Volokh: Free Speech and the Arkansas Law Dean Controversy

Following up on the post by Alena Allen (LSU), Arkansas Rescinds Decanal Offer: Eugene Volokh (UCLA; Hoover Institution), Free Speech at the Higher End of the Org Chart: Thoughts on the Arkansas Dean Controversy:

From the N.Y. Times (Stephanie Saul) last week:

Less than a week after naming a new dean, the University of Arkansas Law School has rescinded the offer after state politicians raised concerns about her views on transgender athletes….

The appointee, Emily Suski, a legal scholar at the University of South Carolina, had been selected after a lengthy search, and the University of Arkansas’s provost, Indrajeet Chaubey, had praised her work on medical partnerships to help low-income children when the choice was announced on Jan. 9. But on Wednesday, the school withdrew the appointment, saying that the decision was based on “feedback from key external stakeholders.”

Members of the state legislature said the concerns were related to her signature on an amicus brief filed with the Supreme Court last year in support of transgender student athletes….

This led to considerable condemnation; the Association of American Law Schools, for instance, called it “a blatant violation of academic freedom, an alarming intrusion into university governance, and a threat to the legal profession in so far as political actors sought to penalize a lawyer for taking a legal position.” My view, though, is somewhat different, for reasons that I think help illuminate some broader matters as well.

[1.] Let’s begin with one modest hypothetical: Imagine that it came out that someone being considered as a possible dean at a California public law school had signed an amicus brief in opposition to allowing transgender student athletes to compete in women’s sports (or in support of bans on surgical or pharmaceutical gender transitions for youths or something similar). Would we think that the candidate would be offered the position?

I would very much doubt it. And indeed if the candidate were rejected on these grounds, I think this would be a legitimate position for the decisionmakers (whether the university President, the UC Regents, or the legislators or governor pressuring the Regents) to take. Perhaps if this position were made public, many conservatives would be upset, much as many liberals are with regard to the Arkansas situation. But then too I would say: There’s really not much justification for such upset. …

A politically conservative professor may be a great scholar, and a great leader in the abstract. But he may not be the leader that a liberal legislature or Board of Regents/Trustees would want to choose. Likewise, I think, as to a politically liberal professor in a conservative state. …

Academic freedom is supposed to give you as a professor the freedom to write what your research leads you to think is right, without fear of losing your job for it. Free speech gives you the freedom to speak as a citizen without the fear of losing your job for it (more or less).

But academic freedom and free speech are not supposed to give you the freedom to seek leadership positions in the government (whether the government of public universities or government more broadly) without your views being evaluated by those who would select you. People who want to have maximum flexibility as scholars may have to give up some of their political ambitions or other leadership ambitions—or hope that their ambitions will be fulfilled in more ideologically compatible states or institutions. …

I find it hard to sharply condemn, as a violation of free speech or academic freedom or lawyerly integrity, elected officials’ preference that the institutions their constituents fund are run by leaders who share the officials’ and constituents’ worldviews.