Guan Yuzhen Chen Linlin: the unlisted rights of academic freedom

Abstract: academic freedom is a concept of law, a legal right, has always been a problem.In America law, academic freedom and university teacher management as the core of academic affairs, is a creation of the Constitution by the Supreme Court not enumerated rights. Early academic freedom America attached to the contract rights, reflect a kind of internal policy of the University, the university management by liberty signed contract and give teachers in rules and regulations within the scope of.In "the first case of" academic freedom -- Sweezy -- in the case, the Supreme Court cited the First Amendment right to free speech, will enhance the constitutional protection of academic freedom is the value of a, and points out its basic connotation is to decide "who wants to teach, what to teach, how to teach, who is taught"; in the Keyishian ruling, the court further clarify the academic freedom is "special attention" of the first amendment, which are included in the constitutional rights discourse system. To the Grutter ruling, the supreme court affirmed in the field of higher education, academic freedom is an independent, not enumerated constitutional right, and may precede other constitutional rights are protected by the. Accordingly, the University Academic Affairs decision, the court must give respect within constitutional bounds; the level of respect, depending on the decision was made by the subject of what kind of, need much academic skills, ideological neutrality or not harming don't right.
Keywords: academic freedom; constitutional rights; freedom of speech; Academic Affairs
　　
One, foreword
　　
Although the academic freedom in many countries in the constitution has been declared and commitment, but the present situation is like "academic freedom and higher education institutions autonomous Lima declaration" said,On the academic freedom and higher education institutions autonomous abuses, restrictions and suppression, has become a pressing trend worrying; this phenomenon is global, has nothing to do with the specific social and political system.A source of the problem, is that the parties on the academic freedom of the different dimensions and the content of each dimension is the lack of a clear understanding of. [1] in the USA legal, academic freedom is a legal concept, a constitutional right, once is a more complex problem. Because USA while focusing on academic freedom, but not in the constitution expressly. Supporters think, academic freedom is a constitutional right of university teachers and students have, and the university is not necessarily have this freedom. Its argument is provided academic freedom is derived from the first amendment free speech, the first amendment aims to protect individual citizens against government interference, not to protect the government agents from other agents of the interference, so the government set up public university is not in the protection of the first amendment list. [2] the opposing viewpoint thinks, in the occupation autonomous tradition, the academic freedom right, is the first academic institutions, rather than teachers or students. Go farther opponents claim, academic freedom is a kind of "occupation rights (professional right)", rather than the legal rights. The constitutional right to academic freedom press a root is not exist, despite the Supreme Court Interpretation of the constitution authority in the expression of support and praise for academic freedom, but those who praise interpretation not independently become any decision, the root is just some rhetorical eulogy. [3]
The lack of regulations in the constitution under the circumstances, relevant precedents of the Supreme Court will undoubtedly become the most important legal basis for defining the legal status of academic freedom and the right content. But his critics, nearly half a century, the Supreme Court is in the process of academic freedom way obscure, vague and hesitant. The usual practice is: to continue to reiterate the importance of academic freedom, but there is no clear definition or determined from the perspective of their legal rights. [4] Supreme Court in many opinions, often cited the first amendment to the constitution was a celebration of academic freedom, but never the right of academic freedom is the legal considerations violated the First Amendment protection based on an academic freedom, to depose the government regulation. It is about "judgment in addition to exciting rhetoric, but not much substantive decision", "constitutional protection for what kind of academic freedom and the protection of the Constitution and why" such basic issues, the lack of "legal analysis". [5] however, in view of the complexity of the legal relationship of professional and academic freedom uncertainty, content in the extension on, whether it is a legal right as well as the subject of rights, the specific content and scope of application and so on, is still unresolved problem of national legal theory and legal practice, a request the court to give a comprehensive decision making is not realistic. Has not yet formed a consensus, in practice, the Supreme Court's negative and restraint, embodies a kind of Prudential judicial virtues. More importantly, the court has to a case, many a little makes a mickle attitude, small steps are the solution to the problem. But in a recent Grutter case, the Supreme Court has taken a big step towards key, a clear recognition of the status of academic freedom of constitutional rights, made a "is different from all previous academic freedom judgment: substance use proper rhetoric to clearance of academic freedom, and not to make a heated rhetoric the contents of a decision". [6] Outside the Box, jade, academic freedom becomes the Constitution did not list right of judicial review process, USA academia, the law of academic freedom to explore and define, no doubt can solve China type related problems and promoting the rule by law in higher education provides helpful.
　　
Two, occupation autonomy and contract management: the first constitutional era of academic freedom
　　
Early USA academic freedom fromSince the university autonomy tradition in Medieval England,The main content is to respect the university teachers freedom of teaching, to exclude external intervention in the University. But unlike in the UK, American University implements the unique company management system. Teachers' subject to non academic school board, they were regarded as employees rather than members of the University, the relatively low social status; the teacher to train religious clergy or legal, physician as the goal, very few people to pursue academic. [7] after the civil war, started the construction of dedicated to scientific research of the University reformers, and cultivate leading industry, social development and the talent. In nineteenth Century 70, 80 time, research university gradually on the rise, University has a fundamental change in the intellectual orientation, namely from the religious background of value pursuit of scientific paradigm, steering efforts truth search paradigm. [8] higher education structure and goals change, expand's expectations of teachers, improve teacher's status. Research and writing into the characterization of professors intelligence and achievement, they are expected to expand the knowledge frontier, use scientific methods to transform the material world and social life. But teachers still take the meager wages, and may at any time be fired. For more control over the occupation career, academic freedom has become the common voice of teachers, and as a remedial rights have been proposed. The professors academic requirements from ideological work inspection, evaluation by academic peers. [9] its purpose is from the non professional board hand, gain control of the academic evaluation.
Therefore, academic freedom has become a university teacher against non professional employer, seeking occupation autonomous ace. In 1915, American Professor Association (American Association of University Professors) formulated the "academic freedom and the declaration of principles", through the scientific views on various subjects demonstrate the legitimacy of academic freedom, namely "modern university gradually become scientific research home...... In all fields of knowledge, the first condition of progress is free to seek full, unrestricted and published results." [10]1940 years, Professor Association and the enactment of "academic freedom and long-term employment statement of principles", emphasizing academic freedom is the rights of teachers in research and teaching, and long-term employment system and academic freedom together. Professor Association launched unremitting efforts on the definition of the concept of academic freedom, and take some tough measures, such as violation of academic freedom of University from the list of "qualified" removed. The core value proposition of the view is: let a have the ability and integrity of university teachers, can from the economic and political concerns to carry out research, teaching, publishing, even small study. Professor [11] association to establish a series of academic freedom has no legal effect, but to adapt to the new requirements America society after the industrial revolution, contribute to the solution of a controversial new research university, and gradually to the vast majority of higher education institutions accepted, and became the basis for the establishment of the relevant rules and regulations.
However, in the first half of the twentieth Century, academic freedom is not a legal concept, and is regarded as an internal policy of the University, is a university administrator through Liberty signing contracts giving teachers in their rules and regulations within the scope of. In case of any dispute, the professors often basis and University concluded employment contract to protect academic freedom, the court also according to contract lawsuit to review, determine the rights and obligations of the parties of contract. In the legal principle of freedom of contract, when the University of Pennsylvania in 1906 by the teacher Nilyn criticized the government refused to him, the latter is unable to obtain any legal remedy. On the academic freedom of contract management and interpretation, the special problems of university autonomy and academic freedom of not face up to the legal profession. For example, at the The City University of New York to hire British philosopher Bertrand Russell litigation, New York's Supreme Court had to community public health, safety and ethical behavior by product, employment contract invalid decision. Accordingly, early on academic freedom issues, such as the 1894 Erie case, is through the media or pressure group intervention to be appropriately solved.
　　
Three, the first amendment to the constitution of the shadow: uncertain period of academic freedom
　　
In 1952 Adler v. Board of Education case, the Supreme Court first mentioned the "academic freedom". In 1957 [12] Sweezy v. New Hampshire case, the Supreme Court of academic freedom is important, and whether it is a protected value. Therefore, the Sweezy case is considered to be the first case of academic freedom in the true sense of the "".Because Sweezy delivered a speech at University of New Hampshire, and was the state attorney general's trial subpoena, but he refuses to survey group account problem, were convicted of contempt of court. The case of the Supreme Court decision based on the due process clause not guilty, and expounds it in contention in the case of an important value -- academic freedom.
In the opinions of the Supreme Court of American University, think of the importance of freedom is not self-evident:In doubt, the academic atmosphere of mistrust cannot flourish; teachers and students must be free to explore, study and review at any time, in order to obtain new progress and new knowledge. Otherwise the civilization will be corruption and death.Frankfurter justice in the consent judgment conclusion, but do not agree with the decision reason collateral opinion (concurring opinion) further points outThe academic "thoughts and behaviors that are presumed to be from the political authorities trial", and that "the government out of university intellectual life". [13] by citing University"Four important free -- decide whom to teach, what to teach, how to teach, who is taught", [14]Frankfurter box out the basic connotation of academic freedom. The decision will be the first academic freedom as is protected by the constitution value, and not the constitution value, limit the government behavior, which is obviously a major upgrade to the academic freedom constitution status. But the shortcomings and the progress of traditional academic freedom coexist, judicial reasoning is neither the court quoted the consensus based, also did not seek to regulate the basis of academic freedom from the constitution text, but not in the constitution value order detailed benefit or value, but only with some prose speech praise for the decision, so clearly failed effective certificate into the academic freedom is a constitutional right. [15] is a university or a teacher such basic issues for the subject of academic freedom, the court only briefly considered: free from government intervention, is the university rather than as an individual of the right of university teachers; in this case, the basis of claim for Sweezy, is the first amendment freedom of speech, and non academic freedom.
The relationship between academic freedom and the first amendment to the constitution, inKeyishian caseThe judgment has been further clearance. In the case of,Teacher Keyishian refused to sign a statement he wasn't a communist oath, but failed to get the State University of New York in the renewed contract, so the court of appeal.The Supreme Court again promised to protect academic freedom in the judgment, and points out that the freedom is the special concern of the first amendment to the constitution, and the constitution will not tolerate any law with the orthodox theory of control class. [16] from the reasoning method, the Supreme Court followed the Sweezy case demonstrates that the utilitarianism, advocating academic freedom social utility, to prove its legitimacy. The case is more than Sweezy, the Court pointed out that academic freedom is "special attention" of the first amendment, put it into the discourse of rights of the constitution. But unfortunately, the court in the analysis of the first amendment and academic freedom this "derivative rights", did not use or set up the basic rights norms of semantic rules clear, the connotation and the extension of the right of academic freedom, as in the past still serious reservations about the. Therefore, academic freedom is a truly constitutional rights, is still a legal problem be in suspense.
Sweezy and Keyishian decision after release, the academic circles and the legal theory to utilitarianism, ethics and realism analysis as the foundation, will attempt to explain the academic freedom as a fundamental right protected by the Constitution: first,A shadow of the academic freedom as the freedom of speechAlso, to find the truth, because "the pure truth from the free market of ideas"; secondly, combined with the background of social ethics American, emphasizing academic freedom exists not only in the protection of a part of people's life, but also plays a role in the more general ethics is important in social life.Academic freedom and strengthen the ethics represents the ideal of individualism, the academic freedom, not only destroys the "train run on common independent culture education", but also "an insult to the ethical individualism" ideal; [17] again after World War II, points out that the government university with a large number of funded at the same time to strengthen the University's intervention, plus the Mccarthy doctrine on the damage caused by the University, so the court shall timely by means of law, the relationship between government and university to clear. These schools to supplement interpretation by the Supreme Court's reasoning process is omitted, realize seamless docking of academic freedom and the first amendment to the constitution. "". However, the first amendment to the constitution of the legal relationship between the two is the specification of the citizens and the government, and in the field of academic freedom, University is always an other, often is the dominant party. In addition, the constitution of academic freedom for the constitutional rights of status, does not have to be attached to the first amendment to the constitution. America Ninth Amendment "the enumeration in the constitution of certain shall not be construed to deny or other rights retained by the people", the academic freedom can be obtained through this clause the constitution status.
　　
Four, as a constitutional right, the right of academic freedom: Grutter decision
　　
Constitutional right to academic freedom, in 2003Grutter caseIn the judicial confirmation.In this case, University of Michigan School of law on the basis of students in order to achieve the diversity of population for the purpose of enrollment policy, rejected a white student admission.The focus of the case is, the law school admission policy is a violation of the equal protection clause of the constitution. The Supreme Court ruled against the Grutter, the reason is the law school to corrective action (affirmative action) diversification policy based, is the embodiment of a absolute advantage position of university academic freedom, equal protection clause does not contradict the constitution.
After the court of University of Michigan admission policy of the Supreme Court judicial scrutiny, the higher education in the context of the student population, diversity is an absolute advantage, absolute advantage is also a school of law. Court precedent, stated"Considering the importance of public education and University of speech, freedom of thought, the university has always occupied a special position in the American constitutional tradition""Belongs to the University, for professional judgment affairs", "respect for the court to give a certain degree of". [18] court careful proof in student community diversity of the major interests in Education: diversity enrollment policy helps break down racial stereotypes, to promote inter ethnic understanding; and when the extensive student background has the largest possible, classroom discussion more vivid, more open, more interesting. The court also cited the results of social science research is a lot of, that diversification is helpful to improve the students' learning outcomes of students, to better train students to adapt to the changing work and social needs, to be better professionals. In view of "the interest is not only theoretically, is also true," [19] so diverse student population is conducive to the realization of the law school's educational goals, is the core task, in the protection of the constitution of the "academic freedom" range. In this case, in order to realize the absolute benefit student population diversity, law school was set up a strict, meticulous of racial difference enrollment policy. In the process of policy making is not treated unfairly, hurt as non minority applicants to ensure the individual, as a means of racial discrimination and "realize the diversity of students" enrollment policy between the target close contact. Therefore, the policy is not unconstitutional.
Grutter decision affirmed in the field of higher education, academic freedom is an independent, not enumerated constitutional right, and may precede other constitutional rights -- such as "constitutional right of equality" -- protected. [20] Supreme Court decision text is very clear: the University's academic freedom protected by the constitution, this freedom includes the use of racial discrimination in a specific range of freedom; therefore, any express prohibition University consider race as a factor in admissions policies of state laws are unconstitutional. Accordingly, all of the university core academic decision -- "who will teach, what to teach, how to teach, who is taught" -- to the non professional political control laws are violated, the constitutional protection of academic freedom; even those not directly to the University and its teachers federal, state law, if possible, the core field of invasion academic freedom of teachers and hinder the pursuit of truth, the same shall not apply. In the Grutter after the verdict, no doubt the lower court to academic freedom is a right protected by the constitution. [21] but,All rights have boundaries, the exercise of the right of academic freedom of university autonomy, rights or other constitutionally protected free conflict with teachers, students may subject, public policy may also implement and government in higher education and scientific research in the field of contradiction.So the definition of the boundary of academic freedom, especially the right boundary between academic freedom of specific types and their interaction, is the deep-seated legal issues lurking in Grutter case. But for the academic affairs specialization and complexity of vigilance and respect, the Supreme Court once again chose silence.
The lower court ruling essence, Grutter determined that a legal principle: to decide about the university academic affairs, the grasp of the legal discourse of the court must be in the "constitutional bounds to give a certain degree of respect". This principle put forward two tasks: one is how to define the scope of "" constitutional boundary, because it is used to define the academic freedom right of constitution and legal status of the scope of rights, and to guide the university autonomy, academic freedom and how students, teachers' coexistence; two is the court if the University's decision "to a certain degree of respect", so must advance judge a decision when the university is worthy of respect, and how to implement this kind of respect. [22] America lower court case show that Grutter era,The scope of protection of academic freedom right of constitution, only the ideological neutrality of academic, decision. The respect of the decision depends on the [23] court, the decision was made by the subject of what kind of, need much academic skills, as well as the decision that endangers whose rights. The premise that university academic freedom, in their own on the basis of a real academic motives, but not to impose an ideology. Accordingly, the court must define what the academic goal is composed, to supervise the legal rights, the scope of protection of the right of academic freedom stuck in the legitimate academic decisions.
　　
Five, the conclusion
　　
From the USA judicial precedent, academic freedom is the right protection is the university autonomy and academic, teaching related "core academic affairs", "who decide to teach, what to teach, how to teach, who is taught". Apart from the core academic decision, other university affairs are not within the scope of protection of the right of academic freedom. Such as the campus recruitment, employment oriented courses, research of application (especially government funded projects) and other affairs of the University, can be attributable to government regulation category. All the affairs of the university is the university autonomy ", is a misreading of" academic freedom ". In addition, as a fundamental right of the constitution the right of academic freedom, is not only a legal principle, is a collection of rights. University, teachers and students can become the subject of rights, but the significance of university autonomy organization of academic freedom, should not squeeze the teachers or students to academic freedom. Students and teachers in university affairs in the right or freedom, some can be based on the law of contract, contract of employment, affirmative action, or the right to free speech to the referee, others on the basis of the Constitution not listed for protection of academic freedom. These three kinds of rights subject to mutual benefit and coexistence, is a more complex problem, need to be weighed with case court judgment.
Used
[1] Xie Haiding: "as a legal right, the right of academic freedom", "China law" in 2005 sixth, sixteenth, 17 pages.
[2] See Matthew W. Finkin, On "Institutional" Academic Freedom, 61 TEX. L. REV. 1983, P. 817, 818
[3] J. Peter Byrne, The Threat to Constitutional Academic Freedom, 31 J. C. & U. L. 2004, P. 79
[4] Erica Goldberg & Kelly Sarabyn, Measuring A "Degree of Deference": Institutional Academic Freedom in A Post Grutter World, 51 Santa Clara L. Rev. 2011, P. 219
[5] J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment", 99 Yale L. J. 1989-1990, P. 253
[6] J. Peter Byrne, The Threat to Constitutional Academic Freedom, 31 J. C. & U. L. 2004, P. 118
[7] R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States, Columbia Univ. Press 465 (1955)
[8] Id, P78 113
The requirements of the [9] because of science need to be legitimate: any theory of error can only be trained Cha Jue; as long as the help seeking the truth, the error should be tolerated. In a moment of understanding is not perfect, the error can be found by hypothesis testing against the fact and. Assuming the experiment a new hypothesis, improve knowledge, will lead us closer to perfect, to objective truth. Dewey, Academic Freedom, 23 EDUC. REV. 1 (1902)
[10] R. Hofstadter & W. Smith EDs. American Higher Education: A Documentary History, University of Chicago (Press, 1961)
[11] Walter P. Metzger, The 1940 Statement of Principles on Academic Freedom and Tenure, 53 LAW & CONTEMP. PROBS. 3 (1990)
[12] Sweezy v. New Hampshire, 354 U. S. 234 (1957)
[13] Sweezy, 354 U.S. at 266, 262
[14] Id, at 263
[15] J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment", 99 YALE L. J. 251 (1989)
[16] Id, at 603
[17] [beauty] Ronald Dworkin: "law of freedom -- on the American constitution interpretation of morality", translated by Liu Lijun, Shanghai people's publishing house, 2001, pp. 352-361.
[18] Grutter, 539 U.S., 330 at 329
[19] Grutter, 539 U.S., 330 at 329
[20], however, some scholars tend to Grutter decision as a clear decision on the constitutionality "corrective action". For example, Robert C. Post, The Supreme Court, 2002 Term Foreword, 117HARV. L. REV., 4 (2002)
[21] See e. g. Flint v. Dennison F. Supp. 2D 1215, 361, 1221 (D. Mont. 2005); Nieman v. Yale Univ. A. 2D 1165, 851, 1172 (Conn. 2005)
[22] Erica Goldberg & Kelly Sarabyn, Measuring A "Degree of Deference": Institutional Academic Freedom in A Post Grutter World, 51 Santa Clara L. Rev. 2011, P. 220
In 2006 [23] Rumsfeld v. FAIR case, the court campus employment, recruitment affairs does not belong to the "core academic affairs", because there is no related to the classroom discussion, seek truth, freedom of learning and other core academic affairs. See Rumsfeld v. FAIR, 126 S. Ct. 1297 (2006). In recent years, USA lower court has been whether related to "core academic affairs" as the standard, the distinction between what is the academic freedom is the right protection of university decision-making, which belongs to the category of government regulation. See George Washington Univ. v. District of Columbia, 318 F. 3D 203 (D. C. Cir. 2002), Tenn. Div. of the United Daughtes of the Confederacy v. Vanderbilt Univ., 174, S.W. 3D 98, 118 - 19 (Tenn. Ct. App. 2005)
　　
Guan Yuzhen, Ph. D. Zhejiang University Guanghua law school; Chen Linlin, doctor, Professor, Zhejiang University law and precedent research institute.
Source: "Zhejiang social science" in 2012 fourth.