. . . Winter 1996
This lecture is an important event in the life of the University and the community," noted Judge Avern Cohn '49 JD of the US Southeastern District Court in Detroit. "Its spirit is expressed in the enabling resolution [of the U-M Faculty Senate]: 'The protection of academic and intellectual freedom requires a constant reminder of their value and vulnerability.'"
Cohn's reminder was the sixth Davis, Markert, Nickerson Annual Lecture on Academic and Intellectual Freedom in a series established by the faculty assembly in 1990. The University Chapter of the American Association of University Professors formed an independent, nonprofit organization, the Academic Freedom Lecture Fund, to fund the series. Cohn spoke on "Academic Freedom: A Trial Judge's View" at the October lecture in Lydia Mendelssohn Theatre.
"So far as academic freedom is concerned, my inquiries tell me the University is in a generally healthy condition," Cohn began, noting that the "challenges facing the academic community today [are not] anywhere as serious as those of the 1950s."
It was in 1954-55 that the University fired the three professors for whom the lecture is named---Chandler Davis, Clement Markert and Mark Nickerson---because they refused on Constitutional grounds to answer questions of the Congressional Committee on Un-American Activities on their relationships with the US Communist Party. Davis and Markert attended the lecture, but Nickerson and his wife were too ill to attend.
Cohn (whose father was a 1917 graduate of the Law School) said that the manner in which judges interpret and resolve disputes involving academic institutions owes more to their political inclinations, their sense of fairness and the practices that are considered reasonable in their day, than to any abstract legal or moral principles.
Therefore, Cohn said, the three professors should have expected to lose their case since they were attempting to convince the courts not only to oppose the will of Congress but also to grant them a right under the Fifth Amendment to refuse to "name names" of Communists.
The University administration followed the formalities of the time, Cohn said, adding that "the University then, and now, is dependent to a considerable extent on public money and legislative good will. What was at work were political processes---moral judgment was absent."
If the University's actions were understandable and predictable, they were nonetheless challenged at the time by others who considered them wrong, Cohn said.
In the remainder of his lecture, Cohn focused on the thorny and the slippery aspects of the concept of academic freedom in American law. Since academic freedom is neither a property right nor a Constitutional privilege, nor even a term defined through judicial rulings, disputes involving academic freedom tended before the 1960s to focus on whether educational institutions have the authority to punish or dismiss an employee, not on whether the employee enjoyed any rights or privileges the institution had to respect.
Cohn quoted from dictionary and law review articles that defined academic freedom variously as the liberty "to track and pursue knowledge and to discuss it openly without restriction or interference" or the right "to teach as one sees fit---but not necessarily the right to teach evil." Even though there was "no support in the law for such liberty," Cohn said, "as the years went on judges began to have a deeper appreciation" of how First Amendment freedoms and the 14th Amendment right to due process were applicable to "the actions of public officials at public universities and colleges."
Cohn addressed the 1990 case Doe v. University of Michigan, a case in which he ruled that a U-M code of student conduct curtailed the First Amendment rights of a "John Doe" plaintiff, in this case a graduate student.
"As you all know, the University lost," Cohn said. "This is a case which never should have been, and to the credit of the University that fact was recognized when it was over. The University, instead of appealing, went back to the drawing board" and drafted a code that takes the Doe findings into account.
The University's Regents, Cohn said, "apparently believed that what they thought was good social policy would be good law. They did not stop to think that what was bad social policy was likely to be bad law. It was simply bad social policy to put civility above freedom of expression as a core value. ... Speech codes are still a problem."
Cohn said it would be unwise for him to predict future expansion or contraction in the judicial interpretation of academic freedom, not only because it is the nature of the legal landscape to change constantly, but also because he did not wish to seem to prejudge "issues of multiculturalism, diversity and affirmative action in a university setting" because that might prevent him from having the opportunity to rule on them in his court.
He did, however, describe a recent decision by Richard Posner, chief judge of the federal Seventh Circuit in Illinois, in a case involving a boot camp for young offenders. A white male challenged the promotion of a black male to lieutenant on the ground that the black male had scored lower on the qualifying examination. The defendants said that they made the promotion because they believed more black supervisors were were needed if they were to succeed in rehabilitating the disproportionately high number of black youths in the camp.
Posner upheld the promotion, saying that when public officials "use race to allocate burdens or benefits," they can survive the "intense scrutiny" of such decisions only if they "show that they are motivated by a truly powerful and worthy concern, and that the racial measure that they have adopted is a plainly apt response to that concern. They must show that they had to do something and had no alternative to what they did. The concern and the response, moreover, must be substantiated and not merely asserted."
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