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.