Contract law is an effective alternative to constitutional law for three reasons. First, unlike constitutional law, it covers professors at both public and private universities. Second, it allows for the consideration of the custom and usage of the academic community as either express or implied contract terms in resolving disputes between universities and professors. Third, contract law enables courts to structure remedies that take into account the specific campus contexts that give rise to various disputes instead of crafting broad remedies that may ill fit certain campus environments.
The proposed reconceptualization of academic freedom merges constitutional protection for institutions and contractual protection for individual professors. This combined approach would provide a more comprehensive framework than is currently available under the predominantly constitutional paradigm of academic freedom.
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Philip Lee (Author)
Philip Lee is assistant professor of law at University of the District of Columbia David A. Clarke School of Law.