The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Free Speech at the Higher End of the Org Chart: Thoughts on the Arkansas Dean Controversy
From the N.Y. Times (Stephanie Saul) last week:
Less than a week after naming a new dean, the University of Arkansas Law School has rescinded the offer after state politicians raised concerns about her views on transgender athletes….
The appointee, Emily Suski, a legal scholar at the University of South Carolina, had been selected after a lengthy search, and the University of Arkansas's provost, Indrajeet Chaubey, had praised her work on medical partnerships to help low-income children when the choice was announced on Jan. 9. But on Wednesday, the school withdrew the appointment, saying that the decision was based on "feedback from key external stakeholders."
Members of the state legislature said the concerns were related to her signature on an amicus brief filed with the Supreme Court last year in support of transgender student athletes….
This led to considerable condemnation; the Association of American Law Schools, for instance, called it "a blatant violation of academic freedom, an alarming intrusion into university governance, and a threat to the legal profession in so far as political actors sought to penalize a lawyer for taking a legal position." My view, though, is somewhat different, for reasons that I think help illuminate some broader matters as well.
[1.] Let's begin with one modest hypothetical: Imagine that it came out that someone being considered as a possible dean at a California public law school had signed an amicus brief in opposition to allowing transgender student athletes to compete in women's sports (or in support of bans on surgical or pharmaceutical gender transitions for youths or something similar). Would we think that the candidate would be offered the position?
I would very much doubt it. And indeed if the candidate were rejected on these grounds, I think this would be a legitimate position for the decisionmakers (whether the university President, the UC Regents, or the legislators or governor pressuring the Regents) to take. Perhaps if this position were made public, many conservatives would be upset, much as many liberals are with regard to the Arkansas situation. But then too I would say: There's really not much justification for such upset.
The politically selected officials who directly or indirectly run the public university system are entitled to make sure that the leaders within that system share the officials' general worldview. Such leaders, including deans and not just university presidents, make all sorts of discretionary decisions, about programs and centers, curriculum, grading policy, admissions policy, and more.
The legislators who, on behalf of the citizens of the state, allocate taxpayer money to the university are entitled to help choose university leaders whom they trust. And even if support or opposition for transgender students in athletics isn't directly relevant to the particular dean's role, it's fair for political leaders to view that position as a proxy (however imperfect) for the dean's overall ideological approach more broadly.
A politically conservative professor may be a great scholar, and a great leader in the abstract. But he may not be the leader that a liberal legislature or Board of Regents/Trustees would want to choose. Likewise, I think, as to a politically liberal professor in a conservative state.
[2.] And indeed when we step back and look at hiring decisions throughout the government, we see something similar. People holding ordinary government jobs generally have considerable free speech rights, and aren't supposed to be chosen based on their political affiliation (see, e.g., Rutan v. Republican Part of Illinois (1990)). But at the top of the org chart, of course a President or governor will choose his Cabinet based on their ideology, and indeed based on their party affiliation. And this will extend to some lower-level leadership positions as well: At the federal level, for instance, consider not just the Attorney General (to give the example of one executive department) but also the Deputy AG, the Solicitor General, the various Assistant AGs in charge of various divisions, and the various Directors.
Who among them is not chosen in part based on their ideological leanings? Conversely, each of them surely could be fired for speech that would clearly be constitutionally protected if said by a line government employee, simply because that speech suggests a lack of harmony with the Administration's priorities—or simply risks political tension with Congress or the public.
Now where the line should be drawn is a hard question. As I said, the Supreme Court has held that government employees generally have considerable First Amendment rights, including as to hiring decisions as well as firing decisions. High-level appointees generally don't have such rights, in the sense that they can be fired or not hired based on their speech or political activity.
It may often be hard to tell who qualifies as high-level enough. But in my view, the role of a public law school dean is a sufficiently important leadership position that it strikes me as more like an Assistant Attorney General than like a line employee. True, a dean is generally hired or fired by the university president, not directly by the Governor or the Board of Trustees. But unsurprisingly, university presidents listen to legislators and Governors, and may make hiring and firing decisions with an eye towards the views of political officials.
[3.] Nor do I think that the rules differ as to universities. Generally speaking, professors have broad academic freedom rights, both under the First Amendment and under faculty contracts (both tenure and pre-tenure). They generally can't be fired based on their public speech (to oversimplify slightly), and there is at least a formal norm that they shouldn't be hired or not hired based on their ideology either, though of course that's very hard to enforce: Evaluating the quality of a candidate's scholarship is, practically speaking, often hard to separate from the evaluators' agreement or disagreement with the candidate's ideas.
But I don't think these academic freedom protections extend to deans, who are internal leaders, policymakers, officials, and essentially politicians of a sort. Faghri v. Univ. of Connecticut (2d Cir. 2010) had the right analysis, I think:
Because the deanship of the School of Engineering is an executive, policymaking position, the management of the university was entitled to have such a position occupied by one who voiced support for, or at least did not voice opposition to, the university's policies. It was therefore entitled to remove Faghri from that position for publicly opposing the university policies.
To be sure, the First Amendment protects Faghri's right to speak in opposition to university policies. He could not have been jailed or held liable for such speech or enjoined from speaking.
But the management of a public institution, such as a university, is not required to retain in a management or policymaking position a person who publicly opposes its policies. Such an institution is entitled, for the sake of effective implementation of its policies, to have in management positions, especially high-ranking executive positions, persons who will support its policies, rather than persons who will undermine its goals by voicing public opposition to them.
Now there the dean spoke out on specifically university-related matters, arguing against a plan to establish a university campus in Dubai, opposing a university plan to close certain other schools within the university, saying he didn't trust the provost, calling for an investigation into alleged mismanagement of funds, and more. But the point applies as well, I think, to bigger-picture ideological disagreements. University leaders don't have to retain in an "executive, policymaking position" a person who has publicly opposed the leadership's views on important public policy—or has publicly taken a stand at odds with the views of political leaders whose support the university needs.
Again, I don't think a university could properly fire a professor for publicly disagreeing with, say, a plan to open a campus in Dubai. That would violate, I think, academic freedom principles as well as the First Amendment. (Recall that Pickering v. Bd. of Ed. (1968), which recognized considerable First Amendment protections for government employees, involved a high school teacher criticizing the Board of Education's and district school superintendent's decisions. And cases have generally held that public university professors generally get more protection under Pickering than public school teachers.)
But those principles don't, I think, apply to deans, just as First Amendment principles wouldn't apply to high-level Justice Department (or Interior Department or Treasury Department) leaders. If, for instance, UC Berkeley decided that it didn't like something that its dean (the leading constitutional scholar Erwin Chemerinsky) said about constitutional law, I don't think it could strip him of his professorship, given the First Amendment and UC Berkeley's academic freedom commitments. It could, though, insist that he step down from his deanship (absent a specific contractual provision to the contrary).
To be sure, deans usually come from the ranks of professors. Decisions to reject decanal candidates based on their ideological positions might make professors who wans to become deans reluctant to write academic articles, sign academic briefs, or do other things that might make them controversial with legislators. But I don't see any way to avoid that, whether the professors have ambitions for deanships, judgeships, elected office, or other appointed office.
Academic freedom is supposed to give you as a professor the freedom to write what your research leads you to think is right, without fear of losing your job for it. Free speech gives you the freedom to speak as a citizen without the fear of losing your job for it (more or less).
But academic freedom and free speech are not supposed to give you the freedom to seek leadership positions in the government (whether the government of public universities or government more broadly) without your views being evaluated by those who would select you. People who want to have maximum flexibility as scholars may have to give up some of their political ambitions or other leadership ambitions—or hope that their ambitions will be fulfilled in more ideologically compatible states or institutions.
[4.] I also don't think that state universities as institutions have any special institutional rights to be free of legislative or gubernatorial interference in their leadership choices. State universities are, after all, in considerable part funded by the government, which is to say by taxpayers (considering both the yearly appropriations and the value of the public land they use). The taxpayers' representatives are entitled to a say in how those funds are spent.
The usual political control in Arkansas stems from the University Board of Trustees being appointed by the governor with confirmation by the state senate, and the Trustees then selecting the University President. But, as in most governmental institutions, there are indirect influences as well, from state legislators—who of course have the power to decide on university funding—and from the governor. I don't think that state institutions spending state funds are entitled (whether by law or academic freedom principles) to be free from influence by the state's elected officials.
Nor does it matter, I think, whether the politically selected officials—whether the Trustees, legislators, or the governor—exert influence to cancel an offer to a potential dean, as opposed to exerting influence to prevent the offer from being made in the first place.
It's true that, in the California example with which I started, it's pretty unlikely that the hypothetical candidate who publicly opposes allowing trans athletes in women's sports would have even gotten the offer from the university administration, an offer that legislators may then seek to have cancelled. That's because the UC campus's administration is likely on the same ideological wavelength as the California Legislature. Perhaps (I'm not sure) the University of Arkansas administration wasn't equally matched with the Arkansas Legislature. (Of course, perhaps they just didn't fully check into the candidate's past amicus briefs, or misjudged the possible legislative reaction to them.)
But in such situations, legislators are entitled to step in after they see what they view as a misstep by university administrators, rather than having their hands tied by the administrators' decisions. Such a public reversal of those decisions may look bad politically. It may be practically unwise, for instance because publicly undermining the authority of university administrators may make it harder for them to recruit future decanal candidates. And it may in some situations be a breach of contract (though I expect that most such contracts allow this sort of revocation, especially before the deal is finalized). But there's nothing inherently improper about this sort of after-the-fact supervision.
[5.] Now I entirely see the appeal of trying to have less political and ideological decisionmaking in at least many kinds of government agencies, as to many kinds of decisions. I fundamentally want a government-run hospital, for instance, to cure people more effectively, and I'd rather that decisionmakers choose hospital leaders based on their medical knowledge and managerial skills rather than ideology.
But at the same time, most government departments' actions also involve policy choices on which people fundamentally disagree. A candidate's "ideology" is often a label for a set of policy views—some expressly stated by the candidate and others inferred from those stated views—about how to make those policy choices.
Certainly public law schools aren't apolitical institutions: Managing them involves many choices about, for instance, what centers or clinics to create; what fields to prioritize hiring in; what classes to make mandatory or at least strongly encouraged; what sorts of students to admit; what to teach students about the proper role of the law and the legal profession; and much more. (Consider, for instance, the Centers, Programs, and Institutes at my own UCLA Law School, focusing both on their existence and their active staffing levels.)
To be sure, few of those decisions are linked directly to a law school dean's view on transgender athletes in women's sports (either for or against). But deans will need to make lots of other decisions that are linked to the dean's overall ideological perspective on the world. And people's perspectives on particular hot-button issues are often seen as proxies, however imperfect, for those broader ideological perspectives.
I expect it would be better if legislators reacted less to potential public institutional leaders' views on individual highly controversial subjects, and looked more to the aggregate of those views—plus of course to the candidate's broader managerial qualities. There's always the risk, from both the Left and the Right, that legislators' focusing on one action by a candidate will be mostly symbolic, and won't accomplish even the legislators' own broader policy goals.
But I find it hard to sharply condemn, as a violation of free speech or academic freedom or lawyerly integrity, elected officials' preference that the institutions their constituents fund are run by leaders who share the officials' and constituents' worldviews.
