Academic Freedom and Civil Liberties
Beginning in 1961 at Indiana University, I was active in the AAUP efforts to protect academic freedom for professors and for their students. I served on the national committee and as president of the University of Michigan chapter. I also served on the board of the Michigan CLU, as chair of the university’s Civil Liberties Board, and as chair of committees in the ABA Section on Individual Rights and the Section on Legal Education. In 1970, I served as an AAUP investigator of academic freedom at the University of Mississippi. As chair of the Accreditation Committee and as a member of the Executive Committee of the Association of American Law Schools in 1984-1986, I was an outspoken advocate for self-restraint on the part of accrediting organizations tempted to make decisions in my view better left to governing faculties. Not many of my colleagues saw academic self-government as an academic freedom issue, but I did.
In later years, it has seemed to me that the Supreme Court has gone over the edge in thinking about the First Amendment. It seemed that Justice Brennan knew no bounds. As a result, our laws governing political campaigning are distressingly bad. For details, see Our Imperial First Amendment. Most recently I have reflected on the rights if any of teachers, parents, and school board members to reject the sound scientific teaching of Darwin. At the same time that I am concerned with an overbearing First Amendment jurisprudence, anyone today must perceive that the "War" on Terror, especially as conducted by the present Department of Justice, is a grave threat to liberties we cherish. I have tried to counsel caution. Fearing Fear Itself. Of course precautions are necessary, but the terminology of war, as in the war on drugs, is too often an excuse for dispensing with judgment about consequences.
My published writings on academic freedom and accreditation are:
The Many Mansions of a University, 17 Am. J. Comp. Law 331 (1969)
Academic Freedom at the University of Mississippi, 56 AAUP Bulletin 75 (1970) (with Adams)
Statement on Student Rights and Responsibilities, 1 J. Human Rights 140 (1970) (with others) republished: Revista de Derechos Humanos (1971)
Civilizing University Discipline, 69 Mich. L. Rev. 393 (1971)
The Limits of University Sanctions in Law and Discipline on Campus: 1971 (Inst. Cont. Leg. Ed.)
The Dangers of A Graduate School Model, 35 J.Leg.Ed. 11 (1986)
Freedom and Community in the Academy, 66 Texas L. Rev. 1577 (1988)
The Boalt Affair, 41 J. Leg. Ed. 263 (1992)
Remembering Jefferson, 2 William & Mary Bill of Rights Journal 455 (1993)
Our Imperial First Amendment, 34 U. Richmond L. Rev. 1167 (2000) [link to]
Fearing Fear Itself, 5 Green Bag 2d 375 (Summer 2002) [link to]
The Right to Be Wrong: Darwin in Law, Politics and School (forthcoming 2008)
In addition, I have on numerous occasions counseled and represented in court clients whose academic freedoms were threatened. Those services were always provided pro bono publico. Brief accounts are recorded in Clients I Remember.
During my political campaign in 2004, I was of course confronted with the issue of gay marriage. I could draw on a letter to the editor that I published in The Economist five years earlier. Its substance was a preference for separating church and state, leaving the state to enforce contracts and allowing the church to control sacraments. The constitutional amendment proposed by the Bush Administration is in my view a cheap shot at an issue that should not be allowed to divide us. I had several heartening conversations along these lines with fundamentalist clergymen encountered on the campaign trail.
Similarly, I can express unqualified support for a woman’s right to choose, while regretting that her right should be expressed as a principle of natural law that is deeply offensive to those holding religious beliefs to the contrary. Again, conversations with persons holding such beliefs confirm my impression that the Right to Life Movement would not have arisen as a passionate cause had the issue been left to the state legislatures where it should have been resolved.
I was also confronted by the gun and gun control groups. I explained that I do not own a gun and do now want to live around those who do. But I have relatives and friends who could not live without weapons. Out of respect for their feelings, I support only those gun control laws advanced by those responsible for law enforcement. As these views signal, I am a civil libertarian who strives to respect the contrary opinions of fellow citizens.