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2011 AALS News 1 (2011)

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2011 AALS Presidential Lecture


Academic Freedom and Academic Duty


MichaelA. Olivas, Universiy of Houston Law Center


The following is the Presidential Address ofiMichael A. Olivas before the House ofRepresentatives at the
AALSAnnual MeetingonJanuar 7, 2011.


   In preparation for this talk, I went
into training, but I always knew what
my theme would be. I read and pro-
duce higher education literature for
a living, and began to narrow the
focus to threats to tenure and to aca-
demic freedom and the concomitant
academic duty obligations that arise
out of our status as tenured profes-
sors. There have been so many se-
rious threats in law schools that it
seemed a natural observation trail:
a William Mitchell law faculty mem-
ber arrested in Rwanda for his pro
bono representation in an election
matter there;' a New York University
School of Law faculty-journal editor
sued for criminal libel in France for
publishing a book review;2 law school
clinics reviled for their work, and


  threatened in Maryland, Louisiana,
  Michigan, New Jersey, and in sev-
  eral other states;3 a law scholar sued
  for her research on family law, where
  her university chose not to indemnify
  her;4 a law review that pulled a piece
  from publication, due to threats from
  the company that was being writ-
  ten about;' other law faculty, such as
  University of California, Berkeley's
  John Yoo, punished for their views,
  as have been others who were not on
  law faculties.6

     The    zone    where     professorial
  speech is protected is shrinking, so
  that law professor habitat is akin to
  that of the disappearing savannahs


IJosh Kron, Lawyers Report Intimidation by Rwanda, NY Te


    Michael A. Olivas at the Second Meeting of the
         AALS House ofRepresentatives

and rain forests. Exhibit number
one is the 2006 Garcetti v. Ceballos case,
where the Supreme Court ruled that
when public employees speak pur-
suant to their official duties, the em-
ployees are not speaking as citizens
for First Amendment purposes, and
the Constitution does not insulate
their communications from employ-
er discipline, regardless of whether
or not the speech involves a matter
of public concern.'7 The majority al-
lowed that there is some argument
that expression related to academic
scholarship or classroom instruction
implicates additional constitutional
interests that are not fully accounted


June 13, 2oio, Ai6.


2JenniferHoward, LibelCase, Prompted by.. AademiBookReie, Has SholarsWorried, Chon. ofHgheEdu., April2    20Io, availableat
http:// hronile.om/arztile/Libel Case Prompted by an/65224/; see also Jennifer Howard, BitiLib   L Chills U. S. Scholars Speech,
but Change Is Afoot, Chon. oJHfgheEdu, April 23, 2010, A8, 10 (UK libel ase).
3 See, e.g RbR. Kuehn and Peter A. Joy, Kneeapping Aadem        Freedom, Aademe, 815 (NovemberDeember 20        ) [inluding
Table Publized Instanes of Interferene in Law School Clinis, at 12 13, available at: http://www.aaup.org/AAUP/pubsres/a/ademe/20IO/
ND/feat/kuehchart.htm.
4 Sott Jashik, Twisting in the Wind, InsideHigherEdom, November 30, 2005, available at: http://www.iinsdehighered.om/
new/2OOS/II/30/liability (inluding other examples of lasuits against sholars). The chilling legal effect upon scholarship has been widely
chronled; see eg., Benedict Carey, Aademi Battle Delays Publiation by 3 Years, NY Te, June 12, 2010, A13 (psychology publiation
delayed); Amy Gajda, The Trils o2Aademe: The.NeEroJ CampusLitg&tion (2009).
5 Peter Monaghan, AJournalArtle Is Expunged and ItsAthors Cry Foul, Chon. HgheEdu, Deember , 2000, A14, availableat: http://
hronle'm/ ar tile/AJ.ornal ArticleIs Expunged/I59o/; Peter Mnaghan, Professrs Sette Suit With U. f Dner 0        Retrated
Artle, Chon oHgheEdu, September 7, 2001, A25, available at: http://hronile.om/artile/Professors Settle Suit Wnith U/2232I/
6 PeterJashik, Torture and Tenure, InsideHigherEd.6om, April 14, 2008, available at: http://www.insdehighered.om/nes/2008/4/I4/
yoo (revieing calls for firng Professor Yoo for White House memos); Frances Tobin, Torture Memos' John Y  Greeted at Berkeley by
Protesters, PolitisDailyom, September 2, 2009 available at: http://www.politisdaily.om/2009/09/02/protests welome torture memo
wit   ohn yoo bak to berkeley/ . Hislass loation has had to be hidden from non  ass members, so as o avoid disruptions. Class in
Hiding, Nt'Junit, February 2010, 2 available at: http://www.nxtbook.om/nxtbooks/cypress/nationaljuristO2i1/#/i2. Perhaps the m t
prmint adei punished f- his i- w- Ward Churhill, whohas exhaused virtually all his options, athough ajury found him to have
been wrongly dismissed from his tenured position at the University of Colorado. Sott Jashik, A Loss for Ward Churchill  and Others?,
Insidehighered-om, November 29, 2010, available at: http://www.insdehighered.om/new/2OIO/II/29/hurhill; Chrstopher N. Osher,
Churchill loses bid to return to CUjob, Dene Pot, November 24, 2OO, Bi.
7 547 US 41o, 421 (2006) See, e.g Sheldon H. Nahmod, Publi Employee Speech, CategorialBalaning and 19 83: A Critique of G-r etti
  Cellos, 42 U. Rth. L. Re 562 (2008). See also Matthe W. Finkin and Robert C. Post, Fo the Co-on Good: Princple oJfAmericn Acdemi Freedom
(2009). While threas to aademic freedom and tenure are thought ofas the provne of lib   mi, th     i        partisan lines, as
with Profeso Y.. and with Profso RhardJ. Pltz, whha - writtenat lgth ab           n  ituation, where hfh wa mobbed f-r hi
viewpoins. SeeRhardJ. Petz, PenumbralAademi Freedom      Interpreting heTenure Contrat i  Time of Constittional Impoene, 37
J. C o1. U. L. i59, i6o 162 (2010) (reounting his experience at University of Arkansas, Little Rock).
                                                                                      Continued on page 2
  Printed as a Public Service by West Law School Publishing and Foundation Press.

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