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Higher Education Law: The Faculty
Reviewed by Neil W. Hamilton
Steven G. Poskanzer.
Baltimore: Johns Hopkins University Press, 2002
For thirty-five years, the legal profession has required new entrants to pass a course and a section of the bar examination on the law governing the profession. Meanwhile, the academic profession has done little in this direction, assuming instead that osmosis will occur between senior mentors and their protégés to socialize and inform the protégés about these issues. The result is widespread ignorance and misunderstanding, even among senior academic administrators, about the law governing the profession.
Higher Education Law: The Faculty addresses this ignorance, describing clearly, for both lawyers and non-lawyers, the central legal principles governing the activities of faculty and the routine academic affairs of colleges and universities. The major sections of the book cover the law relating to faculty as scholars, teachers, institutional citizens, public citizens, and employees. This book achieves the preventive law goals both of assisting faculty and administrators to avoid legal problems and of helping them to understand when they need legal counsel.
Three chapters merit particular attention. The initial chapter on the lay of the land provides an understandable and much-needed review of the major sources of law governing the academic profession: the U.S. Constitution, federal statutes, federal agency regulations, and case law from federal and state courts. This chapter clears up a misconception widely held in academia by explaining that the First Amendment of the Constitution applies only to government, not private, entities. Thus it protects freedom of speech only for professors at public colleges and universities, not those at private institutions. In contrast, professors at both private and public institutions enjoy the protection of contract law, which includes the contractual provisions set forth in their letters of appointment, notices of salary increases, collective bargaining agreements and faculty handbooks where those exist, and official statements by trustees or senior administrators, as well as consistent patterns of administrative conduct.
The chapter on scholarship provides an excellent overview of the law regarding both the ownership and exploitation of faculty work, including copyrights and patents and the dissemination of and access to scholarly work. The chapter on faculty as employees includes a lengthy overview of nondiscrimination law that clearly explains a complex and layered area of law. This section should, in particular, be mandatory reading for all graduate students, professors, and administrators.
Although Poskanzer identifies academic freedom as a recurrent theme throughout the book, and notes that "the core academic business" is "largely entrusted to faculty," the book's chief weakness is that it provides little analysis of the integrated relationships among the mission to create knowledge (which is unique to the university and not present in secondary education), the employment conditions of free discourse among competent professionals necessary to create knowledge (known as academic freedom), peer review as the linchpin of academic freedom, and both shared governance and tenure as the negotiated mechanics of peer review so that the faculty can exercise professional judgment to protect the creation of competent knowledge. Poskanzer recognizes that academic tradition came before the common law's development of academic freedom, but the book provides little analysis or clarity concerning academic tradition, noting principally that "academic freedom, which is loaded with different meanings and encrusted with tradition, began as a non-legal, non-American, and non-constitutional notion."
This omission is unfortunate, since common law in this area, like common law generally, developed in response to changes in the knowledge and needs of society. The academic profession in the United States worked for more than seventy years to educate society about the value of academic freedom, the university's mission to create knowledge, and the importance of peer review to that mission before common-law judges first incorporated the term "academic freedom" into opinions in the 1940s. Modern research universities were created immediately after the Civil War, the disciplines formed in the late 1800s, and the AAUP was organized in 1915 and adopted its Statement of Principles on Academic Freedom and Tenure in 1940, but the term "academic freedom" did not appear in a U.S. Supreme Court opinion until Justice Douglas's dissent in Adler v. Board of Education in 1952.
The absence of a clear framework for the relationships among the university's mission, academic freedom, peer review, and shared governance and tenure leads to some confusion in the book's analysis. For example, Poskanzer concludes that a Texas A&M chemistry professor whose departmental colleagues called for his resignation and for an investigation after he pursued experiments seeking to turn mercury into gold "probably did have the right to engage in such research." Under the tradition of academic freedom, if faculty peers, after appropriate due process, find research to be incompetent, the employing university can discipline the professor. A court would defer to the judgment of peers. Similarly, Poskanzer concludes that in conference settings, academic freedom should protect a faculty member against the judgments of administrators and faculty peers at the faculty member's home institutions. Academic tradition, however, leads to the opposite conclusion. Again, if departmental peers, after fair hearing, exercise academic judgment and find that research or a conference presentation was incompetent or unethical, the research or presentation is not protected by academic freedom. A court should defer to peer academic judgment in such cases. Later, Poskanzer does acknowledge the central importance of peer review, noting that "frequently the best means of changing a wayward professor's behavior-and the most effective sanction that can be imposed on him or her-is not a formal institutional response . . . but rather is peer pressure from faculty colleagues."
Poskanzer also points out the negative side of the professoriate's increased reliance upon the law and the courts to protect its rights: the loss of professors' control over the profession. The peer review system, while flawed, is still the best of the available institutional structures to create conditions of free discourse among competent academic professionals who serve the mission of the university. The future of academia rests primarily not on the courts and the law, but on faculty at each college and university, and their willingness both to defend academic freedom and to hold each professor accountable for meeting minimum standards of professional conduct while fostering the highest ideals of the profession.
Neil Hamilton is professor of law at the University of St. Thomas and the author of Zealotry and Academic Freedom and Academic Ethics: Problems and Materials on Professional Conduct and Shared Governance.
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