May California Employers Avoid Politically Controversial Employees?

I've argued before that a university may reasonably — and without violating the First Amendment or academic freedom principles — (1) prefer to hire a Dean or a Chancellor who isn't too politically controversial, and (2) insist that these employees (who do a lot of fundraising and are the public face of the university) avoid controversial statements during their employment.

But even if I'm right, it's possible that a California state statute nonetheless prohibits this. In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer's customers, donors, employees, or others.

Here's the relevant statute, California Labor Code § 1101:

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

Now you might think the statute applies only to politics in the sense of election campaigns; but the California Supreme Court has held otherwise, see Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P.2d 592, 610 (Cal. 1979), and read the term as basically applying to commentary on a wide range of public affairs. You might also think it applies only to current employees, and not hiring decisions; not so, the Supreme Court held (id. at 610 n.16). So it seems that an employer's policy (written or not) that it won't hire or won't retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.

Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer's customers would be deeply alienated by the person's statements (past or future).

Now it would make sense to come up with an exception for "when the employee's political activities are patently in conflict with the employer's interests," and one federal trial court case so held, see Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993). But there's no authority in the statutory text for any such position, and the case Smedley cited in support, Mitchell v. International Ass'n of Machinists, 196 Cal. App. 2d 796 (1961), actually doesn't support that position.

State statutes in some other states do have exceptions for when the speech restriction on employees "[r]elates to a bona fide occupational requirement" (Colorado) or when the employee's speech "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest" (New York). But California doesn't; and it's not clear that California courts would be willing to infer such an exception -- compare Davis v. Louisiana Computing Corp., 394 So.2d 678, 679 (La. App. 1981), which specifically refused to infer such an exception into a similar Louisiana statute.

It's possible that some employers' First Amendment rights might trump this statute in some situations, for instance when a newspaper demands that its reporters not engage in politics. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (so holding, by a 5-4 vote) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies"). But many employers wouldn't have such claims; and in particular, I'm pretty sure (notwithstanding occasional references to the supposed First Amendment rights of public universities) that the University of California, a branch of the California government, would have any First Amendment rights to resist the judgment of its ultimate bosses in the California legislature. (Article 9, section 9 of the California Constitution does give the University some independence from state statutes, but not from generally applicable state laws such as this one.)

In any case, I'm pretty sure that Chemerinsky won't sue UC on this theory or any other, so the answer might never be squarely determined. But I thought I'd raise this issue, chiefly because it illustrates an interesting and difficult problem faced by California employers who care about public reaction to their leaders', spokespeople's, and fundraisers' speech.

rustonite (mail):
Semi-relevant, partially tangent, comparison: in Louisiana, public employees are forbidden from running for office, campaigning, raising money, etc.

LA Const., Article 10, §9. Prohibitions Against Political Activities

Section 9.(A) Party Membership; Elections. No member of a civil service commission and no officer or employee in the classified service shall participate or engage in political activity; be a candidate for nomination or election to public office except to seek election as the classified state employee serving on the State Civil Service Commission; or be a member of any national, state, or local committee of a political party or faction; make or solicit contributions for any political party, faction, or candidate; or take active part in the management of the affairs of a political party, faction, candidate, or any political campaign, except to exercise his right as a citizen to express his opinion privately, to serve as a commissioner or official watcher at the polls, and to cast his vote as he desires.

(B) Contributions. No person shall solicit contributions for political purposes from any classified employee or official or use or attempt to use his position in the state or city service to punish or coerce the political action of a classified employee.

(C) Political Activity Defined. As used in this Part, "political activity" means an effort to support or oppose the election of a candidate for political office or to support a particular political party in an election. The support of issues involving bonded indebtedness, tax referenda, or constitutional amendments shall not be prohibited.
9.14.2007 7:41pm
This slippery slope goes both ways though. Say a university raises most of its money from a profoundly racist or sexist constituency - does that mean that it's ok to not hire someone because of their race or sex? The university would certainly be tempted - and that's why we have the law.
9.14.2007 7:59pm
Chemerinski might not sue UCI, but the law may be relevant to explain why Drake won't admit that politics was the reason he fired Chemerinski. See Why Did Drake Fire Chemerinsky? He Still Won't Say
9.14.2007 8:05pm
The extent of political activity by some University of
California professors is striking. For an extreme
example, check out this profile of UCR Professor
Armando Navarro. If political activity was ever
restricted by California employees, I think the far
left would be hurt the most.

I especially like this last quote — I wonder if he
talks this way to his students.

"I'll tell people you have two choices. I can extend the hand of friendship, or the fist of an adversary. Which one do you want?" Navarro said, displaying both hands.
9.14.2007 8:09pm
gattsuru (mail) (www):
I get a little worried when the government has the ability to both limit the rights of those people it hires, and the ability to prevent those same people from being hired outside of it.

Outside of a ban itself, I can think of few greater chilling effects than knowing that seven years of medical training would go down the drain for saying the wrong things.
9.14.2007 8:22pm
slee (mail):
As a former employee of a federal fund grant recipient, my employer explicitly barred me from certain political actions during work time, a requirement under federal law. The Legal Services Corporation Act, 42 U.S.C. §2996, SEC.1007.(a)(5) requires that each legal services organization that receives funds "insure that no funds made available to recipients by the Corporation shall be used at any time, directly or indirectly, to influence the issuance, amendment, or revocation of any executive order or similar promulgation by any Federal, State for local agency, or to undertake to influence the passage or defeat of any legislation by the Congress of the United States, or by any State or local legislative bodies, or State proposals by initiative petition." In short, we were prohibited from lobbying during work time or campaigning for any politician.

Nevertheless, employees were not barred from such activity during non-work hours while not being paid. Many employees engaged in political campaigns during non-work time, but our Executive Director made it clear we could not participate in these activities in the course of employment.

Where the murkiness lies in the UCI situation is whether Chemerinsky would be protected from firing if he was already the acting dean. A dean becomes a public figure of sorts and statements can be construed to represent the institution's views, lest a disclaimer and clear statement explicitly deny that it is the institution's view. On the other hand, a legal services employe is not such a public figure and therefore able to separate on-the-job and off-the-job activities more easily.

Is a law school dean every "off-duty" or making an "off-the-job" statement unless a clear disclaimer exists? As Dean Eastman of Chapman Law School states, there is a fine line between conveying your own personal views and the views of an institution. This line becomes even murkier as the reputation and scrutiny of an institution becomes higher.

One might argue that the Labor Code does not protect Chemerinsky if there is no way to separate "off-the-job" and "on-the-job" statements, just as there is no way to make this distinction for any public figure.
9.14.2007 8:23pm
MMarty (mail):
Come on! Drake did not change his mind on Chemerinsky for reasons on political position. Some one of the Jesse Jackson caliber got to Drake and reminded him that the Los Angeles area law schools churn out lots of black lawyers and that, among them, there must be several that could do the Dean's job.
Drake will eventually appoint a lawyer of color and tout his diversity mix. Candidates? Look for black political hacks left over from the Clinton administration or who have done special work/favors for the mayor of Los Angeles, the democratic side of the government in Sacramento or a player like Willie Brown (heck, if could BE Dean Willie Brown).
9.14.2007 8:26pm
Eugene Volokh (www):
MMarty: Interesting theory; can you point, please, to the evidence that supports it? Many thanks.
9.14.2007 9:58pm
En_Revanche (mail):
"but the California Supreme Court has held otherwise, see <i>Gay Law Students Assn. v. Pacific Tel. &Tel. Co.</i>, 595 P.2d 592, 610 (Cal. 1979), and read the term as basically applying to commentary on a wide range of public affairs."

Correct. But decisions by the Bird Court (1977-1986) are generally not given much weight in California courts. Formally, no one says this. Practically, the decisions are rarely cited - except in desperation.

There is a reason: most of the members, including Bird herself, were recalled or failed re-election due to outrage at their jurisprudence. See <i>In re Marvin</i> for a classic example.
9.14.2007 11:31pm
MMarty may be on to something, as none of the explanations
from Chancellor Drake make sense, and there is
no indication that Donald Bren or "conservative" regents
placed any pressure on Drake. There is no direct
proof of this,
but it is possible that the California legislative
Latino Caucus is pushing for a Latino Dean for the
new law school. There are two significant instances
where the Caucus and associated organizations including
MALDEF have similarly dictated policy to UC.

1. During the last search for a Chancellor at
Riverside, MALDEF and members of the Caucus submitted
a list of suitable Latina/o candidates for the position.
UCR did hire a Latina Chancellor, but curiously not
one who was on the list.

2. As reported circa 2000 by Ward Connerly, passage
of Prop. 209 prompted the Latino Caucus to demand
changes in UC admissions to favor Latino applicants.
Connerly described a very tense meeting, in which
then Lieutenant Governor Cruz Bustamante shuttled
back in forth between one room containing the Caucus
and a second room containing the Regents. The
message was to admit more Latinos or risk a significant
cut to UC's budget. The result was the Comprehensive
Review system, which eliminated pure SAT/grade-based
admissions and instead looked for students facing
"life challenges" and who were "strivers."

Based on the financial pressure the Caucus and
Democratically-controlled Legislature can place on
the UC, I think a scenario in which Drake was told
to find a Latina/o Dean is plausible. Note that the
pressure is very great now since UC does not have
any Latino chancellors and few Latino Deans.
9.15.2007 12:50am
1. The Louisiana thing sounds like they were trying to end machine politics when they wrote up the laws discussed above.

2. The KKK strikes me as a criminal enterprise/gang, rather than an advocacy group, in which case one might still refuse to hire or retain an out Klansperson even in California.

3. The judicial recalls in 86 were mostly about the death penalty decisions, not other rulings, but you could still make the case that someone exhibiting bias in a set of rulings might have bias in others outside that set.
9.15.2007 1:45am

MALDEF and members of the Caucus submitted
a list of suitable Latina/o candidates for the position.
UCR did hire a Latina Chancellor, but curiously not
one who was on the list.

I am shocked. They should have hired a Chicana/o.
9.15.2007 1:53am
Bill Poser (mail) (www):
Even if UCI is legally entitled to decline to hire someone for whatever reasons motivated them, is this relevant given that they had already signed a contract with Chemerinsky? Why isn't this a straightforward matter of breach of contract?
9.15.2007 6:16am
SupremacyClaus (mail) (www):
Chemerinski is a vicious partisan political hack. His scholarship serves only crass political, Democrat, partisan purposes. His choice offends the idea of an open, scholarly culture for a law school. I see the faculty filled with Commies and traitors, with patriotic student dissent, based on policy, crushed by this ideologue.

He regularly writes for Trial, the ATLA propaganda organ. There is no balance in those writings, nor the slightest consideration for the Supreme Court reasoning. He loves the plaintiff. He loves the criminal. He hates America. No balance.

His biased extremism disqualifies him from any Deanship, even from being a law professor. Such bias misleads students. It precludes any thoughtful weighing of the devastation the lawyer profession does to the nation.
9.15.2007 9:22am
mariner (mail):
Come on! Drake did not change his mind on Chemerinsky for reasons on political position. Some one of the Jesse Jackson caliber got to Drake and reminded him that the Los Angeles area law schools churn out lots of black lawyers and that, among them, there must be several that could do the Dean's job.

And then, for a twofer, blame the whole mess on those evil conservatives.
9.15.2007 11:06am
slee (mail):
On Bill Poser's comment: my contract law is a little rusty right now since I am taking a hiatus from law. Does consideration have to be exchanged in order for there to be a contract? There was an offer and acceptance between UCI and Chemerinsky, but I'm rusty on whether there was present consideration.

Chemerinsky was on KPCC 89.3 on 9/13 stating that he suffered no loss, that there was no legal claim to sue on, and that he did not want to sue.

In response to Supremacy Clause, I believe all individuals, including all deans, hold natural biases and beliefs. That does not mean, however, that they will in turn mislead their students. That assumes that students lack the free will to make their own decisions and think freely for themselves. Deans do not act as svengalis even if they have their own personal views and law students would not tolerate deans who would act as svengalis.

Based on my experience, Chemerinsky is not a biased extremist. He is an objective legal scholar, even if his views may not be shared by all individuals. Without the ability to reason objectively and consider all points of view, Chemerinsky would not be the respected scholar that he is in the legal community or attain the level of success he has within multiple law schools.

The problem that I believe exists is Chemerinsky's lack of experience as an administrator for an institution and lack of political skill to navigate and manage different constituencies including prospective donors.

In the situation with his Op Ed piece, one learns that hard way that there is a time and a place to express your views as an administrator and that a large newspaper in circulation throughout the world may not be the best forum to do so for an administrator. Although Chemerinsky was not yet the acting dean at the time he made his comment, on the radio, he stated on both KPCC and KCRW that he thought the Op Ed piece was still ok for a dean to publish.
9.15.2007 11:27am
Thom (mail):
I know for a fact that the Cal. Supreme Court prohibits employees from participating in political activities of some types. Hypocrisy?
9.15.2007 12:23pm
Pin Head (mail):
Slee: "The problem that I believe exists is Chemerinsky's lack of experience as an administrator for an institution and lack of political skill to navigate and manage different constituencies including prospective donors."


This is the most likely explanation based on the limited facts available. The Search Committee did not do their homework because they were seduced by Chemerinsky's political views and high profile. They loved him so much that nobody bothered checking if he had any warts and scars. Once word of the offer leaked in the academic world, Drake started getting phone calls that took the shine off the appointment. I can understand why Drake wouldn't want to talk about the details, because it must have been pretty bad to take the personal hit and not let it go through and become sombody else's problem, which is the normal state of UCI administration.

Sorry for being a little off topic, but this is consistent with the overall interests.
9.15.2007 2:53pm
It seems to me that today's LA Times article puts to rest some of the paranoid theories that are creeping into this thread - particularly those with the not-so-vague tinge of racism. Sorry, guys. It was the conservatives after all.

LA Times
9.15.2007 3:16pm
in regards to public employees, i am well aware that police agencies have considerable discretion during the hiring process, but how much DO they have with retention etc. (especially given civil service protection) of... for example:

cops who are members of, or sympathetic to politically controversial employees? i've never really heard a satisfying answer to that. i am sure that leftists, reflexively, would defend cops that were members of or sympathetic to ... far left groups, and righties would defend cops that were members of far right groups, but what 'right' would an employer have in regards to a cop who was a member of one these really far out groups? could a cop be a member of NAMBLA for instance and retain his job? i am pretty sure NORML would probably be ok, otoh. the black panthers? code pink? the ruckus society?
9.15.2007 6:50pm