The “Limitations” Clause in the 1940 Statement of Principles on Academic Freedom and Tenure: Some Operating Guidelines

The following report, approved in 1999 by Committee A on Academic Freedom and Tenure, is a revision of a report initially approved for publication in November 1996.


Committee A reported in 1988 on the interpretive difficulty surrounding the provision in the 1940 Statement of Principles, that “[l]imitations of academic freedom because of reli­gious or other aims of the institution should be clearly stated in writing at the time of the appointment.”1 This provision is commonly known as the “limitations” clause. In 1970, a set of Interpretive Comments on the 1940 Statement was adopted as Association policy, includ­ing the interpretive comment that “most church­related institutions no longer need or desire the departure from the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a departure.” That interpretive comment left it unclear how the Associ­ation is to respond to an institution that does invoke the limitations clause in defense of a departure from the principles of academic freedom. In its 1988 report, Committee A held that the interpretive comment did not read the limitations clause out of the 1940 Statement, and thus did not imply that the Association would henceforth regard every resulting departure from the principles of academic freedom as by itself warranting Association censure. Committee A held that an institution that commits itself to a predetermined truth, and that binds its faculty accordingly, is not subject to censure on that ground alone. But Committee A also held that such an institution must not represent itself, without qualification, as an institution freely engaged in higher education: the institution must in particular disclose its restrictions on aca­demic freedom to prospective members of the faculty. Committee A held, finally, that an insti­tution is not subject to the academic freedom provisions of the 1940 Statement—a breach of which may result in censure—unless it does represent itself as an institution freely engaged in higher education.

Various sectarian institutions have been founded and are supported by sponsoring religious denominations for the training of their laity and clergy in the faith. So, too, have a number of institutions been established that are dedicated to the propagation of particular beliefs or schools of thought—in political economy (the Rand School was singled out for mention by Committee A in the 1920s), in clinical psychology, in early childhood pedagogy, and in the education and training of future leaders of the labor movement, to mention only a few. Institutions of this char­acter function within a set of doctrines or beliefs, and they usually do not affirm a recognition of academic freedom, even subject to restriction. They unquestionably contribute to the pluralistic richness of the American intellectual landscape, but they are usually not institutions of a kind to which the academic freedom provisions of the 1940 Statement apply, and hence imposing cen­sure on their administrations would usually not be appropriate.2

The usual is not the universal, however. When institutions dedicated to these or similar lim­ited aims gain, or seek, broader recognition as seats of higher learning—e.g., by expanding their curricula, by identifying themselves as universities or colleges of liberal education, by award­ing secular academic degrees, by securing regional or specialized accreditation, and by appeal­ing to the public for support on those grounds—then we believe they are subject to the aca­demic freedom provisions of the 1940 Statement, a breach of which may result in censure.

A further consideration is that somewhere between an institution committed to academic freedom and one that pervasively restricts its exercise lies an institution that provides academ­ic freedom in most respects save for a carefully crafted core (or pocket) of credal or doctrinal conformity. This taxonomy corresponds roughly to the one used by the Danforth Commission on Church Colleges and Universities in 1965, distinguishing among the “non­affirming col­lege,” the “defender­of­the­faith college,” and—between them—the “free Christian (or Jewish) college” that may attach a religious preference in faculty appointment but that gives the facul­ty “wide freedom consistent with law and good taste.” If “law and good taste” are taken to refer to ecclesiastical as well as civil­law restrictions, we believe that such an institution is appropriately viewed as subject to the academic freedom provisions of the 1940 Statement, and thus as one to which the limitations clause in particular was intended to apply.

As the Danforth Commission report also noted, many “non­affirming” institutions were originally created on strong doctrinal foundations; and, indeed, the prospect of movement from constraint to freedom pervades the Association’s engagement with the issue. The 1922 Associ­ation of American Colleges proposal, cited in Committee A’s 1988 report, referred to the toler­ation of restrictions as a “temporary concession.” The 1970 interpretive comment quoted above spoke of change in the perceived needs and desires of church­related institutions; and it may be worthy of note that the AAUP did not investigate issues of academic freedom at an institu­tion devoted to clerical education until the Concordia Seminary (Missouri) case in 1975, where, prior to the event under investigation, the institution had come to allow a good deal of aca­demic freedom to flourish.3

In other words, movement from constraint to freedom is a historical characteristic of many church­related institutions, and a thoughtful argument could be made for the proposition that, as a pervasively sectarian or proprietary institution ordinarily outside the ambit of the Associ­ation’s concern moves toward becoming more open, it moves as well toward bringing itself within the compass of the 1940 Statement; and that when it has done so to such an extent as to be considered primarily as a seat of unfettered learning, such limited restrictions as the institu­tion retains will be subject to the 1940 Statement’s prescriptive requirements, including the lim­itations clause.

Accordingly, Committee A offers the following set of operating guidelines for Association treatment of a complaint: (1) at the outset by the Association’s staff; (2) by the ad hoc commit­tee of investigation, if one is appointed; and (3) by Committee A in considering the ad hoc com­mittee’s report.

 

Guideline One

When a complaint is received from a faculty member alleging a restriction on academic free­dom because of a religious or other aim, the staff should decide whether, in its view, the institution is one at which adherence to the academic freedom provisions of the 1940 Statement is to be expected. Factors that the staff should consider include the institution’s stated mission; its curriculum; its accreditation; its eligibility for tax support; its criteria for selection of its gov­erning body, faculty, students, staff, and administration; and the ways in which it represents itself to the public in bulletins, catalogues, and other pronouncements.

If the staff concludes that the institution is not one at which adherence to the academic free­dom provisions of the 1940 Statement is to be expected, the general secretary should decline to authorize an investigation.

 

Comment

The Association already draws an analogous distinction in the applicability of its provisions in that it declines to pursue cases arising at unaccredited institutions. No good reason exists, apart from ease of application, to permit determinations made by accrediting organizations, on which the Association has relatively little influence, to drive Association policy. (This is empha­sized, perhaps, by the inclusion of proprietary and vocational “postsecondary education” with­in the realm of regional accreditation. Nor is state licensure by itself determinative, since the Association would not apply its processes to a “degree mill” authorized to award degrees under applicable state law.) It is only a next step to say that, despite regional accreditation and

legal degree­granting authority, the Association’s independent assessment of an institution may lead it to conclude that the institution does not purport to provide academic freedom and is not subject to the 1940 Statement.

It should be stressed in any event that if an institution is one at which adherence to the aca­demic freedom provisions of the 1940 Statement is to be expected, the institution’s invocation of the limitations clause does not absolve it of an obligation to afford due process in dismissal and nonreappointment actions as provided for in Association policies. On the contrary, the scope of the institution’s limitation and the reasonable expectations of faculty members subject to it, the application of the limitation in the past, and the question whether it is being selectively applied for ulterior purposes are, among others, potential questions that may require a full hearing.

 

Guideline Two

Where the general secretary has authorized an investigation, the ad hoc committee should be charged with assessing whether or not the institution is subject to the provisions of the 1940 Statement in light of considerations of the kind pointed to in Guideline One. If it concludes that the institution is subject to those provisions, and if, further, the institution invoked the limita­tions clause, then the committee should assess how the limitation applies to the facts as found. Thus the ad hoc committee should consider the degree of specificity of the limitation and whether or not the institution afforded sufficient procedural safeguards to ensure that the application of its rules was adequately cabined.

 

Comment on the Clarity of the Proscription

It could be argued that an exact limitation is a practical impossibility; that no restrictive lan­guage could be devised that would at the same time anticipate future credal constraints or doctrinal disputes and meet a requirement that it be absolutely explicit.

Committee A sees the appropriate standard as not “absolutely explicit” (it is not even abso­lutely clear what that standard might require), but rather “adequately explicit.” Thus, for example, a college’s statement that it is “truly religious, but never denominational,” that it is “positively and distinctly Christian in its influence, discipline, and instruction,” is too broad, too inexact to constitute an acceptable limit on freedom of teaching. It does not provide a rea­sonable faculty member with clear enough information about—that is, fair warning of—what conduct is proscribed, and hence is not adequately explicit.

By contrast, a restriction on any teaching or utterance that “contradicts explicit principles of the [Church’s] faith or morals,” for example, is adequately explicit. It would, however, be incumbent on an institution adopting such a restriction to show that at the time of appoint­ment, the institution and the faculty member knew precisely what those principles were. In a recent case, the institution required prospective faculty members to subscribe to a set of reli­gious tenets, none of which explicitly proscribed conduct that could be taken as sympathetic to the civil rights of homosexuals; in taking action against a faculty member on grounds of con­duct that was perceived as sympathetic to the civil rights of homosexuals, the governing board was bringing to bear on her a restriction of which she had not been given fair warning at the time of appointment.4

Adequate explicitness is plainly a matter of degree. Some institutions demand faithfulness to future teachings or doctrines that may be unascertained or unascertainable at the time and which may depart, subtly or radically, from those in effect at the time of appointment. A limi­tation drafted so broadly as to include any teaching, doctrine, or constraint subsequently pro­mulgated would fail to meet the standard of adequate explicitness. But cases may arise where a restriction not imposed in express terms at the time of appointment can be viewed as covered by a broadly drafted rule because the restriction was reasonably anticipated.5

 

Guideline Three

Committee A is the body that decides, on the basis of the ad hoc committee’s report, whether to recommend censure.

  1. If Committee A concludes that the institution is not subject to the 1940 Statement’s requirement to afford academic freedom, it should not recommend censure.
  2. If Committee A concludes that the institution is subject to the 1940 Statement but has not adhered to the terms of the limitations clause, then Committee A should presumably rec­ommend censure.
  3. If Committee A concludes that the institution is subject to the 1940 Statement and has adhered to the terms of the limitations clause, then Committee A should not recommend censure unless it concludes that the institution has failed to afford academic due process, or has violated some other key provision of the 1940 Statement or of derivative Association­supported standards.

Comment on Institutions for Clerical Education

Committee A said in its 1988 report: “Higher education is not catechesis, and this is no less true for professional clerical education than for any other professional calling.” The committee may conclude, however, that a particular institution that is dedicated to training members of the clergy in the faith is outside the ambit of the Association’s censure process, in light of Commit­tee A’s assessment of considerations of the kind pointed to in Guideline One.

If such an institution was one at which adherence to the academic freedom provisions of the 1940 Statement was to be expected, but has now ceased to be one—perhaps because of action by its governing board—the Association may wish to give notice to the profession and the public that the change has taken place.

Notes

1. ”The ‘Limitations’ Clause in the 1940 ‘Statement of Principles,’”Academe: Bulletin of the AAUP 74 (September–October 1988): 52–58.

2. From its inception, the American Association of University Professors has found it necessary to dis­tinguish between institutions of higher learning that are committed to academic freedom and those insti­tutions where free inquiry is subordinated to a religious (or some other) mission. Committee A’s seminal 1915 Declaration of Principles on Academic Freedom and Academic Tenure,” commenting on these latter institutions, stated that

They do not, at least as regards one particular subject, accept the principles of freedom of inquiry, of opinion, and of teaching; and their purpose is not to advance knowledge by the unrestricted research and unfettered discussion of impartial investigators, but rather to subsidize the promotion of the opinions held by the persons, usually not of the scholar’s calling, who provide the funds for their maintenance. . . . Genuine boldness and thoroughness of inquiry, and freedom of speech, are scarcely reconcilable with the prescribed inculcation of a particular opinion upon a controverted question. (AAUP, Policy Documents and Reports, 10th ed. [Washington, D.C., 2006], 293.)

3. ”Academic Freedom and Tenure: Concordia Seminary,” AAUP Bulletin 61 (1975): 49–59.

4. ”Academic Freedom and Tenure: Nyack College,” Academe 80 (September–October 1994): 73–79.

5. For example, Professor Ehlen at Concordia Seminary (Missouri) in 1975 could reasonably plead lack of adequate notice. But Professor Schmidt’s claim at Concordia Theological Seminary (Indiana) in 1989 proved more troublesome; see “Academic Freedom and Tenure: Concordia Theological Seminary,”Academe 75 (May–June 1989): 57–67.