A Contract Theory of Academic Freedom

Academic freedom is central to the core role of professors in a free society. Yet, current First Amendment protections exist to protect academic institutions, not the academics themselves. For example, in Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), six professors employed by various public colleges and universities in Virginia challenged a law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors claimed, in part, that such a restriction was in violation of their First Amendment academic freedom rights to conduct scholarly research. The Fourth Circuit upheld the law and noted that “to the extent the Constitution recognizes any right of ‘academic freedom’ above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors, and is not violated by the terms of the act.” In other words, this particular court held that academic freedom protects the institution as a whole, but not the individual professor. When other courts have decided to protect various scholarly activities through First Amendment principles, their analysis has generally been rooted in public employee free speech analysis and has not taken into account the unique context of American higher education. In this article, I argue that the dominant constitutional analysis of academic freedom is insufficient to protect the full range of academic freedom interests that have emerged over time. Specifically, constitutionally based academic freedom is unduly limited by: 1) the state action doctrine; 2) the constraints of public employee free speech principles; and 3) the judicial interpretations that grant this freedom to universities only, leaving professors without this protection when their interests collide with their universities. Thus, constitutionally based academic freedom is inadequate to preserve the free exchange of ideas that universities are supposed to epitomize. As an alternative to an exclusively First Amendment foundation for this freedom, I argue for a contract law-based conception specifically for professors. Contract law allows courts to protect the rights of professors at both public and private universities. It also allows for the recognition of professional norms and academic custom in interpreting the rights and duties of professors and their universities. Finally, contract law also allows courts to structure remedies that take into account the specific campus contexts that give rise to various disputes. Therefore, in order to create more consistency in the law and an alignment between institutional and professorial protections at both public and private universities, I argue that while constitutional law is still the proper mechanism for defending institutional rights from government interference, contract law should be the primary mechanism for protecting professorial academic freedom. While professors at state institutions would have additional First Amendment protections against their employers, for reasons I detail in this article, I contend that these protections are insufficient. Thus, developing a rich body of contract law on this subject would greatly enhance professorial academic freedom across the country. This article proceeds in three parts. Part 1 describes the evolution of judicial conceptions of academic freedom. Part 2 then analyzes the limitations of constitutionally based academic freedom to protect professors in engaging in their scholarly work. Given these constraints, Part 3 concludes with an exploration of contract law as a better foundation for professorial academic freedom.