Academic Freedom

NUMBER 57, FALL 2009

New Challenges to Academic Freedom in the United States

Robert M. O’Neil
Robert M. O’Neil is former president of the University of Virginia and the University of Wisconsin system, recently retired as professor of law at Virginia, and currently directs both the Thomas Jefferson Center for the Protection of Free Expression and the Ford Foundation’s Difficult Dialogues Initiative. E-mail: rmo@virginia.edu.

Academic freedom in American higher education evolves in curious and often unpredictable ways. For those who teach at public or state-supported institutions, the courts play a major role in defining the scope of such freedom. For faculty at independent or private colleges and universities, whose policies are seldom subject to court review, standards are provided by organizations such as the American Association of University Professors. Some faculties at institutions of both types may also be protected by collective bargaining agreements. After a decade or so with relatively few critical tests of the rights and liberties of US scholars, the past year or two has brought academic freedom to the fore in dramatic fashion. Three current tests merit special attention.

The John Yoo Case
The first case involved University of California-Berkeley law professor John Yoo. During the time he served as a high-legal adviser to the administration of President George W. Bush, Yoo offered views that seemed to validate or legitimize extreme methods of interrogation, potentially including torture—methods so controversial that the administration itself soon renounced their use. When several memoranda containing such counsel became public, demands emerged for university sanctions against the author, despite his long-tenured status on the Berkeley faculty. Such demands intensified when a national commission suggested the disbarment of several of the “torture memo” architects and when a federal judge refused to dismiss a civil damage suit by torture victims against Yoo and several other White House legal advisers. The law school dean, however, refused to launch any formal inquiry that might lead to dismissal, insisting that Professor Yoo’s statements were protected by academic freedom, even if they were incompatible with prevailing principles of international law. He left open the possibility that a criminal conviction based, for example, on war-crimes charges might warrant a harsher assessment.

The dean’s position seems indisputably sound, though far from obvious to the average observer. Advocating that the United States depart from established international norms in its interrogation of detainees is surely controversial and conflicts with our expectations for a scholar’s role in government. Moreover, Professor Yoo’s counsel was presumably sought by the Bush administration because of his academic standing and faculty role. Yet academic freedom clearly extends beyond the classroom and scholarly journals and encompasses contentious views expressed in other settings and media. And if the offering of such dangerous (even unlawful) counsel to the national administration were to place the author’s faculty position at risk, future scholars might well temper their views unacceptably or decline outright. If Professor Yoo is eventually charged with and convicted of a war crime, a less sympathetic response may be warranted. But for now, the dean’s defense of academic freedom, even in so controversial a case, seems consistent with our traditions and values.

The William Robinson Case
Meanwhile, a strikingly different though equally challenging issue was unfolding at another University of California campus. The University of California-Santa Barbara sociology professor William Robinson sent to his undergraduate class an e-mail message that was highly critical of Israel’s treatment of Palestinians in Gaza. Though he was himself Jewish, Robinson had been increasingly troubled about conditions in Gaza and in his message strongly implied that Israel’s role there was analogous to Nazi atrocities during the Holocaust. Accompanying photos added a graphic dimension to his charge, juxtaposing what one account termed “grisly photos of children’s corpses” from both the current Middle East and from eastern Europe seven decades earlier.

Several of Robinson’s students promptly conveyed to a national Jewish organization their deep concern about this message, and the organization in turn protested to university officials. A faculty senate committee soon launched an inquiry within a deeply divided campus. Many of Robinson’s colleagues insisted that academic freedom protected such communication, while many outside groups and some within felt Robinson had crossed the line and had abused his position and had engaged an inexcusable anti-Semitism. After weeks of charges and countercharges involving at one point three separate faculty inquiries, the key committee announced in early summer that it was closing the matter and that no further action would be taken. The university administration concurred, and that ended the formal process.

The faculty committee’s disposition did not, however, end debate and in fact left open, for further analysis, an intriguing set of issues. The novelty of the medium that Professor Robinson had used remained under closer scrutiny. Had he conveyed his views in class or shared them with students by more conventional means, they would surely have evoked concern, though even most critics would concede the material was directly related to the course and thus within the instructor’s academic freedom. But e-mailing the message and the photos to all students in the class seemed to some a quite different (and reprehensible) act. For one thing, the communication was less clearly within the protected scope of a classroom or a course. Moreover, some critics claimed that Robinson had used campus facilities (the e-mail system and server) to broadcast a personal political view. For another, the inevitable impact of the “grisly photos” along with the Gaza-Holocaust analogy substantially raised the risks. Yet, the change in medium should not—and happily at Santa Barbara did not—diminish the safeguards of academic freedom even for contentious faculty expression.

The Ward Churchill Case
Finally, there is the continuing saga of University of Colorado ethnic studies professor Ward Churchill. Although vindicated by a faculty committee for statements he made about the September 11 attacks in an essay posted on an obscure Web site—referring to World Trade Center victims as “Little Eichmanns” and praising the hijackers for having “the courage of their convictions”—Churchill was eventually dismissed from his tenured post on the basis of substantial and serious misconduct on a separate research project. He brought suit in state court, initially seeking damages for wrongful dismissal; the jury agreed he had been fired improperly, but awarded him only nominal damages of one dollar. Churchill then returned to court, asking to be reinstated in his faculty position. He claimed that the research inquiry had been triggered solely (and in his view unconstitutionally) by the protected statements in the “Little Eichmanns” essay.

In midsummer 2009, a Colorado judge rejected these claims, deferring to the university’s judgment and the process it had followed in the ultimately dispositive review of Churchill’s research methodology. That ruling seems sound, though far from obvious, and it has been appealed to a higher court. Meanwhile, the lesson seems clear: If a subsequent inquiry about a totally different aspect of a professor’s activity (research methodology versus extramural statements) were placed permanently off limits solely because controversial views might have helped trigger that inquiry, the institution could be left without recourse against a serious and wholly separate transgression. Such a result would be stretching academic freedom beyond its properly protective scope.

Conclusion
All three cases are extremely complicated, and are very close to the elusive line that separates academic freedom from punishable misconduct. Quite some years have passed since our understanding of academic freedom has been so sharply tested. Yet the experiences recounted here should prepare us better for the inevitable next round of challenges.

[Online] Available: http://www.bc.edu/bc_org/avp/soe/cihe/newsletter/Number57/p3_O'Neil.htm