The University Record, October 29, 1996
Cohn gives a 'trial judge's' view of academic freedom
Photo by Gregory Fox
By John Woodford
News and Information Services
"This lecture is an important event in the life of the University and the community," noted Judge Avern Cohn, '49 J.D., of the U.S. 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 established by the Senate Assembly in 1990. The University Chapter of the American Association of University Professors (AAUP) formed an independent, nonprofit organization, the Academic Freedom Lecture Fund, to provide financial support for the lecture series.
Cohn spoke on "Academic Freedom: A Trial Judge's View" at the Oct. 21 lecture to an audience of 100 in 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 about their relationships with the US Communist Party.
Cohn, whose father was a 1917 graduate of the Law School, emphasized that how judges interpret and resolve disputes within 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, it should have come as no surprise to the three professors that they would fail to retain their jobs if they attempted to convince the courts to go against the will of Congress or 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."
Cohn quoted the historian Ellen W. Schrecher's description of the environment in higher education in the '50s in No Ivory Tower/ McCarthyism and the Universities. "The academy did not fight McCarthyism," Schrecher wrote; rather, it "contributed to it" through dismissals and blacklists based upon an "acceptance of the legitimacy of what the Congressional committees and other official investigators were doing." The academy "conferred respectability upon the most repressive elements of the anti-Communist crusade," Schrecher continued, but in so doing it "behaved just like every other major institution of American life."
If the University's actions were understandable and predictable, they were nonetheless challenged at the time by others who considered them wrong, Cohn acknowledged earlier. "Had the University authorities apologized for their sins and made amends, as some of you urge," he told the audience composed largely of contemporaries of the three professors, "we might not have this reminder. Apologies, even with reparations, do not undo past wrongs, as the Japanese who were interned during World War II tell us."
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 the educational institution had 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."
It was not until 1952, Cohn continued, that the words "academic freedom" appeared in a Supreme Court decision, and they have been used in 29 cases since then, the latest being in 1990.
Turning his attention to U-M-related cases in his court both before and during his 17-year tenure, Cohn said most of them were typical of cases around the country, which involved student challenges of expulsions or denials of degrees and faculty challenges of denials of tenure. The plaintiffs almost always lose these cases, Cohn said, which demonstrates the "wide authority given to university administrators in the operation, and the judicial approval of procedures typically followed."
More unusual were two cases. The first was brought by a student, Jackie Vaughn, in 1963 (Vaughn is now a member of the Michigan Senate) seeking to enjoin Mississippi Gov. Ross Barnett from championing segregation in a speech on campus on the ground that the speech would present a "clear and present danger" to opponents of Barnett's arguments.
In successfully opposing the injunction, the University argued: "Every person has the right at all times and places to express his personal views and ideas on any subject. It is for the person to whose attention they come to determine whether [the ideas are] sound or unsound. And it is only by having all such views and ideas before a person that he can acquire ability and facility to think, weigh and choose."
Cohn then 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.
Cohn said it would be unwise for him to predict future expansions or contractions 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 does not wish to seem to prejudge "issues of multiculturalism, diversity and affirmative action in a university setting," because that would prevent him from having the opportunity to rule on them in his court.