Table Of Content

THE JOURNAL OF COLLEGE AND UNIVERSITY LAW FOCUS ON ACADEMIC FREEDOM ARTICLES New Restrictions on Academic Free Speech: Jeffries v. Harleston II Richard H. Hiers At Work in the Marketplace of Ideas: Academic Freedom, The First Amendment, and Jeffries v. Harleston Stephen A. Newman Adequate Cause for Dismissal: The Missing Element in Academic Freedom Brian G. Brooks BOOK REVIEW Deconstructing Academic Freedom Gary Pavela PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 22 FALL 1995 NUMBER 2 NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS The National Association of College and University Attorneys (NACUA), established in 1961, is a nonprofit organization serving the needs of attorneys representing institutions of higher education. NACUA now serves nearly 2,500 attorneys who represent some 1,300 campuses (about 660 institutions). The Association’s purpose is to improve the quality of legal assistance to colleges and universities by educating attorneys and administrators on legal issues in higher education. NACUA accomplishes this goal through its publications, conferences, and workshops. NACUA also operates a clearinghouse for references through which attorneys share knowledge and work products on current legal problems. With its headquarters in Washington, D.C., NACUA monitors govern- mental developments having significant legal implications for its member institutions, coordinates the exchange of information concerning all aspects of law affecting higher education, and cooperates with other higher education associations to provide general legal information and assistance. Accredited institutions of higher education in the United States and Canada are the primary constituents of NACUA. Each member institution may be represented by several attorneys, any of whom may attend NACUA meetings, perform work on committees, and serve on the Board of Directors. Approximately one-half of NACUA member institutions are private, nonprofit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $50 million per year. Collectively, these institutions enroll approximately 650,000 students. The remaining member institutions, whose budgets range up to $4 billion per year, collectively enroll more than six million students. NACUA 1995-96 Board of Directors President Joanne Blauer Cornell University Michael C. Weston Northwestern University Eileen K. Jennings Central Michigan University David R. Scott Rutgers, The State University President-Elect Barbara L. Shiels University of Minnesota Paul J. Ward Arizona University System 1994-97 First Vice President Kathleen P. Bruvold University of Cincinnati S. Andrew Schaffer New York University Flora B. Devine Board of Regents of the University System of Georgia Second Vice President Mary Ann Connell University of Mississippi John E. Hart University of Dayton William D. Stempel Yale University Secretary Genevieve Graffeo Stubbs Thomas J. Flygare, Texas A&M University System University System of New Hampshire, New Hampshire College, New Hampshire 1995-98 College and University Council Robert F. Curran, S.J. University of San Francisco Treasurer Nancy S. Footer Byron H. Higgins University of Illinois Bowling Green State University Christine Helwick California State University Immediate Past Presidents Mary E. Kennard American University Lee B. Liggett University of Houston System Benjamin E. Rawlins Members at Large University of North Carolina 1993-96 General Administration Adrian Arima Stanford University NOTRE DAME LAW SCHOOL Notre Dame Law School, the oldest Roman Catholic law school in the United States, was founded in 1869 as the nation’s third law school. The Notre Dame program educates men and women to become lawyers of ex- traordinary professional competence who possess a partisanship for justice, an ability to respond to human need, and a compassion for their clients and colleagues. Notre Dame Law School equips its students to practice law in every state and in several foreign nations. The school raises and explores the moral and religious questions presented by the law. The learning program is geared to skill and service. Thus, the school is committed to small classes, especially in the second and third years, and emphasizes student participation. In order to further its goal of creating lawyers who are both compe- tent and compassionate, Notre Dame Law School is relatively small. The Admissions Committee makes its decisions based on a concept of the ‘‘whole person.’’ The Law School offers several joint degree programs, including M.B.A./J.D. and M.Div./J.D. Notre Dame Law School is the only law school in the United States that offers study abroad for credit on both a summer and year-round basis. Instruction is given in Notre Dame’s own London Law Centre under both American and English professors. Notre Dame Law School serves as the headquarters for The Journal of College and University Law. The Center for Civil and Human Rights, the Institute for International Peace Studies, the National Institute for Trial Advocacy and the Thomas J. White Center on Law and Government all enrich the Notre Dame Law School experience. The University of Notre Dame The Notre Dame Law School Officers of Administration Officers of Administration President Dean Rev. Edward A. Malloy, C.S.C., Ph.D. David T. Link Provost Associate Dean Timothy O’Meara, Ph.D. Walter F. Pratt, Jr. Executive Vice President Director of the Law Library Rev. F. William Beauchamp, C.S.C. and Associate Dean M.Div., J.D. Roger F. Jacobs, M.A.L.S., J.D. Associate Provost aS Vice President and Roger A. Schmitz, Ph.D. ; Assistant Dean Patricia C. Leaonard THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL BOARD Barbara A. Lee, Chair Associate Provost for Academic Affairs Rutgers, The State University of New Jersey Vence L. Bonham Thomas P. Hustoles Senior Advisor to the Dean Miller, Canfield, Paddock Michigan State University & Stone, P.L.C. Don R. Byrnes David T. Link Vice President for Student Advisory Member, Management Ex Officio Houston Baptist University Dean and Professor of Law Notre Dame Law School Fernand N. Dutile Advisory Member Constance Neary Associate Dean and Claims Counsel Professor of Law United Educators Ins. Notre Dame Law School Risk Retention Group, Inc Sally S. Harwood John H. Robinson Associate General Counsel Advisory Member Michigan State University Professor of Law Richard Hasselbach Notre Dame Law School Office of Legal Counsel William D. Stempel Michigan State University De «itG eneral Counsel Yale University William P. Hoye Advisory Member Peter N. Swan Associate Vice President Assistant to the President and Counsel, for Legal Affairs Concurrent Professor of Law University of Oregon Notre Dame Law School THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF 1995-1996 FAcuLtTy Epirors Professor John Robinson Professor William Hoye ASSOCIATE FACULTY EpIToR ASSISTANT FACULTY EDITOR Phillip Faccenda Carol Kaesebier STUDENT EpiTor Maureen Fitzgerald New York EXECUTIVE EDITOR Jill Mulderink Illinois ASSISTANT EXECUTIVE EDITOR Caryn Geraghty Jorgensen Washington LEAD ARTICLES EDITOR Leap Notes Epiror Steven Malynn John Day California Virginia ARTICLES EDITORS Notes Epirors Gary Connelly Richard Holzheimer Pennsylvania Virginia Stephanie Davidson Maureen O'Connor Michigan Illinois Jennifer Fraley Marie Prein Ohio Michigan Lori Gramley John Refermat New York New York Steven Hieatt Douglas Salaway Ohio Arizona Charles Roth Steven Sawyer New York Indiana MANAGING EDITOR Anthony Hartmann Pennsylvania Book REviEw EpDITOR SYMPOSIUM EpiTors Charles Cooper Margaret Egan Ohio New York Jeff Kopp California SECOND- YEAR STAFF Anna Marie Bena Kevin LaFreniere Jerri Ryan Maryland Connecticut Pennsylvania Amy Dixon Andrew Leyden Joseph Scavetta North Carolina Illinois Virginia Mary Endres Peter Loughlin Stephanie Skrede Ohio New York Wisconsin Kevin Espinola Lynn McGiure Scott Sroka California Michigan New York Abbie Fellrath Todd Miller Douglas Streitz Indiana Illinois New Jersey Jennifer Girard Jacek Pawlicki Michele Suchovsky Ohio Michigan Michigan KellyAnn Horger Melanie Rubocki Jan Wenning Pennsylvania Pennsylvania Illinois ASSISTANT TO THE Epirors Tricia Stewart The Journal of College and University Law (ISSN 0093-8688) The Journal of College and University Law is the official publication of the National Association of College and University Attorneys (NACUA). It is published quarterly and in- dexed in Callaghan’s Law Review Digest, Contents of Current Legal Periodicals, Contents Pages in Education, Current Index to Journals in Education, Current Index to Legal Periodicals, Current Law Index, Index to Current Periodicals Related to Law, Index to Legal Periodicals, Legaltrac, National Law Review Reporter, Shepard’s Citators, and WESTLAW. POSTMASTER: Send changes of address requests to The Journal of College and Univer- sity Law in care of Rothman & Company, 10368 W. Centennial Road, Littleton, CO, 80123. Second Class postage paid at Washington, D.C., and at additional mailing offices. Copyright © 1995 by National Association of College & University Attorneys Citeas —— J.C. & ULL. Library of Congress Catalog No. 74-642623 Except as otherwise provided, The Journal of College and University Law grants permission for material in this publication to be copied for use by nonprofit educational! institutions for scholarly or instructional purposes only, provided that 1) copies are distributed at or below cost, 2) the author and the Journal are identified, and 3) proper notice of the copyright appears on each copy. If the author retains the copyright, permission to copy must be obtained directly from the author. ABOUT THE JOURNAL AND ITS EDITORS The Journal of College and University Law is the only law review entirely devoted to the concerns of higher education in the United States. Contributors include active college and university counsel, attorneys who represent those institutions, and education-law specialists in the academic community. The Journal has been published quarterly since 1973 and now boasts a national circulation . of more than 3,600. In addition to scholarly articles on current topics, the Journal of College and University Law regularly publishes case comments, scholarly com- mentary, book reviews, recent developments, and other features. In 1986, the Notre Dame Law School assumed publication of the Journal, which had been published at the West Virginia University College of Law from 1980-1986. Correspondence regarding publication should be sent to William P. Hoye, Faculty Editor, The Journal of College and University Law, Notre Dame Law School, Notre Dame, IN 46556. The Journal is a refereed publication. The views expressed herein are to be attributed to their authors and not to this publication, the National Association of College and University Attorneys or the Notre Dame Law School. The materials appearing in this publication are for information purposes only and should not be considered legal advice or be used as such. For a special legal opinion, readers must confer with their own legal counsel. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 22 Fall 1995 Number 2 ARTICLES New Restrictions on Academic Free Speech: Jeffries v. Harleston IT Richard H. Hiers 217 The author evaluates the Supreme Court's decision to remand Jeffries v. Harleston in light of the jurisprudence of public employees' free speech. In so doing, the author provides an histori- cal look at the Court's analyses of academic free speech versus the free speech of public employees. The application by the Jeffries' Court is lacking, the author argues, because the public employees’ free speech analysis—including considerations of "public concern" and “the efficient performance of services” — severely restricts the goal of academic free speech: namely, de- fending the right of a faculty member to express ideas within the unique "marketplace" of academia. At Work in the Marketplace of Ideas: Academic Freedom, The First Amendment, and Jeffries v. Harleston Stephen A. Newman In Jeffries v. Harleston, the Second Circuit may have opened the way for universities to take limited action against faculty speech which may reasonably be seen to cause harm to the university. While agreeing with the Second Circuit's ultimate decision, this article takes issue with the analysis employed to come to a de- termination in Jeffries. The Second Circuit opinions failed to con- sider the unique nature of the university when dealing with faculty speech, particularly when such speech is found to be ra- cially offensive. The author proposes that a proper analysis would have included: (1) a consideration of the principle of academic freedom in relation to permissible action against damaging speech by a faculty member; (2) the position or role of the speaker within the university community; and (3) how such speech can cause harm at all levels of the university community. Adequate Cause for Dismissal: The Missing Element in Academic Freedom Brian G Brooks 331 Professors and researchers in American universities enjoy broad academic freedom in their political endeavors. This academic freedom includes full freedom in research, publication, class- room discussion, and extramural speech and is protected prima- rily by the system of permanent or continuous tenure. Once af- forded tenure, faculty members generally will not have their service terminated except for "adequate cause.” This article articu- lates a working definition of the term "adequate cause for termination." Implicit in this definition is the idea that active and com- petent faculty members will appropriately balance their teach- ing, scholarship and community service while guaranteeing the integrity of academia. BOOK REVIEW Deconstructing Academic Freedom Gary Pavela 359 THE JOURNAL OF COLLEGE AND UNIVERSITY LAW This country has witnessed great changes and challenges in education law during the past decade, Judicial decisions have changed student and faculty rights and their relations with institutions; colleges and universities have entered an era of severe financial constraints with many legal ramifications; and Congress has dictated new procedures and requirements for serving members of protected classes. The professionals who deal with education law need a resource to keep current on this burgeoning body of law. The Journal of College and University Law is such a resource, and, in fact, is the only law review devoted totally to the concerns of higher education. If you presently do not subscribe, send in the application below— and if you do subscribe, please pass the subscription information on to someone you know who may benefit from the Journal. Mail subscription to: Rothman & Company 1 Year, (4 Issues) Volume 20, $44.00 10368 W. Centennial Rd. Payment Enclosed 0 Littleton, Co, 80123 Name: Street City State Zip Back issues of The Journal of College and University Law of Volumes 1- 18 (1973-1992) the set, bound, are available for $655; volumes 1-4, per volume bound, $25; volumes 5-6, per volume bound, $30; volumes 7-11, per volume bound, $35; volumes 12-16, per volume bound, $45; volumes 17-18, per volume bound, $47.50; volume 19, (1992/93) subscription, $40; price per single copy is $5. Subscription information for back issues is available from NACUA, Suite 620, One Dupont Circle, Washington, D.C. Membership in the National Association of College and University At- torneys (NACUA) includes a subscription to the Journal. For information on joining NACUA, write: NACUA, Suite 620, One Dupont Circle, Wash- ington, D.C. 20038.