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Volokh Conspiracy

Med School Professor Removed from Fellowship Director Post, Apparently for Publishing Anti-Affirmative-Action Journal Article

This happened at University of Pittsburgh, a public university.


Hans Bader (Liberty Unyielding) reports (though you should read the whole thing):

The University of Pittsburgh has removed a program director at its medical center because he published a scholarly, peer-reviewed white paper discussing the pitfalls of affirmative action for black and Hispanic students. This violated the First Amendment, which protects even harsh criticism of affirmative action. The white paper was gentle in its criticism of racial preferences, merely arguing that lowering admissions standards for minorities can harm their prospect of academic success by putting them in a university they are not prepared to handle. It did not advocate discrimination against any minority group….

To my knowledge, Prof. Wang has not been removed from his faculty position, only from the administrative post; but public universities are generally not allowed to do even that, given the First Amendment, at least absent serious evidence that it would likely materially disrupt the functioning of the university. And if engaging in substantive academic criticism of race-based affirmative action—a matter that is the subject of a longstanding and substantive debate in the country and in universities—is indeed seen as so disruptive, then something is badly wrong with the University of Pittsburgh.

(I should note that a university could rightly insist that its employees follow legally permissible university policies, including race-based affirmative action programs, whether or not they agree with them; and they could ask their employees for assurances that they would indeed follow such policies. But here, as I understand it, Prof. Wang was removed from the post simply for his public criticism of race-based affirmative action, and not for any statement saying that he wouldn't do his job.)

UPDATE: (1) Just to be clear, Pittsburgh is indeed a public university (and thus a "state actor") for purposes of applying the constitutional rules. (2) For an example of the First Amendment protections covering public employee speech about affirmative action, see Meyers v. City of Cincinnati (6th Cir. 1991) (later modified on other grounds) and Dep't of Corrections v. State Personnel Bd. (Cal. Ct. App. 1997).