Let's take at face value the claim by UC Irvine and its new Dean, Erwin Chemerinsky, that the original decision to withdraw the offer of the deanship was not in any way based on a desire to stifle Chemerinsky's ability to speak out on important legal issues of the day, that it was in fact all a big misunderstanding. Still, the episode raises a more general question: Is it legitimate for a university---an institution committed to principles of free speech and academic freedom---to require its administrators to avoid taking controversial positions?
The question is complicated in the Irvine case by two factors: First, most law deans are also members of their respective faculties, and thus retain whatever academic freedom they would have as such. And second, as a state institution, UC Irvine is bound by the First Amendment (as incorporated by the Fourteenth). To simplify the analysis as a matter of policy, I want to ask about a private university. I'll return to the dual capacity question below.
The issue is hardly hypothetical. At my own university, John H. Coatsworth, Acting Dean of the School of International and Public Affairs (SIPA), is scheduled to moderate a keynote address by Iranian President Mahmoud Ahmadinejad on Monday of next week. As far as I could tell, only skeletal information about the event has been posted on the university website (here), and it appears open only to invited guests (because of "security restrictions"). Based on the offensiveness and dangerousness of Ahmadinejad's stated views, not to mentions his actions, it is hard to imagine that this event will be anything but a PR disaster for the university. Just about the only thing that can be said in favor of the event going forward is that offensive and even dangerous views ought to be heard along with other views. (For just such a statement by Columbia President Lee Bollinger on the occasion of an Ahmadinejad event scheduled for a year ago that ended up not happening, click here.)
But that doesn't quite get at the question of institutional responsibility. If the event had been proposed by a student group (which, for all I know, it was), or by an individual faculty member, I would imagine that Coatsworth would have had no choice but to permit it to go forward. By serving as moderator, however, he gives the event the official imprimatur of SIPA (and to a lesser extent, the university as a whole). Perhaps Coatsworth, who is a tenured member of the Columbia faculty, is moderating in his capacity as a professor rather than acting dean. Perhaps also, he chose to moderate precisely so that he could ask tough questions that show that SIPA in no way endorses Ahmadinejad's views or actions. But if so, one would hope that, at the very least, he would make those facts known.
In reflecting on this invitation and L'Affaire Chemerinsky, I find myself somewhat more sympathetic than I originally was to the position that the UC Irvine administration formally disavows but could have been understood to be taking in un-hiring Chemerinsky (before re-hiring him): Namely, being a university administrator does not require you to forfeit your academic freedom as a professor, but it does require you to take great care to make clear to the public when you are speaking ex cathedra and when you are not. Even then, it's not obvious that the public will draw these distinctions, and to the extent that running a law school or other academic institution is partly a PR job, there may be legitimate reasons to select administrators whose public statements and actions as academics do not generate too much adverse publicity.
Or, to paraphrase a discredited line from Justice Holmes: You may have a right to academic freedom as a professor, but you don't have a right to be dean. I'm not saying this is my view, but it strikes me as a not-crazy view.