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."

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.

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.

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"?

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.

here.

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."