Academic Freedom at the AALS
I've just returned from the annual meeting of the Association of American Law Schools (AALS), where one of the more interesting and well attended plenary panels addressed issues of academic freedom. The panel contained some impressive people: Elena Kagan, Geoffrey Stone, William Van Alstyne, and Stanley Fish, with Robert Post as moderator. And some of them addressed some interesting issues, including the recent imbroglio over the University of Minnesota Law School's decision to hire Robert Delahunty as a one-semester visiting professor to teach constitutional law. Now on the faculty at St. Thomas, Delahunty is formerly a longstanding senior attorney in the Justice Department's Office of Legal Counsel and is reportedly one of the architects and co-authors of some of OLC's "torture memos." Many readers are probably familiar with that particular controversy by now, and I won't review its specific details here. (Short version: a bunch of students became distressed when they heard Delahunty had been invited, and circulated a petition demanding that he be disinvited; that led to some public disagreements between members of the Minnesota faculty over whether there was any legitimate basis for objecting to his visit; as far as I know, the visit is still on.) Instead, I want to focus on a couple of related, though more general, points in Dean Kagan's presentation.
In essence, Kagan's position was that it would not violate principles of academic freedom for a university not to hire a professor (whether as an adjunct, a visitor, or on the tenure track) on the basis of moral opposition to things he has done or said in his earlier academic or other professional work. But it would violate those principles, she said, for a university to fire a tenured (or tenure-track, I think she said) professor on the basis of that same sort of opposition. On this view, there would have been no academic freedom problem with not inviting (or disinviting) Delahunty to teach as a visitor at Minnesota, based on opposition to his prior work at OLC. But there would be a problem if, e.g., Boalt Hall were to fire tenured faculty member John Yoo on the basis of the things he did and wrote at OLC while he was on leave from his faculty post. Before expressing those opinions, Kagan took an informal poll of the audience on these questions, and a show of hands revealed that the the overwhelming majority of the audience took the same position.
What do readers think? Does the distinction work? Kagan herself concluded her talk by expressing some qualms about it, noting that the percentage of non-tenured or tenure-track faculty members (i.e., adjuncts, visitors, etc.) at universities nationwide has increased dramatically over the past few decades. Does that make us uncomfortable with the distinction she would draw? If so, what's the remedy -- to extend academic freedom principles to short-time visitors, adjuncts, and the like, or to restrict tenured and tenure-track professors' enjoyment of those freedoms?
In essence, Kagan's position was that it would not violate principles of academic freedom for a university not to hire a professor (whether as an adjunct, a visitor, or on the tenure track) on the basis of moral opposition to things he has done or said in his earlier academic or other professional work. But it would violate those principles, she said, for a university to fire a tenured (or tenure-track, I think she said) professor on the basis of that same sort of opposition. On this view, there would have been no academic freedom problem with not inviting (or disinviting) Delahunty to teach as a visitor at Minnesota, based on opposition to his prior work at OLC. But there would be a problem if, e.g., Boalt Hall were to fire tenured faculty member John Yoo on the basis of the things he did and wrote at OLC while he was on leave from his faculty post. Before expressing those opinions, Kagan took an informal poll of the audience on these questions, and a show of hands revealed that the the overwhelming majority of the audience took the same position.
What do readers think? Does the distinction work? Kagan herself concluded her talk by expressing some qualms about it, noting that the percentage of non-tenured or tenure-track faculty members (i.e., adjuncts, visitors, etc.) at universities nationwide has increased dramatically over the past few decades. Does that make us uncomfortable with the distinction she would draw? If so, what's the remedy -- to extend academic freedom principles to short-time visitors, adjuncts, and the like, or to restrict tenured and tenure-track professors' enjoyment of those freedoms?
posted by Trevor Morrison @ 3:40 PM
3 Comments:
At 6:40 PM,
Thomas Healy said…
Kagan's distinction makes me think of a similar distinction the Court has drawn in First Amendment law. In Board of Education v. Pico, the Court held that a school board's removal of books from the school library for ideological reasons would violate the First Amendment. But the Court emphasized that its decision did not affect the discretion of the school board to choose what books to add to the library. The Court didn't explain the basis for its distinction, other than to say that the removal of books constitutes suppression of ideas. But as Rehnquist pointed out in his dissent, the school board could suppress ideas by declining to add books, too.
One explanation for the Court's distinction might lie in the practical difficulties of proving content discrimination. When a school is considering what books to buy, it has to consider lots of factors, such as the pedagogical value of particular books, money, space, etc. So when it decides not to purchase a book, that decision might be based on any number of factors. But when a school has already purchased a book, it has made an implicit judgment that the book has value and is worth the cost. Its decision to remove the book is thus more likely to be based on ideological factors.
I'm not sure the same analysis works with the hiring and firing of teachers, though. One might argue that when a school has hired a tenure-track teacher, it has made a judgment on her qualifications as a teacher and scholar and that any future negative employment action is thus likely attributable to ideological bias. But given that the pre-tenure years are basically a try-out for permanent employment, I don't think that argument works. The school's decision to fire the teacher or not offer her tenure could just as easily be due to a reassessment of her qualifications based on her performance since being hired.
My point is that while practical difficulties of proof may explain (and perhaps justify) the Court's distinction in Pico, I think we need a more theoretical explanation (and justification) for Kagan's distinction.
At 7:48 PM,
Michael C. Dorf said…
Great question, Neil. Beyond the Pico point Thomas makes, there is authority in constitutional law and in employment law for treating decisions not to hire as more discretionary than decisions to fire. (E.g., Wygant). But Kagan's position is ultimately simply a comparative point. We can agree it should be much harder to fire, or to refuse to tenure, someone on the basis of distasteful views, but is it really the case that one should NEVER make a dismissal decision on that basis?
Suppose a history department star prominently denied the Holocaust. Now that might be easy because we could say that this is not just immoral scholarship but incompetent scholarship. Okay, so to make it harder, let's imagine the Holocaust denier is an otherwise impeccable tenure-track member of the English Dep't. I think a principled answer would be to say that what he does on his own time, however offensive, is his own business, and I think this is my answer, so long as what we're talking about is lawful conduct. What makes the Delahunty case difficult (although I myself would not urge the disinvitation of Delahunty were I a member of the Minnesota faculty) is that he did not merely state his views. The torture memos were not just speech; they authorized action that, at least according to some, constituted war crimes. If a veteran had been hired as a professor and then it was discovered while on duty he had deliberately killed civilians, I don't think anyone would say that discharging that professor would be a violation of academic freedom. If that's right, then Kagan's question cannot really be answered without engaging with the merits of the torture memos.
At 7:48 PM,
Caleb said…
One potential theoretical distinction (even if it is probably unsatisfactory in the end) would be the action/inaction distinction. In the case of professors; actively firing a tenure track professor because of his or her comments would be an "action" and so prohibited. But choosing not to hire a professor (or to give him or her tenure) for the same reason would be mere "inaction". The same distinctions could map easily onto the library book example.
As for firing current non-tenure track professors for their writing, we might look (by way of analogy) to what the courts have done when school boards have refused to replace older copies of controversial books (not actively removing them, but effectively doing so over time).
Whichever side the courts come down on that question (and I'm not at all sure whether they have or not) might point the way to how to resolve the first question about the academic freedom of non-tenure track academics.
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