BY HANK REICHMAN

Hans Linde

Hans A. Linde, a leading legal scholar who served on the Oregon Supreme Court from 1976 to 1990 and whose writings energized efforts to turn to state constitutions and courts in defense of civil liberties, died on Monday at the age of 96.  He was, in the words of Lawrence Tribe, “one of the giants of the American judiciary.”  Before joining the Oregon court Linde served as a professor of constitutional law at the University of Oregon from 1959 to 1976 and as an activist and leader in the AAUP.  Full obituaries may be found in the New York Times and the Eugene Register-Guard. 

AAUPers and other advocates for academic freedom may recognize Linde as one of two members of the investigating committee that examined the dismissal of Angela Davis, then a non-tenure-track lecturer at UCLA, by the University of California Regents in 1970.  That committee’s lengthy report was notable for several reasons, not least of which was the committee’s interview with then-California Governor Ronald Reagan.  Most noteworthy, however, was the report’s development of the AAUP’s “fitness” standard in cases involving extramural expression.  I have always thought these passages to be one of the report’s — and hence one of Linde’s — most critical contributions to our understanding of academic freedom:

What is required by the concept “fitness for one’s position?”  Most obviously, it means the capability and the willingness to carry out the duties of the position.  First among these, for most academic personnel, are the duties of a competent and responsible teacher.  The Ad Hoc Committee found, and the Regents do not deny, that in this respect Professor Davis performed well.  Depending on his discipline, rank, or assignment, and the practices of the institution, a faculty member’s position may involve other responsibilities, in research, in advising students, in sharing departmental chores or administrative duties, and the like.  To meet the AAUP’s standard of unfitness, then, the faculty member’s shortcoming must be shown to bear some identified relation to his capacity or willingness to perform the responsibilities, broadly conceived, to his students, to his colleagues, to his discipline, or to the functions of his institution, that pertain to his assignment.  The concept cannot be reduced to a generalized judgment of “unsuitability” at large.  AAUP standards of responsibility identify objectionable features in extramural speech, and their presence in any serious degree is prima facie evidence to trigger an inquiry into the speaker’s fitness for an academic position, but it does not by itself establish unfitness.  Thus, under the quoted principles, institutional sanctions imposed for extramural utterances can be a violation of academic freedom even when the utterances themselves fall short of the standards of the profession; for it is central to that freedom that the faculty member, when speaking as a citizen, “should be free from institutional censorship or discipline” except insofar as his behavior is shown, on the whole record, to be incompatible with fitness for his position. . . .

At some stage in a contested argument over academic responsibility and fitness to teach, appeal must be made to someone’s judgment in applying what are necessarily somewhat imprecise standards for the limits of propriety of extramural controversy.  The judgment to be made is how far the condemned polemics fall below a professionally tolerable norm, and about the gravity, the frequency, and other circumstances of the incidents along with other evidence bearing on the speaker’s overall academic responsibility.  It is entirely possible, even likely, that the balance might be struck differently on the same evidence by leaders of the academic community and by members of a governing board, especially where political and other public controversy is involved.  Academic judges may have a higher tolerance for verbal contention, however farfetched or indiscreet, for reasons that go beyond mere guild loyalty; but they may be more concerned with evidence of charlatanism or overall quality in the speaker’s total academic performance.  Presumably, on the other hand, controversial extramural utterance will be of concern to a lay governing board precisely to the extent that it is a matter of public rather than academic controversy.  To that extent, the judgment of such a board under an identical general standard is likely to focus on those aspects of the total conduct that outrage public sensibilities and to undervalue those that relate to professional performance within the academic discipline. In the light of these considerations, the wisdom of the AAUP procedural standards – which require careful exchange of views between faculty committees, administrations, and governing boards in disciplinary actions of the present kind – is apparent.

Linde was a member of Committee A from 1970 until his ascension to the bench in 1976.  As a member he participated in and no doubt contributed greatly to quite a few academic freedom investigations and reports.  Those years were trying ones for American higher education and for the AAUP, which in response to student rebellions, the Vietnam War, and racial unrest went through a major period of reflection on its values and approach, including its attitudes toward faculty unions.  In some respects it was a time not unlike our own and it is remarkable how well suited to our time the report that Linde authored with his colleague, University of Michigan philosophy professor Richard Brandt, remains.

An early 1970s meeting of Committee A, with Hans Linde in white shirt and tie

Linde was born in Berlin.  His family fled the Nazis, first to Denmark and then to Oregon, so he was always influenced by that prior period of stress and conflict in which he had come to adulthood.  An alum of Reed College, he once told that institution’s alumni magazine: “If your memories of public events begin in the 1930s, you are likely to reject cant and grow up with an essentially skeptical point of view toward conventional wisdom.  You tend to examine whether facile assertions about cause and effect and values in society will hold water.  You do not expect to find some secret of perfect justice, but you do develop a strong sense of injustice when you see things occur that are indefensible-and they can occur under any kind of regime.”

I suspect that some day someone whose memories of public events start around 2020 will say something similar.

Legal scholar Garrett Epps, who also taught at Oregon, thought of Linde when he was with his family in Portland a year ago in the midst of demonstrations there.  In a terrific piece, “The Proud Boys’ Real Target” in The Atlantic, which I strongly urge everyone to read, Epps began:

I haven’t seen Justice Hans Linde in more than a decade, but I thought of him last Saturday, when I found myself locked in a science museum with frightened parents and children while neofascist thugs marched by.  Hans was a child in Weimar Germany; I suspect he would have known how I was feeling.

Epps and his family were touring the Oregon Museum of Science and Industry when the neofascist Proud Boys marched past, forcing a lockdown.  “What has this to do with Hans Linde?” Epps asked readers.  Following a brief history of Linde’s life, from Weimar Germany to the Oregon high court, he wrote:

Perhaps the most important legacy of the Linde years were his opinions interpreting Oregon’s free-speech guarantee much more broadly than the federal First Amendment.  That protection has helped preserve Oregon’s wide-open democratic culture, where ideas from the Neanderthal to the utopian can contend, and where human experience comes in many shades.

That very culture, I suspect, is what has drawn out-of-state fascist leaders to focus on Portland.  From years of study—and personal experience—I know about Oregon’s dark racist past and the shadow it casts over the state today.  Nonetheless, in recent years, leaders here have worked to create an inclusive culture—one that the fascists would like to discredit, stigmatize, and eventually destroy. Since the Saturday demonstration, the Proud Boys have announced that they will be back every month until the City suppresses the antifa movement, whom they call “domestic terrorists.” . . .

Linde’s life was shaped by gangs of thugs deployed to shatter democratic order and impose racist dictatorship. Portland provided his family a haven and a life as citizens of a democratic nation.

Now the right has targeted Linde’s haven for destruction. The real target, though, is not Portland or antifa but all of us, and our sense of security that we are free citizens of a democratic nation, free to take our children downtown to play or to assemble peacefully to advocate values that the Republican Party does not approve. That party under Trump is now taking sides in the uneven war in Portland’s streets—and it is taking the dangerously wrong side.