Legal News

Berkeley Law Dean Reiterates: Yoo?s Job is Safe

By Ashby Jones

John Yoo is unlikely to lose his teaching job at Berkeley Law. The dean of the law school, Christopher Edley, has made that clear, most recently in an email to faculty members, in which he reiterated his position, that despite recent student protests over Yoo’s return to the Berkeley campus, his position was safe. Yoo has come under attack for controversial memos he wrote while in the Bush administration’s Office of Legal Counsel that were widely viewed as allowing U.S. officials to torture detainees at Guantanamo Bay.

As summarized by Kevin Jon Heller in a post at Opinio Juris:

As [Edley] points out, University of California policy permits the termination of a tenured faculty member only for "[c]ommission 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." Yoo has not been convicted of anything, nor is it likely that he ever will be. Rightly or wrongly, that's the end of the matter . . .

So the issue over whether Yoo should keep his job becomes relegated to the realm of the academic (literally and figuratively). In our opinion, it’s a discussion that’s worth continuing, regardless of your thoughts on Yoo. At what point, if ever, do actions that some might see as “immoral” (if not illegal) become unacceptable, even in a university setting, which is, theoretically at least, supposed to be a breeding ground for disparate thoughts and ideas?

The NYT recently asked a handful of law professors and lawyers about this. The responses were thoughtful and provocative, in our opinion. Some brief excerpts:

Here’s University of Chicago law professor Brian Leiter:

Many of those commenting on the Yoo case have, I suspect, an unrealistic picture of constitutional law, as though there were clearly correct and incorrect positions on these issues. Alas, there is not a lot of "law" in American constitutional law, so that we quickly go from "that's a bad legal argument" to "that's a morally odious position." But having what many would deem morally odious views is well within the protection afforded by academic freedom.

At the same time, here’s Carlos Villarreal, is the executive director of the National Lawyers Guild San Francisco Bay Area Chapter:

It is not his opinions or political affiliation that I, and many in the National Lawyers Guild, believe should get the attention of the U.C. Berkeley administration. It is his actions in the Justice Department which, in combination with the actions of other powerful officials, led to the torture, humiliating abuse, permanent injury and even death of detainees who were never tried or convicted of anything. To protect his work in the Justice Department under the guise of "academic freedom" is to protect the yelling of "fire" in a crowded theater.

LBers, any thoughts? In your opinion, are “morally odious views is well within the protection afforded by academic freedom?” Or is his the defense of Yoo’s Justice Department work the equivalent of protecting those who yell “fire” in a crowded theater?

Full post as published by Law Blog - WSJ.com on August 21, 2009 (boomark / email).