienan v. Updegraff, where defendant refused to sign an Oklahoma loyalty oath which excluded persons from state employment on the basis of organizational membership regardless of their knowledge of activities and purposes of the organization, distinguishes speech from treasonable acts. Governments need and have ample power to punish treasonable acts. But it does not follow that they must have a further power to punish thought and speech as dintinguished from acts. Our own society should never forget that laws which stigmatize and penalize thought and speech Of the unorthodox have a way Of reaching and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and craven. Speech in and of itself cannot destroy a government, only the overt acts Of men can. Nevertheless, a rational or emotional argument can affect change in a given society. What is it that is feared-—an alternative to our present governmental system or change itself? Justice Clark delivering the majority Opinion in Wieman alludes to the validity of the "balancing test" as a means of arriving at a solution for competing interests. Democratic government is not powerless to meet this threat, but it must do so without infring- ing the freedoms that are the ultimate values of all democratic living. In the adoption of such means as it believes effective, the legislature is therefore confronted with the problem of balancing its interests in national 35Wieman v. Updegraff, pp. cit., p. 193. 61 security with the often conflictigg constitu- tional rights of the individual.3 As the present approach to the First Amendment, the "balancing" test may endanger the basic freedoms which have enjoyed a privileged position in the courts. The ambiguity and infinite variety of variables which require abstracting before a justifiable "balancing" test can be applied creates an all but impossible task. How does any court of law predict and weigh the future implications Of their present decision to balance in favor of governmental restriction of free speech? By definition the balancing test must be ambiguous. Whenever a system of law relies on a criterion which is relative to the situation and attitude Of the times, a citizen, and especially a faculty member, can never apprehend what speech is not constitu- tionally protected. Our government, and in turn the Court, does have a responsibility to see that change is orderly. However, the responsibility does not sanction governmental restriction Of any and all speech. Empowered by the New Hampshire state legislature, the Attorney General functioned as a one man investigating committee for subversive activities in New Hampshire. Furthermore, having been delegated the responsibility of prosecuting all identified subversives, his activities 36Ibid., p. 188. 62 culminated in Sweezy v. New Hampshire.37 Sweezy, a faculty member in the University, refused to answer questions with respect to the contents of his lectures and his knowledge 38 of the Progressive Party and its members. Chief Justice Warren in the majority Opinion cites the validity Of legislative investigations into subversive activities, but he further concludes that, It is particularly important that the exercise of the power of compulsory process be carefully cir- cumscribed when the legislative process tends to impinge upon such highly sensitive areas as free- dom Of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community.39 The court concluded that the State of New Hampshire lacked justifiable cuase for such questioning and infringed on his rights of privacy; therefore, they violated the due process requirements of the Fourteenth Amendment.”0 In Beilan v. Board of Education”1 the Supreme Court upheld the decision on the grounds that Beilan was not dismissed because Of his past activities, but rather be- cause of his unwillingness to be frank and candid by refusing to answer questions related to his fitness.“2 )37Sweezy v. New Hampshire, 35A U.S. 23A, 236-237 (1956 . 381219.. p. 298. 391bid., p. 2A5. A0 A1 A2 Ibid., pp. 25A, 255. Beilan v. Board of Education, 357 U.S. 399 (1958). Ibid., p. A05. 63 However, the majority opinion reviewed the issue of a faculty member's right to employment regardless Of his speech. The court confirmed the position it had formerly taken in Adler, but the court also recognized as in Wieman that the right of the state is subject to reasonable action. Justice Clark states in Wieman, "It is sufficient to say that Constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.“43 At one time any form of speech thought inappropriate by a governing board or their representatives would have been justification for dismissal. Presently, that dismissal must be neither arbitrary nor discriminatory. The Koch caseuu in Illinois is an example of dis- missal because of speech. Koch, a faculty member at the University Of Illinois, wrote an article to the student newspaper detailing his position on pre-marital sexual intercourse. Needless to say, his somewhat liberal posi- tion and the promotion Of his values in the student news- paper resulted in the termination of his employment. The Illinois Appellate Court sustained the dismissal and certiorari was denied by the United States Supreme Court. The Supreme Court believed that no constitutional issue £43Wieman v. Updegraff, Op. cit., p. 192. “ugggh V. Board of Trustees of University of Illi— nois, 182 NE 2nd 3A0 (1962). 6A was present in the Koch case before them. By the Supreme Court's denial we might conclude that once a faculty mem- ber accepts a contract he is subject to the restrictions of that contract assuming that the proper procedures are observed by his institution. The most startling case, and one which should heighten the hopes of faculty favoring a more definitive theory of the First Amendment, attacks a State of New York loyalty oath which must be signed by each member Of the University of the State of New York faculty. Keyishian v. Board of Regents Of the State of New York145 focuses on the entire question of legal ambiguity and speech. While Keyishian reflects a major breakthrough in the Court's thinking, its decision is not purely absolutist, nor am I convinced it should be. The right of an educational institution or a governmental agency to protect itself is not at issue. There can be no doubt of the legitimacy Of New York's interest in protecting its educational system from subversion. But even though the governmental purpose be legitimate and substan- tial, that purpose cannot be pursued by means that broadly stifle fundamental personal liber- A6 ties when the end can be more narrowly achieved. The majority Opinion-—in a five to four vote-—corroborates the position taken in NAACP v. Button,”7 that the usKe ishian v. Board of Regents of the State Of New York, 87 S CT 75 (1967). u6Keyishian v. Board of Regents, Op. cit., p. 683. "7NAACP v. Button, 371 U.S. A15 (1962). 65 . . precision of regulation must be the touch- stone in areas so closely touching our most precious freedoms. For standards of permissible statutory vagueness are strict in the area of free expression. Because the First Amendment freedoms need breathing space to survive, government may regulgte in the area only with narrow specificity. Stressing the Opinions in the major First Amendment cases, the majority concludes that "the danger of that chilling effect upon the exercise Of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being sanctioned.”9 The Court applied this criterion to the present New York legisla- tion and found the legislation vague and too complex in its administrative machinery to efficiently accomplish its goals; hence, it was ruled in violation of the First Amendment. Keyishian also reaffirms the position taken in Wieman v. Updegraff regarding surrender of constitu- tional rights in order to retain public employment, ". . . the theory that public employment which may be denied altogether may be subject to any conditions, regard- less Of how unreasonable, has been uniformly rejected."50 Keyishian may represent to faculty in colleges and universities the final stages Of a revolution in the u81bid., pp. A32—A33. ugKeyishian v. Boapgof Regents, o . cit., p. 68A. See Stromkey v. PeOple Of State Of California, 283 U.S. 359, 369; Cramp v. Board of Public Instruction, 368 U.S. 278; Baggett v. Bullitt, 377 U.S. 360 (196A). 50Ibid., p. 685. 66 court's attitude toward extramural speech and academic freedom for faculty. Although a single battle may have been won, academic freedom hasn't necessarily won the war. A five to four deCision could easily swing the opposite direction when the issue materializes again in the Supreme Court. The capstone for the constitutional protection of extramural speech comes in the very recent Pickering v. 51 Board of Education decision in which the Supreme Court reversed a state of Illinois decision. Pickering had published a letter criticizing the superintendent's and the Board's allocation Of resources between athletic and academic programs. He was subsequently dismissed because his letter was "detrimental to the best interests of the "52 schools. The Supreme Court in an Opinion authored by Justice Marshall stated: To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation Of the public schools in which they work, it proceeds on a premise that has been unequivocally ggjected in numerous prior decisions of the Court. The Court also clarifies its present position in Pickering with respect to extramural speech and the point at which it is no longer constitutionally protected. When it can 51Pickeringv. Board Of Education, 391 U.S. 563 (1968). 52Ibid., p. 567. 53Ibid., p. 568. 67 be substantiated that false statements have been "knowingly and recklessly made," a teacher's right to speak on issues of public importance and still retain his position is no longer constitutionally protected.5LI As the reader can discern, the number of constitu- tional violations involving freedom of extramural speech for faculty is infinitestimal as compared to the potential violations. Nevertheless, the issues are substantive and should be scrutinized thoroughly by those institutions contemplating direct action because Of a faculty member's extramural speech. The courts have and will continue to grapple with the issue of free speech if it arises in our colleges and universities. What then is the position of the Court regarding freedom of extramural utterances? Advocates Of both the "absolutist" and "balancing" theories presently exist in some strength on the Supreme Court. The "absolutists" advocate control over acts as Opposed to the speech of individual faculty. The proponents Of "balancing" have taken the position that once a faculty member assumes the responsibility as a teacher, he is obligated to exercise reason and prudence in his speech. Speech which advo- cates or incites to action may be subject to restriction and penalty by the Supreme Court. However, the question which begs to be answered cannot be answered conclusively Sulbid., p. 57A. 68 because the decisions of the court are temporal. Never- theless, the timely precedent of Keyishian and Pickering validate the conclusion that First Amendment freedoms, including extramural speech, are protected by the Supreme Court for faculty Of colleges and universities as well as the other citizens in our society. Freedom of Association The associational issue was not subsumed as a funda- mental freedom during the writing of the United States Constitution. Nor is freedom of association presently designated as a substantive freedom in the Constitution. None the less, through the decisions made by the courts, freedom of association has become a right protected by the United States Constitution. It was in 1958, that the Supreme Court in AAAQA v. Alabama55 rejected the right Of the state to require the NAACP to submit a current membership list and thereby de- fined association as a First Amendment freedom. Freedom of association prior to the AAAQE v. Alabama decision had been implied from the free speech and assembly clauses, but the three freedoms had never been distinguished. Robert M. McKay, a professor Of law, differentiated speech and assembly from association in a foreword to Charles Rice's book, Freedom of Association. 55% v. M. 357 vs. AA9 (1958). 69 A person may associate himself with others with- out ever meeting in person with those with whom he seeks common cause; and he may not speak at all beyond whatever few words may be required in the act of joining. But clearly the reason for which he associates himself is tO encourage assembly for the shaping of common goals and to permit speech by or in the name of the group.5 Academic freedom's interest is limited to the single most controversial form of association for the educator as well as the average citizen-~subversive association. Mere association is usually not questioned by either the law enforcement agencies or academic institutions since the consequences of such association do not normally threaten the establishment. Only when such a threat materializes do these institutions question the individ- ual's right to associate with specific groups. Since the loyalty oath for state and federal em- ployees Often includes the faculty members in educational institutions, the loyalty oath controversies after 1950 furnish us with considerable substantive material for evaluating the relationship between association and the Constitution. Albeit free association was not defined as a constitutional freedom until NAACP v. Alabama, certain generic implications can be extracted from those cases which dealt with parallel issues under the guise Of free speech and assembly. 56Charles E. Rice, Freedom of Association (New York: New York University Press, 1962), p. viii. 70 Before proceeding to the loyalty oath cases, I will digress briefly in order to establish a context for the associational issue. During and following World War I, Section Four Of the Espionage Act and similar state legis- lation which paralleled the Espionage Act, were instru- mental as repressants for subversive activity. Initially the courts endeavored to control subversive activity through supression of speech.57 The substantive issues evolved slightly with the new position assumed in the 58 Whitney case, when the guilt by association issue arose 59 over a California statute which implied guilt by associa- tion rather than speech. Justice Brandeis concurring states that, The felony which the statute created is a crime very unlike the Old felony Of conspiracy or the Old misdemeanor of unlawful assembly. The mere act of assisting in forming a society for teach- ing syndicalism, or becoming a member of it, or of assembly with others for that purpose is given the dynamic quality of a crime. . . . Thus the accused is to be punished, not for contempt, incitement or conspiracy, but for a step in 57Ibid., pp. 128-129. For more specific legal infor- mation see: Schenck v. United States, 2A9 U.S. A7 (1919); Abrams v. United States, 250 U.S.616 (1919); Schaefer v. United States, 251 U.S. A66 (1919); Pierce v. United States, 252 U.S. 239 (1920); Stilson v. United States, 250 U.S. 583 (1919); O'Connell v. United States, 252 U.S. 1A2 (1920). 58 Whitney v. California, op. cit., p. 357. 59California Statutes, 1917, ch. 188 at 281, Cali- fornia Penal Code, Sec. llAOl (A): ". . . any person . . (21) organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage Of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism . . . is guilty of a felony . . ." 71 preparation, which, if it threatens ghe public order at all, does so only remotely. 0 Whitney v. California questioned the total reliance on free speech and emphasized in the concurring Opinion by Brandeis and Holmes the possible right Of an individual to associate for revolutionary purposes. I am unable to assent to the suggestion in the Opinion of the Court that assembling with a political party, formed to advocate the desir- ability Of a proletarian revolution by mass action at some date necessarily far in the future, is not a right withig the protection of the Fourteenth Amendment. 1 In any case the Court affirmed that a conspiracy did exist which met the criteria under the "clear and present danger" doctrine; therefore, the issue of constitutionally pro- tected association was justifiably evaded. In Dejonge v. Oregon62 the Supreme Court extended the protection of the Constitution to individuals arrested for mere attendance at a meeting openly sponsored by the Communist Party but at which no teaching or advocating of criminal syndicalism tookplace.63 The Court concluded since mere membership in the Communist Party did not justify arrest6u and since the public meeting was otherwise 6OWhitney v. California, Op. cit., pp. 372-373. 61Ibid., p. 379. 62 DeJonge v. Oregon, 299 U.S. 353 (1927). 63Ibid., pp. 361-363. 6“Ibid., p. 363. 72 65 lawful, that the Oregon statute extended its privilege of protection against syndicalism to a point which over- lapped basic freedoms Of speech and assembly.66 A novel approach to the subversive association was initiated in Dennis v. United States,67 when the Supreme Court upheld the conviction of eleven members of the Com- munist party under the Smith Act. The legal determina- tion, however, was not justified on associational grounds but rather on the grounds of "conspiracy to advocate." As Justice Vinson states, . . this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the prepara- tion.68 Dennis led the way to ninety-two further convictions be- tween 1951-1957 under the Smith Act on the basis of "con- spiracy to advocate."69 70 The Supreme Court in Yates v. United States, Scales v. United States,71 and Noto v. United States,72 clarified the position which the Court had taken in Dennis with 66 65£§AQ., p. 362. Ibid., p. 363. 67Dennis V. United States, op. cit., p. A9A. 68Ibid., p. 511. 69Rice, Op. cit., p. 1A1. 7OX§23§ v. United States, 35A U.S. 298 (1956). 71§£§l§§ v. United States, 367 U.S. 203 (1961). 72Noto v. United States, 81 Supreme Court Reporter 1517 (19615. '73 respect to a "conspiracy to advocate" the overthrow Of the government. That the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as pre- paring a group for violent action and steeling it to such action. There must be some sub- stantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist party teaching, and to justify the inference that such a call to vio- 1ence may fairly be imputed to the party as a whole and not merely to some narrow segment of it.73 My reasons for alluding to the recent subversive cases under conspiracy to advocate and associational mem- bership are threefold. First, to identify the evolution in the Court's thinking from restriction of speech to re- striction Of association and its relationship to academic freedom and subversive activites. Secondly, the preceding cases explicitly point out that mere association with an organization which may have subversive intentions is not sufficient to violate basic rights Of the individual. And finally, the teaching Of the abstract theory of Communist doctrine does not necessarily coincide with advocacy or conspiracy to advocate. Freedom of association for the faculty members has been subject to varying restrictions since states began mimicking the Smith Act. A major precedent was established 73Ibid., p. 1521. .. !' ‘1“IFs .- ' 1.x: - Iii- - 7A 7“ when the Supreme Court in Adler v. Board Of Education, upheld the New York Feinberg Law which implemented para- graph 3022 Of the Education Law of New York State. New York authorized the Board of Regents, . . . to provide in rules and regulations, and has so provided, that membership in any listed organization, after notice and hearing, shall constitute prima facie evidence for disqualifi- cation for appointment to or retention in any office or position in the school system.75 An organization is defined in subdivision 2 of paragraph 3022 as any group which is "subversive in that they advo- cate, advise, teach, and embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or over— "76 Mere turned by force, violence, or any unlawful means. knowing membership in an organization as defined by the Feinberg Law and listed as subversive is enough for dis- missal. However, no consideration is given to the indi- vidual who associates but does not believe nor advocate himself all Of the basic assumptions Of the organization. The effect Of such legislation as the Feinberg Law on edu- cators is described by Justice Douglas in his dissent in Adler: Any organization committed to a liberal cause, any group organized to revolt against an hysterical trend, any committee launched to spon- sor an unpOpular program becomes suspect. These 7”Adler v. Board of Education, Op. cit., p. A85. 76 75Ibid., pp. A90-A9l. Ibid., p. A88. 75 are the organizations into which Communists often infiltrate, their presence infects the whole, even though the project was not conceived in sin. A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner freedom of expression will be stifled. But that is only part Of it. Once a teacher's connection with a listed organization is shown, her views become subject to scrutiny to deter- mine whether her membership in the organization is innocent or, if she was formerly a member, whether she has bona fide abandoned her member- ship. What happens under this law is typical of what happens in a police state. . . . A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise Of the free intellect.77 Freedom of association, whether implied or real, is limited to organizations without subversive intentions or a doc- trine advocating violent or unlawful overthrow of the government. In the same year as Adler the Supreme Court re- versed the decision Of a lower court on an issue touched upon in Adler. Wieman v. Updegraff78 ruled against an Oklahoma Statute which required that all state officers and employees take an oath, that I have not been a member of . . . any agency, party, organization, association, or group whatever which has been officially determined by the United States Attorney General or other authorized public 77Ibid., pp. 590-610. 78E12E§2 V- Updegraff, Op. cit., p. 183. 76 agency of the United States to be a Communist front or subversive organization. . . 79 The majority Opinion concluded that constitutional pro- tection does extend to a public employee whose expulsion is arbitrary or discriminatory.80 Therefore, the Court maintained that "indiscriminate classification of inno- cence with knowing activity must fall as an assertion of arbitrary power."81 In the Sweezy case, a professor lecturing at the University was charged with contempt for refusing to answer questions relating to his lecture and his knowledge of members of the Progressive Party. The Supreme Court concluded that the defendant's "rights to engage in politi- cal expression and association"82 was constitutionally protected in view of New Hampshire's lack of justification for infringing on these basic liberties.83 Chief Justice Warren went on to clarify the right Of political expres- sion and association for every citizen when he stated, Exercise of these basic freedoms in America has traditionally been through the media of political association. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the pro- grams Of our two major parties. History has amply proved the virtue Of political activity by 79Ibid., p. 186. 80Ibid., p. 192. 81Ibid., p. 191. 82 Sweezy v. New Hampshire, op. cit., p. 250. 83Ibid., p. 25A. 77 minority, dissident groups, who inumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society. Association then becomes a crucial free— dom which the Court is sensitive to espgfiially when it affects the academic community. It has been established in Adler and again in Wieman that while a state or the federal government possessed the power and right to restrict associational activity for self-preservation that right is conditioned upon justi- fiable grounds. A case in point is Shelton v. Tucker85 in which the Arkansas state legislature required every teacher as a condition of employment to submit an affidavit annually which lists every organization "to which he has belonged or regularly contributed within the preceding five years."86 The question in Shelton is "whether the State can ask everyone of its teachers to disclose every single organization with which he has been associated 87 The Court stated that a over a five year period." specific governmental purpose may be pursued but it "can— not be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."88 8”Ibid., pp. 250, 251. 85§Aelpgp v. Tucker, 36A U.S. A79 (1960). 86 88 Ibid., p. A90. 87Ibid., pp. A87-A88. Ibid., p. A88. 78 Directly related to the association issue is the question of vagueness in the loyalty oath required by some states. In an attempt to squelch the subversive activities in any type of public employment, state govern- ments have reverted to tactics which violate the Due Pro- cess Clauses of the Fourteenth Amendment. In gagmp v. Board Of Public Instruction,89 the state of Florida re- quired each public employee to take an oath ". . . that I have not and will not lend my aid, support, advice, "90 counsel or influence to the Communist party. Because of the ambiguity and vagueness inherent in any oath which implies that an individual has never given aid in any 91 form, the Supreme Court ruled it unconstitutional and a violation of due process. As in Wieman v. Updegraff,92 Slochower v. Board of Education,93 and Adler v. Board of 9A Education the Court recognizes that no abstract right to public employment exists; nevertheless, the public employer cannot forbid the employee his constitutionally 89 6 Cramp v. Board Of Public Instruction, 368 U.S. 278 (19 1). 90Ibid., p. 279. 911bid., pp. 286—288. 92Wieman v. gpdegraff, op, Cit., p. 183- 93Slochower v. Board of Education, 350 U.S. 551 (1956). 91AAdler v. Board of Education,_opl cit., p. A85. 79 protected liberties through arbitrary action or without due process.95 Concurring yet conflicting Opinions in Gibson v. 96 Florida Legislative Committee, another case in which the state required disclosure of membership lists in order to identify communists in the NAACP, reflect two positions of the Court regarding legislative investigations and their impact on freedom of association. Justice Goldberg, giving the majority opinion states: To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very least Of the constitutional privileges to be secure in association in legitimate organiza— tions engaged in the exercise Of First and Four- teenth Amendment rights.97 Douglas and Black, however, concurring in Gibson reverse the decision on the basis of a different argument. Jus- tice Douglas states in the concurrence, . . . government is not only powerless to legis- late with respect to membership in a lawful organization; it is also precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in the country, regard- less of ghe legislative purpose sought to be served.9 95 p. 288. 96Gibson v. Florida Legislative Committee, 372 97Ibid., p. 558. Cramp v. Board Of Public Instruction, op. cit., 98Ibid., p. 565, 80 Two important observations must be made regarding the posi— tion described above. First, the use of "lawful organiza— tions" in Justice Douglas's quotation parallels Justice Goldberg's "legitimate organizations." Each position grants constitutional protection to associations. Secondly, Justice Douglas departs from the majority Opin- ion and supports the position that "government can inter- vene only when belief, thought, and expression move into the realm Of action that is inimical to society."99 Other— wise, we have a judicial system which may allow the legis- 1 F lative branch Of the government to investigate any lawful organization which may have been infiltrated by a Com- munist including the church, the press, or any group advo- cating an unpopular position. Let us proceed one step further in the analysis of subversive associations and distinguish between knowing membership and intent to further the illegal aims of an organization. Flashing back to the Adler decision, the Court's interpretation excludes all public employees from membership in any organization advocating violent 100 101 overthrow. Now in Elfbrandt v. Russell, a case in which an Arizona public school teacher refused to sign a loyalty oath penalizing knowing membership in an 99Ibid., p. 573. lOOAdler v. Board of Education, Op. cit., pp. A85-A9A. 101Elfbrandt v. Russell, 86 s.Ct. 1238 (1966)- 81 organization which has as one Of its aims the violent overthrow Of the government, and shortly thereafter in Keyishian v. Board Of Regents of the State of New York,102 the Supreme Court concluded in its majority Opinion that "a law which applies to membership without the 'specific intent' to further the illegal aims Of the organization in- fringes unnecessarily on protected freedoms. It rests on a doctrine of 'guilt by association' which has no place here."103 0A In Keyishianl the Court elaborates on the Elf- brandt case in its dissection of the 1952 Adler decision and the now defunct Feinberg Law. Justice Brennan in the majority Opinion strikes at the sweeping statement of the following portion Of the Feinberg Law regarding menber- ship in subversive organizations, Anyone who is a member of the Communist Party or of any organization that advocates the violent overthrow Of the government of the United States or of the State Of New York or any political sub- division thereof cannot be employed by the State University.105 Justice Brennan believes the State Of New York "seeks to bar employment both for association which legitimately may 102Elfbrandt v. Board of Regents of the State of New York, 87 S. Ct. 675 (1967). 103Elfbrandt v. Russell, Op. cit., p. 12A2. lOA Keyishian v. United States, 87 S. Ct. 676 (1967). 105Ibid., p. 687. 82 be sanctioned and for association which may not be sanc- "106 It tioned consistently with First Amendment rights. is invalid for a state to "sanction mere membership with- out any showing Of specific intent to further the unlaw- ful aims Of the Communist Party Of the United States or of the State of New York.107 Keyishian represents the present position of the courts as it has evolved over a period of fiteen years. It is interesting to note that Keyishian deals directly with the initial case--Adler. What conclusions can now be drawn from the legal analysis of association. First and most importantly, the Court has moved from a position sup- porting denial Of employment on the basis Of mere member- ship in an organization to a stand which requires proof of intent to support unlawful or violent overthrow of the government. Secondly, the denial Of employment because of association may no longer be discriminating, arbitrary, or too vague in its application since it then violates the Due Process Clause Of the Fourteenth Amendment. Finally, freedom of association is not an absolute right guaranteed by the Constitution, just as freedom Of speech is not an absolute when it touches on the fringe of in- citement or advocacy to action for unlawful purposes. In providing Closure for free association and its relationship to the Constitution, we shall refer briefly 106Ibid. 107Ibid. 83 to two quotations in the recent Griswold v. State of Con- necticut108 case in which the defendant violated the Connecticut birth control law by giving information, instruction, and medical advice to married persons regarding the means Of preventing contraception. The majority Opinion citing partially from NAACP v. State of Alabama109 stated, "we protected the 'freedom to associate and pri- vacy in one's association,‘ noting that freedom of associa- t "110 tion was a peripheral First Amendment righ Since I the Court is explicit in its statements regarding the posi— tion of association, its definition of peripheral takes on ‘ substantial importance. Within Griswold itself, the court elaborates on its attitude toward association; The right Of association, like the right of belief is more than the right to attend a meeting, it includes the right to express one's attitudes or phi- losophies by membership in a group or by affili- ation with it or by other lawful means. Associa- tion in that context is a form of expression Of Opinion; and while it is not expressly included in the First Amendment its existence is necessarylll in making the express guarantee fully meaningful. Freedom to Inquire Freedom of inquiry, research, or the pursuit of truth are synonymous concepts, which are basic to academic 108Griswold v. State of Connecticut, 85 S. Ct. 1578 (1965). 109 NAACP v. Alabama, op. cit., P- 1172- lloGriswold v. State of Connecticut, Op. cit., p. 1681. 111 Ibid. 8A freedom. Each precludes effective speech or teaching. Ideally, we assume that a statesman or educator could not effectively teach, speak, or associate without first having thoroughly investigated the concept or idea as well as thinking it through to a rational conclusion. The question then becomes one Of asking, "what have the If L: . courts had to say concerning freedom of inquiry?" Because of the implicit link between freedom Of in- m“ i. quiry and freedom of speech, the court's numerous comments concerning freedom Of speech lend validity to a privileged position for freedom of inquiry. In the Adler112 case the Lw State of New York passed a civil law which made all em- ployees ineligible for employment in any public school if they advocated the overthrow of the government by force, violence, or any unlawful means. While the court affirmed the action of the State Of New York in 1952, Justice Douglas articulated in the dissenting Opinion a position arising out Of a First Amendment interpretation which reflects the effects of repressing inquiry: Where suspicion fills the air it holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place Of inquiry. A "party line" —- as dangerous as the "party line" of the Communists -- lays hold. It is the "party line" of the orthodox view, of the conventional thought, Of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking, she becomes 112Adler v. Board of Education, op. cit., p. A85. 85 instead a pipeline for safe and sound information. A deadening dogma takes the place Of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged, discussion often leaves Off where it should begin.113 Herein, Justice Douglas describes the possible effects of inhibiting freedom of inquiry within the classroom. Carry- ing his argument even further, Justice Douglas concludes that when a system of spying and surveillance is developed A. -u .‘H for the classroom, it produces standardized thought, not pursuit of truth. Yet is was the pursuit of truth which the First Amendment was designed to protect. A sys- tem which directly or inevitably has this affect is alien to our system and should be struck down. Its survival is a real threat to our way of life. I .n‘ \ 11A However definitive Justice Douglas was in his argument, it was not enough to pursuade a majority Of justices to over- rule the actions of the State of New York in requiring an oath which might restrict freedom of inquiry. The following quotations given in a concurring opin- ion by Frankfurter and Douglas in Wieman v. Updegraff,115 the Oklahoma loyalty oath case, identify the freedom to inquire for faculty and justify its existence as a con— stitutionally protected freedom. The Justices also note the limiting effect which repression of inquiry has on faculty. 113Ibid., pp. 510—511. llL‘Ibid. 115Wieman v. Updegraff, Op. cit., p. 183. h‘- t“ 86 Teachers must fulfill their function by precept and practice, by the very atmosphere they gen- erate; they must be exemplars of Open-mindness and free inquiry. They cannot carry out their noble task if the conditions for the practice of a responsible and critical mind are denied them. They must have the freedom of responsi- ble inquiry, by thought and action, into the meaning of social and economic ideas, into the checkered history of social and economic dogma. They must be free to sift evanescent doctrine, qualified by time and circumstance, from that restless, enduring process of extending the bonds of understanding and wisdom, to assure which the freedom of thought, of speech, of inquiry, Of worship are guaranteed by the Con- stitution Of the United States against ipfrac- tion by National and State government.11 Justice Frankfurter continues his remarks and gives equal weight to freedom of inquiry when he speaks about the limits of a state's power. By limiting the power Of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons no matter what their call- ing. . . . Such unwarranted inhibition upon the free spirit of teachers affects not only those who like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and prac- tice.117 ' Unfortunately a divided opinion occurred in Sweezy v. New Hampshire, when the Court rules that a state legis- lature investigating the activities and speech Of a col- lege professor in the classroom could not stifle Sweezy's constitutional right Of political privacy. Furthermore, Justice Warren stated in this Opinion "teachers and students must always remain free to inquire, to study and 116 117 Ibid., pp. 196-197. Ibid., p. 195. 87 to evaluate, to gain new maturity and understandings; otherwise, our civilization will stagnate and die."118 If the Opinion Of the court in Sweezy had not been divided, we might now have a substantive ruling on this element of academic freedom within our colleges and uni- versities. One might imply from the few references available that freedom of inquiry is a doctrine accepted and veri- fied by the Supreme Court. However, Zemel v. Rusk119 delineates and adds another diversion to free inquiry. Appellant Zemel was seeking judicial sanction for foreign travel to Cuba but had been denied passport privileges. His avowed purpose for traveling to Cuba was the collection of information regarding the Cuban government Officials presently in power. The majority Opinion concluded that: The right to speak and publish does not carry with it the unrestrained right to gather information. For example, the prohibiton of unauthorized entry into the White House diminishes the citizen's Opportunity to gather information he might find relevant to his Opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right.12 We may justifiably conclude from Zemel's experiences that the Supreme Court will be cautious in its restrictions of free inquiry; however, they are not willing to grant an absolute right of inquiry. 118Sweezy v. New Hampshire, Op. Cit-: p. 250- 119Zemel v. Rusk, 85 S. Ct. 1271 (1963). 120Ibid., p. 1281. 88 A Washington, D. 0. District Court decision, Haskett v. Washington121 provides for this analysis the most recent and most definitive statement on free inquiry for faculty. Although the court's decision with respect to the validity of a loyality oath is based on the narrow ground estab- lished in Elfbrandt and Keyishian, the court quotes from an amicus curiae brief submitted by the AAUP. Recognizing the "substantial and troublesome" contentions present in the brief, the court states: The foregoing, which attacks the procedure as defective precisely because it is made applicable to all governmental employees, sensitive or not, i-‘ is supplemented by a variant contention that would particularly condemn its application to that unique governmental employee who is a university professor, because he is a member Of a class entitled to that particular freedom of inquiry crystallized in the concept of "academic freedom," which may not be curtailed or trammeled unless both substantive standards and procedural techniques are demonstrated to be necessary in the light Of some paramount government interest.122 The mere fact that the District Court was interested in the dilemma presented by the amicus curiae gives support to the contention that inquiry as a necessary element of speech is constitutionally protected. It is conceivable from the Opinions that freedom of inquiry is closely related to freedom of speech. Implicit within these arguments for inquiry and speech is the fact 121Haskett v. Washington, 29A F. Supp. 912 (1968). 122Ibid., p. 915. 89 that speech has no validity without conscious inquiry and critical thought. Therefore, it is possible to conclude that freedom of inquiry is sufficiently related to speech to acquire at least a portion of the constitutional pro- tection given to free speech. Even more important than the few direct statements from the Court which attest to the importance of inquiry are the inferences which can be drawn from the previous analysis Of free speech and association. When individuals, be they faculty or the average citizen, associate them- selves with other people it is eventually for the purpose of inquiry. For example, political rallies, P.T.A., academic classrooms, labor unions, governmental agencies, etc., have a variety Of goals and purposes, but each usually engages in a form of inquiry when attempting to fulfill its primary goals. Therefore, it is impossible to associate oneself with a group without eventually participating in a form of inquiry. This is especially true in the academic environment which has as two of its primary functions the acquisition and transmission Of knowledge. Secondly, inquiry is effectively accomplished through a form of communication either verbal or nonverbal. Therefore, both association and speech become necessary but not sufficient means to the end--inquiry. Furthermore, association and speech assume a secondary but necessary 90 position to the more highly valued end. If in fact the two constitutionally protected means-~free speech and free association--do function as a means through which free inquiry is accomplished, then free inquiry by inference must also be a constitutionally protected right. Freedom to Teach The courts and the proceding analysis have been explicit regarding their position on an "abstract right to public employment." The right to employment for the pur- pose Of teaching falls within the same category. NO individual is guaranteed the right to teach in a classroom. It is the responsibility Of each individual to qualify himself through formal academic training in order to teach in the public colleges and universities within a state. Therefore, once having secured a contractual relationship, the freedom to teach becomes an extension of free speech. Intramural speech--freedom to teach--as opposed to extra— mural speech is a right which has been wrapped in conflict and up to now has been unresolved as to its constitution- ality. Intramural speech is defined as speech, whether on or Off campus, which is directly related to a professor's discipline. This definition implies that when a faculty member is engaging in intramural speech and therefore representing his discipline or institution, he assumes the additional responsibilities of an academician. As a 91 teacher two relevant responsibilities would include Objectivity and a restriction as to subject matter desig— nated by the course. Thus intramural speech is a dupli- cate of speech generally, except for the context. If intramural speech is in fact a constitutional right, it must occupy a privileged position in our society and in the mind Of the Court. The Court protected the right Of an instructor to teach and a parent to engage him, when in 1923 Meyer,123 a language instructor, taught a child a foreign language in violation of a Nebraska State Statute prohibiting said practice. The doctrine used by the Court states that ". . . liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to affect.l2u Although a practical right of a teacher to teach was established in ngep v. Nebraska, this right is not absolute. In l9Al, Bertrand Russell was denied the right to teach mathematics and philosophy at the College of the City of New York because of his personal beliefs on sex. The New York State Supreme Court stated: Academic freedom does not mean academic license. It is the freedom to do good and not to teach evil. Academic freedom cannot authorize a teacher 123Meyer v. Nebraska, 262 U.S. 390 (1923). 12“Ibid., p. 627. 92 to teach directly or indirectly that sexual inter- course between students, where the female is under the age Of 18 years, is proper. This Court can take judical notice of the fact that students in the colleges Of the City of New York are under the age of 18 years, although some of them may be Older.125 The court must have assumed that Bertrand Russell would use the classroom dedicated to mathematics and philOSOphy a- as a forum for his rather liberal views on sex. Right or wrong the court made this determination and Bertrand Russell did not become a professor at the College Of the A City of New York. The rationale, however, was based on 1', D his previous extramural speech as Opposed to his intra— mural speech. Convinced that discussion and the free interplay of ideas were vital to the effective functioning of a uni— versity, the trial judge in Dennis prOperly informed the jury that it was not unlawful to conduct in an American college or university a course explaining the philo- sophical theories set forth in the books which have been placed in evidence. Such a charge is in strict accord with the statutory language, and illustrates the meaning to be placed on these words. Congress did not intend to eradicate the free discussion of political theories or to destroy the traditional rights Of Americans to discuss 125m v. Board of Higher Education, Cipy of New York, 18 NYS 2d p . 821, 829 (19A1). 93 and evaluate ideas without fear of governmental sanc- tion.126 The doctrine of personal responsibility expressed in Kay was reinforced in the 1952 Adler case when Justice Minton stated in the majority opinion, A teacher works in a sensitive area in a class- room. There he shapes the attitude Of young minds towards the society in which they live. In this, the state has a vital concern. That the school authorities have the right and duty to screen the officials, teachers, and em- ployees as to their fitness to maintain the integrity Of the schools as part Of an ordered society, cannot be doubted. One's associates, past and present as well as one's conduct may properly be considered in determining fitness and loyalty.12 Evidently, discord exists among the Justices with respect to the degree Of intramural speech which can be preserved in the classroom. However, they are explicit about the fact that a teacher's actions and beliefs are not abso- lutely unrestricted. In Sweezy, a case which potentially might have re- solved many Of the unanswered questions concerning aca- demic freedom, the Justices insist that compulsory processes be carefully circumscribed when the investigative process tends to impinge upon highly sensitive areas as freedom of speech, press, freedom of political association, or freedom of communication of ideas, particularly in the academic community.12 126Dennis v. United States, Op. cit., p. 502. 127Adler v. Board of Education, Op- Cit-: p. “93' 128Sweezy v. New Hampshire, Op. Cit-9 p. 250° km! ‘s‘ e ’ r] J i.-. 7; . V'- 11 C M 9A Sweezy reflects the Court's attitude toward the "freedom of communication of ideas." The Court explicitly attri- butes to intramural speech a form of protection which it does not attribute to speech generally. The phrase "particularly in the academic community" implies that intramural speech therein occupies a privileged position. In a recent state decision, the Florida Supreme Court interpreted academic freedom in the classroom as "a claimed privilege of scholars and academicians and teachers ' 0. ‘fll‘na. "bill: generally to teach without restriction either to subject "129 I“ matter or as to limitation on collateral activities. Since the Florida Supreme Court realized that they could not "concede a license to teach in a public school system "130 the Court ruled subject to no regulations whatsoever, that the school board's decision was reasonable. Since the Court in Jones v. Board of Control conceded that said restraints must be reasonable, they ruled that a restric- tion on the plaintiff's running for a public Office and simultaneously holding a teaching position was not un- reasonable. No further attempt was made to explicate the limitations of "reasonable restraint" beyond a considera- tion of his rights and to what extent it is necessary to restrict his rights in the interest of the state. 129Jones v. Board of Control, 131 30- 2d 713, 717 (1961). 130 Ibid., p. 717. 95 131 In Barenblatt v. United States, the Supreme Court upheld a contempt charge when a teacher refused to answer questions relating to Communist membership. The Court concluded that while Congress's investigatory powers were sustained they must substantiate a balance Of interest between individual rights and governmental interest. Although education cannot be claimed as a justification for exclusion, "when academic teaching freedom and its corollary learning freedom, so essential to the well-being of the Nation, are claimed, this Court will always be on the alert against intrusion by Congress into this consti- "132 Here again the Court tutionally protected domain. refers to the constitutionally privileged position of intramural speech. The Court's concern regarding restrictions on the processes in the classroom is characterized by Justice Brennan in Keyishian when he states: Our nation is deeply committed to safeguarding academic freedom, which is Of transcendent value to all of us and not merely to the teachers con- cerned. The freedom is therefore a special con- cern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.133 From the comments and quotations above, intramural speech occupies a position at least equal to and in fact 131lbid. 132Barenblatt v. United States, op. cit., p. 112. l33Keyishian v. Board of Regents, Qp- cit-. P- 583- r... .3 Lain-ii“. RITE.-.’ 96 more privileged than extramural speech because Of the implications for society if intramural speech is trans- gressed. Since intramural speech is the essential vehicle for not only the acquisition and transmission of knowledge, but also the development of creative skills essential to a Viable society, forces which limit its effectiveness have a disastrous effect on society. Given this commission, it is the responsibility of the teacher to fulfill the charge and the task.of the Court to protect and sustain the milieu which is conducive to its con- summation. Fl... CHAPTER IV SUMMATION From what has been said in the foregoing chapter about the four elements of academic freedom: freedom of speech, freedom of association, free inquiry, and freedom to teach, definitive conclusions can be drawn about the relationship Of academic freedom to the Constitution. It was stated in the introduction that if the four elements of academic freedom could be validated as constitutionally protected rights, than the concept Of academic freedom could be assumed to be constitutionally protected. Having updated the existing judicial decisions re- lating to the elements Of academic freedom, explored the comments Of the justices, and examined the relationships Of the various elements to one another, it is the con— clusion Of the author that the hypothesis "academic free- dom is a constitutional right protected by the First and Fourteenth Amendments Of the United States Constitution" is accepted and validated by the analysis of each element in Chapter III. This is not to say, however, that each element is equally validated as a constitutional right. By defini- tion the e1ement--free speech--which is mentioned in the 97 l . Nil-"J 1 t...- 98 First Amendment of the United States Constitution pos- sesses a degree Of protection which may never be attri- buted to the remaining elements. Free association, while not mentioned in the Con- stitution, is protected from two vantage points. First, by inference from free speech and assembly a form of associational protection was sustained by the Court for a number of years. Secondly, the Court has explicitly recognized on several occasions since AAAQE v. Alabama association as a Constitutional right. There can be relatively little doubt in the minds of any student of jurisprudence that freedom of association is constitu— tionally protected. The third element Of academic freedom—-freedom to inquire--has received only limited attention by the Court. Nevertheless, several justices have quickly pointed to the privileged position Of inquiry as an essential ele- ment of the academic process. Secondly, because inquiry functions as an essential purpose for speech and associa- tion, it must by inference be protected by the Constitu- tion. The final and most tenuous element of academic free- dom is intramural speech or teaching. It is tenuous because neither the courts nor the academic profession have given it any impetus as a legal issue. Yet, clearly, the Court has indicated the privileged position which the 99 classroom teacher possesses in the Court's mind, and the protection afforded intramural speech when presenting abstract doctrine in a classroom. Faculty, administrators, and the academic community must become advocates for the constitutionally protected position which academic freedom presently possesses. The academic community has historically rejected any legal basis for academic freedom because they felt that somehow this would degrade the position of academic freedom in society. All the academic community has to do is Observe the position of speech and press in the Constitution and ask themselves the question, "whether being mentioned or defined as a constitutional right degrades these two basic assumptions and institutions of our society?" The academic community is no longer an ivory tower which may separate itself from society. This is exactly what academicians have attempted to do with academic freedom. It is time they recognize the essential posi- tion of academic freedom in our society and use one of the most basic institutions--the law--to protect academic freedom just as speech, press, and assembly are protected. Critics and students of higher education have been preoccupied with the concept of the faculty as profes- sionals. Chided for not developing an effective locus of power in a single academic professional organization, academia has been frustrated by the attempts of organiza- tions such as the AAUP to fulfill this function. lOO Regardless Of the dissipated effect which results from a lack of centralized power, the only Safe conclusion which may be drawn is that historically this goal has not been accomplished. When the faculty needed the AAUP during the late 19A0's and early 1950's, they were unable to provide any effective support for violations Of aca- demic freedom. The present disciplinary affiliation of faculty rather than institutional affiliation has also produced random momvment rather than movement by consensus. By the very nature Of the profession and the tem- perament Of many faculty, the feasibility of unifying faculty on a national scale is slight. If unity is not feasible, the individualized protection by an external authority--The Supreme Court-—which empathizes and places considerable value on the functions and responsibilities Of faculty within our colleges and universities could be a viable alternative. While it is not desirable to admit that an agency outside of higher education must be utilized to protect academic freedom, educators must reconcile the advent Of this decision. Since the faculty member doesn't presently possess an effective vehicle for the protec- tion Of academic freedom against either internal or ex- ternal interference, a constitutionally protected posi- tion might potentially be that means. 101 A second and quite startling implication of faculty academic freedom as a constitutional right is the subse- quent demise Of the tenure system. Because tenure was designed as a non-legal technique for protecting academic freedom, might not tenure become an anachronism in insti- tutions of higher education? Furthermore, the protection Of academic freedom by an external agency and the elimina- tion of the tenure system may hasten a more competitive milieu conducive to the free interplay of ideas within colleges and universities. “’1‘.“ ' ‘ BIBLIOGRAPHY BIBLIOGRAPHY Books American Law Institute. Restatement of the Law Of Con— tracts. St. Paul: American Law Institute Pub- lishers, 1932. Byse, Clark, and Joughin, Louis. Tenure in American Higher Education. Ithaca: Cornell University Press, 1959. Corpus Juris Secundum. Vol. XIV. Brooklyn, New York: The American Law Book Co., 1958. Gardner, David. The California Oath Controversy. Berkeley: University Of California Press, 1967. Cooper, Thomas. Dr. Cooper's Defense Before phe Board of Trustees. Columbia, South Carolina Times and Gazette, December 1A, 1882. Emerson, Thomas I. Toward a General Theory of the First Amendment. Random House: New York, 1963. Hofstadter, Richard, and Metzger, Willaim P. The Develop- ment of Academic Freedom in the United States. New York: Columbia University Press, 1965. Hofstadter, Richard, and Hardy, DeWitt. The Develppment and SCOpe of Higher Education in the United States. New York: Columbia University Press, 1962. Honeywell, Roy J. The Educational Work Of Thomas Jefferson. Cambridge: Harvard University Press, 1931. MacIver, Robert M. Academic Freedom in Our Time. New York: Gordian Press, 1955. Meiklejohn, Alexander. Political Freedom: The Constitu- tional Powers Of the People. New York: Harper, 1960. Mendelson, Wallace. The Constitution and the Supreme Court. New York: Dodd, Mead and Company, 1965. 103 "" '5 10A Rice, Charles E. Freedom of Association. New York: New York University Press, 1962. Washington, N. A. Writings of Thomas Jefferson. Vol. VII. Words and Phrases. Vol. VIII-A. St. Paul, Minn.: West Publishing Co., 1950. Periodicals "Academic Freedom and Tenure in the Quest for National Security." AAUP Bulletin, XXXXII (1956), A9-107. "Academic Freedom and the Law." A6 Yale Law Journal 67 (1937), 671. Byse, Clark. "Teachers and the Fifth Amendment." AAUP Bulletin, XXVI (1955). A66-A77. Call for the Meeting for Organization of a National Association of University Professors. AAUP Bulletin, II (1916), ll. Carr, Robert K. "Academic Freedom, the American Associa- tion of University Professors, and the United States Supreme Court." AAUP Bulletin, XXXXV (1959), 5-6. 1925 Conference Statement of Academic Freedom and Tenure. AAUP Bulletin, XI (1925), 99-101. Extracts from Committee Reports and Official Addresses. AAUP Bulletin, VIII (December, 1922), 22-A6. Emerson, Thomas I. "Toward a General Theory of the First Amendment." Yale Law Journal, LXXII (1963), 882. Fairclough, H. R. "Report from Committee A." AAUP Bulletin, XV (1929), 99. Fairman, Charles. "Does the Fourteenth Amendment Incor- porate the Bill Of Rights?" Stanford Law Review, II (19A9), 5. Fellman, David. "Report of Committee A, 1963—6A." AAUP Bulletin, L (19A6), 126. . "Report Of Committee A for 1962-63." AAUP Bulletin, IL (196A), 127. . "Academic Freedom in American Law." Wisconsin Law Review (1961), 3. In. 105 Frantz, Laurent B. "The First Amendment in the Balance." Yale Law Journal, LXXI (1962), lAAl-lAA3. Fuchs, Ralph F. "Intellectual Freedom in the Educational Process." AAUP Bulletin, XXXXII (1956), A81. Karts, Kenneth L. "Legislative Facts in Constitutional Litigation." Supreme Court Review, LXXV (1960), 75-112. Kahn, Hans. "Academic Freedom in Our Time." AAUP Bulletin, XXV (1939). 183-18A. Ehfi Kirkland, Edward C. "Annual Report of Committee A." AAUP , Bulletin, XXXI (19A6), 7-8. . Machlup, Fritz. "On Some Misconceptions Concerning Aca- A demic Freedom." AAUP Bulletin, XXXXI (1955), 753. 3 Morrison, Stanley. "Does the Fourteenth Amendment In- in; corporate the Bill of Rights?" Stanford Law Review, II (19A9), 169. Murphy, William P. "Academic Freedom--An Emerging Consti- tutional Right." Law and Contemporary Problem, XXVII (Summer, 1963), AA7-A86. "Report of Committee A." AAUP Bulletin, IV (1918), 16-28. Report Of the Committee of the American Association of University Professors on Academic Freedom and Tenure. School and Society, III (1916), 109. Shannon, George Pope. "Report of Committee A for 19A6." AAUP Bulletin, XXXIII (19A7), 59-60. . "Report of Committee A for 19A7." AAUP Bulletin, ““” ' XXXIV (19A8), 119. Statement Of Principles, 19AO. AAUP Bulletin, XXVII (19Al), A0-A3. Thurstone, L. S. "Academic Freedom." AAUP Bulletin, XVI Thurstone, L. L. "The Thurstone Plan for Enforcing the Principles of Freedom and Tenure." AAUP Bulletin, XXIII (May, 1932), 361-363. Vreeland, Francis M. "Freedom of Speech During Periods Of Stress." AAUP Bulletin, XXVII (19Al), 552. 106 Wriston, Henry N. "Academic Freedom and Tenure." AAUP Bulletin, XXIV (1939), 328-329. Young, A. A. "Report of Committee A." AAUP Bulletin, II (1916), 17. Legal Cases Abrams V. United States. 2A9 U.S. 616 (1919). Adler v. Board of Education. 3A2 U.S. A85 (1952). American Communications Association v. Douds. 399 U.S. I 382 (1950). 2 Anthony v. Syracuse Universipy. 223 N.Y.S. 796 (1927). J. 'L“ . Barenblatt v. United States. 360 U.S. 109 (1959). AEAAAA v. Board of Education. 357 U.S. 399 (1958). Egggp v. Board of Public Instruction. 368 U.S. 278 (1961). DeJonge v. 933592. 299 U.S. 353 (1927). Eggplg V: United States. 3A1 U.S. A9A (1951). Elfbrandt V. Russell. 38A U.S. 11 (1966). Elfbrandt v. Boardlof Regents of the State of New York. 87 s. Ct. 675 (1967). Gibson v. Florida Legislative Committee. 372 U.S. 539 (1962). , Gitlow v. People of the State of New York. A5 U.S. Supreme Reporter 625, 630 (1925). Griswold v. State of Connecticut. 85 S. Ct. 1678 (1965). Haskett v. Washington. 29A F. Supp. 912 (1968). Jones v. Board Of Control. 131 So. 2d 713 (1961). Keyishian v. Board of Regents of the State of New York. 7 S. Ct. 675 (1967). Kay v. Board of Higher Education, Cipy of New York. 18'NYS 2d 821 (19A1). 107 Koch v. Board Of Trustees of University of Illinois. 182 NE 2nd 3A0 (1962). Konigsberg v. State Bar. 366 U.S. 36 (1960). Meyeg v. Nebraska. 262 U.S. 390 (1923). AAAQA v. Alabama. 357 U.S. AA9 (1958). AAAgg v. eggppp. 371 U.S. A15 (1962). 5939 v. United States. 81 s. Ct. 1517 (1961). Russell v. Trustees Of Purdue University. 168 N. E. 529 1929). §2§$§§ v. United States. 367 U.S. 203 (1961). Schenck v. United States. 2A9 U.S. A7 (1919). Shelton v. Tpggeg. 36A U.S. A79 (1960). Slochower v. Board Of Education. 530 U.S. 351 (1956). §ygggy v. New Hampshire. 35A U.S. 23A (1956). Valley National Board of Phoenix v. Glover. 159 p. 2d, 292*719A5). Whitney V. California. 27A U.S. 357 (1927). Wieman v. Updegraff. 355 U.S. 183 (1952). Yates v. United States. 35A U.S. 298 (1956). Zemel v. Rusk. 85 S. Ct. 1271 (1965). IIIIIIIIIII S III U5 7 4| 2 6 8 7 1 A3 0 3 9 2 4| 3 IIIIIII IIHIII