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"?