Academic Freedom for Yoo and Me

Responding to calls for UC Berkeley to fire John Yoo, Boalt Dean Chris Edley (who taught me administrative law 20 years ago) has a nice defense of academic freedom here. Edley repeats the standard (and well-founded) criticisms of Yoo's performance as a lawyer for the Office of Legal Counsel but concludes that under the relevant university statutes, this isn't a close case. Yoo has tenure and, Edley suggests, tenure's protection for someone like Yoo is not merely an example of a rule that is justified in the aggregate leading to bad results in a particular case; rather, protecting someone like Yoo, Edley argues, is the very point of tenure.

I should say for the record that I agree with Edley's bottom line. However, I actually am not a big believer in tenure as an institution peculiar to universities: Yes, having tenure makes faculty free to speak their minds, but habits of mind are formed when junior faculty are trying to get tenure, and thus encouraged to be inoffensive in their work. And to the extent that tenure does protect free speech, I see no reason why it, or something like it, should not be available in other lines of work. So starting from scratch, I could favor tenure as a form of protection against all but for-cause dismissal available to university faculty and other types of workers. Even then, it's not obvious that the free speech benefits outweigh the shirking costs.

But I do believe in academic freedom and currently the way we protect academic freedom is through tenure. Unfortunately, the most vociferous calls for denials or stripping of tenure in recent years have, as Dean Edley suggests, come pretty close to the core. There are, in addition to Yoo's case, the cases of Nadia Abu El-Haj (discussed in last week's New Yorker, available only as an abstract here), and the food fight between Alan Dershowitz and Norman Finkelstein about the latter's tenure (just google it to find a few thousand accounts).

What these cases show, I think, is that outside efforts to deny or strip tenure usually backfire. It's much easier to deny tenure to a marginal candidate if the decision can't be portrayed as bowing to outside pressure than if it can be so portrayed. (Note that Dershowitz says he did not independently seek to get involved in the Finkelstein case but was asked for his opinion. Perhaps so, but once he publicly campaigned against Finkelstein, he set the backlash dynamic in motion.) Even if there are legitimate academic grounds to deny tenure, public campaigns invariably arise because of the political, not scholarly, dimensions of the work.

And that will almost certainly be the case with John Yoo. Edley has predictably rallied to Yoo's cause, as he should---for now. Edley concludes thus:

I will . . . state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute? Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

Activists have sought a war crimes prosecution against Yoo in Germany, and he has been sued in federal district court by Jose Padilla. If one of these or some other case actually finds Yoo culpable, will Dean Edley change his view? Should he?

Posted by Mike Dorf