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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.

Waldensian (mail):

Many people have outlandish or poorly supported views on political issues unrelated to their areas of expertise.

And we congregate here at the VC. :)
9.16.2007 3:25pm
Zacharias (mail):
This controversy would go away if we did the sensible thing: Allow purely private universities to discriminate against anybody with regard to anything and abolish government involvement in the running of universities or the attempt to educate the American kid.

If the government were to arrange marriages we'd all be wasting time arguing about sex, age, race, etc. discrimination in public marriage.
9.16.2007 3:25pm
Kent Scheidegger (mail) (www):
"In assessing both the second and third exceptions, faculties should err on the side of tolerance when in doubt."

In other words, given the twin dangers of allowing discrimination against students on the basis of ideology and discriminating against faculty on the basis of ideology, the choice is to sacrifice the students to save the faculty.

The correctness of this preference is less than self-evident.
9.16.2007 3:39pm
Ilya Somin:
In other words, given the twin dangers of allowing discrimination against students on the basis of ideology and discriminating against faculty on the basis of ideology, the choice is to sacrifice the students to save the faculty.

The argument is not that the faculty are more important than the students, but that hiring committees are more likely to be biased towards excessive intolerance of dissenting views than towards excessive tolerance of racism or other similar prejudices. My proposed rule is intended to correct for that bias.
9.16.2007 3:46pm
Ilya Somin:
This controversy would go away if we did the sensible thing: Allow purely private universities to discriminate against anybody with regard to anything and abolish government involvement in the running of universities or the attempt to educate the American kid.

I largely agree with that view as to the role of government. But even absent government involvement, we are still left with the question of what private universities should do. If they don't do the right thing, the government should not punish them. But that doesn't mean that they should immune from criticism by other private parties.
9.16.2007 3:47pm
Jim Hu:
Mostly agree, but why "refuse to hire a virulently racist professor for a position where he would be responsible for teaching large numbers of African-American students. " emph added.

I don't think you meant to say that it's OK to discriminate against African-American students as long as the numbers are small.
9.16.2007 4:16pm
guest203940 (www):

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.

I guess KKK membership would probably do it. But what about religions which make racism a part of their core beliefs? Mormonism, for example, holds dogmatically that black people are black because they bear the Mark of Cain. Many religions aren't too hot on gay people either. At what point do we assume that membership in a group indicates bigoted beliefs by the individual as with the KKK?

And do you think it is fair to assume -- as I do -- that opposition to gay marriage or other forms of gay legal equality suggests outright bigotry in the way that opposition to race-based affirmative action does NOT suggest racism?
9.16.2007 4:34pm
Elliot123 (mail):
This whole issue seems a bit like a great tempest in a teapot. It appears that political views are regularly given substantial weight by hiring committees. Can someone in the academy tell us how it has so many more liberals than conservatives unless there is a political hiring filter?
9.16.2007 5:03pm
John (mail):
Are we talking about what is desirable or what is legally required?

On the former, I think a school should be free to decline to hire anyone who it perceives will lessen the collegiality of the place or is simply not a nice person. That will include those with any sort of views that he expresses in an offensive manner, or even views that conflict with prevailing norms (e.g., your basic KKK-er). This principle will lead to error or foolish hiring decisions from time to time, but the freedom to choose that underlies the principle is more important.
9.16.2007 5:29pm
Anonymouseducator (mail) (www):
Can someone in the academy tell us how it has so many more liberals than conservatives unless there is a political hiring filter?


I suspect that to some extent a filter exists, but that isn't the only possible explanation. It's possible that conservatives are less likely to be interested in careers in academia. If most college football coaches are conservative, that doesn't necessarily mean that colleges are looking for conservatives to fill those positions.
9.16.2007 5:38pm
Daryl Herbert (www):
Jim, the administration can more easily handle bias claims if there are fewer of them. If there are 10 black students in a class, hearing all of their grievances would take time. But with just 1-2 blacks/class,* even if a prof is acting like a bozo the administration should be able to handle it.

* (if UCI gets its law school off the ground, it will probably be less than 3% black, given Prop 209)

Further, if law profs weren't egotistical maniacs, and were satisfied grading blindly instead of wanting to change things to reflect "participation" (i.e., whether the prof likes you), curbing racism would be very easy. All the administration would have to do is make sure the prof did not overtly abuse them in class--covert racism (which is much harder to prevent) would not be significant.
9.16.2007 5:56pm
Smokey:
Chemerinsky is looking at this situation backwards. The university does not belong to Chemerinsky; Chemerinsky is applying to become a part of the University. The tail should not wag the dog. The University is obligated to do what, in its view, is best for the University -- not what is best for an applicant.

I recall an eviction case many years ago, where a black female became a lawyer, and was then evicted. Naturally, being a lawyer she promptly sued. IIRC, she lost because the landlord had maintained all along that he didn't want lawyers as tenants. The court agreed that he wasn't discriminating because becoming a lawyer was an individual choice.

Anyway, there seems to be some similarity between that case and Chemerinsky's complaint. Chemerinsky can espouse anything he wants, but the University doesn't have to put their seal of approval on his past statements by being forced to hire him. After all, Ward Churchill was hired without proper vetting, and look at what happened then.
9.16.2007 5:58pm
Dilan Esper (mail) (www):
I suspect that to some extent a filter exists, but that isn't the only possible explanation. It's possible that conservatives are less likely to be interested in careers in academia.

That's exactly right. Remember, conservative ideology correlates, to some extent, with a belief that making lots of money in the private sector is a desirable and laudible outcome. Whereas liberal ideology correlates, to some extent, with belief in the education system (including the public education system). Plus, professorships don't pay as much as the private sector. Plus, once there are a lot of liberals in academia, there's a network effect where people-- without intending to discriminate at all-- will favor people who are more like themselves (which will include more liberal).

There are plenty of fields where conservatives are dominant. Talk radio, for instance, or pastors in certain religious denominations. The military. Possibly in high finance and business.

Without evidence that there's some superior conservative scholar out there who can't get a job commensurate with his or her talents, I don't see why anyone should assume a conspiracy against conservatives.
9.16.2007 5:58pm
eeyn524:
Can someone in the academy tell us how it has so many more liberals than conservatives unless there is a political hiring filter?

It's partly self-fulfilling: if a young conservative is led to believe that universities are dominated by liberals who will be hostile to his/her career, or that universities have a primarily bad effect on society, or hears friends and family express scorn and contempt for professors in general, then he/she is less likely to choose academia as a career.

Anyway, the idea that there is a preponderance of liberals may be overstated. It's certainly true for social science, arts, humanities, life science, history, law at top tier schools. In business, engineering, math, etc not so much. At private religious schools, it's probably the opposite. I think you will find quite a few Republicans at Baylor, Liberty, Oral Roberts, etc.
9.16.2007 5:59pm
Joe Jackson:
Without evidence that there's some superior conservative scholar out there who can't get a job commensurate with his or her talents, I don't see why anyone should assume a conspiracy against conservatives.

That pretty much describes half of the conservative scholars I know.
9.16.2007 6:31pm
AntonK (mail):

The LA Times has this story today by Garrett Therolf and Maura Dolan. Apparently there are some discussions under way about Chemerinsky getting the dean's job after all. Further down the story, we finally have the first awareness in the media that Chemerinsky printed falsehoods in his Aug. 16 article, not just that he expressed opinions. Turns out I wasn't the only one horrified at his claims and not the only one who wrote the LA Times about them. Add the Chief Justice of California in the same column.

From: More on the Chemerinsky Flap
9.16.2007 7:00pm
George Tenet Fangirl (mail):
That pretty much describes half of the conservative scholars I know.

Which means there probably isn't much bias, as that describes half of all scholars generally. There are a lot more Ph.Ds out there than there are professorships.
9.16.2007 7:24pm
A. Zarkov (mail):
"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."

Doesn't this pretty much describe the situation in a large fraction academia today? How many students know they will be subjected to speech codes? For example did the students at Ohio State they would be flatly prohibited from telling certain kinds of jokes in the residence halls?
9.16.2007 7:54pm
Not An Academic:
I once had an interest in an academic career. I'm not a conservative. I'd call myself a centrist on most issues, cutting to the left and on a few and the right on a few. The area I wanted to work in was not, in itself, driven by ideology.

I gave up my ambition, despite credentials that were good enough, when I realized that pursuing it would cost far more than I was willing to pay. One of the costs did involve pretending to have political beliefs far to the left of center. Another involved socializing and working with people from backgrounds (social class mostly) that I did not approve of.

But I have not gone off to the private sector either. That would have dealt with the left-wing ideology thing, but not with the fact that I find upper middle class people extremely bizarre. Left or right, I don't see much difference. The distinction for me is elite (or wanna-be elite) vs. everyone else. Academia caters to the elite, every bit as much as the leaders of business and industry. Fake leftist poses do not impress.
9.16.2007 8:55pm
Elliot123 (mail):
"Plus, once there are a lot of liberals in academia, there's a network effect where people-- without intending to discriminate at all-- will favor people who are more like themselves (which will include more liberal)."

I'd say that describes a pretty effective political hiring filter. The people doing the hiring are filtering out folks who are not like them.
9.16.2007 9:46pm
justwondering:
Well I'm a conservative in academia and I think there's no question that it's a liability rather an asset. Anyone who says otherwise is either ignorant or a liar. We can all pretend that the academy doesn't bias against dissenting voices, but I suppose we could then say that the sky isn't blue. I mean, would you advise an AALS candidate put his federalist society membership on his/her CV? Would that benefit or hurt this applicant?
9.16.2007 9:50pm
justwondering:
that should read "put his or her federalist society membership..."
9.16.2007 9:52pm
neurodoc:
IS: 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...
No, at least four...

An institution wakes up one day and realizes that all of the 99 faculty to whom they have granted tenure are hard-core, unabashed Leftists. Thinking that it might be nice if before they graduated their students had the opportunity to experience one non-Leftist professor, the school decides they will make a determined effort to recruit a non-Leftist scholar to fill the 100th tenured faculty position. Wouldn't it be defensible to take ideology into account under such circumstances?
9.16.2007 9:56pm
neurodoc:
IS: 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...
No, at least four...

An institution wakes up one day and realizes that all of the 99 faculty to whom they have granted tenure are hard-core, unabashed Leftists. Thinking that it might be nice if before they graduated their students had the opportunity to experience one non-Leftist professor, the school decides they will make a determined effort to recruit a non-Leftist scholar to fill the 100th tenured faculty position. Wouldn't it be defensible to take ideology into account under such circumstances?
9.16.2007 9:56pm
Jim Hu:
Daryl wrote
Jim, the administration can more easily handle bias claims if there are fewer of them. If there are 10 black students in a class, hearing all of their grievances would take time. But with just 1-2 blacks/class,* even if a prof is acting like a bozo the administration should be able to handle it.

Sure, it is easier. But if the administration has good reason to believe that the prof will predictably treat any number students unfairly, then that strikes me as reason to not hire the prof. By contrast, if the prof is likely to be unjustly accused of treating students unfairly, it seems to me that while the administration may get fewer headaches by avoiding the hire, it isn't a valid reason to not hire someone.

I'm not saying that administrators won't opt for the easy route. I read the original post as being about valid reasons, not what is might be done in practice.
9.16.2007 11:53pm
David M (mail) (www):
Trackbacked by The Thunder Run - Web Reconnaissance for 09/17/2007
A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
9.17.2007 12:17pm
Kent G. Budge (mail) (www):

Mormonism, for example, holds dogmatically that black people are black because they bear the Mark of Cain.


Such ideas have floated around Mormonism in the past, but this is certainly not an accurate description of Mormon belief today.
9.17.2007 12:23pm
Seraph (mail):
I'm an academic in the social sciences with conservative viewpoints and I can report that it is certainly a liability. While you would hope that academics would be smarter than average and be able to remain above the fray, the reality is that they are often engaged in "group think" and are just as likely to lynch ideological opponents as anyone else.

In fact, sometimes I think it is worse in "Academia-land" because, at least in the social sciences, there are often limited resources and thus a lot of internal politicking. Moreover the fact that the tenure system is basically a pass/fail exam and that once one has tenure you need to jockey for position (since there is nowhere "up" to go) compounds this bias. It does not help that there is an almost complete lack of transparency and few (if any) consequences to anything one says or does once they are tenured.

Actually, I find it ironic and slightly humorous that the liberal and post-modern critics of hegemony are often so hegemonic.
9.17.2007 2:13pm
Visitor Again:
The L.A. Times is reporting that at midnight last night (Sunday), Drake and Chemerinsky reached an agreement and Chemerinsky's appointment as dean will be renewed.
9.17.2007 2:42pm
Burt Likko (mail) (www):
IS wrote:


...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.


As a general rule, this sounds good. But some people (conservatives, mostly) would be unwilling to subscribe to this application of the rule:


...a school would be justified in refusing to hire a biology professor who is an intelligent design advocate. Even if his professional credentials were otherwise adequate, the ID advocacy in and of itself calls his competence into question because the evidence against that position is so overwhelming.


I'm not willing to do this one:


...a school would be justified in refusing to hire an enviornmental science professor who is a global warming denier. Even if his professional credentials were otherwise adequate, the global warming denial in and of itself calls his competence into question because the evidence against that position is so overwhelming.


Every once in a while, there are people who subscribe to unorthodox theories in their fields that are eventually proven right. We wouldn't want this:


...a school would be justified in refusing to hire a doctor who believes stomach ulcers are caused by bacteria. Even if his professional credentials were otherwise adequate, the denial of stress and high-acid food intake as the etiology of ulceration in and of itself calls his competence into question because the evidence against that position is so overwhelming.


This last example is pretty apolitical, unlike the other ones, but the point stands: part of academic freedom is allowing someone "room to be wrong," provided that they are able to offer some kind of scholarly support for their position. Drawing the line between unorthodox theories and foolishness is something that is not so easy as it looks, especially when there is an overwhelming prevailing conventional wisdom that the scholar contradicts and the very people asked to evaluate the scholarship are the proponents of that conventional wisdom.
9.17.2007 8:05pm