Academic Freedom at the AALS

I've just returned from the annual meeting of the Association of American Law Schools (AALS), where one of the more interesting and well attended plenary panels addressed issues of academic freedom. The panel contained some impressive people: Elena Kagan, Geoffrey Stone, William Van Alstyne, and Stanley Fish, with Robert Post as moderator. And some of them addressed some interesting issues, including the recent imbroglio over the University of Minnesota Law School's decision to hire Robert Delahunty as a one-semester visiting professor to teach constitutional law. Now on the faculty at St. Thomas, Delahunty is formerly a longstanding senior attorney in the Justice Department's Office of Legal Counsel and is reportedly one of the architects and co-authors of some of OLC's "torture memos." Many readers are probably familiar with that particular controversy by now, and I won't review its specific details here. (Short version: a bunch of students became distressed when they heard Delahunty had been invited, and circulated a petition demanding that he be disinvited; that led to some public disagreements between members of the Minnesota faculty over whether there was any legitimate basis for objecting to his visit; as far as I know, the visit is still on.) Instead, I want to focus on a couple of related, though more general, points in Dean Kagan's presentation.

In essence, Kagan's position was that it would not violate principles of academic freedom for a university not to hire a professor (whether as an adjunct, a visitor, or on the tenure track) on the basis of moral opposition to things he has done or said in his earlier academic or other professional work. But it would violate those principles, she said, for a university to fire a tenured (or tenure-track, I think she said) professor on the basis of that same sort of opposition. On this view, there would have been no academic freedom problem with not inviting (or disinviting) Delahunty to teach as a visitor at Minnesota, based on opposition to his prior work at OLC. But there would be a problem if, e.g., Boalt Hall were to fire tenured faculty member John Yoo on the basis of the things he did and wrote at OLC while he was on leave from his faculty post. Before expressing those opinions, Kagan took an informal poll of the audience on these questions, and a show of hands revealed that the the overwhelming majority of the audience took the same position.

What do readers think? Does the distinction work? Kagan herself concluded her talk by expressing some qualms about it, noting that the percentage of non-tenured or tenure-track faculty members (i.e., adjuncts, visitors, etc.) at universities nationwide has increased dramatically over the past few decades. Does that make us uncomfortable with the distinction she would draw? If so, what's the remedy -- to extend academic freedom principles to short-time visitors, adjuncts, and the like, or to restrict tenured and tenure-track professors' enjoyment of those freedoms?