Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Friday, April 18, 2008

Once More Into the Academic Freedom/John Yoo Fray

Remarking some time ago on issues of academic freedom in relation to comments by David Bernstein, I observed that,

[F]rom the McCarthy era to the present, the most successful efforts to "enforce political orthodoxy"--the ones that resulted in people being fired from jobs, or having their jobs threatened--have almost all come from the right in the United States.  Professor Bernstein may be blind to this because many of the targets of smear campaigns and orchestrated attacks by political forces outside the universities have, in recent years, been critics of Israeli policy, from Norman Finkelstein to Joseph Massad.  But how many times in the last 50 years have "liberal" politicians and interest groups outside universities successfully mobilized to get someone fired or even threatened that person's tenure because of "conservative" views?  Where are the right-wing counterparts to M.I. Finley, Chandler Davis, Clement Market, and Staughton Lynd, among many others?

I do not think it likely that John Yoo is about to become the lone counter-example to this trend, but it is striking, and disturbing, how many individuals and organizations outside the universities who are, more or less, "on the left" are indeed presently calling "for his head" (or calling for a university investigation to determine whether "his head" can be rightly served up).  As things stand now, this really isn't a hard case at all.  But maybe it would be worthwhile to review a few simple questions to make that clear.

1.  Does tenure mean lifetime employment?  No.  It means a faculty member can only be terminated for "good cause," which involves both substantive and procedural constraints on dismissal.  Substantively--and this captures the moral and contractual ideal of academic freedom (its constitutional status these days is less clear)--it means faculty can't be fired or penalized for the content of their scholarship and teaching, unless it fails to meet standards of professional competence (e.g., a biologist refusing to teach the theory of evolution by natural selection, or an astronomer teaching that the sun revolves around the earth) or involves research misconduct (e.g., plagiarism).  Failure to perform duties (e.g., not showing up for class), criminal misconduct, and behavior that disrupts institutional functions (e.g., sexual harassment of students or colleagues, other kinds of egregious harassment or exploitation of students or colleagues) might also all trigger university disciplinary proceedings, and might, depending on the underlying facts, result in termination or other penalties.

Berkeley's regulations on this score are pretty typical.  Here are examples of misconduct relating to the isntructional duties of a faculty member that could properly trigger university disciplinary proceedings:

1. Failure to meet the responsibilities of instruction, including:  (a) arbitrary denial of access to instruction; (b) significant intrusion of material unrelated to the course; (c) significant failure to adhere, without legitimate reason, to the rules of the faculty in the conduct of courses, to meet class, to keep office hours, or to hold examinations as scheduled; (d) evaluation of student work by criteria not directly reflective of course performance; (e) undue and unexcused delay in evaluating student work.

2. Discrimination, including harassment, against a student on political grounds, orfor reasons of race, religion, sex, sexual orientation, ethnic origin, national origin, ancestry, marital status, medical condition, status as a covered veteran, or, within the limits imposed by law or University regulations, because of age or citizenship or for other arbitrary or personal reasons....

4. Use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons.

5. Participating in or deliberately abetting disruption, interference, or intimidationin the classroom.

6. Entering into a romantic or sexual relationship with any student for whom a faculty member has, or should reasonably expect to have in the future academic responsibility (instructional, evaluative, or supervisory).

And here is the main example of misconduct related to the research and scholarly duties of a faculty member:  "Violation of canons of intellectual honesty, such as research misconduct and/or intentional misappropriation of the writings, research, and findings of others."  Faculty members also have obligations to the community, and misconduct on this score means, "Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."  (This is why, by the way, it was especially ludicrous for Paul Campos to suggest that anyone thinks conviction for a trivial offense like marijuana possession would warrant termination of a faculty member.  But Professor Campos is plainly not significantly constrained by considerations of credulity.)

Universities are clearly too timid about initiating termination proceedings in cases where they might, indeed, be warranted:  such as failure to perform significant professional duties like scholarship.  (One noted authority on academic freedom told me, for example, that he believes Harvard could properly initiate proceedings to terminate Alan Dershowitz, given his failure to produce scholarly work.  That may be an arguable case; but everyone knows of "dead wood" who write nothing, not even popular books or polemics, and have not for years.  It would be consistent with academic freedom for their universities to initiate proceedings that might result in termination.)

2.  Is there 'good cause' for terminating John Yoo?   Clearly not.  There are no allegations of any failure to perform his instructional duties, and he has engaged in no research misconduct.  He has also been convicted of no crime.  End of story.

3.  But wait, weren't the torture memos and his theory of executive power so bad that they constitute research misconduct?  Again, plainly not.  He has defended these same views in scholarly fora, as well as in the memoranda he wrote as an attorney for the government.  Other scholars have defended similar views of executive power.  One may think such views implausible, badly argued for, and morally odious, but they do not involve "research misconduct."  If "research misconduct" and "intellectual dishonesty" were interpreted to cover what Yoo has done then there would be nothing left of academic freedom, since every disagreement on the merits of a position, especially a minority position in the scholarly community, could be turned into a "research misconduct" charge that would trigger disciplinary proceedings and possible termination.

4.  OK, that's all well and good, but didn't you tell us that it would be misconduct for a biologist not to teach Darwin's theory of evolution by natural selection or for an astronomer to teach that sun revolves around the earth?  It would clearly be a dereliction of instructional duties for a biologist (teaching, say, introduction to biology) to not present Darwin's theory of evolution by natural selection and to fail to represent it as a well-confirmed theory that is the cornerstone of modern biology.   It would not, however, be research misconduct for a biologist to write a book, as biologist Michael Behe of Lehigh University did, attacking natural selection and arguing for intelligent design as a supplement.  But the point that bears emphasizing here is that the Yoo case isn't even close to this one, since there is nothing close to the scholarly and professional consensus about the correctness of Darwin's theory of evolution by natural selection in the case of constitutional limits on executive power in war time.  Yoo's views, as morally reprehensible as they are, are well within the bounds of professional opinion, even if they are a decidedly minority viewpoint.  Recall, for example, the comments of constitutional law scholar Mark Graber (Maryland) regarding Yoo's torture memo:  "[T]he claims are constitutionally plausible or as plausible as most of what I read when I read legal materials. I found myself disagreeing with most of this, taking offense at various points. Nevertheless, the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review. I was no more impressed by [Chief Justice] Roberts' opinion in Parents Involved (the Seattle school district case) than the Yoo memo."  Part of the difficulty here, I suspect, is that many of those commenting on the Yoo case have an unrealistic picture of constitutional law, as though there were clearly correct and clearly incorrect positions on the issues at stake here.  A skeptic might note that there is not a lot of "law" in  "constitutional law," so that we quickly go from "that's a bad legal argument" to "that's a morally odious position."  But having morally odious views is well within the protection afforded by academic freedom.

5.  All right, then, forget about research misconduct, surely there is a question about whether Yoo committed a war crime, isn't there?  Torture is a war crime.  Yoo was part of the institutional apparatus that authorized torture; indeed, he rationalized it.  Why shouldn't the university investigate the possibility that he is a war criminal?  The simple answer is that the University's own rules do not authorize them to investigate such an allegation.  The rule is quite clear about the circumstances under which the university might undertake a disciplinary proceeding related to criminal conduct by a faculty member:  "Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."  Why has the university required "conviction in a court of law" as a prerequisite for university disciplinary proceedings?  For the obvious reason that universities are not equipped to investigate and prosecute crimes.  Universities can not subpoena witnesses to appear, they do not employ a staff of forensic experts, they do not have on hand teams of criminal defense lawyers or prosecutors, and so on. 

6.  That's just a cop-out:  if Berkeley doesn't do it, no one will, since war crimes are rarely prosecuted.  So Yoo just gets away, almost literally, with "murder" (or "torture") because universities are not courts.  Yes and no.  Yes, universities are not courts, and they have made what is surely a correct decision not to try to be courts of criminal justice.  What would universities be like if allegations that a faculty member had committed a crime could trigger a university investigation into the possible crime?  Law professors often serve in government roles; former government attorneys often end up in academia.  The potential for allegations of criminality are rich with possibility.  Universities would quickly become the surrogate criminal justice system, where aggrieved individuals could go to exact punishment for abhorrent government policies.  I find it hard to believe that this nightmare world is one that anyone that cares about universities or freedom of speech welcomes.  But there is also a "no" to this question, since it is very far from clear that Yoo is legally culpable for anything he has done.  In the tax context, for example, the standard for prosecuting tax lawyers who give tax advice to clients which the clients then act on and which is subsequently found to be illegal conduct is whether the advice was given in "good faith."  Both before and since his years as a government attorney, John Yoo has defended views about executive power that are the same as, or closely related to, those in the torture memo.  He seems to hold these views in "good faith."  The fact that the views strike most as implausible and repellent has no bearing on the question of his "good faith."  It thus seems to me to strain credulity to think a court proceeding would find that he had not acted in good faith.  John Yoo ought to be held morally culpable for his work, and he has been and will be.  In that regard, he is not getting away with anything that he is not, as a matter of law, entitled to "get away with." 

At the end of the day, it is understandable that non-lawyers and non-academics, who are justifiably enraged by the Bush Administration's conduct and John Yoo's morally odious views would fail to realize that there is nothing that the University of California at Berkeley can or should do, either legally or morally (assuming one believes, as I do, that there is a moral case for academic freedom).  It is less excusable, of course, for law professors like Paul Campos to make the same errors.  Perhaps this whole case will serve as a useful reminder about how tempting it is--even for those who ought to know better--to feel that it is not enough to have the freedom to criticize and excorciate those with bad views, that sometimes one also wants to hurt the person with bad views by depriving them of livelihood or liberty.  Such feelings are understandable, but it is a mark of a civilized society, governed by law, that acting on them is held in check, as it should be in this case among many others.

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