Dumb, Dumber, and Unconstitutional

By Diane Klein

In his DoL post on Monday, Neil Buchanan placed the recent legislative proposals to mandate partisan balance on campus in the larger context of Republican attacks on higher education. Today I’m going to take a deeper look at the proposals themselves.

In the past week, Iowa and North Carolina have made higher education news thanks to bills premised on the assumption that partisan imbalance among public university faculties is an evil to be remedied by partisan litmus tests in hiring. On Friday, February 24, 2017, a group of 28 conservative and libertarian law professors sent a letter to the American Association of Law Schools calling for the ideological diversification of the legal academy.


All these proposals trade on the assumption, borne out by some data, that “tenured radicals” have taken over the academy, and that university teaching is done by people mostly (far) to the left of the surrounding population.  Both legislative proposals are also unconstitutional, unnecessary, and easy to frustrate.  In a word, dumb.  (The same cannot necessarily be said of the letter to the AALS.)


Most important, both proposals transgress against well-settled Supreme Court precedent establishing that the First Amendment prohibits public employers generally from discriminating on the basis of political affiliation.  


As the Eighth Circuit explained in 2011 in Wagner v. Jones, “‘Political belief and association constitute the core of those activities protected by the First Amendment.’ Rutan v. Republican Party of Illinois (1990) (quoting Elrod v. Burns (1976)). In Rutan, the United States Supreme Court extended Branti v. Finkel (1980) and Elrod and held that the First Amendment prohibits a state from basing hiring decisions on political beliefs or associations with limited exceptions for policymaking and confidential positions. The state can neither directly nor indirectly interfere with an employee’s or potential employee’s rights to association and belief.”


In fact, Wagner directly addressed political affiliation discrimination in the academic setting.  Theresa Wagner, the plaintiff, repeatedly sought employment at the University of Iowa College of Law, and was turned down, allegedly because of her conservative views.  Ms. Wagner was able to move forward with her lawsuit alleging discrimination based on political affiliation, even without a leg up from an unconstitutional affirmative action-quota system.


In the teeth of Wagner and Rutan, S.F. 288 would require that party affiliation be disclosed and used in hiring, and prohibit the hiring of a professor or instructor at a public university or college if his or her most recent party affiliation would “cause the percentage of the faculty belonging to one political party to exceed by 10 percent” the percentage of the faculty belonging to the other dominant party.  (The unaffiliated do not count.)  The stated goal is “partisan balance” among the faculty at public institutions.  


If Democrats comprise the overwhelming majority of Iowa faculty members, as legislators presumably suspect, clearly the “plan” is that as liberals leave or retire, or new jobs are created, they would have to be filled by conservatives/Republicans.  Over time, voilĂ ! Partisan balance in the academy.  Right?


Wrong.  For better or worse, however, the method prescribed by this law is so easy to game that even the humanities and classics professors could figure it out in a nanosecond.  Maybe that’s because the Republican Iowa Senator who proposed it, Mark Chelgren, doesn’t even have a college degree.


First, let’s keep in mind that Iowa’s 2 million voters are already pretty balanced, in partisan terms (30% Democrats, 32% Republicans), with a plurality of unaffiliated voters (37.5%).  That many of those unaffiliated lean Republican these days, however, is suggested by Republican control of the government:  the Iowa General Assembly has 59 Republicans and just 41 Democrats; the Senate has 29 Republicans and 20 Democrats; and its Republican governor, Terry Branstad, is the longest-serving governor in U.S. history.  (He is now Trump’s nominee for Ambassador to China.)


And now they want to control the halls of higher learning.  Even apart from the question of whether significant numbers of registered Republicans are either applying or qualified for the open positions, suppose an actual faculty of 100 had 75 registered Democrats, who wanted to hire another of their kind.  What is to prevent 41 Democratic professors from dis-affiliating on the day designated by the Board of Regents (so the numbers are now at 34 Democrats and 25 Republicans), putting through their liberal hire, and then re-affiliating afterwards?  Nothing.  It’s easy to change your party affiliation in Iowa; it can be done anytime before their closed primary, or even on that day.  It’s true, the Republicans on the faculty could also dis-affiliate, driving their own numbers down, to try to block the hire.  This race to the bottom would lead to almost all faculty ending up officially unaffiliated.  Then anyone can be hired.  Right up until election day - when everyone reaffiliates.


Should the Board of Regents be fiendish enough to designate the Presidential primary date as the relevant day in a given year, in order to force professors in the following year to choose between participation in a closed Presidential primary and the academic and professional freedom to exercise their best judgment in hiring (odious enough in its own terms), in future years the timing wouldn’t work out (since the June election doesn’t fall on the same day every year).  Having once chosen a date, the Board of Regents would be stuck with it, or else it would be collecting data either more or less often than “annually,” in violation of the bill’s own terms.


North Carolina’s bill is no smarter.  Their legislation (since tabled) would have required that tenured and tenure-track faculty members “reflect the ideological balance of the citizens of the state,” so that no campus “shall have a faculty ideological balance of greater or less than 2 percent of the ideological balance” of North Carolina residents as a whole.  


The first dubious assumption is that major party registrations adequately reflect the “ideological balance” of the state population as a whole.  The most up-to-date statistics indicate that registered Democrats (39%) outnumber registered Republicans (30%), by 2.6 million to 2 million, with another 2 million unregistered voters (30%) (with a tiny sliver of Libertarians).  Do 30% of North Carolinians have no ideology at all?


Next, the approach would apparently have us compare the faculty partisan breakdown to that of the state as a whole.  As it happens, North Carolina’s own universities vary widely in the partisan affiliation of their faculties. Yet according to some statistics, the number of both Republicans and Democrats in the university greatly exceeds their share of the population, by much more than 2%.  If the faculty has more than 32% Republicans or more than 41% Democrats, it would appear to violate the law.  Must UNC and others hire only politically unaffiliated faculty, until they constitute at least 28% of all tenured and tenure-track professors?  


With respect to political participation by faculty, North Carolina has a semi-open primary, permitting unaffiliated voters to vote in the party primary of their choice.  As a result, whether job applicants would switch to unaffiliated status, or existing faculty members would do so to accommodate affiliated hirees, the law would actually do nothing to redress (real or perceived) ideological (or partisan) imbalance.


Misguided and ill-intentioned as they may be, they are as impractical as they are unconstitutional. But it is still worth pointing out a few ironies.


To take a page from the conservative anti-affirmative action playbook, it’s tempting to argue that with respect to many academic departments, there are just no qualified conservatives to be found.  Surely, the Iowa and North Carolina legislatures are not suggesting that faculties should lower their standards, just to make space for climate-change-deniers in the Environmental Studies department?  And to echo libertarian arguments long made on the right, how is it the fault of a liberal academy that so few straight White Christian able-bodied men obtain Ph.D.s and pursue academic careers in the subjects today’s students actually want to study?


While the right may imagine conservatives are outnumbered in the academy due to pro-liberal bias, they tend to underestimate the self-selection that occurs, including but not limited to the attraction for conservatives of non-academic, more lucrative professions in the business world.  And then there is the fact that as education level rises, so do liberal views and Democratic affiliation.  Whether this is causation or correlation, it predicts that advanced degree and Ph.D.-holding applicants for academic positions will skew left.  In addition, there are no data to suggest that equally well-qualified conservative candidates for academic positions obtain them at a lower rate than liberals.  A recent back-and-forth between a couple of law professors at Chicago-Kent contains some anecdata about that institution, but even the cases they describe result in conservative profs hired elsewhere. The research about life on campus for conservative academics is equivocal, at best.


On February 24, the American Association of University Professors released a statement rightly condemning these laws as McCarthyite and pledging to resist these and other “threats to academic freedom, legislative intrusions into higher education, and harassment of faculty.”  


One cannot help but note the irony of conservative protectionism in all its forms.  The very folks who used to tout free markets and competition now apparently share with Trump and Bannon the idea that American goods need a thumb on the scale to compete with imports - and that conservative would-be intellectuals just can’t compete with women, liberals, LGBTQ folks, and people of color, without a hiring quota.