VOLOKH at law.ucla.edu
Wed Nov 7 10:21:14 PST 2007
I appreciate Larry's argument, and, as my subject line has
suggested, it may be that severing connections with people who express
loathsome views is not McCarthyism but simple justice. Still, I wonder
whether Ewing is dispositive here. Ewing was a case about what sort of
process was due when a student was dismissed. Would Ewing's deference
to the university have applied if it was clear that the only
justification for the university's dismissal of the student was that he
had publicly expressed Communist views, or antimilitary views, or
antigay views? I would assume not (or am I mistaken?).
I take it the same would apply to a professor who alleged that
he was fired for outside speech. That sort of firing, I assume, would
be seen as a sort of McCarthyism. Am I right? It sounds like Larry is
arguing that it would not necessarily be, because "academic
extracurricular statements" "may so upset students that there may be a
legitimate pedagogical reason not to employ that scholar" -- and of
course this category of "upset[ting]" statements isn't limited to
"advocating virulent racism" but might also include advocating violent
revolution, defending our nation's foreign enemies, and so on; do people
Finally, if the test is indeed whether "academic extracurricular
statements -- for example, advocating virulent racism -- may so upset
students that there may be a legitimate pedagogical reason not to employ
that scholar, or, in this case, not to use his book," would there have
to be some proof that students would likely be upset? My guess is that
most paralegal students don't know anything about the book author's
outside statements, at least unless the teacher tells them.
Larry Rosenthal writes:
> As Professor Volokh's post appears to acknowledge, a public
> university's has a prerogative to engage in content and
> viewpont discrimination consistent with its academic mission.
> (Justice Stevens' concurrence in Widmar v. Vincent is very
> helpful on this point). Selecting textbooks by its very
> nature requires content discrimination (distinguishing
> between good and bad books) and even a measure of viewpoint
> discrimination (rejecting books that fail to stress
> viewpoints that the instructor feels are particularly
> important, for example, or which advances views that the
> instructor feels lack academic credibility in the field).
> Although academic freedom, as a First Amendment concept, is
> not particuarly well developed doctrinally, the available
> cases suggest that as long as professional judgment is
> exercised that falls within the range of acceptable scholarly
> norms, that judgment is immune from judicial review. In
> Regents of the University of Michigan v. Ewing, for example, the !
> Court held that academic decisions are insulated from
> judicial review absent "such a substantial departure from
> accepted academic norms as to demonstrate that the person or
> committee responsible did not actually exercise professional
> judgment," and cited the First Amendment's protection for
> academic freedom as supporting this narrow scope of review.
> Would some notion of professional academic judgement support
> the decision not to use a textbook because of the incendiary
> views of the author not contained within the book itself?
> Perhaps not, although Judith Jarvis Thompson has argued that
> sometimes an academic extracurricular statements -- for
> example, advocating virulent racism -- may so upset students
> that there may be a legitimate pedagogical reason not to
> employ that scholar, or, in this case, not to use his book.
> What Ewing suggests to me is if there a professionally
> reasonable pedagogical judgment being made, the Courts would
> not apply Umbehr and Northlake.
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