Challenges to Academic Freedom. Edited by Baltimore: Johns Hopkins Press, 49-79.

In this chapter I will be concerned with the legal structures and quasi-legal regulatory structures that relate to academic freedom, in addition to the basic theory that applies to them. My aim is to explain (1) how changes in them affect academic freedom, (2) the legal properties of the new constraints under which those in the academy operate, and (3) the differences between this current situation and academic freedom as it has traditionally been understood. The primary issues I will be concerned with are discretionary legal and administrative power and the way that regulations, as implemented by universities, have expanded this power, as well as the enlarged role of contract law and employment contracts as protections of academic freedom. Academic freedom is undergoing a redefinition in the face of new legal circumstances. Its two traditional dimensions are the higher education institutions' autonomy from the state and the individual freedom of scholars. It was traditionally thought that independence from the state and the existence of strong faculty governance were the best guarantors of academic freedom (Tiede 2015). The American Association of University Professors (AAUP) fought for both. Academic freedom, however, is increasingly restricted by regulations implemented by universities, which can take the form of institutional review boards, research misconduct tribunals, and Title IX enforcement. Because many federal regulations governing institutions of higher education are themselves vague and broad, the specific rules created by these institutions are a result of discretionary power over academics that is inimical to the traditional notion of academic freedom as a well-defined right. The idea of university autonomy, similarly, has undergone important changes. It has been significantly compromised as a result of federal regulation of a kind that did not exist in the first half of the twentieth century. One effect of intensified federal regulation is self-monitoring within higher education institutions (often with the assistance of an internal bureaucratic office) that not only seeks to conform to these externally imposed rules, but also to invent local variations that expand on them.