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4/14/08 09:55 am
Protecting academic freedom
The concept of tenure has always been defended on the basis of ensuring a diversity of opinions and views in the academic world. If someone has tenure, then they are safe in espousing unpopular views, the reasoning goes. They have a valuable protection to be able to say, "This is not right" and not be fired for that statement.
For the last 16 years or so, I've been a tenured member of our faculty. Tenure enables me to say unpopular things and point to unpalatable truths on various committees — often to the benefit of the university and its students (even if sometimes to the discomfort of some of my colleagues or some administrators). I try not to do harm, but tenure has given me the safety to protest.
Most civil liberties groups have been in favor of tenure as a necessary and important part of ensuring academic freedom. Academic freedom is needed in order that we may look at unpopular subjects (like Communism, in the 1950s), teach our students to think about those subjects, and make some of the world more transparent.
But one tenured faculty member at the University of California at Berkeley has so upset civil liberties groups with his views that they believe he should be fired — in blatant disregard for his civil liberties.
In the English vernacular, I say "bollocks." If academic freedom is to be meaningful, it must count for everyone, and not just the ones I agree with (and no, I don't agree with this professor...not at all).
From Inside Higher Ed: A civil liberties group that is working to curb what it sees as abuses by the Bush administration has mounted an e-mail campaign to push for the firing of John Yoo, a tenured professor of law at the University of California at Berkeley.
While Yoo's views on torture have been widely condemned in the academic legal world, many are objecting to the campaign as an infringement on academic freedom — ironically coming from a group formed to protect civil liberties. His controversial writing — justifying forms of interrogation many view as torture and in violation of the Constitution and international conventions — came while he worked in the Bush administration's Justice Department. While Yoo did not respond to an e-mail request to comment on the campaign against his continued employment at Berkeley, he has written elsewhere defending his views.
The e-mail campaign calling for Yoo's dismissal is from a group called the American Freedom Campaign. It says of Yoo:
In 2003, the U.S. Department of Justice's Office of Legal Counsel issued a memo advising the Pentagon that laws and treaties forbidding torture and other forms of abuse did not apply to U.S. interrogators because of the president's wartime power. The man who wrote that memo — John Yoo — is now happily ensconced as a tenured law professor at the UC Berkeley School of Law. While an unknown number of people suffer the aftereffects of illegal torture he encouraged, Professor Yoo is teaching, writing, and generally enjoying life in California. This is flat out wrong. John Yoo should not only be disqualified from ever serving in government again, but he should also be prohibited from spreading his distorted view of the law and the role of lawyers to young law students. He must be fired. And the man to do it is Christopher Edley Jr., dean of the UC Berkeley School of Law. Calls for Yoo's removal have come from a lot of different places, as have defenses of Yoo. Consider this a defense of Yoo. I do not (most emphatically not) defend his belief that torture is appropriate. But I do (most emphatically do) defend his academic freedom to say and write the things he has. I concur with Brian Leiter, a professor of law and philosophy at the University of Texas at Austin, who wrote, "Tenure, and academic freedom, would mean nothing if every professor with views deemed morally reprehensible or every professor who produced a shoddy piece of work — while inside or outside the academy — could be fired." Others who have attacked Yoo (and Berkeley Law dean Edley) have argued (hyperbolically) that generations of Berkeley law students will be damaged by Yoo — that they will learn only about covering their asses. To which I politely retort, "And bollocks to that, too." If Berkeley's law students are such impressionable little chicks that they are going to be ruined forever by being around one professor like Yoo, then Berkeley has bigger problems than one professor with unpopular views. Yoo is, I believe, a blind, pig-headed fool. But breaking tenure and firing a professor should be done for more cause than being an occasional idiot. And, to the extent that this controversy actually makes the UC-Berkeley and national academic communities (and students) think, criticize, reason, analyze, and either attack or defend, Yoo's position has been extraordinarily valuable.
(Anonymous)
2008-04-14 02:56 pm (UTC)
As a student at UC Berkeley School of Law (indeed, as a current student in JY's con law class) I am as troubled by this issue as anyone.
Without wading too deeply into the fray, I will share that I would become very disappointed and disillusioned with my academic institution if the dean of my law school decided to unilaterally fire Yoo, absent a criminal conviction or inditement. Something is seriously awry with a picture in which universities prosecute people prior to the courts. This is an opportunity to demonstrate our commitment to the rule of law, and our resolution against the very actions of the Bush Administration that disgust us, and I am glad my dean has seized upon it.
Nothing about the Yoo situation constitutes an emergency, or demands anything other than a carefully considered response. If dismissal is appropriate now, it will still be appropriate a year from now, when the dust settles a bit. I am confident that by resisting the temptation to rush this decision, cooler heads and the factual record will prevail. And taking that approach will do more service to UC Berkeley students' education that a decision motivated by a gut political reaction.
2008-04-14 03:27 pm (UTC)
Without wading too deeply into the fray, I will share that I would become very disappointed and disillusioned with my academic institution if the dean of my law school decided to unilaterally fire Yoo, absent a criminal conviction or inditement.
It is unlikely in the extreme that a unilateral firing could occur in a state university setting. Even in an attempt to deal with an emergency situation, the most that would happen would be to pull the faculty member from his classes pending a decision.
And, frankly, even if the "factual record" says that he wrote things people don't agree with, I see no reason for breaking tenure here.
If a faculty member has harmed students (damaging their psyches by failing them doesn't count as "harm" here, but sexual harassment, violence, etc., do), engaged in criminal acts leading to a felony conviction, plagiarized research, falsified research results -- those are firing offenses.
A criminal indictment is not and never should be sufficient grounds for breaking tenure. A criminal conviction is. Remember the law (and one hopes that Professor Yoo will teach you this in Con Law): a presumption of innocence is embedded in the Constitution...and is just as important for a school of law in dealing with its faculty.
2008-04-14 03:33 pm (UTC)
John Yoo ought to be disbarred, not stripped of tenure.
In the course of his duties while employed by the US government, he may have managed to to commit actual crimes, for which he should be prosecuted.
If he's convicted, then he can be removed from his professorship.
2008-04-14 03:43 pm (UTC)
John Yoo ought to be disbarred, not stripped of tenure.
Say, rather, he should be investigated by the bar -- and, if he the actions he has engaged in warrant it under the ethical code of the bar, he should then be disbarred.
I do not know enough of the facts to know if being disbarred is appropriate here. I do know the man's claims were nearly as idiotic as having the US Attorney General saying the Great Writ was just sort-of required.
While there are times I've wished stupidity could be a capital (or at least firing) offense, it's usually not.
2008-04-14 03:50 pm (UTC)
Sometimes stupidity is a firing offense. Just not firing out of a cannon. Firing someone out of a cannon is almost always against the rules.
Which would not be the case if John Yoo had his way.
But, yes, bar investigation first, disbarrment after he is formally proven to have violated the ethical code of the bar.
2008-04-14 04:10 pm (UTC)
I looked on FIRE's website to see if they had anything on the matter. As far as I can tell, they don't. This is probably because no university action has occurred yet (and hopefully won't, unless there are some better grounds for firing than those I've seen mentioned). If there is university action against him, I'm sure they'll discuss the case. I've found them to have consistently good judgment.
2008-04-14 04:13 pm (UTC)
The articles I've seen in the subject say not that he should be fired for reprehensible political views, but that his expression of those views amounts to moral turpitude.
Whether it does or not, I want to know more about under what conditions a professor can be dismissed for moral turpitude before I express any opinion here.
The suggestion that he ought to be at least formally charged with a crime first - this strikes me as a good response to that question. I suppose a professor who commits murder or molests small children, say, is usually fired, though I wonder at what point in the legal process of trial and sentence this dismissal occurs.
2008-04-14 05:05 pm (UTC)
I wonder at what point in the legal process of trial and sentence this dismissal occurs.
Any employer is well within their rights to terminate an employee after they have been found guilty of a felony offense -- and terminating tenure is no exception to that general rule. When the jury finds, the employer has a clear reason to terminate. Sentencing is not germane to this issue.
2008-04-14 04:39 pm (UTC)
As much as I completely agree with you, Deb, I love cases like this, because not only does the target of the attack have civil rights (and in this case, tenure), but those calling for his removal also have the right to their free speech. So it's easy to say "they're wrong; they should shut up and go away," but we also have to remember that they have the right to make the demands.
(Of course, this ignores the potential codicil [I saw Harlan Ellison last week; he was grumpy] which says everyone has a right to an informed opinion.)
2008-04-14 05:01 pm (UTC)
...those calling for his removal also have the right to their free speech. This is relevant only if someone is calling for adverse legal consequences or removal of normal protections for those people. The right of free speech doesn't entail the right not to have one's statements condemned.
2008-04-14 05:06 pm (UTC)
Exactly. I'm not saying "shut them up" -- I'm saying "they're dead damned wrong." :-)
2008-04-14 07:24 pm (UTC)
Er - how did this person get tenure? I thought getting tenure was difficult, required scholarship, and faculty approval, usually, as well as several years teaching.
I didn't think one rec'd academic tenure for serving as a Bush admin lackey. At least, not at a reputable school.
2008-04-15 12:15 am (UTC)
The way that I read California law, the issue of tenure is moot here anyway.
A non-tenured faculty member at a State-run university may not be denied reappointment for reasons that constitute a violation of his constitutional rights, specifically including First Amendment rights. (Ofsevit v. Trustees of Cal. State University & Colleges, 21 Cal.3d 763 (1978).
http://login.findlaw.com/scripts/callaw?dest=ca/cal3d/21/763.html
While California does place some limits on employee First Amendment rights on statements made in the workplace, I can't see how they'd apply here.
If Yoo actions while at the DOJ were proven to be criminal, he can be dismissed whether or not he's tenured. But it's a very long stretch to call such a memo criminal, especially given the vagueness in the constitution and the deference courts have given those powers in the past.
2008-04-15 01:34 am (UTC)
My cynical side merely scoffs.
He's defending a position that supports something the Bush administration is doing.
Of course he must be gotten rid of. After all, can't have the righties getting uppity can we?
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