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I am not a constitutional scholar--not by a long stretch of the imagination--nor am I a philosopher or theorist of academic freedom. I am, however, seriously undecided about what to make of the recent academic uproar (or kerfluffle, depending on your perspective) over revelations that UC Berkeley law professor John Yoo authored memos that uphold the right of the U.S. to torture human beings. People inside and outside of the academy have called for his firing. Others claim that Yoo is protected by the academic freedom that comes with tenure. Still others argue that there's a difference between academic freedom and freedom of speech, and that Yoo's torture talk falls under the latter, but not the former, kind of protection.
The memo itself is 81 pages long. You can download Part I and Part II (PDFs). The folks at Talking Points Memo published what may be the most disturbing portion of the memo.
Christopher Edley Jr., dean of Berkeley's School of Law, wrote a memo on his decision not to dismiss Yoo despite intense pressure to do so:
While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers’ Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo’s continuing employment at UC Berkeley School of Law. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.
Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.
It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments—be they left or right or lazy—will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.
Edley adds,
As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.
Brian Leiter explains the tenets of academic freedom by answering several common questions about academic freedom and the Yoo case:
Is there 'good cause' for terminating John Yoo? Clearly not. There are no allegations of any failure to perform his instructional duties, and he has engaged in no research misconduct. He has also been convicted of no crime. End of story.
But wait, weren't the torture memos and his theory of executive power so bad that they constitute research misconduct? Again, plainly not. He has defended these same views in scholarly fora, as well as in the memoranda he wrote as an attorney for the government. Other scholars have defended similar views of executive power. One may think such views implausible, badly argued for, and morally odious, but they do not involve "research misconduct." If "research misconduct" and "intellectual dishonesty" were interpreted to cover what Yoo has done then there would be nothing left of academic freedom, since every disagreement on the merits of a position, especially a minority position in the scholarly community, could be turned into a "research misconduct" charge that would trigger disciplinary proceedings and possible termination.
Henry at Crooked Timber remarks that Yoo may have crossed the line, but also suggests that there is no clear place to draw that line in way that would not harm academic freedom in general. He explains, in a way that makes a
