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The Chemerinsky Matter and the California Constitution:

Some have suggested that not hiring Chemerinsky based on his being politically controversial violates article 9, § 9 of the California Constitution:

The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs ....

The courts have not spoken in any substantial way about what the ban on "all political ... influence" means.

It would, I think, be odd to require that a university ignore the past political activities of all people with whom it deals "in the administration of its affairs," and the political impact that dealing with those people might have. Consider, for instance, the "appointment of [the university's] regents." Is it really the case that the Governor must appoint regents without regard to whether they've been political lightning rods, and without regard to the political enemies they have made?

Likewise, "administration of [the university's] affairs" includes more than just hiring of administrators: It includes the giving of awards, the invitation by the university of graduation speakers, the naming of schools and buildings, and more. Can it really be the case that a university can't consider (and in some instances try to avoid) possible political controversy in making such decisions? As to the selection and retention of faculty and students, the First Amendment and academic freedom principles should indeed preclude such considerations. The question is what should be done in other contexts, such as choosing whom to invite to give a lecture to donors, whom to appoint as a fundraiser, and the like.

At the same time, it's certainly possible that the California Constitution bars even those practices that I think are proper and perhaps even wise. Any thoughts on how the text of that provision should be interpreted, not just with reference to this particular controversy, but looking at the broad category of "the administration of [the university's] affairs"?

Steve:
Is it really the case that the Governor must appoint regents without regard to whether they've been political lightning rods, and without regard to the political enemies they have made?

This seems like a bizarre interpretation. Common sense says that if you appoint a political crusader as a regent, you're doing the exact opposite of "keeping the university entirely independent of political or sectarian influence."

However, in the context of Chemerinsky, it's important to bear in mind the difference between ideology and political partisanship. Just because someone identifies as liberal or conservative, that doesn't mean they necessarily contribute to "political or sectarian influence."
9.14.2007 3:09pm
Tony Tutins (mail):
The Regents include, ex officio, such elected politicians as the Governor and the State Superintendant of Public Instruction. So "independent of political influence" cannot mean "completely independent."
9.14.2007 3:21pm
Pin Head (mail):
I have no doubt that political considerations and the potential for political controversy played a significant influence in the Chemerinsky matter, but the opposite manner that most presume.

The Search Committee and the Chancellor were seduced by Chemerinsky precisely because of his high profile and controversial political views.

I do not find the idea that potential opposition by local conservatives and donors led contributed to the Chancellor's decision credible. In the 20 something years that I have worked at UCI, these considerations have never prevented UCI from appointing outspoken and controversial liberals. On the contrary, we revel in these apointments.
9.14.2007 3:33pm
bittern (mail):
I tend to agree with Steve. The quoted CA provision would seem to require politically neutered administrators, not that that would be necessarily wise or feasible. It would seem responsible to avoid persons likely to use the position as a pulpit to promote their agenda, because their own actions would not give primacy to the interests of the U. But EV, you seem excessively concerned about bringing down controversy. Do the right thing and let the chips fall where they may. For UC to worry about someone being controversial seems craven. Just my $0.02.
9.14.2007 3:44pm
Archon (mail):
I would say that courts should find this clause nonjusticiable as a political question.
9.14.2007 3:50pm
Brian K (mail):
The question is what should be done in other contexts, such as choosing whom to invite to give a lecture to donors, whom to appoint as a fundraiser, and the like.

I think these can be easily separated from politics.

choosing a speaker to give a donor is more marketing than politics. your trying to choose a speaker that would sufficiently impress the donors so that they give you more money. it's not so much picking a person for their political viewpoints, it's picking a person that will get others to open up their wallets.

same thing with whom to appoint as a fundraiser. your picking the person that would be most effective at bring in the $$. this may entail picking a liberal/conservative person but i don't think its the same thing as picking a liberal/conservative person solely (or even mainly) because of their political ideology.

its similar to the affirmative action cases a while ago. you can't send students to one school or another because of race, but you can use race as a factor when deciding where to place a new school.
9.14.2007 4:27pm
Daniel Chapman (mail):
Read broadly, this provision seems nonsensical. Can a committee do anything without "political influence" playing a part? It probably just means the state legislature doesn't get a say in who gets appointed. But then, I don't live in california, and this is the first time I've heard of the clause.
9.14.2007 4:30pm
wb (mail):
This is a rather curious provision given that the Regents include as ex officio members the Governor, Lieutenant Governor, Speaker of the Assembly, Superintendent of Public Instruction. All elected officials. In that case how does one expect the Regents to be free from political influence?
9.14.2007 4:40pm
Steve:
In that case how does one expect the Regents to be free from political influence?

It says the appointment of regents shall be free of political influence.

As to the political officeholders who sit as regents, the provision can be taken as an exhortation to them to keep politics out of the administration of the university.

I agree with whoever said it's ultimately nonjusticiable, but that doesn't mean it's meaningless.
9.14.2007 4:54pm
Ken A (mail):
The operative word is "influence", coupled with the word "independent".

The language suggests that (to me) that outside political influence should not guide the university's administration of affairs. It does not suggest that appointees, or even the university's conduct, must refrain from being political.
9.14.2007 5:00pm
wb (mail):
Actually the there are 2 clauses: the first expressly says that "The university shall be entirely independent of all political or sectarian influence." The second is that "appointment of regents shall be free of political influence."
Thus the excerpt is more than an admonition to four elected officials.

Turning back to UC itself, this episode is another sorry example of the Dynes presidency.
9.14.2007 5:03pm
LarrySheldon (mail):
Does San Francisco's "Proposition G" apply here (I have been away from California for a while.)

Coyote on G

[Seems like I should get paid for doing the coding—I used to be paid for that.]
9.14.2007 5:32pm
Maxine (mail) (www):
Ok, at this point you are all really straining.

Granted I flunked contracts, but even I know that the terms don't become irrevokable until the contract is ratified. And, ratification wasn't set to take place until 2009--when the first students enrolled.

The school had until 2009, or at least 2008, to make any alterations and changes---including recission.

The political views have nothing to do with it. Chemerinsky isn't a fund-raiser and can't bring in the big bucks. As a taxpayer....I don't want my dollars to have fund that school---so I said with the private financiers. They need a Dean that can open purse strings. Save the taxpayers from funding this cauldron.
9.14.2007 6:09pm
Eugene Volokh (www):
Maxine: The question isn't whether Drake's action is a breach of contract; it's not, given that the contract was contingent on the Regents' approval. It's whether refusing to hire someone (or refusing to sign some other contract) because of the person's past political statements violates the quited provision of the state constitution.
9.15.2007 2:51am
Temp Guest (mail):
As EV suggests, the courts haven't really interpreted this provision, and my guess is that, if forced to, they would either conclude that it is precatory (despite the "shall") or that it doesn't mean much. UC has been subject to the "influence" of the legislature and the governor since the beginning of its existence, and it's never going to be any other way.

And "wb" could you explain what the Chemerinsky affair has to do with Dynes (who seems pretty much out of the decision-making loop right now)? Everything I've seen suggests that the decision was made by Chancellor Drake.
9.15.2007 12:07pm