Easterbrook on Academic Freedom

Abstract:     
Does the First Amendment to the US Constitution protect a distinct notion of “academic freedom?” Of late, courts and commentators have cast doubt on an individual First Amendment right of academic freedom. When federal courts have directed friendly attention to the matter, the result has been bromidic endorsement with scant analytic heft. The goal of this Essay is to identify an organizing principle for a constitutional jurisprudence of academic freedom. It could find inspiration in recent jurisprudence of Judge Frank Easterbrook. His cases invite a strategy of judicial protection of academic freedom by ensuring that legal or governmental action neither displaces, nor excessively burdens, the professoriat’s free exercise of professional judgment. The resulting constitutional norm of academic freedom would be an exercise in Burkean minimalism - aspiring to preserve a professional culture our society values and protects through constitutional precommitment.

Number of Pages in PDF File: 20

Accepted Paper Series