h/t pbo31

I have great sympathy for Christopher Edley, Dean of the Boalt Hall School of Law at the University of California, Berkeley. He didn’t hire John Yoo — he inherited him from a predecessor, and all the baggage that came along for the ride — but he’s the one who has to deal with the firestorm over Yoo’s Torture memo. I have no doubt that the phones in the Dean’s office have been ringing fairly regularly, the mailboxes (electronic and otherwise) have been filling fairly regularly, and the procession of complaints arriving by other means have been coming by fairly regularly as well.

To that end, Edley released a statement: The Torture Memos and Academic Freedom. Edley makes clear the general disdain for Yoo’s memos, but says this all must be set aside under the rubric of academic freedom.

My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.

. . . One can oppose and even condemn an idea, but I do not believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions.

The cry of "academic freedom" may cover a multitude of sins, but it doesn’t cover everything — as the Dean well knows. At the end, he says this:

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … 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. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member.

Oh, but Dean Edley, that may be a relevant excerpt, but it’s hardly the only relevant passage. There are a lot of reasons short of the commission of and conviction for a criminal act that warrant the dismissal of a faculty member. Just ask Ward Churchill or Luk Van Parijs. That Academic Personnel Manual section 015 [pdf]that you cite is a well-written document, and it lists many more reasons for removing a faculty member than conviction of a crime. (Other sections add even more — it’s a big manual [html with pdf links].)

To borrow the language of my academic discipline, the mortal sins in academia — at any school, in any discipline, for any faculty member of any rank — are these:

  • plagiarism– passing off the work of others as your own
  • misrepresentation in citations – citing other works, but misstating their actual contents
  • selectiveness of citations – omitting any discussion of works that conflict with one’s own views
  • failure to disclose conflicts of interest
  • fabrication – inventing data, fictitious books and articles, elements of one’s CV, etc.
  • improper use of human subjects in research – failure to follow institutional protocols, lack of informed consent, etc.
  • misconduct in professional relationships – using the power of one’s position to improperly force subordinates to do things against their will

These are the kinds of things that get people booted every year from tenured teaching positions, and they have nothing to do with controversial views. Judging from some of the commentary by looseheadprop, the legal eagles at Emptywheel’s place, and other scholars of the law in both the posts and the comments around the legal blogosphere, these are the kinds of things that Professor Yoo ought to be worried about:

In addition, the fact that Yoo’s memo was classified — for no reason related to national security — seems to indicate a keen desire to avoid having this memo go through any kind of rigorous peer review. That’s hardly the mentality one would expect of a scholar at a top-flight school like Boalt.

So, Dean Edley, the ball remains in your court (so to speak). Instead of worrying about "some breach of the professional ethics applicable to a government attorney," how about worrying about Yoo’s evident breaches of academic standards that are applicable to a academic professor?

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