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More on Academic Freedom and Fundraisers / Policymakers / Institutional Public Faces:

As I mentioned yesterday, I think canceling the Chemerinsky UCI deanship plans was a big mistake on the UC's part. There are also credible claims that the decision might violate state law (a complicated matter, which I might blog about later).

But the incident also raises a broader question: What role do the First Amendment and academic freedom principles have in choosing deans (or for that matter university presidents)? May higher-ups consider a person's speech, politics, or political activism in deciding whether to hire, fire, or reappoint him as dean? May higher-ups constrain what a dean says while he's a dean, as well as considering his past statements when deciding whether to make him dean? Or should academic freedom principles bar such considerations, much as they generally do as to professors? Let me pass along my tentative thinking.

1. Remember that, especially these days, deans and presidents are in large part fundraisers. To be effective at that job, they have to deal well with donors; being controversial may often undermine that.

Deans and presidents are also the main public faces of the institution. There are many professors at the institution, and it's easy to dismiss a professor's controversial statements as entirely his own, entirely unendorsed by the institution. One can't do that as to a dean or a president; what he has said or is saying is going to rub off on the public perception of the institution.

And deans and presidents are policymakers — policymakers whose policy decisions may often affect political matters (for instance, if they authorize the creation of various public interest litigation clinics, or adopt certain policies about admissions, military recruitment on campus, and the like). Higher-ups, donors, and members of the public will infer what policies the dean will make from the dean's past political statements.

2. Professors, on the other hand, are not chiefly fundraisers from the public. (To the extent they raise funds, they tend to do it through grants, a process that focuses far more on evaluation of academic proposals and on scholarly reputation — and perhaps on personal contacts — than does decanal fundraising.) Each professor is one of many, and professors are notoriously lone wolves who often disagree with each other as well as with the administration. Professors are not primarily policymakers.

Moreover, professors' job is to come up with ideas, including highly controversial ones and ones that may well be wrong. I'd much rather have a faculty of 20 scholars who come up with controversial and innovative but sound ideas plus 20 who come up with controversial and innovative but unsound ideas, than a faculty of 40 who come up with sound but banal ideas. The first faculty will contribute 20 scholars' important ideas to the storehouse of human knowledge, and those ideas can then enrich the work of scholars and others worldwide. The second will contribute 40 scholars' minor ideas, which will be largely unhelpful. Deans and presidents are also supposed to be innovative, but much less so: A failed innovation applied to an institution by its leader causes much more damage than a failed law review article does.

This is why a brilliant but erratic and controversial scholar is great to have; a brilliant but erratic and controversial dean is generally not. A bland, uncontroversial dean will often do a very good job, and sometimes an excellent job (though perhaps not a genius job). Someone who writes bland, uncontroversial scholarship isn't much of an asset as a scholar.

3. So the main reasons for protecting professors' (and students') academic freedom do not generally apply to dean. And there are the same time good reasons for considering a decanal applicant's speech, activism, and general controversiality, given that a dean's job is not inventing brilliant ideas, but rather chiefly raising funds, making institutional policy, and being the institution's public face.

Thus, if you want to get contributions from a largely liberal donor pool, you might well prefer a liberal dean, and strongly prefer someone whose public image is of someone who is somewhere between left and very slightly right (or apolitical). If you want to get contributions from a largely conservative pool, you might prefer a conservative dean, and strongly prefer someone whose public image is of someone who is somewhere between right and very slightly left (or apolitical). If you want to get contributions from a mixed pool, you might strongly prefer someone whose public image is of someone who is between moderate liberal and moderate conservative (or apolitical). And if you're starting a new law school, which lacks an existing alumni donor base, you might be especially concerned about finding someone who can excite the most people while alienating the fewest.

Likewise, you might want to set aside a person's past speech, but at least have some indications that he will avoid highly controversial subjects during his tenure. Or you might focus more on the style of a person's arguments than the substance, on the theory that donors and others will be more likely to be alienated by people who have a reputation as being strident in their views.

Similarly, if a dean says something highly controversial — whether about identity group topics such as race, religion, sex, or sexual orientation, or about other controversial topics — his higher-ups may conclude that it is better to fire him, or at least quietly ease him out or decline to reappoint him. Such a decision may be eminently proper (even if in some situations tactically foolish or an overreaction), even if a similar decision about a professor would be quite wrong.

Naturally, some decanal hiring decisions may still be too narrow-minded, or otherwise foolish. And, as I've said, the way the decisions are made and publicized may well be extraordinarily counterproductive, as they seem to have been here. But the First Amendment and academic freedom standards for them must be vastly different than the standards for hiring professors.

Steve:
Thus, if you want to get contributions from a largely liberal donor pool, you might well prefer a liberal dean, and strongly prefer someone whose public image is of someone who is somewhere between left and very slightly right (or apolitical). If you want to get contributions from a largely conservative pool, you might prefer a conservative dean, and strongly prefer someone whose public image is of someone who is somewhere between right and very slightly left (or apolitical).

But unless you want to forsake contributions from the opposing ideology altogether, you certainly don't want to give the impression that you selected the dean BECAUSE their ideology was a match for the prospective donor pool. And if you're sufficiently ham-handed about it, you're going to alienate even those donors whose ideology would otherwise be agreeable. After all, even if your leanings are conservative, how could you take UC Irvine seriously at this point?
9.13.2007 3:17pm
Oh My Word:
In some ways, maybe Chemerinsky would have been a better person to pick as a dean from a Californian's perspective. Then, at least, there's truth in advertising—i.e., you don't have some grandfatherly apple pie guy raising money to give to radical academics whose ideas wouldn't float anywhere but in the protected university setting.

At any rate, there is not a First Amendment issue here. The State has a right to say what is and is not good. Public schools have a right to fire teachers that refuse to teach evolution or principals who espouse such ideas. Require viewpoint neutrality in education and you end up with, well, the increasingly absurd situation we often find on modern public university campuses.

Sure, that would make FIRE mad, but then they would have the right to go to the Legislature and have the Legislature mandate that the schools not beat up on conservatives. But the Constitution doesn't have an effective (or proper) role to play in this question. Using the blunt tool of the First Amendment to dissect the right balance is like cutting a cake with a baseball bat.
9.13.2007 3:22pm
Shelby (mail):
Eugene:

That's all quite true, but here I think it rather misses the point. I haven't seen many claims that de-hiring Chemerinsky is a first-amendment violation, or that universities have an obligation to ignore candidates' public statements. The problem is, the UCI chancellor surely knew all this, and still made the offer. Even if he is correct that the offer was a mistake, he's taken about the worst possible approach to fixing that mistake. Wisdom about public-policy considerations in selecting a dean doesn't, I think, add much to the current debate.
9.13.2007 3:29pm
Grumpy Old Man (mail) (www):
There are two different questions:

1. Was it a good hire in the first place? Very likely not, although if they didn't know Chemerinsky was opinionated and in what direction, the search committee was incompetent.

2. Were they entitled to buyer's remorse because of his views, or even his writing an op-ed? I think not.

It would be nice to see deans and college presidents with publicly known opinions for a change. Academic life gets so bland . . .
9.13.2007 5:47pm
TruePath (mail) (www):
Was that last bit a subtle reference to the Larry Summers controversy?

I suspect some of the people getting all worked up about this were demanding Larry Summer's head several years ago. But as much as I disliked that choice I agree neither it nor this choice implicate academic freedom.
9.13.2007 8:48pm
Guest2:
And some of the people who aren't so worked up about Chemerinksy were livid about Summers...

There is a difference though. If one believes that Summers' comments were literally harmful to female faculty and students (as opposed to mere reflections of political ideology), then "demanding [his] head" was at least arguably justified. Rescinding Chemerinsky's offer seems worse because the arguments in favor of doing so seem less morally justifiable than did the arguments in favor of firing Summers as Harvard president.
9.13.2007 9:21pm
slee (mail):
Thus, if you want to get contributions from a largely liberal donor pool, you might well prefer a liberal dean, and strongly prefer someone whose public image is of someone who is somewhere between left and very slightly right (or apolitical). If you want to get contributions from a largely conservative pool, you might prefer a conservative dean, and strongly prefer someone whose public image is of someone who is somewhere between right and very slightly left (or apolitical).

As a fundraiser for an academic institution (and attorney on hiatus from law), I can attest that academic institutions do not tend to look at donors in segments such as "liberal pools" or "conservative pools." Our letters and solicitations are tailored to donors based on one thing alone: giving capacity. This is because dollars are dollars, whether they come from the right, left, or center.

As a good fundraiser for an academic institution, you would never limit yourself to just a "liberal" or "conservative" pool. With the ability to travel to any prospective donor in the world to solicit a major gift, UCI would be foolish to limit itself to only the donor pool in the OC area or solely to ostensibly conservative donors in the local area.

The core values of an institution, though, may naturally attract donors who hold similar values. This is a whole package, though, and the dean alone is not the end all and be all of the core values of a multi-faceted institution.

Major gift officers do not just solicit from the geographic area surrounding the institution and possess significant budgets for travel. "Significan travel" is a key requirement of every major gift officer's job description. So, I do not believe it holds true that the geographical locale of the institution affects major giving as much as I interpret Professor Volokh's to argue.

It is true that as a dean or president of an academic institution, much of the person's job deals with fundraising and that it might be wiser to appear apolitical in that administrative role to ensure one secures a gift. Many deans and presidents, if not all, however, were once those "controversial" professor-figures who then advanced to their posts as deans and presidents. Erwin Chemerinski's past controversial speech as a professor, then, would not be an indicator of his success as a fundraiser as long has he were willing to develop relationships with donors of capacity in all geographic regions regardless of political views.
9.14.2007 3:58am