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.