Wednesday, September 12, 2007

The Chemerinsky "Firing" and First Amendment Retaliation

Chemerinskye_3Update (9/17): Reasonable minds prevail; Chemerinsky hired after all.

The recent news reported by Rick that the eminent constitutional law professor, Erwin Chemerinsky, was hired and fired as the founding dean at UC-Irvine within one week because he was too "politically controversial" has got me thinking.  And anyone who reads this blog knows what I'm thinking: does Erwin have a First Amendment retaliation claim?

Let's look at the Connick/Pickering/Garcetti framework, which I have previously discussed here among other places, and see what it tells us. 

(*)     Initial Question: Can expression engaged in while not employed in the job be the basis for a First Amendment Retaliation claim: The answer is yes. See Rankin v. McPherson, 483 U.S. 378, 395 (1987) (“We have . . . recognized that the government’s power as an employer to make hiring and firing decisions on the basis of what its employees and prospective employees say has a much greater scope than its power to regulate expression by the general public.”; Hubbard v. EPA, 949 F.2d 453, 460 (D.C. Cir. 1992) (applying the Pickering balancing test to a hiring decision, observing that “[m]erely because an employer is hiring rather than firing . . . does not justify unconstitutional action”).

I actually think this is a hiring case, rather than a firing case, because although Erwin signed an employment agreement with Irvine, it was apparently contingent on the Board of Regents signing off on it. So I think for these purposes, his "firing" can be treated as a "failure to hire" case.

(1)    The Garcetti/NTEU question: Is the speech and expression that Erwin engaged either not job-related so that it comes under NTEU and a normal First Amendment scrutiny  or pursuant to job duties, so that it is not protected at all by the First Amendment pursuant to Garcetti?  Well, I think neither apply.  Being fired for being too liberal suggests that Erwin's previous expression is very much related to the job in question, but on the other hand, he has not started the job yet and has not acted pursuant to any official duties and therefore, does not fall under Garcetti either.

(2)      The Connick Question:  Is the expression to be considered pursuant to a matter of public concern? I cannot imagine one's thoughts on such things as constitutional interpretation and the place of law in society can be an any more weighty matter of public concern.

(3)   The Pickering Balance: Weighing the First Amendment rights of Erwin as a citizen against the efficiency interests of UC Irvine, it appears the balance decidedly favors Erwin.  As discussed in (2), the individual interests are weighty whereas it is hard to argue that Erwin is substantially disrupting UC Irvine Law School or its image since it was not even public that he was hired as Dean in the first place?  What did he substantially disrupt?  Can it be that Irvine stakeholders already did not know Erwin's jurisprudential background and thought that after all the interviews and the process that he was likely to administer the law school in a way that would be unpalatable to certain groups? [Update (9/14): More from Brian Leiter on the background facts of the case].

(4)    Mt. Healthy I:  The first Mt. Healthy question is whether Erwin's past expressions on matters of public concern motivated or substantially caused Irvine's decision to motivate.  I think there is little doubt based on earlier reports of his dismissal.

(5) Mt. Healthy II.  Would Irvine have made the same decision of firing Erwin if it were not for past expression on matters of public concern.  Let me be short here: I really don't think so.

In all, it appears that Erwin, who probably knows better than I do, has a viable First Amendment retaliation claim for its failure to hire him based on passed expression on matters of public concern.  Of course, this is just a legal analysis and there are many reasons why Erwin may choose not to pursue this course.

In all events, I wish him and his family the very best and I am deeply troubled by Irvine's actions. Certainly not the right way for a new public law school to get off on the right foot.  I can only agree with John Eastman, the dean of Chapman University Law School in Orange, California, that "UCI's move [is] 'a serious misstep.'"

Update: Leiter points out that, "Art. 9, § 9 of the California Constitution, regarding the powers and duties of the Regents of the University of California, provides that, '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.'"


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Your First Amendment analysis is great, Paul, but I have a couple of follow up questions. First, would Garcetti ever apply to a failure to hire case? It seems that it can't because the person who wasn't hired can't be carrying out the duties of a job she or he doesn't have. Second, why would the NTEU analysis apply at all? When the person not hired spoke, the speech was not related to this job with this employer. I can't see how speech made by a person while with a prior employer could ever be job related in the sense discussed in NTEU. Perhaps in the failure to hire context "job related" would mean related to getting the job, but if that is the case, Erwin's prior speech is not that.

Ultimately, this kind of case (employment of an academic) is what makes Garcetti seem truly ridiculous. It doesn't fit as comfortably into Connick/Pickering/Waters, either. The job of an academic is to talk and to speak about issues of public interest. And so, arguably, every utterance and writing that an academic makes that is even remotely related to the academic's scholarly interests or teaching would be made pursuant to their job duties, and therefore not protected under Garcetti. But the mission of the government as educator (at least in the higher ed. context) is to promote research and academic inquiry. And so that very speech promotes the mission, rather than frustrates it.

I realize that's not necessarily how the courts have looked at these cases, though.

Posted by: Marcia McCormick | Sep 12, 2007 5:21:04 PM

Thanks, Marcia, for the great comments.

Yes, there is not much precedent out there on this point, but I would think that in a failure-to-hire Pickering case, you would not have to worry much about Garcetti. On the other hand, this case is not like NTEU, in which the federal workers were banned prospectively from getting honoraria for speeches on a matters of public concern not related to their jobs. Instead, Erwin is apparently being retaliated against because his prior expression on matters of public concern will cause disruption at UCI. I think that is a job-related situation, and more suitable for the Pickering balance than the NTEU scenario.

And FWIW, I completely agree with your assessment of Garcetti in the academic context where it would lead to a public university professor being fired for doing something like controversial research or delivering an unpopular lecture. Doesn't seem to lend itself to the expansion of the spectrum of knowledge, now does it?

Posted by: Paul | Sep 12, 2007 6:41:59 PM

Should Chemerinsky decide to challenge UCI's actions here, however, this defense would come under withering factual attack for the obvious reason that any basis for the predicted disruption should have been known to UCI when it hired him shortly before it then fired him. Nothing changed in the interim. If all of these decision-makers would have found him to be too controversial, that should have been known to UCI at the earlier date. The facts would present a formidable obstacle to the strength of the legal argument.

That assumes, of course, that they would be able to point to anything -- pre-hiring or post-firing -- that would even suggest the slightest possibility of disruption or problem that Chemerinsky's hiring would have brought about. I would be curious to know what comparators anyone could point to (the "Disuptive Liberal/Conservative Dean" who killed ____________ School of Law) to whom UCI could claim he would be similarly disruptive). That, too, would have be a significant fact-based hurdle for UCI to clear.


Posted by: Sam Marcosson | Sep 12, 2007 7:06:17 PM

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