UC Irvine Law School Foolishly Rescinds Offer of Dean Position to Erwin Chemerinsky Because of Fear of Offending Conservatives:

Brian Leiter reports that the new University of California at Irvine Law School has rescinded its offer of the position of dean to Duke Professor Erwin Chemerinsky because they decided that the hiring of such a liberal dean would attract too much criticism from conservatives.

Although Leiter and I disagree on a great many things, I have to say that he is absolutely right to denounce this boneheaded decision. Chemerinsky is an extremely prominent and widely respected legal scholar. A brand new law school like Irvine was very fortunate that he was willing to become its dean. To be sure, I don't know much about Chemerinsky's administrative skills; some outstanding scholars are poor administrators (and vice versa). But lack of administrative talent on Chemerinsky's part doesn't seem to have been the reason for Irvine's reversal.

The Irvine decisionmakers were simply foolish to believe that Chemerinsky's hiring would produce a major backlash from conservatives that could harm the school. Many prominent law schools have deans significantly more left-wing than Chemerinsky. None of them has attracted a significant conservative backlash for their dean hiring decision, and certainly none has suffered any real harm from such conservative criticism as did occur. Chemerinsky is unquestionably a liberal, but his views on legal issues are actually quite typical of the overwhelmingly left of center legal academy. I can easily name plenty of prominent constitutional law scholars significantly further to the left than Chemerinsky is.

Those conservative and libertarian legal scholars who have commented on Irvine's decision have been uniformly critical. For example, an LA Times story linked by Leiter quotes prominent conservative law professor [and Chapman Law School dean] John Eastman as calling the Irvine decision "a serious misstep." Glenn Reynolds has also denounced it, as has Steve Bainbridge. Among leading American legal scholars (a generally left-liberal bunch, to be sure), Eastman is one of those furthest to the right. If he is against this decision, it's safe to say that Irvine hasn't won itself many conservative friends by rescinding the offer to Chemerinsky.

My own view is that political ideology should not influence the hiring of scholars, except in extraordinarily unusual instances. Administrators are a more complicated case, because they are responsible for overseeing policies with ideological implications and objectives, and because they are supposed to project a positive public image for the school. It may be reasonable to avoid hiring administrators whose ideological views are radically at odds with the policies they are expected to enforce or will seriously damage the school's image. Be that as it may, there is no reason to believe that Chemerinsky's political ideology would prevent him from discharging his duties as dean, or somehow damage Irvine's image. Indeed, UC Irvine's decision to rescind the offer is likely to do far more harm to the school's reputation than hiring him ever could have.

UPDATE: Much of the press coverage on this incident suggests that Irvine's decision was motivated by its desire to avoid offending one particularly important conservative donor. Even if this is true, the decision was still foolish. Satisfying one donor at the expense of damaging the school's reputation throughout the academic community is unlikely to advance Irvine's longterm interests.

UC Irvine Chancellor Michael Drake's Statement on the Decision to Rescind the Offer to Erwin Chemerinsky:

UC Irvine Chancellor Michael Drake has issued a statement defending the University's decision to rescind its offer of the law school dean position to liberal legal scholar Erwin Chemerinsky. The statement is here. Brian Leiter calls the Chancellor's statement an example of "the familiar administrative mode of 'say nothing substantive, pretend everyone doesn't know what really happened, and hope it all just goes away.'" I tend to agree. The statement neither admits that Irvine made a serious mistake in rescinding Chemerinsky's offer for ideological reasons, nor provides any real justification for the school's decision. Still, if you are interested in this issue, go ahead and read the statement. At least it's mercifully short. Maybe you can find some hidden virtues in the Chancellor's bureaucratic prose that Leiter and I have missed.

Kmiec on Chemerinsky:

Pepperdine law professor Douglas Kmiec comments on UC Irvine's disgraceful treatment of Erwin Chemerinsky in the LA Times. Here's a taste:

Erwin Chemerinsky is one of the finest constitutional scholars in the country. He is a gentleman and a friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposiums, I have never seen him be anything other than completely civil to those who disagree with him.

So the news that UC Irvine had selected him to be the first dean of its new law school was welcome indeed. And the subsequent news -- that it withdrew the offer Tuesday, apparently because of Erwin's political beliefs and work -- is a betrayal of everything a great institution like the University of California represents. It is a forfeiture of academic freedom. . . .

Ironically, Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices, whether they are liberal or conservative. Erwin was less confident that law and politics could be so neatly divided.

I will continue to believe that the law has its own place above politics, but Erwin's dismissal surely makes that belief harder to sustain. UC Irvine's inability to keep politics out of its decision-making will make things difficult for the new law school. It will become more difficult to recruit new faculty and to attract the respect that the school would have so easily acquired by giving the deanship to Erwin -- and which it so tragically forfeited by its casual, and all too last-minute, withdrawal of the offer.

More from the L.A. Times on the Chemerinsky Matter:

The L.A. Times reports:

Chemerinsky and [UCI Chancellor] Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in The Times, the same day the job offer was made. In it, Chemerinsky asserted that Atty. Gen. Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."

But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.

"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.

Drake said that "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter." ...

Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that "concerns" had emerged from the University of California regents, which would have had to approve the appointment. The professor said Drake told him that he thought there would have been a "bloody battle" over the appointment.

Drake disagreed with the account. "No one said we can't hire him," he said. "No one said don't take this to the regents. I consulted with no regents about this. I told a couple people that I was worried and that this might be controversial, but no one called me and said I should do anything."

Drake drew support from Christopher Edley, dean of the Boalt Hall School of Law at UC Berkeley, whom Drake consulted on the decision to let Chemerinsky go.

"It appeared to me that Michael was willing to go forward in the face of opposition but for the fact that he lost confidence in Erwin's willingness to subordinate his autonomy and personal profile for the good of the institution," Edley said.

Edley, who worked in the Clinton administration, said it was nothing that he had not been called to do himself.

"I was questioned explicitly by people who feared I would turn the deanship into a platform for my own ideological commitments," he said. "But it was clear to me then, and it's clear to me now, that the job requires something else." ...

More from The Recorder (a San Francisco legal newspaper):

Christopher Edley Jr., dean of University of California, Berkeley's Boalt Hall School of Law who has been involved with the new law school -- and was handpicked by Chemerinsky to serve on his advisory board -- said it wasn't about Chemerinsky's "political leanings or ideology, which everyone knew" about.

"I think key people lost confidence that he would be willing to shed his high personal public profile in the service of the law school -- whether that was the right or wrong conclusion," Edley said, though he declined to identify the individuals who opposed Chemerinsky.

Edley continued: "At the end of the day, the chancellor had to have confidence that Erwin would be able to earn the trust, loyalty and investment of a diverse constituency, and for a startup venture that's an exceptionally delicate proposition."

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.

Careful with Those Comparisons:

People have asked why Erwin Chemerinsky's political activism might have been seen as troublesome by UCI when Ken Starr's activism -- including continuing public commentary -- isn't seen as troublesome by Pepperdine, and Chrisopher Edley's past activism hasn't been seen as troublesome by Berkeley.

My sense is that different schools make these decisions with an eye towards their different donor bases. The makeup of these bases turns on many factors, including (1) the general ideology of the school's alumni and traditional supporters, (2) the political makeup of the school's geographical location, (3) whether the school is an old school with lots of alumni or a new school with few, and (4) whether the school is private or public (since in the latter case the public, through the legislature, is a big "donor").

Pepperdine, for instance, has a reputation as a conservative school with mostly conservative (especially religious conservative) alumni and traditional supporters. A social conservative dean, even a highly controversial one, may appeal to them, and his continuing political participation may please and energize more people than it alienates. Boalt (the Berkeley law school) has a large alumni base that is likely on balance quite liberal. My sense is that it is also seen as an important civic institution in Northern California, and thus draws support from the public at large -- a public that, I'm told, is strikingly liberal. A liberal figure, even a moderately controversial one, may appeal to them, too.

UCI law school has no alumni, and my guess is that it therefore has to largely rely on the legislature and on local Orange County donors. Orange County is much less conservative than it used to be, but it's no Berkeley. It thus makes sense that having a controversial liberal dean might pose some more problems for UCI than for Boalt. I may be wrong -- I'm not an administrator or a fundraiser -- but this at least seems like a plausible position for the UCI people to take.

None of this excuses the poor way this situation was handled by UC, and none of it by itself resolves the First Amendment questions or the academic freedom questions (though I've argued that those matters don't come into play here). But it does suggest that we can't dismiss any possible worries on UCI's part about their dean's being too controversial just by pointing to controversial deans at other schools.

UC Irvine Chancellor Michael Drake's New Statement on the decision to Rescind Chemerinsky's Offer:

UC Irvine Chancellor Michael Drake has issued a new statement on his decision to rescind Professor Erwin Chemerinsky's offer to become the dean of the new UCI Law School. This statement is a lot more substantive than the Chancellor's previous effort. It denies rumors that the Chancellor's decision was influenced by pressure from conservative donors, and emphasizes that the "the decision was absolutely not based on Professor Chemerinsky's political views."

I'm willing to give Drake the benefit of the doubt on the donor issue. We don't really any proof that the decision was based on donor pressure. However, the assertion that it wasn't based on "Chemerinsky's political views" seems to directly contradict Chemerinsky's own account, which claims that Drake told him that "he hadn't expected I [Chemerinsky] would be such a target for conservatives. A lightning rod."

Drake's statement would be easier to credit if he had provided some other, nonideological justification for rescinding the offer. However, neither this statement nor the previous one does so (except to say that it was a "management decision"). Others have speculated that the offer was rescinded because Chemerinsky recently published a controversial anti-death penalty op ed. If so, isn't that little different from rescinding the contract because of Chemerinsky's liberal views? If the op ed were objectionable to UCI, it is because the liberal views expressed there might offend conservatives.

Like Eugene Volokh, I believe that ideology can sometimes play a legitimate role in assessing candidates for deanships. A school can legitimately refuse to hire a dean whose ideology prevents him from enforcing administrative policies he disagrees with or does serious damage to the school's image. However, there is no reason to believe that Chemerinsky's fairly typical liberalism falls into that category. Indeed, Chancellor Drake says in his statement that Chemerinsky's views are similar to his own.

My bottom line: if Chancellor Drake wants to refute claims that Chemerinsky's offer was rescinded for ideological reasons, he could help his case greatly by explaining what the real reason for the decision was.

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"?

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.

Chemerinksy Update:

According to the L.A. Times, UC Irvine is working on a possible deal to rehire liberal legal scholar Erwin Chemerinsky as its dean. Meanwhile, Chemerinsky himself had an op ed in yesterday's LA Times telling his side of the story, and reaffirming his claim that UCI Chancellor Michael Drake told him that the original offer was rescinded because of his liberal political views. This directly contradicts Drake's own account, which holds that political issues had nothing to do with the decision, but failed to provide any alternative explanation.

On balance, I welcome UCI's move to rehire Chemerinsky, which seems to me at least an implicit admission that decision to rescind his offer was a mistake and (probably) motivated by misplaced concerns over his ideology.

At this point, I probably will not be doing any more Chemerinsky blogging, as I don't have any inside information not available to the general public, and the points that I might be interested in making are likely to be made just as effectively by others. I will blog about it again only if I have something original to say.

For those interested in continuing to follow this issue, Paul Caron of TaxProf Blog has been posting regular, detailed updates.

Matt Welch (L.A. Times) Roundup on Chemerinsky News and Commentary


Don't be confused, though, by this excerpt from a rather puzzling Harper's blog post:

But the academics who express surprise here really are displaying their ignorance of the career trajectory of Michael Drake. He came to prominence and climbed the ladder of the University of California system by being politically controversial. It's the nature of the political controversy that tells the difference. Drake loudly touted views that were pleasing to the California G.O.P. Indeed, if Drake is known for one thing it is his staunch opposition to California's Proposition 209. Approved by California voters in 1996, Proposition 209 prohibited discrimination based on race, ethnicity or sex—it was a vehicle for a new, soft affirmative action which focused on improving the educational standards of inner-city and minority neighborhood schools. Since its passage and implementation, graduation rates for African-Americans in the University of California system have soared, and studies suggest a direct and causal link. (As point conceded even by the beyond conservative anti-affirmative action polemicist Rich Lowry in National Review). Drake, being an African-American, was viewed as the perfect poster boy for an anti-affirmative action campaign.

I am not questioning the sincerity of Drake's Clarence Thomas-like anti-affirmative action views. I am merely pointing out that they were politically controversial, they reflected what turned out to be a minority view in California, and time has proven that his opposition was seriously misplaced. Drake suffered no adverse consequences for this in his political career; indeed, he clearly benefited. There's nothing wrong with that. What's wrong is penalizing a person for political views, particularly based on a perception that he is somehow out of step with the mainstream. Time has a habit of changing these perceptions. Drake should have kept that in mind. Indeed, Drake should have kept in mind that one hundred years ago he could not have aspired to be a professor in the University of California system, much less a chancellor -- and that demonstrates the tyrannical and unhealthy effect of blind adherence to the politically conventional.

The Harper's post no longer includes this mystifying passage, which has since been silently replaced by this much more internally consistent item: "If Drake is known for one thing it is his staunch opposition to California's Proposition 209. Approved by California voters in 1996, Proposition 209 prohibited discrimination based on race, ethnicity or sex—it was pushed to impede traditional affirmative action programs. Drake's views were politically controversial. Drake suffered no adverse consequences for this in his political career; indeed, he clearly benefited. There's nothing wrong with that. What's wrong is penalizing a person for political views, particularly based on a perception that he is somehow out of step with the mainstream."

When Is it Permissible for Universities to Refuse to Hire Professors Based on their Political Views?

The Chemerinsky saga raises a broader question: Is it ever permissible for a university to refuse to hire an academic because of his political views? For reasons that Eugene Volokh elaborates here, schools should be much more hesitant to reject professors on political grounds than high-ranking administrators such as law school deans. I am tempted to say that taking ideology into account in faculty hiring is never defensible. However, there are three situations where it probably is:

I. Institutional Commitments to a Religion or Ideology.

Some schools are explicitly committed to promoting a particular religion or (less often) political ideology. In such cases, it is permissible for the school to give preference to professors who share that commitment. For example, Brigham Young could legitimately prefer Mormon professors over non-Mormons. However, a school that follows this approach should openly announce its commitments and what they entail in terms of faculty hiring. It would be wrong to mislead prospective students and faculty members by secretly pursuing an ideological or religious agenda behind a veneer of supposed neutrality. To my knowledge, most religious universities that give preference to co-religionists in faculty hiring are in fact open about their agenda. By contrast, some secular schools that engage in ideological discrimination are not.

II. Ideological Commitments that Conflict with Professional Competence in One's Field.

Some ideological commitments are at odds with basic professional competence in an academic's own field. For example, a school would be justified in refusing to hire a World War II historian who is a Holocaust denier. Even if his professional credentials were otherwise adequate, the Holocaust denial in and of itself calls his competence into question because the evidence against that position is so overwhelming.

However, it is essential to recognize that this applies only to views on issues that directly relate to the scholar's academic work. Many people have outlandish or poorly supported views on political issues unrelated to their areas of expertise. Views on these unrelated issues should not be held against them in the academic hiring process. For example, Noam Chomsky, in my opinion, has crackpot views on various political issues, such as denying the existence of Pol Pot's mass murders in Cambodia (whose reality is almost as well established as that of the Holocaust). However, his poor judgment on these issues is irrelevant to his academic work as a linguist, in which field he is a leading authority.

Even within job candidates' own fields, there is a danger that hiring committees will tend to define as professionally incompetent any view that diverges too much from their own. That risk is difficult to eliminate entirely, as most people understandably have greater tolerance for views similar to their own than for those that are very different. There is no way to completely cure this bias. All we can do is to try to be vigilant about it, and also to ensure that a wide range of ideologies are represented on faculties. Ideological diversity reduces the danger of political bias in hiring, because it is hard to claim that a job candidate's views are beyond the pale of serious scholarship if some of your current colleagues share them.

III. Ideologies that Prevent Adherents from Treating Students Fairly.

In very rare cases, a job applicant's political ideology might cast serious doubt on his or her ability to treat students fairly. For example, a university could understandably refuse to hire a virulently racist professor for a position where he would be responsible for teaching large numbers of African-American students. After the fact sanctions for discriminatory behavior by the professor may not be sufficient to prevent discrimination, especially given the reluctance of most administrators to sanction academics for all but the most egregious in-class misconduct. Moreover, professors have a great deal of discretionary authority over students, and thus many opportunities to discriminate in ways that are hard for administrators to detect after the fact.

Like the previous one, this exception to the principle of tolerance can easily be abused. For example, political opponents could interpret any opposition to an ethnic or religious group's political agenda as hostility to the group itself. The classic example is the attempt to define all opposition to affirmative action as racist. But there are parallels to this on the right. Thus, it is important to remember that this justification only applies in cases where the job applicant has a prejudice against a group so strong that he is likely to discriminate against students who are members of the group. It is not enough that he opposes some element of the group's political agenda. In the case of religious groups, it is not enough that he opposes the group's theology (e.g. - if he is an evangelical Christian who believes that those who do not accept Christ will go to Hell).

In assessing both the second and third exceptions, faculties should err on the side of tolerance when in doubt. Otherwise, free academic inquiry could be seriously undermined. At the same time, we have to concede that there are extreme cases when schools can legitimately refuse to hire academics based on ideology.