Posted by Eugene Volokh:
The Chemerinsky Matter and the California Constitution:
http://volokh.com/archives/archive_2007_09_09-2007_09_15.shtml#1189793030
Some have suggested that not hiring Chemerinsky based on his being
politically controversial violates [1]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"?
References
1. http://www.leginfo.ca.gov/.const/.article_9
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