College deans aren’t protected by academic freedom

Recently, the University of Arkansas Law School made an offer to a dean candidate, and then promptly rescinded it, apparently because she joined an amicus brief in the transgender athletics case. The AALS and other groups charged this rescission violated norms of academic freedom. Not quite. Individual professors have academic freedom rights, but Deans, in their administrative capacities do not. At state institutions, deans are at-will employees who are appointed by politically accountable bodies.

Ilya Shapiro and I discuss this situation in the Washington Post. Here is the introduction:

The University of Arkansas School of Law hired Professor Emily Suski as dean in early January, but promptly rescinded that offer less than a week later based on “feedback from key external stakeholders.”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.

Perhaps we would have more sympathy for the AALS’s claim, but this organization has done nothing to protect conservative dean candidates who are systematically excluded from higher education. Now, legislatures in red states are finally pushing back:

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.

Finally, I am proud to announce my new affiliation as an adjunct scholar with the Manhattan Institute. You will hear more about my work with MI in due course.