Mark Field:
Balkinization: The bulk of Dean Edley's memo is simply irrelevant to the issues raised by critics and seems designed to prejudice the issue in Yoo's favor. When the Dean does reach the actual point of contention, he limits himself to the discussion of criminal actions. These are NOT the only basis for faculty discipline (Standards are here. The Standards consist of two basic parts, namely ethical guidelines and "types of unacceptable conduct". It's critical in understanding these Standards that the "types" are merely examples and do not limit the University from proceeding in other cases as well. Specifically,
The Types of Unacceptable Conduct listed below in Sections A through E are examples of types of conduct which meet the preceding standards and hence are presumptively subject to University discipline. Other types of serious misconduct, not specifically enumerated herein, may nonetheless be the basis for disciplinary action if they also meet the preceding standards."...
With this in mind, it's easy to see that Dean Edley is not giving a full and complete assessment of the issues in at least two respects. First, if the principles of academic freedom were somehow to apply to Yoo's conduct as a lawyer, as the opening portion of his letter suggests, he failed to mention the relevant Standard. The Standards provide that "Violation of canons of intellectual honesty, such as research misconduct..." are unethical and subject to discipline. Yoo's critics, including those here, have repeatedly argued that his memos were intellectually dishonest. Second, contrary to the implication of Dean Edley's letter, discipline is NOT limited to cases of criminal misconduct which results in conviction. That is merely a "type" of misconduct, that is, an example of the misbehavior which can lead to discipline.
In addition to these glaring omissions, Dean Edley's focus on criminal conviction allows him to omit another important question: whether the university has an independent obligation to investigate Yoo's conduct without waiting for the Justice Department or a State Bar. Clearly it does -- the Standards state that
Conduct which departs from these precepts is viewed by faculty as unacceptable because it is inconsistent with the mission of the University. The articulation of types of unacceptable faculty conduct is appropriate both to verify that a consensus about minimally acceptable standards in fact does exist and to give fair notice to all that departures from these minimal standards may give rise to disciplinary proceedings."
In short, violation independently affects the university, which therefore has an independent obligation to investigate. In failing even to consider this issue, Dean Edley does a disservice to his readers and to the University he represents.
Chris Edley:
Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here at the University of California is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents: Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015] This very restrictive standard is binding on me as dean, and in any case disciplinary authority over faculty is lodged not with deans but with the Provost, Chancellor and Academic Senate...
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