Academic Freedom and Civil Liberties
Over the years, on numerous occasions, I have counseled and represented in court clients whose academic freedoms or other civil liberties were threatened. Those services were always provided pro bono publico. Brief accounts are recorded in Clients I Remember. One high point was my participation in the preparation of a brief advancing fourteen unanswerable arguments invoking the texts of state and federal constitutions, maybe the most unanswerable brief in history. The beleaguered judge dismissed the case against our client and partly for that reason was not re-elected. Another was my successful defense of 19 clients charged with public nudity. I maybe the most successful nudity lawyer ever.
Beginning in 1961 at Indiana University, I was active in the AAUP efforts to protect academic freedom for professors and for their students. In 1962, as a professor at Ohio State University, I became engaged in a struggle against the Speaker Ban Law. I testified to the Ohio legislature that a law forbidding Communists from speaking on a public campus was a violation of the Ohio and federal constitutions.
I served on the national committee on academic freedom and as president of the University of Michigan chapter. I also served on the board of the Michigan CLU, as chair of the university�s Civil Liberties Board, and as chair of committees in the ABA Section on Individual Rights and the Section on Legal Education.
In 1970, I served as an AAUP investigator of academic freedom at the University of Mississippi. I was also that year assigned to sit as judge in the University Graduate School discipline proceeding against students who organized and led a mob disturbing classes as a a protest against the war in Viet Nam. It was very annoying to find that the school rules made me prosecutor as well as judge and that the student members of the committee feared to sit with me. I conducted a day long hearing and fined nine students a hundred dollars each. No one argued with that result.
As chair of the Accreditation Committee and as a member of the Executive Committee of the Association of American Law Schools in 1984-1986, I was an outspoken advocate for self-restraint on the part of accrediting organizations tempted to make decisions in my view better left to governing faculties. Not many of my colleagues saw academic self-government as an academic freedom issue, but I did.
In later years, it has seemed to me that the Supreme Court has gone over the edge in thinking about the First Amendment. It seems that Justice Brennan knew no bounds. As a result, our laws governing political campaigning are distressingly bad. For details, see Our Imperial First Amendment. At the same time that I am concerned with an overbearing First Amendment jurisprudence, I perceived that the "War" on Terror as conducted by the Bush Department of Justice, was a grave threat to liberties we cherish. I have tried to counsel caution. Fearing Fear Itself. Of course precautions are necessary, but the terminology of war, as in the war on drugs, is too often an excuse for dispensing with judgment about consequences. I have signed amicus briefs advancing the rights of those held in Guantanamo and opposing the use of torture.
During my campaign for a seat in the state senate in 2004, I was of course confronted with the issue of gay marriage. I could draw on a letter to the editor that I published in The Economist five years earlier. Its substance was a preference for separating church and state, leaving the state to enforce contracts and allowing the church to control sacraments. The constitutional amendment proposed by the Bush Administration was in my view a cheap shot at an issue that should not be allowed to divide us. I had several heartening conversations along these lines with fundamentalist clergymen encountered on the campaign trail in 2004.
Similarly, I can express unqualified support for a woman�s right to choose, while regretting that her right should be expressed as a principle of natural law that is deeply offensive to those holding religious beliefs to the contrary. Again, conversations with persons holding such beliefs confirm my impression that the Right to Life Movement would not have arisen as a passionate cause had the issue been left to the state legislatures where it should have been resolved. The secondary consequences of the rise of that movement in national politics has been a disaster of cosmic consequences.
I was also in 2004 confronted by the gun control groups. I explained that I do not own a gun and do now want to live around those who do. But I have relatives and friends who could not live without weapons. Out of respect for their feelings, I support only those gun control laws advanced by those responsible for law enforcement. As these views signal, I am a civil libertarian who strives to respect the contrary opinions of fellow citizens. I share the views recently expressed by eminent federal judges that the Supreme Court's 2008 decision invalidating the gun control law of the District of Columbia has even less basis in the Constitution than did its earlier invalidation of abortion laws. Guns need not be a federal issue, and should not be. That the NRA is in 2009 engaged in fighting bitterly against the nomination of Justice Sotomayor demonstrates to me that the organization lacks basic common sense.
My most recent published utterance on this subject is a defense of school boards and their members to express anti-Darwinian religious sentiments. See Freedom to Err (2008). Yes, teachers have First Amendment rights to teach evolution, but school board members also have rights to lend verbal support to parents who are antagonized by the idea and who are at risk of engaging in home-schooling or other anti-social deeds. Civil liberties are very, very important, but they are not over the longer term well served by arrogant intolerance on the part of my fellow civil libertarians. Gentle concern works better.
In 2009, I withdrew from the ACLU. Its support of the right of corporations to bribe our political representatives with campaign contributions is so far over the top that I can no longer respect the organization.
My published writings on academic freedom, civil liberties, and accreditation are:
The Many Mansions of a University, 17 Am. J. Comp. Law 331 (1969)
Academic Freedom at the University of Mississippi, 56 AAUP Bulletin 75 (1970) (with Adams)
Statement on Student Rights and Responsibilities, 1 J. Human Rights 140 (1970) (with others) republished: Revista de Derechos Humanos (1971)
Civilizing University Discipline, 69 Mich. L. Rev. 393 (1971)
The Limits of University Sanctions in Law and Discipline on Campus: 1971 (Inst. Cont. Leg. Ed.)
The Dangers of A Graduate School Model, 35 J. Leg. Ed. 11 (1986)
Freedom and Community in the Academy, 66 Texas L. Rev. 1577 (1988)
The Boalt Affair, 41 J. Leg. Ed. 263 (1992)
Remembering Jefferson, 2 William & Mary Bill of Rights Journal 455 (1993)
Our Imperial First Amendment, 34 U. Richmond L. Rev. 1167 (2000) [link to]
Fearing Fear Itself, 5 Green Bag 2d 375 (Summer 2002) [link to]
Freedom to Err, 17 William & Mary Bill of Rights Journal 1 (2008)