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Law, culture, and Catholicism...up in smoke!

Tuesday, December 04, 2007

The Gunga Din Challenge: Professors Instigating Rebellion

Several weeks ago, commenter Gunga Din challenged me to a debate about student instigation by anti-dean faculty ("Anti-dean" is a crude description, I know. All I mean is having "no confidence" in the dean.) Now let it be known that Fumare is a place that welcomes vigorous debate!

This is a hypothetical discussion. I am not concerned with the facts because there are all kinds of things that we just don't have knowledge of: for example, what anti-dean professors actually said, when they said it, what was the context, who was present, was it in a class setting or in private, and who found it disruptive. (I note that on the opposite side of the coin, there have also been allegations of pro-dean professors disparaging anti-dean faculty during class, with students finding that quite disruptive). This is a hypothetical discussion. It does not imply that anything happened or didn't happen in the classroom. (In my opinion, the allegations of anti-dean professors actually disrupting classes to instigate student rebellion are grossly exaggerated or untrue.)

Gunga Din's questions were:
Question 1
"Should a law professor who instigates rebellion among students against the law school Dean, thereby undermining the institution, be fired?"
Question 2
"Is instigating student rebellion against the law school dean enough to show "cause" for which a tenured professor can be terminated from employment?"

Here is my response.

To start, I think those questions are badly-worded (what is "instigation"? what is "student rebellion"?), so I have to approch Gunga Din's questions step by step.

1. Can a law professor's tenure be removed or denied because he vocally objected to the law school dean (for example, by a "no confidence" vote, blog post, or public statement to the media?)

I emphatically say "no." Interpretation 206-1 of the ABA standards reads: "The faculty or a representative body of it should have substantial involvement in the selection of a dean. Except in circumstances demonstrating good cause, a dean should not be appointed or reappointed to a new term over the stated objection of a substantial majority of the faculty."

This necessarily means that a law professor has a right to make a "stated objection" about the law school dean. From this, I think it's clear that the ABA standards do not contemplate the permissibility of a dean removing or denying tenure because a professor loudly stated an objection to the dean, via "no confidence," etc.

2. What if a professor uses classroom time to make these objections?

I think that you still can't remove or deny tenure. I believe the ABA considers the classroom to be the exclusive domain of the professor. I think that academic freedom permits a professor say a lot in the classroom, even things which might not be relevant to the curriculum. Also, for most law schools, classroom time is irrelevant (many professors don't require students to attend classroom time and it's generally considered a waste of time). All that matters is that the student write the exam at the end of the semester. Consider the number of liberal professors who use classroom time as their personal soapbox to object to the Iraq War or to President Bush. My impression is that as long as the professor grades an exam at the end of the semester and publishes papers, he's doing his job. Furthermore, as I argue in #1, objecting to the dean is a protected right for professors.

3. What if the professor uses classroom time not only to make these objections but to also instigate rebellion, to rile up students, and to encourage them to go out and "rebel against the law school dean"? Can you remove or deny tenure?

The problem I have here is that I don't know what exactly "instigating rebellion" means. First, in universities, free speech by adult students seems very protected. Student actions like writing letters to the dean or getting the SBA to ask the dean questions don't seem to me to be "rebellion" and seem to be legitimate actions that a dean can't object to because there is no disruption of classes. Heck, in the 1970s, law students were participating in all-out riots against the Vietnam war disrupting classes, and it didn't seem like the dean could object to the student actions (I'm not an expert or a historian, so I can be corrected on this.) Second, I would think there is a presumption that a professor is not responsible for the actions of students, because students are adults who are free to act as they want. Third, opposition to the dean's leadership, as I've already argued in #1, is a protected right of law professors. Gunga Din's questions imply that disloyalty to the dean "undermines" the school, which is not the case. In order to support the well-being of a university, an explicit demand for new leadership (and thus "disloyalty" to the current leadership) might be required and is protected.

In conclusion, hypothetically speaking, even if a professor used classroom time to rile students up in order to oppose the dean, I don't think you could remove or deny tenure to the professor.

Gunga Din, where am I wrong?

[I reserve the right to edit comments that distract from the discussion.]