Wednesday, September 12, 2007
Update (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.'"