Wednesday, August 13, 2014

Firing Versus Not Hiring

by Michael Dorf

[Warning: Point 3 of this post repeatedly uses a mildly profane term. Do not read aloud to young children.]

My new Verdict column addresses the academic freedom issues raised by the recent decision of the University of Illinois board of trustees to disapprove a tenured appointment for Steven Salaita, in apparent response to his strongly-worded tweets criticizing Israel's military operations in Gaza. In response to charges that the university thereby violated Salaita's academic freedom, the university's defenders have drawn a distinction between firing a faculty member for his extracurricular statements and not hiring him in the first place. In turn, many academics have dismissed this defense as relying on a technicality. I argue in my column that the firing/not-hiring distinction is--in this context--not even a technicality. Under state law principles of promissory estoppel, Salaita probably was already de facto hired; and the First Amendment limits the power of a state university to engage in viewpoint discrimination, even at the hiring stage. Thus, the column concludes that the firing/not-hiring distinction does not provide even a technical defense of the Illinois decision.

Nonetheless, there certainly are factors that a university (or other employer) may legitimately consider at the hiring stage even though they would be illegitimate as a basis for firing. Here I want to say a few things about what those are and why. I focus on university employment because I know this context well, but what I say should also be relevant to other employment settings in which a contract or something else forbids firing except for good cause. Interestingly (at least to me), I think that some of the added protection against firing applies in the university setting even to non-tenured faculty.

As a preliminary matter, I want to be clear that I'm not now talking about the sorts of factors that are impermissible at both the hiring and firing stage. Antidiscrimination law singles out some such factors: e.g., race and sex. As I argue in the column, the First Amendment singles out another such factor for government employers: viewpoint. Some of these factors are only presumptively impermissible. E.g., sex (but not race) can sometimes be a bona fide occupational qualification (BFOQ). Likewise, as I note in the column, viewpoint discrimination is sometimes permissible for positions in which the employee's speech will be attributed to the government.

So, what sorts of factors are legitimate at the hiring phase but not the firing phase? I want to consider three.

(1) Curriculum. This is perhaps the least controversial. Suppose that a history department is looking for someone in colonial-era American history due to retirements or departures that have left a big hole in the department's curriculum. Along comes a spectacularly well-credentialed scholar and teacher of ancient Roman history. Let's call her Jane. Jane is terrific but the department already has enough historians of ancient Rome. It's looking for American colonialists. Pretty clearly, the department can decide to hire a not quite as well-credentialed scholar of colonial-era American history--call him Peter--rather than hiring Jane.

But now fast-forward ten years and suppose that Peter has tenure. Suppose also that there is now an opportunity to hire another, even-better, scholar of American colonial history, called Amy. If the department hires Amy, it will have more scholars of American colonial history than it needs. Can the department fire Peter to make room for Amy? I think the answer is plainly no. In dire financial circumstances, universities are permitted to eliminate positions even if those positions are filled by tenured faculty, but that is not what is going on in my hypothetical example. Curricular need is a legitimate hiring criterion but not (absent extraordinary circumstances) a legitimate firing criterion.

(2) Quality.  In some departments in some universities, the scholarship quality standard for tenure is the same for hiring lateral faculty with tenure as for promoting junior faculty to tenure. In other departments or schools, the standards are somewhat different, at least in practice.

That brings to mind an anecdote by way of illustration. I once attended a faculty meeting (I won't say where) at which a then-colleague was making an argument for hiring a lateral candidate. Certainly this candidate satisfied our internal tenure standard, the then-colleague said. Another then-colleague objected: "A table would satisfy our internal tenure standard," he said, pounding the table for appropriate emphasis. There then ensued a discussion, in which there appeared to be general agreement that as a formal matter our internal and external standards were identical but that in practice the internal standard was somewhat lower. This discount was in addition to other factors that might be relevant to evaluating an external candidate but that would be irrelevant for an internal candidate, such as curricular fit.

Now obviously a table would not satisfy any tenure standard. In schools and departments that grant tenure more readily to their junior faculty than to lateral candidates (even if they do not officially say that this is their policy), the scholarship standard is more like this: Publish reasonably good quality work in reasonable quantities. Put differently, there is a presumption that the sort of person hired at the entry-level will, if she keeps her nose to the grindstone, get tenure.

The reasons for a policy of this sort (even if informal) are pretty easy to identify. Junior faculty will be more at ease and more invested in the institution if they come in with the expectation that they will get tenure if they work hard. That, in turn, will make it easier to recruit top entry-level faculty.

The reasons for a contrary policy are also pretty easy to identify. A too-ready willingness to grant tenure to junior faculty who do passable work could end up leading to a faculty of mediocrities. In addition, knowing that faculty hired at the entry-level will almost invariably get tenure could chill a faculty's willingness to take risks at the entry level.

My goal here is not to adjudicate the relative strengths and weaknesses of the two approaches. I simply mean to identify quality of work as a factor that may be more relevant (or at least subject to different standards of evaluation) at the appointment stage than at the firing (i.e., denying tenure to an internal candidate) stage.

(3) The "No-Asshole" Rule. In his bestseller The No Asshole Rule, Stanford Management Professor Robert Sutton argues that firms and organizations can maximize their potential by adopting a rule barring the hiring of assholes. His paradigm example is a person who excels in his own work but is such a jerk to others that he undermines the enterprise as a whole. The demoralization cost to the organization outweighs the benefit of the asshole's individual contributions.

So now the question: Assuming that a no-asshole rule is legitimate at the hiring stage (as I believe it is), are there reasons to think it is illegitimate at the firing/retention stage? I think the answer is mixed.

Certainly it seems to me that a university could not fire a tenured professor for being an asshole, absent some conduct that would otherwise rise to the level of for-cause dismissal, such as committing a violent felony, sexually harassing students or colleagues, or repeatedly failing to show up to teach his classes. Just being an all-around jerk by, say, asking obnoxious questions at workshops, would not amount to cause.

However, I tentatively think that asshole-ness is a legitimate ground for denying tenure to an otherwise tenure-worthy junior colleague. Tenure typically turns on three criteria in descending order of importance: scholarship; teaching; and collegiality. Being an asshole can be relevant to teaching, but the more interesting case (and one that I have seen a few times in reality) involves someone who is generally a good or even excellent teacher but an asshole to colleagues and/or staff. This is admittedly not very common in junior faculty. People with assholic tendencies try to keep them in check before they have tenure. If someone nonetheless comes across as an asshole as a junior colleague, then he or she is likely to be a gigantic asshole once tenured. Accordingly, lack of collegiality could, at least in theory, be grounds for denying tenure to an otherwise tenure-worthy asshole.

I am nonetheless somewhat uncomfortable with that conclusion because of the vagueness of the collegiality category if it permits consideration of asshole-ness. Collegiality is usually measured by such relatively objective criteria as participation on committees and regular attendance at workshops. Now someone can do those things and still be an asshole. But the problem is that asshole-ness could then be used--either consciously or unconsciously--as a cover for more illicit criteria, such as political disagreement.

Of course, that could be true even at the hiring stage too. Suppose that Lawrence does exceptionally well-regarded work in Russian history and has excellent teaching evaluations, but holds controversial political views. If Lawrence is also an asshole--or even if there is some evidence that some people regard Lawrence as an asshole--then some people might say they are not hiring him because he is an asshole even though the real reason, or at least a big part of the reason, is that they don't agree with Lawrence's political views. The problem may be compounded by the fact that some people regard Lawrence as an asshole because of his political views.

Accordingly, although I am favorably inclined towards a no-asshole rule, I think that one must implement it very carefully.