Academic Freedom: Some Propositions
I suspect that I disagree with Eric (and very likely other CTites) on how we should think about academic freedom. To clarify this (and also to figure out better for myself why I think what I think), some propositions below.
(1) Academic freedom is not a right. I can’t see any good reason why we might think that academics qua academics bear more or different rights than other rights-bearing subjects. Sometimes academics talk about academic freedom as if it were a right – but I haven’t seen anything approaching a good argument to justify this quasi-claim, nor do I think there is one.
(2) As a result of (1), whatever arguments we make for the protection or extension of academic freedom should start from pragmatic considerations, not rights. What benefits flow from academic freedom for society? The usual (and in my opinion quite convincing) pragmatic case to be made for academic freedom goes as follows – that by allowing a group of individuals to engage in wide-ranging debate about a wide variety of subjects, subject only to the norms of their particular disciplines, we may expect substantial material and non-material benefits to flow to society as a whole. Here, the claim is that we need a space in society where people engaged in expert disciplines can freely debate their ideas without any fear of losing their job, in order to generate a variety of pragmatic social benefits, not least of which are (a) scientific advancement, and (b) the broader improvement of broader public debates. Note, however, that as a pragmatic claim, this only works if the causal story that it invokes is, in fact, correct.
(3) Following (2), we can define academic freedom better. As an institution or set of institutions, academic freedom is best considered as a form of delegated self-regulation, along the lines of other professions that have some self-regulatory capacities, such as medicine. Here, I borrow from a simplified notion of Jack Knight and Jim Johnson’s notion of democratic deliberation as a second order means of choice.1 We may imagine that there are many spheres of life where we don’t want to engage in deliberation all the time, because governing these spheres through deliberation would be inefficient, would require expert knowledge that most people don’t have etc.
We don’t, for example, want to deliberate with the grocer about the appropriate prices for oranges every time we want to pick up twelve of them. However, even if we don’t want to deliberate over everything, we do want to deliberate over the means that are appropriate to different spheres – so that the decision to leave the price of oranges to market forces, to delegate decision making over telecommunications policy to a specialized authority etc, should be the product of democratic choice, and contingent on a continued democratic consensus that this form of delegation is appropriate. In this specific instance, we may reasonably imagine (at least as a first approximation) that reasonable deliberators might want to delegate a considerable deal of authority for the governance of the academy to academics themselves, reasoning that overt politicization of the academy is likely to limit the free flow of argument, and that political decision makers in any event will usually lack the technical knowledge to determine what makes for good or bad scholarship.
(4) Even so, to the extent that academic freedom is the result of delegated self-regulation, academics carry a burden of justification. They need to be able convincingly to argue to the general public that a broad definition of academic freedom is, in fact, broadly beneficial for that public and not just for academics themselves. Members of the public are entitled to treat academics with a moderate degree of skepticism when they make claims of this sort; after all, it may be difficult for academics to separate out their own self interest from the public good. Academics, if they are to justify their privileges of self regulation (for academic freedom is indeed a kind of privilege), need to be able to persuade the public that it is a good thing. Merely harrumphing about academic freedom without justifying it doesn’t cut the ice.
Some academics may reply that this call for public justification is unreasonable in a political climate where academics are the subject of irrational attack from a variety of critics. This is far from being a stupid argument – but I don’t see that the imperfections of our current form of democracy are any greater when it comes to discussions over academia than they are with regard to a whole host of other issue-areas which (I suspect) most academics should be subject to democratic control, at least in the final analysis along the lines suggested above.
(5) It is difficult to cover cases like that of John Yoo under a pragmatically defensible account of academic freedom. The pragmatic justification for academic freedom, as I see it, is that it allows academics to argue about a variety of issues without worrying too much about whether they will lose their jobs for expressing unpopular ideas. If John Yoo were to lose his job for having written the torture memos for the US government, I can’t see how this free flow of argument and ideas within the academy would be hurt one whit. None of Yoo’s critics, to my knowledge, are arguing that he should lose his job for his ideas; rather that he should lose his job for actions that he took as a servant of the US government. Similarly, academic freedom wouldn’t apply, say, to academics in Europe in the 1960s and 1970s, who moved from espousing the ideas of radical left wing terrorist groups to actually helping them in material ways.
(6) Nonetheless, John Yoo shouldn’t lose his job. As I’ve written before there are excellent pragmatic reasons why employers shouldn’t fire people for political activities that take place outside the workplace. A society in which individuals can be fired without cause is a society in which individuals will very reasonably fear that they will face retaliation if they engage in unpopular forms of political activity.
It seems to me that in the absence of (a) a determination from a court (not necessarily a US court) that Yoo is in fact guilty of criminal activities up to and including war crimes, or (b) a determination from the relevant bar association that he should be disbarred, that firing him would be to make the kind of judgment about his political activities that the University (or any employer) shouldn’t be in the business of making. I’ve seen some arguments suggesting that the quality of his legal advice to the USG was so bad that it constitutes grounds for firing – so far, I’m not convinced (although I’m not closed to persuasion). Note, anyway that my argument against firing him doesn’t appeal to academic freedom. Instead, it appeals to a more general norm – that people, whether they be academics or non-academics shouldn’t be fired for legal political activities that they undertake outside the workplace.
(7) More an aside than anything else – much of the discussion about Yoo’s case dithers between vague appeals to academic freedom, and specific discussions of the nature of Yoo’s contractual arrangement with the University of California at Berkeley. Strictly speaking, debates over academic freedom that turn on detailed discussion of the ins and outs of Yoo’s (or any other academic’s) contract are yer bum. The relevant question is: if Berkeley found a loophole in Yoo’s contract tomorrow that allowed them to fire him for writing the torture memos, and used this loophole, would we consider this to be a breach of academic freedom or not?
I’ve argued that this would not be a breach of academic freedom, but that it would be a breach of the broader norm that we shouldn’t fire people for their political activities. But while we may (and, I think, should) try to instantiate both of these norms in contracts and in laws, they shouldn’t be limited to situations where those contracts or laws clearly apply. Otherwise, academic freedom would effectively be limited to a minority of the professoriate (those with tenure, or at a pinch with tenure-track jobs), while work freedoms would be limited to those lucky individuals who live in states that have some approximation of “for cause,” or who work for employers who have granted them these rights.
So there you are. Am open to disagreement and correction on any and all of this, but think it’s no harm to clarify exactly where I am coming from when I opinionate about these topics.
1 Without implying that either Jack or Jim would necessarily agree with this extension of their argument – as best as I can tell, they wouldn’t.
I fail to see where you think your formulation is in disagreement with Eric’s view. Did you state where that lies?
But it seems like the justification required in (4) can be ju-jitsued by opponents of academic freedom—by making continuous, nonstop demands for justification. It’s as if Richard Mellon Scaife or Heritage employed an eight-year-old whose only job was always to ask, “Are we there yet?”
Porting academic freedom over to the status of rights would then be awfully tempting, a kind of threat to turn the car around and not go to the Grand Canyon after all.
Your discussion (and most others) omits the issue that I think is the most important: UC Berkeley is paying John Yoo to teach constitutional law to future lawyers!
Independent of whether he should be fired (a point on which I largely agree with you and appreciate your clear statement), having him teach constitutional law is clear academic malpractice (a broader norm not a legal category). His work clearly indicates that he can’t be trusted to accurately represent constitutional law to students.
So, give him teaching responsibilities he is qualified to carry out and let him publish and debate (he is quite able to find venues). I predict that as soon as attention shifts away he’ll scurry off to some source of wingnut welfare.
Didn’t the wingnuts get up in arms over Yale admitting a student who was the Taliban’s spokesman?
I wonder what they’d say if Fidel Castro was offered a professorship in Political Science.
While it’s pretty late in my time zone, I your argument could as easily be turned around to point out that academics deserve special consideration precisely because everyone else should deserve these considerations too, and if academics don’t have these freedoms as researchers and society’s whistleblowers, no one else will ever have them, either.
But let me focus on specifics:
(4) strikes me as a nonissue, largely because I have never seen anyone hold to the straw-man argument seriously. For political reasons, if nothing else, academics have to continually explain the role of academic freedom. I think of it as public education. ;)
(5) assumes that academic freedom depends on a narrow consequentialist argument about the value of a particular piece of expression, a narrowness that is inconsistent with the arguments made above. If Yoo’s or my academic freedom depends on whether Henry Farrell finds our work valuable, then it’s not academic freedom but a Grant of Authority by Henry the Nth. If Henry thinks the idea is valueless or offensive… well, that doesn’t strike me as consistent with any definition of academic freedom.
(5) also tries to narrowly define “idea” by claiming that the issue is not Yoo’s ideas but what he wrote as an employee of the federal government. The only way one can see his writings as Not Ideas is if what you or I write is only an idea if it is written on a university campus or by someone employed at a campus.
That should be “I think your argument…”
Jed,
Would your argument hold equally well for a conservative if Boalt had hired Justice Bryer, or for a liberal if Boalt had hired Clarence Thomas? Somewhere in there you’re going to find people who think that those on the other end of a legal-theory spectrum are never going to be appropriate teachers, and I think that is as pernicious a threat to academic freedom as someone who wants Yoo fired for writing something unpopular.
None of Yoo’s critics, to my knowledge, are arguing that he should lose his job for his ideas; rather that he should lose his job for actions that he took as a servant of the US government…
The actions of … having written down his ideas when asked for them.
Umm, there is an enormous difference between “ideas” and legal opinions in a formal government capacity. That difference should be apparent in every comment thread where people try to play lawyer.
I think that’s confusing people.
Would anyone’s mind be changed if Yoo literally had blood on his hands?
Hey this is great!
Leaving aside the merits of the arguments (which I claim no particular insight into) arguments between smart people, working from broadly shared premises, who respect each other, are a thousand times more rewarding than the usual internet contempt-fest.
I half-suspect the reason genuine, respectful disagreement is possible here is that the subject impinges that practical wellbeing of the participants; but what if it is? Anyway you guys should have some policy of debating each other on a semi-regular basis.
… as far of the substantive issue goes: I think this is a hard question. Academic freedom is a genuine good. So is stringing John Yoo up by his thumbs until time undetermined. How to weigh them, I don’t know.
hmm, if there can be “ticking time-bomb” hypotheticals, I’d say we can have a “blood on his hands” hypothetical.
Let’s say photographs are revealed showing John Yoo participating in prisoner torture sessions, along the lines of the Abu Ghraib photos (stranger things have happened). In order to avoid the question of criminal liability, Bush issues him a Presidential pardon (things like this have definitely happened!)
So, there would be no court actually ruling his activities were illegal.
Would this be sufficient to support firing him? On what FORMAL basis?
I don’t really care that Yoo might have written something unpopular. I’d want him fired even if advocating and covering for war crimes were as popular as administration toadies claim. It’s not about the popularity, it’s about taking part in a conspiracy to violate fundamental laws of the land and civilized norms.
Umm, there is an enormous difference between “ideas” and legal opinions in a formal government capacity.
No – a government lawyer like Yoo is just someone who writes down his ideas about the law in exchange for money. Nothing more, nothing less.
firing him would be to make the kind of judgment about his political activities that the University (or any employer) shouldn’t be in the business of making.
Looking it at from the other side: what judgement should the University make towards any students who argue that they cannot in good conscience take Yoo’s classes? There’s obviously a slippery slope to such arguments that has David Horowitz dwelling somewhere near the bottom, but it’s a question worth posing.
@bruce baugh:
I think something Brian Leiter wrote in his blog about the John Yoo incident is a good response to your comments:
“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.”
As I’ve written before there are excellent pragmatic reasons why employers shouldn’t fire people for political activities that take place outside the workplace.
But what if those political activities give strong grounds for the suspicion that the person won’t do their job fairly? In a lot of public service jobs there is a requirement to deal with all clients/students etc equally regardless of sex, race etc. Suppose an Italian lecturer goes along to a Northern League rally and says that all immigrants are stupid, lazy and cheats. Are the immigrants in his/her class just going to have to put up with this unless they can prove that their treatment in class is biased (which is always hard to demonstrate conclusively)?
Brian Leiter is making excuses for inactivity, mz. Others have done the documentary spadework on this already; the University’s code explicitly states that it’s not exhaustive, and it contains room to act on ethical concerns whether or not the legal system can be persuaded to deal with them as crimes.
This is one of those problems that is intractable because its solution is outside of the framework assumed. Within the framework, some people – the intelligentsia: academics, government legal experts, etc. – have disproportional influence on public discourse and public policy.
Some people then become outraged when a small minority of those members of the intelligentsia use their privileged position to promote ideas are unpleasant to them. Those outraged people are then caught in a dilemma: should they advocate removal of such people from the privileged position (opening the door to removal of others who they view favorably) or not (and have those unpleasant ideas and people enjoy wide exposure with impunity)?
The answer, of course, is that no one – pleasant or unpleasant – should have a privileged position to begin with. Yoo, or any other person, should not be in such a position of power as to allow his personal ideas to influence public policy to a disproportionate degree. Yoo’s ideas, like all other ideas, should be represented according to their prevalence in the population.
It is the position of power that is the source of the dilemma, and so the dilemma cannot be resolved until such positions of power are eliminated.
(More of the same here.)
I don’t think that writing torture memos is a “political activity” in the normal sense; it goes outside the ordinary bound of what one might consider to be normal politics. And I don’t see why a university should use the same standard of proof as a war crimes trial, or that a university is particularly incompetent to judge a case where the actual facts are pretty much undisputed.
I was thinking, in light of a previous post where someone considers whether academic freedom predates free speech that philosophers from Descartes to Hegel and beyond shaped their own views in light of the absence of anything resembling academic freedom.
For them, we are willing to read between the lines.
Others, like Spinoza, simply had to pay the bitter price of the absence of freedom. Or, depending on how you tell the story, Galileo.
Maybe some repression would make us more interesting. And courageous! (Well, we’d be given the opportunity to be courageous and some of us might act on it.)
For that, though, we’d probably have to credential outside the academy. We’d have to listen to people who aren’t professors. Maybe that’s the obstacle for us. That, and the absence of any kind of patronage. We’d have difficulty in our 9-5 jobs finding time to write the offending arguments.
I kid, of course.
I do think the idea of making the case to the public for anything not leading to some life saving vaccine is hopeless. How do we explain to them how terribly impoverished they’d be without Spinoza? We’d be stuck with what the public is willing to accept and the range of is subject to both their disinterest in what academics do and political manipulation. In fact, we’d have to lie to them ourselves if we wanted them to think that the freedom of theorists to argue among themselves had any direct bearing on their well-being.
It’s not just ‘the public’. I saw a blog post by a scientist a few days ago which attacked a piece of social science research as a waste of time and money, and basically said that unless it’s preventing cancer (or otherwise saving lives), your research is worthless. If academics can be so ignorant, how can you expect any better from the general public?
Sigh … I know this is not going to work, but one more time:
US LEGAL COUNSEL IS NOT AN “IDEA”
There are numerous hacks running around promoting the bona-fide idea that torture-is-OK. There are very, very, few people in this world where a real legal war-crime accusation defense would be roughly “But HE said torture-is-OK!”.
If people cannot grasp this difference, further complexity seems beyond them.
@22: unfortunately for academics, especially in the humanities, that argument is not only pragmatically powerful, it’s also fairly well-grounded in reality. The social sciences I will leave up for debate, but much of what humanities academics do is of absolutely no benefit to society, and as ‘humanities’ shades over towards ‘arts’ that ‘most’ becomes ‘almost all’, and ‘no benefit’ becomes ‘pointless waste of money on self-indulgent nonsense’. This is why there is a virtual taboo on calling into question the value of other people’s research fields [as opposed to merely questioning their conclusions] – we’re in a hydrogen balloon, and that would be playing with fireworks…
Oh for fuck’s sake. If you can’t come up with a legal justification to fire the guy, the student body should just kick his arse. Look, he’s a fucking torturer.
“Academic freedom is not a right”. Yes it is: the universal right to freedom of expression. The difference is that a normal relationship or contract of employment, making the employee the agent of her employer, normally binds the worker to act in the employer’s interests and accordingly restricts her right to speak against them. Academic freedom (sense 1) can therefore be read as an estoppel on a certain class of employers – universities and other educational and scientific organisations – to restrict their workers’ rights of speech in this way. Th estoppel has I agree to be grounded pragmatically.
In common usage academic freedom also (sense 2) refers to a different set of concepts about self-government. The distinction is brought out by the different scope: schoolteachers enjoy (some) academic freedom in sense 1, but not the self-government enjoyed by universities. Again, university autonomy has to be justified pragmatically as a means of protecting academic freedom in sense 1.
Yet again, academic freedom has the third sense of Lehrfreiheit: the academics’s right to teach not only how but what she wants. This right has to be restricted by the needs of the curriculum: elementary statistical methods must be taught to the freshmen even if no-one in the department want to do it. But a lecturer who is required to do only that year after year would have I think a reasonable claim that her sense 3 academic freedom was being violated.
PS: the preview is broken.(Firefox 2.0.0.14 under Windows XP)
Even though there might not be rock-solid evidence that Yoo has committed crimes, his professional record casts very serious doubts about his qualifications to teach. I don’t know how hiring is done at UC Berkeley, but I would be seriously angry if I were a law student who was offered such a professor and even more so if I were a constitutional law scholar who was denied employment. As often about similar case, the crucial factor seems to me to be the opportunity cost.
I admit your point (4) is a cause of worry for me. Researchers in my field (pure maths) depend solely on the generosity of the public as the market value of what we produce is very elusive. On the other hand, the normal progress of our discipline widens inexorably the gap between what even a very well educated citizen can reasonably be expected to know and our current activities. In my experience, lay people have a very good to good opinion of my professional activity, but we often find ourselves quite defenseless when a sudden budget cut is justified by a “show me the fruits” line.
Which makes me think that discussion about academic freedom should probably incorporate discussion about financing research. After all, if you have perfect academic freedom but if only approved projects are financed, you are not so well, are you?
I hate to ask anything like “Are you really serious about that drivel?”, but #27 tempts me to it.
But in any event, all of that is kind of irrelevant to the question at hand, which is whether a faculty member in their capacity as a member of the government should remain in good standing after supporting a program of torture.
I often disagree with Abb1, but this time I think he’s precisely on target. There is a clear academic blogger consensus that Yoo ought not lose tenure for these actions. We can safely assume that if he’d advised the president on how to strip away traditional tenure rights and processes in the name of national security, there would be outcry against that. Anything else? Since torture doesn’t warrant action, what – other than the preservation of tenure itself – would, exactly? Or does the academy have no obligation at all beyond compliance with the law, no independent ethical criticism of its members at all?
Meh. I’m over the line – that’s not productive insulting in #29. I’m gonna bow out and go cool down.
@29-30: isn’t it rather the case that, under existing systems, there is no legal means of stripping Yoo of tenure, and that this is a simple matter of fact? Your outrage is doubtless ethically admirable, but it cannot alter the objective material factors, as the Soviet general staff used to say. If you wish to change the law, you may seek redress through that avenue, but you can guarantee that as soon as you do, it will be used against people like you by people you detest.
This doesn’t have much to do with the main topoic of the discussion, but I feel it indicates some muddled thinking
First point:
In a lot of cultures it was and still is common practice to haggle over prices for groceries in the – literal – market. So there are people who ‘want’ to do it. Even in a modern economy, prices are often haggled over, e.g.when buying a car and asking the seller for rebates and financing terms.
Second point:
Market ‘Forces’ are not unpersonal, abstract forces like a ‘Force’ in Physics. Prices in the market are the results of peoples decisions: some peoples’ offer of goods at a given price and other peoples’ decision to buuy or not to buy at that price.
Third Point:
The democratic decision about defining prices is not between haggled and seller-defined prices (both are market prices arrived at through different processes), but between market prices (agreed between seller and buyer) and proces defined by other means (e.g.by state law)
Greetings
KHR
[deliberate attempt at trolling, which ignored argument made in original post, removed]
I just said that.
bruce baugh in #29: I’m sorry but I thought Henry was making some general points about academic freedom, not specifically about John Yoo. I don’t know what bearing my comment has on Yoo. On that, I’ve posted elsewhere.
And Brett’s come in to spoil the thread. Since it’s ruined at this point, I might as well say that Alex’s comment:
“No – a government lawyer like Yoo is just someone who writes down his ideas about the law in exchange for money. Nothing more, nothing less.”
reminds me about the old saying about German guilt for Hitler: “Hitler was but one man, armed only with a telephone.”.
In the US, at least, a criminal conviction requires proof beyond a reasonable doubt. Civil matters require proof merely by a preponderence of the evidence. This is why, for example, OJ Simpson could be aquitted of criminal murder charges, and yet held civilly liable for the murder of his victims.
If OJ Simpson had a tenured professorship, I don’t think academic freedom would require a university to retain him in that position. Similarly, that Prof. Yoo hasn’t been criminally convicted of war crimes ought not to prevent the University of California from concluding that it doesn’t want a war criminal on its faculty, and discharging him.
This post seems to be premised on the view that writing torture memos is just a ‘political activit[y] that takes place outside the workplace’. That seems very strained.
Actually, I should have said it seems absurd…
Yoo gave gov’t officials immunity to torture prisoners, knowing that they would use this immunity to actually go out & torture prisoners, and his actions had an important causal role in prisoners actually being tortured, in some cases fatally. He acted like a more powerful version of a mob lawyer. It’s these actions & their consequences that have people wanting him fired, not his “unpopular ideas”. And with all due respect to Henry: action taken as a lawyer is absolutely relevant to one’s fitness to teach at a law school. Just as I would think that a medical school would consider a doctor’s abetting in torture relevant to his fitness to teach at a medical school.
Like Henry, I’m not really seeing how academic freedom comes into it at all. You can make prudential arguments that you shouldn’t revoke tenure for criminal activity absent conviction & that you shouldn’t revoke tenure for ethical violations absent action from a bar association. But the faculty code of conduct seems to allow for it; the main argument for not doing so seems to be slippery slope stuff that isn’t really very convincing; I really don’t know why a factual investigation isn’t even considered as a serious possibility. Except, basically, academics protect their own, & preservation of tenure is therefore more important than anything else.
Would people also be saying that “academic freedom” protected this if he were actually in the room during the interrogation, or watching through a close circuit TV, and assuring them that each individual act of waterboarding, chaining a prisoner in a “stress position”, etc. was legal & they could continue? Would Henry consider that a “political activity” irrelevant to The Academy?
when I say: “immunity”—the existence of an OLC opinion, officially stating that the Department of Justice regards certain interrogation techniques as legal, probably makes it impossible to successfully prosecute & convict anyone in a U.S. Court for using those interrogation techniques. Which also probably makes it impossible to prosecute & convict John Yoo in a U.S. Court for participation in a criminal conspiracy with those people, regardless of the facts. And of course, for principled reasons of academic freedom, academics cannot even consider revoking tenure based on evidence of participation in a criminal conspiracy to torture prisoners, absent conviction.
Pretty neat system if you’re on the right side of it.
I don’t see what’s over the line about 28, either.
@40: Well, yeah, that’s why they call it “power”. But you’re still missing the point, which is that if Yoo had his tenure revoked, he’d sue, and he’d win, and meanwhile every wingnut in the country would be jumping on a bandwagon for the abolition of the whole system, and they might win too.
Briar patch anyone?
And that’s what I mean about unconvincing slippery slope arguments. It’s possible that the fine print of his contract does NOT allow revocation of tenure for this reason, but no one actually knows it at this point; people are circling the wagons & not seriously considering an investigation or the intricacies of Berkeley’s code. Because, basically, they value their tenure more than some accountability somewhere for having participated in the fatal torture of prisoners.
if Yoo had his tenure revoked, he’d sue, and he’d win, and meanwhile every wingnut in the country would be jumping on a bandwagon for the abolition of the whole system, and they might win too
And after that happens, a dark stranger will bring you an unexpected gift…
@30 (dave): isn’t it rather the case that, under existing systems, there is no legal means of stripping Yoo of tenure, and that this is a simple matter of fact?
No. See 18 (bruce baugh), which refers to a point I made here (or perhaps to a comment to the same effect by another person). Suffice it to say that Berkeley’s rules don’t purport to provide an exclusive list of the grounds for faculty discipline.
“But you’re still missing the point, which is that if Yoo had his tenure revoked, he’d sue, and he’d win,….”
Maybe. Maybe not. Considering that (a) Berkeley could raise some serious issues of moral turpitude and proven incompetancy/criminality in carrying out his profession as a lawyer, and (b) Berkeley could drag in all sorts of embarrassing sh*t that he might not want made public,….
You have evidence for this embarrassing sh*t, or are you just hoping?
Meanwhile, I still don’t see how anyone can hope to move against Yoo, or anyone else embroiled in the torture saga, until there has been sufficient of a revolution in the country to overturn the fact that they were the govt and they made their actions legal by fiat. Now, I like revolutions, I can’t wait [maybe January will bring to office a figure that will lead such a revolution]; but until you have your revolution, you’re just whining.
If I thought that Yoo sincerely believed that he was presenting a non frivolous legal case within his torture memos, then I would believe that he should retain his job. That is within the professional norms of an attorney.
I do not, however, believe that. I think he knew he was providing a frivolous legal argument in order to give political cover to the administration in the court of public opinion. As an attorney, I feel that keeping him in a teaching position would be much like giving a teaching position to a lawyer with a history of filing objectively frivolous lawsuits, or an accounting position to an accountant with a history of intentionally manipulating client accounts to cover up malfeasance, or to a doctor with a history of illegally prescribing himself unnecessary, but pleasurable, narcotics.
Whether that’s something that a university should handle on its own without the intervention of the bar association isn’t a question I can answer.
“they were the govt and they made their actions legal by fiat”
Doesn’t work like that. They may have made it impossible to prosecute but it sure as fuck wasn’t legal.
I thought Henry was making some general points about academic freedom, not specifically about John Yoo.
Another interesting thing: there are two cases that have highlighted this issue. One is John Yoo at Berkeley; the other—the occasion for the Rauchway post Henry is responding to—is Nadia Abu El-Haj at Columbia. Both involve calls from outsiders (outside the tenure process, not necessarily outside the university) to reverse a tenure decsion on political grounds.
Now I happen to think these calls are definitely wrong in the case of El-Haj, annd probably right in the case of Yoo. But the two situations are formally very similar. The difference is simply that I put “providing legal justification for the use of torture” on a different level from “questioning the historical basis of biblical claims about Israel.” Many people, obviously, consider the second as bad or worse than the first, so they come down differently. I am very glad that El-Haj’s critics lost, but I don’t know that they are “wrong” (well, on lots of second-order factual stuff, of course) so much as just have different commitments.
It’s a very good illustration of how some questions really can’t be resolved on formal or procedural grounds.
(and is preview ever coming back?)
I’ve gone back and forth on Yoo. Tentatively, I’m with Leiter (and Henry), on the basis of institutional incompetence to investigate violations of criminal laws or ethics rules peculiar to the profession, and also (to some extent) out of slippery slope concerns.
Just out of curiosity, though, Henry, what do you think should happen if the competent institutions (the California Bar, the DoJ) shirk?
academics protect their own
These two threads have seen a lot of variations on this statement, with the implication it’s a bad thing. But is it?
Isn’t it what, in any other context, we’d call solidarity?
lemuel, there’s also a rather relevant distinction from providing the legal justification for torture in law review articles or op-eds or books & doing so in secret OLC opinions which immunize executive branch employees from prosecution for acts of torture—not because of their reasoning, which is totally unconvincing & either bad faith or incompetent, but because of their existence—and foreseeably lead to people being tortured.
No one is calling for the revocation of tenure of professors for their advocacy for the legality of torture in op-eds & law review articles. Really, no one.
dsquared, engels, katherine – I agree that this is in some ways absurd and grotesque. I had previously managed to convince myself, entirely to my own satisfaction, that Yoo’s actions didn’t fall under the rubric of academic freedom, and that that was that. It was only yesterday that I thought about what it meant for more general questions regarding the circumstances under which employers should be allowed to fire employees. I can’t envisage any generally justifiable rule (or at least any rule that doesn’t rest on a determination being made by some credible external body) which would allow you to fire Yoo, or someone like him, without potentially endangering a whole bunch of other people engaged in political activities outside the workplace that some employer might find to be morally obnoxious or objectionable. And I think that a generally justifiable rule is what would be needed here.
q – my personal take on this is that there is a broad range of competent institutions for the purposes of determining whether or not war crimes have been committed. If a fair-minded court in another democratic country or a properly constituted international body asserts universal jurisdiction over this and finds him guilty, I think that Berkeley would be ethically justified, under my understanding of the relevant norms, in firing him, even if the chances of this court actually being able to apply sanctions directly are close to zero, given the realities of the international power system.
I can’t think of any generally justifiable rule which would allow you to fire Yoo, or someone like him, without potentially endangering a whole bunch of other people engaged in political activities outside the workplace that some employer might find to be morally obnoxious or objectionable.
But in fact, some important decisions cannot be made on the basis of general rules, but require judgement about particular cases.
Scholars are right to defend academic freedom tenaciously. But at some point, your duties as a citizen—to not see egregious wrongdoing in your name go unpunished—outweighs your duties as a scholar. There’s no formal process to determine when that point is reached.
Oops, missed this bit:
political activities outside the workplace
This hopelessly muddying the issue. Please don’t do that.
Both normatively and practically, the defense of Yoo (and El-Haj) is on the rights they have specifically as academics. Nothing about workplaces generally is at stake.
I just plain don’t get the “political activities” thing. Again, does this apply if he’s in the room giving the okay? Say you have a doctor helping to revive an unconscious prisoner so he can be tortured again, or monitoring an interrogation—is this grounds for firing him or is this punishing him for “political activities”? Really? What if the doctor weren’t American; what if he did this for some foreign dictatorship? It’s bizarre to me. And the endlessly shifting justifications, most of them indefensible (I’m thinking especially of Edley’s) are not inspiring confidence that there is a principle greater than “you cannot revoke Yoo’s tenure because tenure is awesome and can never ever ever ever ever ever ever ever be revoked” at work here.
Henry, I basically agree with your 1-4. I don’t with respect to the specific case.
If you look at the bottom of the “resources” post, there are rules here. The law school dean’s say-so is not actually in the rules. There is however a committee with jurisdiction. A complaint of any form ought to go to them; they’re the first forum for such a case. (And anyone who wants to skip this committee should take note, it appears there’s nobody with the authority to act but them.)
What complaint should that form take? There has been a lot of talk about whether the advice constitutes a form of scholarly malpractice, which is already more-or-less covered under the faculty code. I’m not a lawyer, still less a committee of lawyers; it would take such a committee to make a judgment about such malpractice that would have any force under the aforementioned rules.
Serious ethical misconduct is usually thought to provide grounds for dismissal, and this can be true even when the misconduct occurs outside of work. An example which is often given is a supermarket cashier who fired after being caught shoplifting. A legal claim that the reasons for dismissal were ‘political’, because based on political views about the legitimacy of private property, etc, would not be taken seriously. I can’t see that there is more substance to the argument that the judgment of Yoo’s actions is a ‘political’ rather than an ethical one.
The only remaining issue appears to be whether it is right to take action in the absence of a criminal conviction. But here the fact that Yoo’s co-conspirators have (through the Military Commissions Act) effectively made it impossible for him to be properly tried and convicted in the US would argue strongly for Berkeley’s reaching a judgment on its own.
The MCA is not the main obstacle to prosecution—it didn’t do anything to the torture statute, just the war crimes statute. Yoo’s memo is an obstacle; also, presumably, DOJ lawyers don’t want it to be possible for DOJ lawyers to be prosecuted for their actions as DOJ lawyers any more than academics want it to be possible for academics to lose tenure.
Of course right now there’s a total lack of prosecutorial will because of the current administration. But the obstacles won’t disappear in 2009.
Katherine: thanks for the correction.
I think the point stands though: the fact that as things stand Yoo can not be brought to justice in a US court ought to argue strongly for Berkeley not insisting on a criminal conviction as a condition for firing him on the basis of his ethical misconduct.
“Because, basically, they value their tenure more than some accountability somewhere for having participated in the fatal torture of prisoners.”
Well of course they do. Those people have already been tortured, they may still yet lose tenure.
I think Henry is completely right that: “I can’t envisage any generally justifiable rule (or at least any rule that doesn’t rest on a determination being made by some credible external body) which would allow you to fire Yoo, or someone like him, without potentially endangering a whole bunch of other people engaged in political activities outside the workplace that some employer might find to be morally obnoxious or objectionable.”
But I’m not wholly convinced which way I should be swayed by that observation—that this means that Yoo is off the hook, or if it means that our idea of academic freedom has serious problems.
Also I think we need to refocus on Henry’s idea that there are two questions here.
Academic freedom is really about academic discourse and inquiry. It is hard to see how it applies here except for the fact that many in the academy seem to confuse it with an independent free speech right.
Free speech (as a concept not a constitutional right) in this context is about the ability to engage in expressive AND political activity (remember free speech isn’t just about protecting art projects, its justification is especially about protecting political expression). Yoo’s memos were government functions and so free speech doesn’t protect him from being prosecuted for them. But in terms of Berkely’s relationship with Yoo, the memos were politically expressive actions, and it is hard to see how you can fire him for that without being able to fire, for example, Tribe for his politically expressive activites vis-a-vis the Supreme Court.
“Yoo’s memo is an obstacle; also, presumably, DOJ lawyers don’t want it to be possible for DOJ lawyers to be prosecuted for their actions as DOJ lawyers any more than academics want it to be possible for academics to lose tenure.”
This is also a good point. The generally held protection that government lawyers can’t be prosecuted for their written opinions is defended on exactly the same grounds as academic freedom.
Now I see the “outside the workplace” thing isn’t just a throwaway line. Henry is not arguing that Yoo is protected by academic freedom, but that in the absence of a finding by a court or bar assocaition, Yoo should suffer no professional repercussions whatsoever. Like Katherine, I find this bizarre.
To take the other side of Katherine’s hypotheticals—what if Yoo were advising a law enforcement agency on treatment of prisoners? or a multinational corporation on human rights? Would it still be wrong to fire him? Apparently so. Or is providing a legal justification for totrue a disqualifcation in those cases, but not—for some reason—for teaching law?
And then of course, there’s the small matter that we, in fact, live in a world where most people can and are be fired for “outside political activities.” A credible case can be made that academics in particular deserve greater job security. But Henry’s not arguing that, he’s suggesting that because in an ideal world, everyone would have tenure-like protections, there’s no need to defend the particular narrow form tenure takes in reality. It doesn’t work like that, tho. Something that’s deirable as a universal right isn’t automatically defensible when it’s arbitrarily restricted to a select few. By Henry’s logic, the fact that American prisons are a disgrace justifies the commutation of Scooter Libby.
Finally, Henry’s view that “political activity” should never have consequences in employment comes pretty close to the view that we wholly delegate our duties as citizens to the legal and political systems. Does Berkeley, and the people who make it up, have no independent duty to take a moral stand against torture?
Shorter: If someone like John Yoo worked for me in a position of responsibility and I learned he’d helped torture people, I would fire him instantly. I take it, Henry, that you would not?
Katherine – it could well be that there is something like that happening here (as I note above, people can reasonably treat academics’ arguments as often being tinged with self-interest – but there is a secondary issue at stake which is what I am pushing, and what I think Eric is also saying in a somewhat different way. That’s the question of what rule we should have, if any, that would allow us to distinguish between cases where we should allow employers to fire people for engaging in arguably opprobrious activities and cases where we shouldn’t. Your argument seems to be that Yoo’s actions weren’t at all political – I disagree (Yoo was a political appointee undertaking actions to further the political agenda of a Republican administration). A better formulation might be that they were political but profoundly objectionable – but then we need a criterion to distinguish between cases where political activities are profoundly objectionable and cases where they aren’t. In the absence of such a rule, I’m unconvinced that employers in general will be able to distinguish between objectionable and non-objectionable activities in a fair way. It may be that there is a rule that can be employed to this purpose but I can’t think of what it is.
what rule we should have, if any, that would allow us to distinguish between cases where we should allow employers to fire people for engaging in arguably opprobrious activities and cases where we shouldn’t.
OK, there’s no hard and fast rule. But your solution is to to say that there should be no consequences for opprobious behavior, no matter how appalling,e xcept through the legal system. But why is that better than making these judgements on a case by case basis?—the lack of a general rule doesn’t mean that aren’t particular cases that are very clear.
Also, don’t you see any difference between universities and employers in general?
Also, I haven’t seen you argue why Berkeley shouldn’t regard the torture memos as showing that Yoo is unqualified to teach law.
“Yoo was a political appointee undertaking actions to further the political agenda of a Republican administration”
This is yet another argument that depends on who the players are and not what they do. Yoo is: (1) a university professor (2) a political appointee chosen by the current administration, which represents one of the two major political parties in the U.S. (His victims are conveniently foreign, anonymous, not members of any university faculty or political party, & their lives have the approximate value of gravel as far as the U.S. is concerned.) So if you’re going to abet in torture, do it for a powerful in-crowd government & it’s a protected political activity. Presumably we don’t have similar qualms about employers firing or not hiring people for abetting foreign dictatorships in war crimes as infringing on political expression.
And, I mean, “abetting in fatal torture” v. “not” seems like a pretty relevant moral distinction in terms of what “political activities” are beyond the pale & which ones aren’t. I could go on about jus cogens here if it would help, but basically the argument seems to be: grossly immoral professional acts are none of the academy’s business unless they involve plagiarism, or some outside body will make the call for us, & tenure is awesome & should never ever ever ever be revoked. This would be one thing if I bought that it would be generally applicable, but you’ll pardon me if I just don’t. I flatly don’t buy that Berkeley would consider very very strong evidence of participation in gross human rights violations a matter of “academic freedom” or “political activity”, to the point where not a single academic would lodge a complaint to the appropriate committee or publicly say “yeah, he should lose tenure” if you changed the nationality of the victims & the institutional affiliations of the perpetrators.
To be fair, Katherine, I don’t think Henry’s position would be nay different if Yoo’s victims had been American or Irish. The heart of his argument is that an employer is and employer is an employer, and political activity is political activity is political activity. And since we can’t come up with any ironclad rules to disinguish UC-Berkeley from Wal-Mart, or facilitating torture from registering people to vote, we should treat them exactly the same.
Lemuel – on this issue I actually don’t see that there is a crucial difference between universities and other employers. Universities are generally pretty good at respecting the (contractual) rights of tenured and tenure track employees. Their track record for protecting the rights of non tenure track employees is not so great. It may well be that the torture memos show that Yoo is unqualified to teach law, and in that case he should be fired obviously – but then it isn’t a question of academic freedom or workplace rights but of basic competence. The worry I have – and that I haven’t seen a good solution to – is that I don’t believe that we want to give employers a general right to fire people who do stuff outside of work that the employers find morally opprobrious. And without some sort of criterion of the kind discussed above, I am not sure we can get there.
And Katherine – if you genuinely believe that what I am making here is a ‘tenure is awesome’ argument, I’m not sure that there’s much point in engaging with you further.
also, if it IS a matter of either “protecting unpopular ideas” or it being improper to fire employees for outside political activities, presumably it isn’t restricted to already tenured professors, right? You shouldn’t refuse to hire or grant tenure to junior professors on such invidious grounds either, right?
Everything is political in a minimal sense. I’m also sure that Henry’s right that Yoo’s actions were politically motivated (‘Yoo was a political appointee undertaking actions to further the political agenda of a Republican administration’). The fact remains that the grounds for condemning them are moral, not political. Torture, ordering or abetting the use of torture, is not a form of political expression. It is a moral crime.
I don’t believe that we want to give employers a general right to fire people who do stuff outside of work that the employers find morally opprobrious.
But employers alreayd have that right! They exercise it every day.
You can’t just deflect the specific case of Yoo onto general rights of employers, as if Berkeley saying “no torturers on our faculty” was equivalent to Wal-Mart firing someone for signing a peititon in support of a higher minimum wage.
(Well obviously you can, but you shouldn’t.)
I don’t believe that we want to give employers a general right to fire people who do stuff outside of work that the employers find morally opprobrious.
I’m pretty sure that no-one here thinks that employers should be permitted to fire people for actions that ‘the employers find morally opprobrious’.
Also: incompetent/unethical conduct in the course of practicing law is relevant to fitness in teaching students how to practice law. Just as incompetent/unethical medical practice, such as reviving people for future torture sessions, would be relevant to fitness in teaching students how to practice medicine. It would also, by the way, be relevant for other legal jobs—hell, the existence of unpaid parking tickets is ostensibly relevant. Very very strong evidence of criminal activity is also generally considered relevant even if it does not lead to conviction. Do you also think it would be invidious & unfair for employers to refuse to hire Prince Johnson based on that Samuel Doe video? After all, it was politically motivated! And he’s never been convicted! And he’s a Senator!
Just to be clear: I may be wrong, but my understanding is that in the UK at least as stated above ethical misconduct is considered fair grounds for dismissal, even when it occurs outside of work, and especially if it casts doubt on the employee’s suitability for the job in question. Eg. as stated above a supermarket cashier could be fired after he was found to have been shoplifting at the weekend because this gives evidence of a lack of honesty which makes him unsuitable for his role.
(And the point in #75 is that whether the action in question was in fact ‘unethical’ in a sense that would give grounds for dismissal would be an objective question, ultimately to be decided by the courts, not left to the judgment of the employer.)
Very late to the (fascinating) party, Henry, and I may just be weary from the Pennsylvania primary, but I’m not understanding why academic freedom shouldn’t be considered a right. It seems to me that it exempts academics from the at-will employment doctrine (for very good reasons you’ve already covered) and gives professors strong guarantees of due process, and I don’t see what follows from saying that there’s no good argument for the quasi-claim that it is a “right.” Now, in Yoo’s case, “due process” appears to require a conviction in a court of law—and not just any conviction, but one which clearly demonstrates unfitness to continue as a member of the faculty. Then the question becomes (as engels and others have put it) whether Berkeley should reach a judgment on its own, based on the knowledge that Yoo could quite plausibly be convicted in a court of law. I’m inclined to wait for that conviction first, lest we head down that slippery slope at the bottom of which He Who Shall Not Be Designated By His First Initial and a Drastic Truncation of His Surname awaits, but I don’t entirely know what I think about Yoo’s case yet. I’m just curious as to what role your paragraph (1) plays in this argument.
What I think is attributable in part to “tenure is awesome” is the fact that, as I said above, “not a single academic [will] lodge a complaint to the appropriate committee or publicly say “yeah, he should lose tenure”. Among academics, I see a range of views from: “Yoo should definitely keep his job at Berkeley!” to some degree of agonizing. The justifications for this vary & most of them are pretty darn unconvincing—I understand some to some degree but they certainly aren’t enough to explain the degree of consensus. And how persuasive people with otherwise extremely similar views on torture, freedom of expression, academic freedom, etc. seem to find them seems ASTONISHINGLY well correlated with academic status. It’s the degree of consensus that I can’t find any explanation for other than academics protecting their own. You can cast that as an individual charge of bad faith you like—people seem to find doing so incredibly convenient in this argument—but it’s really not.
Lemuel – as my earlier post on the topic makes clear employers do have that legal right – but I am writing about shoulds, not ises. My interest in this issue comes in part from having done some work during my grad student days on West Germany’s habit in the 1970s and 1980s of firing kindergarten teachers etc who were members of the Communist party. Clearly the state education ministries had the ‘right’ to do this under German law – but whether they had the right to do this in a broader sense is a very different matter. And engels – the exact point is that Berkeley, as an employer, is being asked to decide that what Yoo did is morally opprobrious. If the employers don’t decide, then who does?
I should also add that I will be away Doing Other Stuff for a few hours …
Oh and Michael Berube: talk about “waiting for a conviction” is insulting to the intelligence of people who are fighting for accountability and, you may have noticed, LOSING because of the corruption of the Department of Justice. I wouldn’t so much care about Berkeley providing accountability if I thought there was any chance of it in the courts. If tenure trumps accountability or justice anywhere, fine, but don’t pretend to be merely passive observers waiting patiently for DOJ to act as they surely will if crimes have been committed.
As for the topic of whether or not Yoo’s memo hits “basic competence”, see Mark Graber here on Balkinization (which is on your blogroll, and I don’t think Graber could be fairly characterized as right-wing).
The memo is a defensible bleeding edge ‘interpretation’ given the whacked out state of what passes for interpretation of Constitutional law. (That statement should be read as an indictment about the state of Constitutional law, not an endorsement of the Yoo memos). The fact that it is also horrific, should give pause.
Actually, I may have misread berube’s post…in general, there is a total unwillingness to acknowledge the obstacles to prosecution caused by the fact Yoo’s misconduct occurred while he was working for the U.S. Department of Justice & the organization responsible for prosecution is the U.S. Department of Justice. It’s not just a question of whether the prosecution can make its case & the jury will vote to convict—the prosecution may not want to make its case, &/or may be unable to do so because of the very memo that people are objecting to. But I’m not sure berube’s post is actually an example of this unwillingness or just leaves that to one side.
talk about “waiting for a conviction” is insulting to the intelligence of people who are fighting for accountability and, you may have noticed, LOSING because of the corruption of the Department of Justice
I have indeed noticed, Katherine. But if you’re arguing that Berkeley should go ahead and fire Yoo now because of the corruption of the DoJ, mightn’t you be insulting the intelligence of people who are aware of the fragility of human institutions, and who realize that this might set a nasty precedent for packs of right-wing attack dogs who will insist that X (and everyone like her) be fired without due process because we can’t trust all those liberal activist judges who don’t respect the intention of the framers?
And you’ll have to look elsewhere for someone who claims that “tenure trumps accountability or justice anywhere,” because I sure as hell didn’t say it.
Sorry, Sebastian, you’re going to need to come up with something better than “even the liberal Mark Graber”, who makes assertions rather than arguments; you would actually need to defend Yoo’s treatment of Youngstown & the various Article I clauses he either ignores or makes ludicrous arguments about.
“Then the question becomes (as engels and others have put it) whether Berkeley should reach a judgment on its own, based on the knowledge that Yoo could quite plausibly be convicted in a court of law. ”
Posted by Michael Bérubé ·
I’m not saying that it’s impossible that Yoo is ever convicted, just one step less likely than Bush and/or Cheney being convicted.
Any argument which assumes that Berkeley should wait for a conviction is tantamount to having Berkeley wait for Yoo to be struck by lightening.
RE: #65
If latecomers are still welcome at this party, I’d like to disagree with Henry that Yoo’s actions were political. As I understand this case, Yoo wrote a DOJ memo which willfully omitted legal precedent (or whatever) that argued against the desired outcome, namely that the US government be allowed to torture people. Perhaps this is in some sense a political act, but it is much more importantly a professional act, and one that breached the ethical standards of Yoo’s profession. So I don’t think this case really falls under the rubric of academic freedom or political activities outside the workplace. It was, in fact, his professional conduct inside the workplace that is in question.
I’m not arguing that Berkeley should go ahead & fire him now. I’m arguing that Edley’s knee jerk, inaccurate defense, & the general circling of the wagons & lack of anyone’s willingness to say to the relevant committee: maybe you should seriously take a look at this, is more a function of academics protecting their own than to their awareness of the fragility of human institutions being more finely honed than non-academics’. And the legitimate concerns might be more convincing if they weren’t accompanied by so very many tendentious arguments from Edley, Leiter, etc. But maybe this is just a question of irregular adjectives.
there is a total unwillingness to acknowledge the obstacles to prosecution caused by the fact Yoo’s misconduct occurred while he was working for the U.S. Department of Justice & the organization responsible for prosecution is the U.S. Department of Justice
Fair point. Sorry to have crossed in the thread.
Personally, I think people who advocate or carry out torture should have some visited on them, so that they can learn all about it. I’m trying to balance that raw gut feeling against my belief in proceduralism. But you’re right, proceduralism here is all tangled up in recursive knots.
How about we try Yoo in International Criminal Court? Sure, the U.S. doesn’t recognize it, but most of Crooked Timber does, and we can ask UC - Berkeley to join us.
And I see I’ll have to wait long hours before I find out why we shouldn’t think of academic freedom as a right. . . .
re: the idea that this happened “outside of work”
Does it matter that it happened DURING work, but for a different employer?
If I hired an associate attorney, and then later found that he’d engaged in particular egregious and willful malpractice while working for a previous law firm, I might fire him for it. Is that wrong?
re #92
No! But would it matter if he had already made partner by the time you wanted to fire him??
btw, does Berkeley normally grant law professors leave to go work for another legal employer? Could a tenured professor go on a leave of absence & just go & get rich at a firm for a couple of years? Or do they only allow that for “public service” work such as OLC because it’s thought to be helpful & relevant & beneficial to the university in some way?
My interest in this issue comes in part from having done some work during my grad student days on West Germany’s habit in the 1970s and 1980s of firing kindergarten teachers etc who were members of the Communist party.
But even if we don’t know exactly where the line is separating membership in the Communist party from abetting torture, can’t we agree that there is such a line, and they are on opposite sides of it?
And how about my other question—if you employed someone in a position of trust, and learned that he had a direct role in torture comparable to Yoo’s, would you fire him?
Henry (#81), an employer is entitled to decide on whether an unethical action amounts to gross misconduct but that doesn’t mean that anything goes, because that decision could be rejected in court. As long as the courts are clear on what does in fact amount to gross misconduct (as I believe they are) then I don’t think there is the slippery slope that you seem to think there is.
(At least, this is how I think things work in the UK…)
lack of anyone’s willingness to say to the relevant committee: maybe you should seriously take a look at this
Katherine, with respect, I don’t think you know there is such a lack. I’m pretty sure there is not. I believe one would have to be a Berkeley professor to say something, and one would have to be a member of the committee to know whether anything has been said.
I think people who advocate or carry out torture should have some visited on them, so that they can learn all about it. I’m trying to balance that raw gut feeling against my belief in proceduralism. But you’re right, proceduralism here is all tangled up in recursive knots.
Right, exactly. Balance. Which Henry badly needs, having gone so dangerously far out on the proceduralist limb.
Then the question becomes (as engels and others have put it) whether Berkeley should reach a judgment on its own, based on the knowledge that Yoo could quite plausibly be convicted in a court of law.
To be clearer, the point I was trying to make was that Berkeley should reach a judgment of its own, based on the knowledge that Yoo will never be convicted in a court of law in the US, and this for reasons that have nothing to do with justice and everything to do with the failings of the current US system, due in no small part to the machinations of people like Yoo.
Thanks for the clarification Eric. For some reason I assumed that would be public knowledge but maybe not—& that would make sense at the early stages.
Out of curiousity—I mentioned Prince Johnson above. He’s a Liberian warlord who was videotaped some years ago supervising the torture of former Liberian ruler Samuel Doe. He now denies this but the video speaks for itself. Johnson has never been convicted or penalized by any competent authority for this; he is now a member of the Liberian Senate. I don’t think he’s likely to ever be prosecuted for a variety of reasons.
Assume, implausibly, that he is a tenured professor at Berkeley when the video becomes public. Is it grounds for revocation of tenure? Or would that be wrong? (Either because it penalizes him for political actions & he hasn’t been convicted of any crime; or because it simply has nothing to do with his scholarship & the university isn’t competent to make these sorts of moral judgments and he hasn’t been convicted or judged guilty by any outside party.)
Many of the justifications for not revoking Yoo’s tenure—& actually, the ones I find most convincing, because they’re the only ones that acknowledge people’s true objections to Yoo’s behavior instead of pretending that he “wasn’t a decider” & just advocated “unpopular” but protected ideas—would seem to imply that Johnson’s tenure ought not to be revoked in this hypo: it’s got nothing to do with his research or teaching, he did this off the clock, he hasn’t been convicted, etc. Do people actually believe this? And is anyone who disagrees showing how little they value academic freedom?
You can argue that cases of honest-to-god faculty participation in war crimes, atrocities, torture, etc. are going to be so rare (after all, this Prince Johnson thing isn’t a very plausible hypo.) that it’s not worth any chilling effect & potential for a slippery slope. But the fact that these cases are so rare makes me wonder whether the slope really has to be very slippery—& while I don’t want a chilling effect on academic debate, we could frankly use a little chilling effect on the sorts of memos professors write at OLC.
So, again, after all that, it boils down to “we [unspecified group of offended left-liberals] think it’s appalling Yoo is at Berkeley, and that Something Really Ought to be Done About It. But since, in the real world, it won’t be, we’ll just vent….”
“you would actually need to defend Yoo’s treatment of Youngstown & the various Article I clauses he either ignores or makes ludicrous arguments about.”
No I don’t, I can make the point that modern Constitutional theories of interpretation are so dangerously free-form that “ludicrous arguments” is merely a political judgment not a legal one.
Adn the Youngstown precdent is notoroiously all over the place. There are problems with how ‘emergency’ was characterized by the administration (steel stockpiles were enormous at that point), it wasn’t clear about the neccessity for Congressional authorization (either in or outside of an emergency case), the later Zemel cases issues, not to mention the fact that the Supreme Court didn’t see any point in bothering with Youngstown in any of its recent war-on-terror cases.
And of course his memo is ridiculous to a textualist, or anyone with the the slightest understanding of how the Founders set up the separation of powers. But that has precious little to do with Constitutional theory. For as much as you hate textualism, it has a much easier time dismissing Yoo’s arguments as ridiculous than modern approaches do. Modern approachs have to worry about whether or not evolving standards of necessity expand Presidential power in times of terrorist ‘crisis’, whether standards in one area of the Constitution can ‘evolve’ enough to contradict other areas, and other such legal mumbo-jumbo. The state of Constitutional law is crappy. That sucks. But judged on the standard of the ridiculous muddle that it really is, the memo is on the edge of defensible—but it is the inside edge.
The flaw is in proposition (1). Academic freedom is a right. It is not a special right of college professors, but a right for anyone involved in the job of doing teaching and research at a college. Speaking of pragmatic justifications for academic freedom always leads us to sacrifice the freedom of unpopular causes. What we need instead is to have a principled defense of the right of academic freedom.
I don’t hate textualism & don’t really have any interest in your hijacking this thread to score the usual points about activist judges & originalism.
“But the fact that these cases are so rare makes me wonder whether the slope really has to be very slippery—& while I don’t want a chilling effect on academic debate, we could frankly use a little chilling effect on the sorts of memos professors write at OLC.”
Or arguably it could be that academic tenure has done such a good job of squelching the impulse to fire professors for political reasons that it almost doesn’t happen anymore, but would if we let it.
(I say this hypothetically. On the merits I suspect that we could do with a lot less in the academic protection front and still be fine. But the lack of cases given the existence of tenure et al. can’t really be used as an argument against tenure. Maybe it means that tenure is super-duper good at protecting academic freedom in a totally, completely necessary way.)
Engels @ 100: thanks for clarifying. Which leads me to Dave @ 102: what, you can’t think of ways of punishing Yoo that don’t involve firing him? No one says that tenure guarantees that you be assigned specific courses of your own choosing. The good folks at Berkeley might do well to get creative and assign Yoo to a couple of sections of “Torture: Theory and Practice.” That would look good in the course catalogue and on Boalt’s website.
As for the venting: the trick here, it seems to me, is to think of good reasons to strip someone of tenure—for profound moral turpitude, say—without giving the Daniel Pipes Brigade a handy stick with which to beat every Middle Eastern Studies specialist they don’t like.
“These cases are so rare” meaning “cases of a tenured professor being implicated in war crimes are so rare.” I don’t understand how the small # of cases would be attributable to tenure.
katherine-
Henry’s argument is a bit different from what you’re presenting. It is that while you or I object to murder and torture, other people don’t; meanwhile some people object to things that we don’t, like being a member of the Communist party.
So, since there is no consensus on what is objectionable, our only choices are either (a) give employers unlimtied discretion to fire people for any “moral” grounds, however spurious, or (b) restrict all moral sanction to courts, professional assocaitions, or other duly accredited bodies. Since (a) is unacceptable, we’re left with (b).
In short, the procedural issue trumps the moral one.
So to convince Henry that Berkely should fire Yoo, you need to either concinve him that a university is different in some relevant way from other employers (see his 71) or that our objection to torture is different from West German schools’ objections to Communist party memebrship. I haven’t been able to do either, but maybe you can.
(Incidentally, I think an argument like Henry’s would be correct in some cases—Yoo might deserve prison but you or I still shouldn’t kidnap him and lock him our basement. Just not this one.)
“I don’t hate textualism & don’t really have any interest in your hijacking this thread to score the usual points about activist judges & originalism.”
Of course not, we’ve found a case where modern approaches are going to have serious difficulty tying themselves in knots to avoid saying things like “it can’t mean that because ‘insert historical argument which would never be permitted in other contexts [here]’”, but which textualists find almost trivially easy, certainly wouldn’t want to talk about that.
My point remains, Youngstown was a mess with 5 seperate opinons giving almost contradictory advice if taken seriously, there wasn’t nearly the close nexus between Presidential action and stated aim as you find in the torture memos, and the Presidential powers are vague in some pertinent areas.
The Yoo memos are fine examples of the art of lawyering into what you want by stretching a sort-of-vague phrase here, creating ambiguity out of thin air there, and leveraging it into what you want for the conclusion.
If that brings disrepute to that style of ‘analysis’ I’m thrilled. But that state of analysis is in fact how things operate and that state of analysis is how an academic gets judged. On that morally bankrupt scale, Yoo is fine.
If you want to say that we should use another scale, I’m completely with you.
No one says that tenure guarantees that you be assigned specific courses of your own choosing. The good folks at Berkeley might do well to get creative and assign Yoo to a couple of sections of “Torture: Theory and Practice.”
This is irrelevant to Henry’s argument, tho: He would just say that we don’t want employers punishing workers for their political beliefs through bad job assignments.
As long as you accept Henry’s framing that Yoo’s work at OLC was just an instance of “political activity” and his position at Berkeley is just an instance of the employer-employee relationship, you have to conclude that his role in toturing people should have no consequences at all.
It would’ve been a good idea for Yoo to expound on the ambiguity in Youngstown instead of failing to cite it then, but I don’t think any of the opinions allows for the “if the president does it during wartime it’s not illegal” argument. Anyway, the worse offense is ignoring the Article I enumerated power clauses entirely in the 2002 memo & the treatment of them in the 2003 memo.
In any case, academics aren’t judged on the same scale; I wish they are. People do at least recognize that judges’ decisions have actual consequences, whereas legal academics are given points for being “provocative” & “original” even when their ideas are considered provocative & original because of how very wrong & disastrous they are. Yoo was given tenure at Berkeley because of his horrendous theories, not in spite of them.
““These cases are so rare” meaning “cases of a tenured professor being implicated in war crimes are so rare.” I don’t understand how the small # of cases would be attributable to tenure.”
So you have a morally reprehensible objection then. What about homosexuality? I understand lots of people think me being gay is morally reprehensible. How about supports abortion? Can professors be fired for that?
I’m completely with you on the merits of wanting Yoo punished. And much as we disagree with each other, I would trust you personally in charge of the kind of procedure you want to set up. But procedurally you seem to want to set up power that I wouldn’t trust a lot of politicians and university administrators with.
You can draw lines easily enough: only horrible harms to other human beings, committed on the job in the profession you are being hired to teach, in violation of professional ethics. But an overwhelming majority of academics seem to be of the mind that there’s no current tenure norm about that even if the Berkeley Code allows for it, & allowing it starts you down the slippery slope & soon you’re drumming out gay people.
So a pro-life advocate should be considered to have a legitimate case against the tenure of a teaching doctor who performs abortions?
What about homosexuality? I understand lots of people think me being gay is morally reprehensible. How about supports abortion? Can professors be fired for that?
No, because none of these things are in fact immoral, let alone amount to gross ethical misconduct. Perhaps some people believe they do, but they are simply wrong. Otoh some people believe that physically assaulting members of their families is quite permissable. They turn up in court and they say so and they are told that they are wrong. Is this really so difficult?
So a pro-life advocate should be considered to have a legitimate case against the tenure of a teaching doctor who performs abortions?
I guess this is intended as a sort of “gotcha!” debating point, but it’s actually a good question. I guess one reason it doesn’t worry me is that I think the consensus in our society against torture is much stronger than the consensus against abortion or gays (in fact the latter two are minority positions, while an overwhelming majority finds torture reprhesnible). So I don’t think some notion of (near-)universal standards of decency is all that problematic.
But if we really have to choose between a world in which no university will employ John Yoo, and—let’s say—a Catholic university refuses tenure to an outspoken atheist, versus one where both Yoo and and the atheist get tenure… is it so obvious the second case is preferable?
He could file the complaint, sure, & should not be surprised when it isn’t successful because the medical professional consensus & medical faculty consensus is that it’s not unethical to perform abortions. I mean let’s face it: the danger of faculties throughout the land suddenly seizing the chance to fire their gay, pro-choice members if “moral turpitude” clauses become enforceable is not, in fact, real.
You can argue that this sort of thing is better handled by professional associations, but I don’t even know if the Pa. Bar considers Yoo’s conduct at OLC to be within its jurisdiction—I know people who worked at OLC before passing the bar—and law professors don’t actually need to be licensed to practice law. There is a DOJ office of professional responsibility, but they’re part of DOJ & possibly compromised. I’ve heard the argument that being disbarred is quite different from never being licensed in the first place & that’s where any process ought to start—that’s what the National Lawyer’s Guild actually argued, I believe.
none of these things are in fact immoral
But, Engels, Henry and Sebastian think that kind of claim is off-limits—we can’t say whether anything is moral or immoral until we first establish who gets to decide.
It’s not an unreasonable or unserious argument, even if we don’t accept it in this particular case. (I would adopt something very close to the Farrell/Holsclaw position if e.g. we were debating humanitarian interventions.)
Engels, Henry and Sebastian
Oops, Engels is who the comment is addressed to, it’s only Sebastian and Henry to whom I’m imputing views.
we can’t say whether anything is moral or immoral until we first establish who gets to decide
Er, what?
It’s not an unreasonable or unserious argument
I don’t think I said it was. In any case, I don’t really don’t understand what you are trying to say.
“What about homosexuality? I understand lots of people think me being gay is morally reprehensible. How about supports abortion? Can professors be fired for that?
No, because none of these things are in fact immoral, let alone amount to gross ethical misconduct. Perhaps some people believe they do, but they are simply wrong.”
Argh. I’m well aware of the fact that they aren’t immoral. And I’m not a moral relativist, so I agree that such people are wrong. But like it or not, lots of people think homosexuality is wrong. Certainly enough people think it that in some universities in some states that it could be an issue. You are talking about creating a system where we would have to worry about it. Maybe it is worth it, maybe it isn’t. But you shouldn’t pretend that isn’t what you are opening the door for just because that isn’t how you would personally use it.
“I guess one reason it doesn’t worry me is that I think the consensus in our society against torture is much stronger than the consensus against abortion or gays (in fact the latter two are minority positions, while an overwhelming majority finds torture reprhesnible). So I don’t think some notion of (near-)universal standards of decency is all that problematic.”
I’m pretty sure you are wrong about this. Support for torture is one of the very question-context-sensitive polling areas (especially ticking bomb hypotheticals that get spun into crazy and unnecessary policies). And the Democrats are clearly not confident enough to make it a very big deal.
Torture is a felony, and abortion isn’t.
Why require conviction of a felony as opposed to compelling evidence of relevant unethical conduct?
1) Someone convicted has pled guilty or been found guilty beyond a reasonable doubt in a fair trial w/ due process, eliminating factual ambiguity.
2) The fact that conduct is criminal represents societal consensus that it is seriously immoral.
Well, it’s possible to imagine situations where there’s compelling & not-really-disputed evidence of seriously immoral & illegal conduct (+/or gross violations of the ethical norms of the field which you were hired as a professor in), & no conviction because of corruption among prosecutors, or statutes of limitations, or other reasons that don’t go to whether the underlying conduct occurred & was criminal. And I’m not sure the sky would fall if universities had the power to revoke tenure in those cases.
But like it or not, lots of people think homosexuality is wrong. Certainly enough people think it that in some universities in some states that it could be an issue.
The practical question is not how many people think that homosexuality is wrong, but how many think that it is such a serious wrong (on a par with authorising torture?) as to amount to gross ethical misconduct on the part of an academic, which would provide grounds for her dismissal. My answer to that would be: not many, and, as I said before, those that do are wrong.
I do agree that any system that allow complaints to be brought against employees based on their conduct is open to abuse but I share Katherine’s confidence (#119) that in this case it would not be substantial in practice.
And yes, I am aware that a regrettably large number of people in the US are wrong about the morality of torture. However, the fact that it is morally wrong and is a serious crime which is everywhere forbidden by non-derogable norms of international law remains true in spite of this.
Why require conviction of a felony as opposed to compelling evidence of relevant unethical conduct?
1) Someone convicted has pled guilty or been found guilty beyond a reasonable doubt in a fair trial w/ due process, eliminating factual ambiguity.
2) The fact that conduct is criminal represents societal consensus that it is seriously immoral.
Correct for the most part, though there has been increasing felony creep of late but that is a different discussion.
Well, it’s possible to imagine situations where there’s compelling & not-really-disputed evidence of seriously immoral & illegal conduct (+/or gross violations of the ethical norms of the field which you were hired as a professor in), & no conviction because of corruption among prosecutors, or statutes of limitations, or other reasons that don’t go to whether the underlying conduct occurred & was criminal. And I’m not sure the sky would fall if universities had the power to revoke tenure in those cases.
It is indeed possible to imagine such a situation, but in this case it looks a lot more like you are tailoring rules after the fact to catch the evil-doer that you want. So you are drawing up a situation to catch this particular guy as if it was some sort of general principle without seriously worrying about any of the other ramifications of tinkering with the system (especially allowing tinkering with the system in an post-facto way). While I personally think that tenure is well overrated in terms of societal benefits (I fully understand why tenured professors love it) I’m at core a conservative so I’m not into wholesale tinkering just to capture injustices that represent a vanishingly small number of cases.
We often hear that it is better 10 guilty go free than one innocent man go to prison. Some injustices have to be lived with in human systems. Chasing down this particular injustice in this particular fashion doesn’t seem productive. By all means work to get Yoo convicted. But if you can’t, the tenure system isn’t really designed to deal with it.
Hmm, the blockquoting didn’t work there. Sorry.