Ilya Shapiro is director of constitutional studies at the Manhattan Institute and author of “Lawless: The Miseducation of America’s Elites.” Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and an adjunct scholar at the Manhattan Institute.
The University of Arkansas School of Law hired Professor Emily Suski as dean in early January, but promptly rescinded that offer less than a week later based on “feedback from key external stakeholders.”
It turns out that Suski joined a Supreme Court brief arguing that federal law guarantees biological males the right to participate in female sports. That position might seem self-evident in the ivory tower, but in the real world, there’s consensus across the political spectrum that this position is wrong as a matter of law, policy and science.
Elite academics predictably cried foul. The Association of American Law Schools charged that the job rescission was a “blatant violation of academic freedom” and a “threat to the legal profession.” That group of august law professors might need to go back to school. While individual professors, including Suski in her scholarly capacity, enjoy academic freedom protections, there’s no First Amendment right to a deanship. The dean is appointed by the university’s governing body as an at-will employee to serve the university’s interests. A public university in particular could reasonably have concluded that Suski might have had a hard time interacting with the legislature, executive branch officials, alumni and donors. This red state was the first to ban medical treatment for minors with gender dysphoria.
To be sure, universities are legally bound to protect speech rights. Public institutions such as the University of Arkansas must comply with the First Amendment. Private universities typically have similar contractual protections, as well as strings attached to federal funds. But this is immaterial to Suski’s firing.
First, the free speech clause does not protect a dean who is appointed by auniversity to serve the institution’s interests. Under Supreme Court jurisprudence, government employees’ speech rights decrease as they go up the organizational chart. People tend to lose some of their speech rights as they gain managerial authority. Eugene Volokh rightly analogizes law school deans to political appointees who are picked to advance a particular agenda — so of course ideology can be considered.
Second, academic freedom exists at both public and private institutions not just as a general idea but as a legal protection. Courts have recognized that professors need certain protections to pursue the truth, which generally prevents their employers from punishing them for speech. The doctrine here is complex, but again, it has no bearing on Suski’s situation. What’s at issue is her deanship, not her professorship.
As a matter of course, deans are also tenured professors — and the University of Arkansas wouldn’t be able to strip Suski of tenure or discipline her for joining a brief, writing an op-ed or any other extramural speech. Tenured professors can only be fired for cause, and universities and their subunits should remain institutionally neutral while allowing individual professors to express their views on matters of public concern.
The issue for overwhelmingly progressive academic elites is that conservative legislatures are flexing their oversight muscles. Spare us the outrage. In every blue state in the union, boards of regents are stocked with liberals. Look no further than Abigail Spanberger, the new Democratic governor of Virginia, who promptly received the resignation of the conservative head of the George Mason University Board of Visitors, just as GMU’s Antonin Scalia Law School looks for a new dean. This process is always political.
Imagine if the facts were different, and a dean candidate at a public school in a blue state signed a brief arguing that Title IX prohibits biological males from participating in female athletics. Does anyone think this applicant would even get an interview, let alone an offer? This sort of political discrimination happens every day in the hiring process for deans — as well as for professors, where it’s inappropriate. There are only a handful of identifiably nonprogressive deans at secular schools. The lesson is clear: conservatives need not apply.
States must ensure that university officials can faithfully serve their communities without alienating either side of the political spectrum. Candidates with obvious blue flags should be vetted so they can effectively interact with “key external stakeholders.” They should also be able to credibly deal with a Republican-run Department of Education, as well as state supreme courts that are removing the far-left American Bar Association’s monopoly on law school accreditation.
In an ideal world, politics would play no role in dean selection. But we’re far from an ideal world. Those who dissent from progressive orthodoxy have been excluded from legal academia for generations — we’ve both personally felt that sting in our careers — and the AALS has done nothing. But as soon as one progressive dean is axed, the fainting couches come out.
The University of Arkansas’ only failure was not scrutinizing Suski’s résumé before making an offer. After decades of neglect, decision-makers in other red states should take a closer look at who is leading their law schools. If ever the ideological asymmetry in academia is to be corrected, change must start at the top.
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