If the University's actions were understandable and predictable, they were nonetheless challenged at the time by others who considered them wrong, Cohn said. 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 educational institutions have the authority to punish or dismiss an employee, not on whether the employee enjoyed any rights or privileges the institution had to respect. This is a case which never should have been, and to the credit of the University that fact was recognized when it was over. They did not stop to think that what was bad social policy was likely to be bad law.
Speech codes are still a problem.
He did, however, describe a recent decision by Richard Posner, chief judge of the federal Seventh Circuit in Illinois, in a case involving a boot camp for young offenders. A white male challenged the promotion of a black male to lieutenant on the ground that the black male had scored lower on the qualifying examination. The defendants said that they made the promotion because they believed more black supervisors were were needed if they were to succeed in rehabilitating the disproportionately high number of black youths in the camp. They must show that they had to do something and had no alternative to what they did. The concern and the response, moreover, must be substantiated and not merely asserted.