Freedom and Tenure in the Academy

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Questions of academic freedom--from hate speech to the tenure structure—continue to be of great urgency and perennial debate in American higher education. Originally published as a special issue of Law and Contemporary Problems (Summer 1990), this volume draws together leading scholars of law, philosophy, and higher education to offer a fresh assessment of the founding principles of academic freedom and to define this crucial topic for the 1990s.
The original 1940 Statement of Principles on Academic Freedom and Tenure, which has been influential in determining institutional practices for the last half century, has required continual redefinition since its initial declaration. The volume begins with two overview articles: the most complete examination of the 1940 Statement ever provided (shedding light on some of its most troublesome clauses) and a historical review of the extent to which academic freedom has been accepted into domestic constitutional law. Subsequent articles address a range of issues related to academic freedom: the relationship between tenure and academic freedom; tenure and labor law; ideology and faculty selection; freedom of expression and the arts on campus; the boundaries defining hate speech and offensive expression; the clash between institutional and individual claims of academic freedom; and the practices of religious colleges in the United States.

Contributors. Ralph S. Brown, Matthew W. Finkin, Jordan E. Kurland, Michael W. McConnell, Walter P. Metzger, Robert M. O'Neil, David M. Rabban, Rodney A, Smolla, Janet Sinder, Judith Jarvis Thomson, William W. Van Alstyne

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Product Details

  • ISBN-13: 9780822313335
  • Publisher: Duke University Press Books
  • Publication date: 2/28/1993
  • Pages: 443
  • Lexile: 1730L (what's this?)
  • Product dimensions: 7.18 (w) x 10.32 (h) x 1.52 (d)

Meet the Author

William W. Van Alstyne is William and Thomas Perkins Professor of Law at Duke University Law School. He is the author of Interpretations of the First Amendment (Duke).

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Freedom and Tenure in the Academy

By William W. Van Alstyne

Duke University Press

Copyright © 1993 Law and Contemporary Problems
All rights reserved.
ISBN: 978-0-8223-9680-2





In the field of American higher education, prescriptive dicta concerning academic conduct seldom exhibit much staying power. Some are meant to be ephemeral, to answer a transient public criticism with an immediately placating response. Some are designed for longer duty but are quickly reduced by the swift pace of events to a remnant of a changing geist and then to a relic of a forgotten past. Especially short is the life expectancy of pronouncements on the proper scope of academic freedom and the proper terms of employment of faculty personnel. On such subjects, the collective expressions of academic groups, especially if they seek improvement on a global scale, seem to pass from birth to eternal rest at the speed with which American foundations finance academic conferences with similar agendas or one edition of the Chronicle of Higher Education is followed by publication of the next.

One of the arresting features of the 1940 Statement of Principles on Academic Freedom and Tenure is its exceptional durability. Compared with the high infant mortality rate of its species, its ability to stay alive for as long as fifty years stacks up as a Methuselah accomplishment. That it stayed alive during the last fifty years makes its longevity all the more remarkable. Born to an academic world that was relatively small, self-contained, and stable, it came of age in a world that had grown immense, delocalized, and volatile. Nevertheless, except for the reinterpretation in 1970 of certain illegible or outmoded passages, it has managed without amendment to take these transforming years in stride. It has weathered any number of roller coaster swings: the rise and fall of McCarthyism, the flow and ebb of student riotousness, and the feasts and anticipated famines of college student enrollments. It has survived the quickening of academic trends that had been set in motion prior to 1940, such as the steady decline in the share of material and human resources going to the private sector of American higher education and the rise in the public sector of multicampus universities under statewide systems of control; it has survived the initiation and acceleration of trends that had hardly been sighted before 1940, such as the spread of faculty unionism and the rise of the federal government as a major academic rule-giver and financier. If it deserved no other praise, the 1940 Statement would merit admiration for its hardiness in the face of incessant, often rapid, sometimes convulsive, change.

But it is not on this ground alone that we who are academics find it praiseworthy; were we inclined to honor mere persistence, no matter how marginal or vestigial, we would pay homage to the vermiform appendix. As it happened, this holdover from another era, far from paying for the gift of life with loss of function, has added to its significance as it aged. During the first two decades of its existence, it secured the endorsement of no more than a handful of learned societies and academic administrative associations. During the 1960s, it gained the backing of as many as sixty-five such legitimizing bodies; during the 1970s, when stock-taking on academic freedom and, especially, academic tenure came into vogue, it suffered but one organizational defection and picked up thirty-five new subscribers; during the 1980s and early 1990s, as though to demonstrate that its charms were ageless, it added thirty-four new endorsers to the list. Moreover, as time wore on, more and more colleges and universities (they have not been counted but they are surely numerous) saw fit to incorporate bits and pieces of it into their regulations, or by reference or quotation to embrace it whole. In the field of law, it seems not to have had much of an impact until the 1970s, when a spate of contested academic discharges on grounds of financial exigency led lawyers and judges to use it as an authoritative guide to academic usage on that subject; thereafter, it would be paid the compliment of citation when the courts sought to explicate other terms of faculty employment contracts. Only with respect to professional self-regulation may it be said that the 1940 Statement did not put on weightiness late in life, and this is because, to the American Association of University Professors ("AAUP"), the chief nonlegal monitor of academic freedom and tenure in this country and the co-author and primary user of this document, it was of signal importance from the very start.

Even its celebrants will admit that the 1940 Statement has not been a hit in all academic quarters. A roll call of its endorsers would disclose the conspicuous absence of the American Council on Education, the Association of American Universities, and several other prominent members of the academic administrative establishment. In institutions where the reflexive cautiousness of the house attorney is allowed full sway, allusions to the 1940 Statement in bylaws and handbooks may be accompanied by a boilerplate reserve clause disclaiming any legal obligation to adhere to some or any of its terms. And in institutions, highly visible but still quite few, where universal limited-term appointments are the rule, the 1940 Statement has obviously been ignored or recanted. But these evidences of standoffishness or opposition are not surprising: one does not expect everyone in this fractured and diverse domain to give unreserved consent to anything. What is surprising is that support for the 1940 Statement cuts across so many internal divisions. These include divisions between administrators and professors, first and foremost; divisions between public and private, church-connected and independent, teaching-oriented and research-oriented institutions; and finally, divisions between the specialist profession of the "discipline" and the ecumenical profession of the "faculty"—the two academic professions that both liberate their overlapping memberships by sanctioning dual loyalties and oppress them by generating counterpulls. When and if the time comes to write the funeral address for the 1940 Statement, the fair memorialist will stress, not that it went just so far, but that it bridged so much.


All in all, the fifty-year record of the 1940 Statement gives us abundant cause to salute it for its vitality—a virtue greater than mere endurance—and to pay tribute to its growing usefulness—a rare accompaniment to advancing age. But what is this thing we so proudly hail? To what works, seemingly unrelated, does it have a cognate connection; from what works, superficially alike, does it really stand apart? At first glance, an easy answer to the question of identification, which always shades into a question of classification, would seem to be ours for the asking. Ordinarily, objects that are hard to categorize are also hard to utilize and hence are unlikely to be roundly praised. In this case, however, the generic identity of a much-used object has proved elusive. Like Elsa plighting her troth to the cryptic Lohengrin, American academics and others have embraced the 1940 Statement without knowing its family name.

On this score, those who know it best and love it most—the leaders of the AAUP—may offer limited enlightenment. Around a decade ago, Ralph S. Brown and Matthew W. Finkin, veteran members of the AAUP's national Committee on Academic Freedom and Tenure, widely known as Committee A, described the 1940 Statement as the "Bible" and "Constitution" of their organization and, by extension, of the entire American academic profession. These levelheaded law professors were not descending into flights of utter fancy; some broad affinities do exist between this creation of their microcosm and those two world-historic masterpieces. Like the Book of Books, like the federal Constitution, the 1940 Statement does satisfy a hunger for standards of goodness and justice that are less fickle than those favored by contemporary opinion, more universal than those available to local wisdom, and more disinterested than those promoted by partisans in fighting dress. In addition, these analogies help to bring out qualities in the work that might be missed in a casual perusal of it. Likening the 1940 script to Holy Scripture calls attention to the aura of sacrosanctness it has acquired within the AAUP over the years. These are secular precincts; nevertheless, when it performs its work of the guardian variety, Committee A incants the words and phrases of the 1940 Statement with a reverence usually reserved for the hymning of a doxology, and the AAUP Washington staff ponders its every word with an exegetical skill that invites comparison with that of gospel hermeneuts and Talmudic scholars. In the same sense, there is something to be said for likening the handiwork of 1940 to the magnum opus of 1789. The comparison underscores the symbiosis between rules and cases; in both instances, the norms embodied in a governing text help tell rights from wrongs in specific controversies, while the clarifying factuality of specific controversies refreshes the normative commands of the governing text. And this comparison may highlight aspects of the 1940 Statement that would otherwise go unremarked, such as its sectional structure, its enumerated subparts, its extreme succinctness, and the fact that its words and phrases have but one definitive interpreter.

But no one seriously supposes that these flamboyant figures of speech can put the "what-is-it?" question to rest. Obviously, it would strain comparison to the snapping point to imply that there was anything Biblical about the literary style of the 1940 Statement: anyone who has read the dry, spare prose of this two-page document (five pages counting footnotes and interpretive commentary) does not have to be told that it fails to capture the sublimity of the Book of Genesis or the lyricism of the Book of Psalms. Given their way with words, the authors of this document, had they undertaken to rewrite the Pentateuch, would probably have called it the 1200 B.C. Statement on Divinized Administrative Policy Affecting Certain Classes of Israelite Personnel! Here, perhaps, hyperbole is too blatant to be misleading. But in the analogy between the 1940 Statement and the Constitution, the exaggeration is sufficiently muted to foster a false impression. Brown and Finkin sought to convince the courts that the contractual obligations of the institutional subscribers to the 1940 Statement were defined by the AAUP's later interpretation of its elliptical language, especially its one-sentence reference to terminations of faculty employment for financial reasons. To drive home the point that the original verbiage should be read in the light of the AAUP's subsequent constructions, they hit on a metaphor they were sure every judge would appreciate. "In its form and language," they and their confreres wrote in an AAUP amicus brief, "the 1940 Statement resembles a constitution. Like other 'constitutions', [it] has generated 'legislation'—supplementalstatements and recommended institutional regulations—and 'judicial' interpretations—reports of investigations into cases involving potential departures [which] supply a gloss that helps define its meaning."

Judges, as it turned out, were not all that appreciative of this kind of artful reasoning by analogy. In the immediate case, the court ruled that the AAUP's version of the 1940 Statement lacked legal effect because it was formulated after the execution of the faculty employment contract referring to that document; in other cases, judicial resistance to the AAUP's approach centered on the status differential between a widely endorsed professional statement and a unilateral reading of it by one of its authors. Apparently, no one took exception to the forensic use of the 1940 Statement as a violation of its original intent—yet this, to the historian, if not the lawyer, is a crucial point. Those who wrote the 1940 Statement put their words to paper long before academic freedom had entered the protective folds of the first amendment and some time before academic tenure had acquired strong advocates on the bench or many statehouse friends. Their animating assumption was that the defense of these professional goods would have to lie outside the law, in the perfection of the policies and practices of institutions of higher learning. Their aim was to elevate academic conduct to a high uniform standard; their means—an inventory of "do's" and "don'ts"—reflected their belief that, since the law allows academic institutions to be run like so many extraterritorial enclaves imposing rules of their own devising on the native population, the only way to achieve that elevation was through moral, not legal, prodding. That the words they concocted for that purpose might be used to affect the outcome of courtroom battles seems to have been furthest from their minds. This inference can be drawn from the authors' failure to consider the legal implications of their language in their writing conferences, from the fact that very few of the conferees had legal training, and from the unlawyerly frequency with which undefined and vague terms were preferred for the flexibility they afforded to words that were well defined and clear. In time, the courts would become more accommodating to the concerns of academic employees, and the 1940 Statement, as indicated, would become a litigatory resource. But, as a rule, the original function of an object, and not its later adaptation, is better able to tell us what it is. Instructed only by the AAUP's gifted metaphorists, one would hardly suspect that the 1940 Statement was put on earth not to reinforce legal claims, but to provide a feasible substitute for them.

If we cannot rely with complete confidence on the closest friends of the 1940 Statement to define it, may we rely on the work itself to spill the beans? Undoubtedly more can be learned from a scanning of the text than from insightful but extravagant analogizing. But the text does not speak for itself, as one soon discovers when one looks in its body for confirmation of the promise of its title. The authors of this document did not call it a "statement on academic freedom and tenure"; they called it a "statement of principles on academic freedom and tenure." The use of this intermediating word was not a slip of the drafting pen. One group of participants, hoping to fashion a document that would enscribe convictions rather than hard and fast regulations, and that would invite trustee approval rather than adoption, thought the insertion of a nicely general and uncoercive word like "principles" would do the trick; the other group, with quite opposite intentions but also fearful that many trustees would resist anything that smacked of central code-writing, went along. "Principles," which is to say, fundamental credenda, not practical rules, are what the 1940 Statement tells us it is about.

Up to a point, the document lives up to its own billing. Certainly, its preamble, like most preambles, sticks to a high level of abstraction. Its four annunciatory declarations—that institutions of higher education exist not for themselves but for the "common good"; that academic freedom is "essential" to that purpose; that academic tenure is "indispensable" to academic freedom no less than to academic job security; and that "academic freedom carries with it duties correlative with rights"—are presented not as policies to be enacted but as articles of faith to be professed. And most of the next section on "academic freedom" is also filled with pithy propositions of lofty sweep. Here the authors recorded their belief that academics were entitled to three kinds of freedom, each corresponding to a major function or activity: "freedom in research and in the publication of results"; "freedom in the classroom in discussing (the teacher's) subject"; and "freedom from institutional censorship" when the teacher "speaks or writes as a citizen." Reiterated in Committee A reports, institutional regulations and legal briefs, these three axiomatic dedications to principle would become extremely familiar to American academics over the years. This is not to say that they ever became altogether platitudinous or even entirely noncontroversial. If it is now almost universally agreed that academic freedom is essential to a university, the one grace the institution may not lose without losing everything, it is far from obvious to everyone that academic tenure is academic freedom's needed handservant. And though most who do these conceptual mappings divide academic freedom, like Caesar's Gaul, into three main parts, some insist that good logic would divide it into only two (freedom to teach and freedom to do research, arguably the only professionally relevant freedoms, with citizen or extramural freedom ceded to the large neighboring country of ordinary civil liberties), and a few would divide it into four (the three that go with the faculty's roles plus one attached to the students' status) or even five (all of the four individual academic freedoms, along with institutional academic freedom, also known as institutional autonomy). It would by no means be true to say that, where the 1940 Statement is couched in the rhetoric of principles, it gives itself over to trite deliverances or empty gab.


Excerpted from Freedom and Tenure in the Academy by William W. Van Alstyne. Copyright © 1993 Law and Contemporary Problems. Excerpted by permission of Duke University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Introduction / William W. Van Alstyne vii

The 1940 Statement of Principles on Academic Freedom and Tenure / Walter P. Metzger 3

Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review / William W. Van Alstyne 79

Ideology and Faculty Selection / Judith Jarvis Thomson 155

Artistic Freedom and Academic Freedom / Robert M. O'Neil 177

Academic Freedom, Hate Speech, and the Idea of a University / Rodney A. Smolla 195

A Functional Analysis of "Individual" and "Institutional" Academic Freedom Under the First Amendment / David M. Rabban 227

Academic Freedom in Religious Colleges and Universities / Michael W. McConnell 303

Academic Tenure and Academic Freedom / Ralph S. Brown and Jordan E. Kurland 325

"A Higher Order of Liberty in the Workplace": Academic Freedom and Tenure in the Vortex of Employment Practices of the Law / matthew W. Finkin 357

Academic Freedom: A Bibliography / Janet Sinder 381

Appendix A. General Report on the Committee on Academic Freedom and Academic Tenure (1915) 393

Appendix B. 1940 Statement of Principles on Academic Freedom and Tenure 407

Appendix C. Joint Statement on Rights and Freedoms of Students (1967) 411

Academic Freedom and Church-Related Higher Education: A Reply to Professor McConnell / Judith Jarvis Thomson and Matthew W. Finkin 419

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