Should professors be fired for expressing views that are out of touch with those of the American public?
One of the most contentious topics in legal theory today is the use of torture on detainees of the War on Terror. Specifically, the debate centers around whether or not torture methods such as waterboarding are acceptable means of interrogation for U.S. military or intelligence personnel who interrogate detainees.
Recently, though, the debate has spilled over to Boalt Hall School of Law at UC Berkeley, in regard to Professor John Yoo. Yoo began working at Boalt in 1993 but left to work for the U.S. Department of Justice from 2001 to 2003. He returned to Boalt in 2004.
During his time in Washington, Yoo authored memos for the Bush administration that essentially laid out a legal basis for the use of torture in interrogation.
Some have protested Yoo’s position at Boalt as a result of those memos, but since he received tenure in 1999, he cannot be fired unless it is determined that he committed a crime. Those who are calling for his dismissal argue that Yoo’s authoring of memos condoning torture constitute a crime.
However, as much as I adamantly oppose Yoo’s position on the use of torture ““ torture has no place in interrogations, and it makes a poor impression of the United States on the rest of the world ““ I cannot subscribe to the view that he should be removed from his position at Boalt. While Yoo’s position on torture and how much power the executive branch should have may be exactly in opposition to the positions I hold, they deserve to be discussed and debated in legal circles.
There are several reasons why Yoo should be able to keep his job and teach law at Boalt. Foremost, Yoo has received tenure. In the world of academia, tenure is the all-important security that a professor can get to know that they have a safe job and a place to teach.
“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,” said Boalt Law School Dean Christopher Edley Jr. on a Web site post regarding tenure and calls for Yoo’s dismissal.
Without the protections of tenure, professors may not put out the creative and innovative work that they do. For instance, if a professor does not have tenure, he may curtail the extent to which his writing is controversial or goes against common beliefs within a discipline.
While legally defending torture is an unfortunate use of his position in the U.S. justice department, it must at some level be defended so that other legal theories may also be freely discussed.
Yoo is protected from dismissal by his tenure, and such protection is essential so that other professors at Boalt and around the nation feel free to publish work without worrying about being fired for their views.
Also, as much as I may disagree with Yoo on this issue, he represents a legal position held by a strong block of conservative legal theorists in this country. Just three months ago, Supreme Court Justice Antonin Scalia said that he felt that, in some situations, torture might be necessary to gain information from detainees. I assume that at least three other justices would probably agree with Scalia.
Therefore, by the protesters’ logic, Scalia and several of his colleagues on the court would be unfit law school professors, a position that is hard to hold even if one believes, as I do, that almost all of Scalia’s legal positions are out of touch with most of America.
Finally, diversity of opinion on college campuses is necessary for a strong academic environment. In the same way that law schools should hire both liberal and conservative legal theorists, they must also hire professors from both sides of the executive powers debate. On a larger level, universities must strive to keep opinions within their faculty diverse so as to expose students to all sides of issues.
People who protest Yoo’s position at Boalt School of Law make a good argument in saying that torture should not allowed as a means of interrogation.
That said, protesters must recognize that Yoo is a tenured professor who holds legal positions in line with several Supreme Court justices.
The fact that he was chosen to work in the White House over other scholars may have resulted in the torture of detainees during interrogations, but this does not disqualify him from debating legal theory in the realm of legal academia.
E-mail Margolis at mmargolis@media.ucla.edu. Send general comments to viewpoint@media.ucla.edu.