Ezra Klein’s friend asks, “What is tenure for … if not the protection of unpopular ideas?” Ezra replies,

But tenure doesn’t protect those with unpopular ideas, it just makes them harder to fire, and thus raises how unpopular an idea has to be before it merits termination. So on the one hand, firing someone with crackpot notions about tax cuts paying for themselves isn’t really worth the trouble. On the other hand, if, say, Greg Mankiw called for the extermination of the Jews tomorrow, Harvard and MIT would direct their physics departments to come together and create a time machine in order to help them fire Mankiw last week.

Because Ezra is a self-described wonk, I’m sure he will appreciate my taking some time to explain all the ways in which this is incorrect. And because he wants to sack John Yoo (author of the newly released “torture memo to top all torture memos,” as Marty Lederman writes) he will probably want to know that at the end of the post, there is still a route to do that, if he so wishes.

First, we’re talking about tenure as an instrument of academic freedom. And in that guise, tenure does not exist to protect unpopular ideas—or rather it does, but that description is imprecise. Tenure, considered as an instrument of academic freedom, exists to protect scholarly discourse from the influence of powerful forces outside the discourse.1

So now we see already a problem with Ezra’s concerns. It’s not the unpopularity of an idea, but whether it belongs to a scholarly discourse, that determines whether it’s protected under academic freedom. The Hypothetically Genocidal Mankiw would not be protected under academic freedom, because the question of whether and when to exterminate all the Jews is not properly part of scholarly discourse, either for an economist or, so far as I know, any other kind of academic. The HGM might be protected by free speech law. And I believe he would, unless he began making his HG statements in the classroom.

So okay, academic freedom ≠ freedom of speech. Some things that are protected under one are not covered by the other. This is because academic freedom has different origins than freedom of speech. It derives from a desire to protect scholarly discourse. Thus, one can invoke the cloak of its protection only insofar as one participates in a scholarly discourse. PZ Myers can say what he pleases, in the classroom or out, about evolution being independent of intelligent design, because that is one of the things the community of competent biologists have decided one should be able to say—and they have decided it on the basis of research, which in turn has been evaluated according to set procedures.

The question before John Yoo’s university colleagues is, then (if there is a question) not about the unpopularity of Yoo’s opinions.

Nor is it one of whether his opinions led to the commission of war crimes—sorry, Megan, the UC is not in the business of deciding who’s a war criminal and who isn’t. Actually, come to think of it, I’m not sorry. The UC shouldn’t be in that business. Which means I also disagree with Henry Farrell when he writes, “this is not, in the end, an issue of academic freedom. That is, it doesn’t concern Yoo’s ideas about the laws or communication of same; it concerns credible allegations that Yoo acted directly and deliberately, in his capacity as an employee of the US government to facilitate war crimes.” Again, I do not think the University of California is a fit agency to determine even a prima facie case as to who might be a criminal. That job belongs to a grand jury or similar institution.

Nor is it a good idea to invoke, to borrow a now-loaded word, quaint clauses about moral turpitude. I can see why Brad DeLong is squeamish about that particular approach to the subject. Start adjudicating “moral turpitude” and it’s not long before freethinkers and homosexuals are for the chop, too.

But scholarly discourse, which is the basis for the protection of academic freedom and tenure, is the kind of thing the UC should adjudicate—not only the kind of thing it should adjudicate, but the kind of thing it does adjudicate all the time. When people are hired, tenured, promoted—at the UC, there is post-tenure review, too—scholars both inside and outside the university are consulted and asked whether the professor in question has made productive contributions to scholarly discourse.

The question before the UC, if there is a question, is one of whether these procedures, with the new evidence of this professor’s legal work before them, would reach a different conclusion in answer to that question—and whether that conclusion would be so different that the protections of academic freedom should be stripped from this professor on the basis of his having committed a kind of scholarly malpractice. As Timothy Burke points out, an investigation to impose such a penalty was carried out in the case of Ward Churchill; Burke might also have mentioned Michael Bellesiles, whose work “set off a controversy which, beginning to some degree as a debate involving hot political issues, became something else: a dispute over perceived failures of scholarly care and integrity in the documentation, presentation and analysis of archival sources,” to quote the report in his case.

I have said repeatedly that this is the question, “if there is a question.” I am not one of the community competent to raise this question; the constitutional lawyers are. I would be surprised if they weren’t considering the case carefully. To quote another authority competent to make judgments in cases like these, “It’s a matter of time…. These things take time.”

1I know, all the Foucauldians just started shouting at their screens. I will not take up their concerns here, but urge them instead to read Thomas Haskell’s treatment of these issues in Objectivity is Not Neutrality, my memory of some of which I’m drawing on here.