California' s "Racial Privacy Initiative":
Will It Be Struck Down On the Ground That It Violates Academic Freedom Protected By the First Amendment?

This column is Part One in a series by Professor Amar on California' s Proposition 54. - Ed.

With all the hoopla surrounding the gubernatorial recall, California voters may be forgiven for not yet focusing on the other big question facing them on the October 7 ballot - Proposition 54, the so-called "Racial Privacy Initiative," which would amend the California Constitution in important ways.

The meat of the Proposition is found in its first two sections. Taken together, these sections would virtually prohibit the State of California and its subdivisions, in all of their operations, from "classifying" any person according to race. Classification, for these purposes, means "organizing, sorting, profiling" or "collecting" the racial identity of any individual "on government forms," or in other government settings.

The major architect behind Proposition 54 is University of California Regent Ward Connerly, who was also the main driving force behind California' s Proposition 209. (Enacted in 1996, Proposition 209 prohibited all racial preferences, including race-based affirmative action plans, in California public education, contracting and employment.) Proposition 54 would in some ways reinforce Proposition 209, in some ways go beyond Proposition 209, and in yet other ways perhaps actually undermine Proposition 209.

Proposition 54 is an incredibly complex piece of legislation, with many important textual complications and ambiguities that raise a mind-boggling number of policy and legal questions. In this series of columns, I will focus on the federal constitutional issues that Proposition 54 implicates - issues that likely will be litigated should the Proposition pass.

These issues fall largely into two big constitutional categories - First Amendment concerns, and Equal Protection questions. In today' s column, I shall focus on some of the First Amendment issues. Next column, I will take up additional First Amendment arguments, as well as equality concerns.

Does the Proposition Violate Constitutionally-Protected Academic Freedom?

One important First Amendment issue was raised two weeks ago in a column by Erwin Chemerinsky - a brilliant and provocative constitutional law professor at University of Southern California Law School. He argued that the Proposition as written would apply to the research agendas of professors at the University of California and California State University campuses. And he contended that, for this reason, at least part of Proposition 54 would be struck down, because "prohibiting government employees from researching, and thus from writing, what they choose surely violates the First Amendment."

I am somewhat sympathetic to Professor Chemerinsky' s position, but not as certain as he seems to be that the courts would indeed take this view. The reason is that, as he acknowledges, Proposition 54 is not regulating private academics, but rather "government employees," inasmuch as it applies to public, and not private, universities. I would readily concede that the State of California, through an initiative or otherwise, cannot regulate the content of the research agendas of private university professors. But State regulation of public university professors is a different animal entirely.

Of course, there are good - indeed, compelling - policy reasons for letting public universities, and individual faculty members, choose their own research topics free from public control. There is a rich tradition of individual professorial independence and academic freedom at most of the nation' s leading public, as well as private, colleges and universities, including the University of California. And at some point, it is true that an historical tradition can become a constitutional baseline value worthy of protection by the courts.

But it is also true that under Supreme Court precedent, the government of California - ultimately reflected in the people of California through the initiative process - can constitutionally place significant limits on California employees, who are the people' s agents, if you will. And professors may not be an exception to this rule.

By Comparison, Public University Commencement Speeches Can Be Regulated

Imagine, for example, that the legislature of California passed a law prohibiting any public university located within the State from having graduation ceremonies that featured a commencement speaker who extolled the virtue of racial supremacy and the KKK. I' m not at all sure that a law drafted carefully so as only to prevent public funds from being used for any UC commencement exercise that promotes racial intolerance would be struck down under the First Amendment.

Now, many will argue that the research agendas of individual faculty members are very different than a public commencement address, in part because each person' s scholarship agenda is so clearly his own personal speech. Perhaps. But note that even in the commencement setting, the reason the State of California can regulate the speaker is not that audience will assume that the State endorses the views of whoever gives the address. (There is little risk of that: not many would assume that a commencement speaker at a public university generally speaks on behalf of the university or the State that created it.) And yet, the fact of public subsidy, even without the possibility of perceived public imprimatur, still gives the State a great deal of leeway to regulate the speech. And professors receive a much greater "subsidy" than do commencement speakers: A guaranteed lifetime salary and time to do their research is provided by the State once they are tenured.

Professorial Speech Is Already Regulated During the Hiring and Tenure Processes

Meanwhile, even in the realm of scholarship of individual faculty members, there is already a great deal of content- and viewpoint-based regulation that goes on - and no one thinks of challenging it as a First Amendment violation.

When a junior professor comes up for tenure in a public university, the State - through the university' s faculty, its administration, and even its governing board, which is often comprised of elected or appointed individuals - will grant or deny tenure in large part based on the content, and sometimes the viewpoint, of the candidate' s scholarship.

When it comes to government attempts to regulate private speakers, we are told by the Supreme Court that "under the First Amendment there is no such thing as a false idea," and that the "fitting remedy for evil counsels is good ones." And yet in public university tenure decisions, ideas are routinely deemed false or untrue - or at least poor or unmeritorious, which tends to amount to the same thing.

Indeed, public institutions decide not to hire or keep on scholars all the time because their ideas are flaky or intellectually dangerous. The remedy there is not for the university to hire strong scholars to offset the weak ones; instead, the remedy is to stop funding the weak ones by declining to hire them or denying them tenure.

For example, a UC historian whose pre-tenure work tries to establish that the Holocaust did not happen is unlikely to get tenure, because the quality of his scholarship will be considered bad. But this conclusion of "bad scholarship" is in turn based upon judgments that the tenured faculty or university administration make about what ideas have analytic or historical merit. These are precisely the kinds of contested judgments that the First Amendment prevents government from dictating to the private world - but allows government to make when government is evaluating its own employees.

Does The Fact that The Regulation Is Direct Make a Difference?

Some might respond to me by saying that it is one thing for a public university to regulate, or constrain, the content of its faculty' s research; it is quite another for an outside State actor, like the legislature - or the people of a state adopting an initiative - to do so.

Maybe. But some public universities have their boards of directors, or boards of Regents, sign off on all faculty hiring and tenure decisions. And these boards are often made up of politically-appointed and politically-accountable actors. If their regulation of individual faculty members' agendas does not raise First Amendment problems, I' m not sure why the electorate' s direct regulation should.

The Grutter Decision and Academic Freedom

This point is actually illustrated by the Grutter case - the Michigan Law School affirmative action ruling from this summer. In support of his argument, Professor Chemerinsky quotes Grutter' s reference to the right of academic freedom and its grounding in the First Amendment. And this reference is significant, for our purposes, for it is made in the context of public, rather than just private, universities. But the reference, viewed in context, may not be as substantial as it seems.

After all, the right of academic freedom the Grutter Court purported to discuss - the right of a school to choose its student body as it sees fit - did not insulate the University of California' s admissions processes from the will of the California voters. (If it had, courts long ago would have, on academic freedom grounds, struck down Proposition 209, which interfered with the UC' s ability to pick its own student bodies by foreclosing race-based affirmative action at the university.)

Thus, Grutter' s right to academic freedom is not really a right to be free from intra-state regulation. Instead, it seems to be a right by state universities to be free from federal, even federal constitutional, constraints such as an overly rigid application of the federal Equal Protection Clause.

Moreover, Grutter' s use of the rhetoric of academic freedom is quite consistent with the way the Court has acted in the past. Indeed, the Grutter language is based on language from Justice Powell' s opinion in Bakke, which in turn borrows phrases from cases in the 1950s discussing the academic freedom rights of faculty members being investigated throughout the Red scares.

During McCarthyism, the Court invoked the idea of academic freedom as a First Amendment construct many times. But, significantly, this doctrine was rarely, if ever, the basis for the Supreme Court' s actual decisions. (Instead, the Court tended to invalidate legislative interference with faculty matters by saying that legislative inquiries violated separation of powers, or involved overly vague prohibitions on subversive conduct.)

Thus, it seems as if references to academic freedom make for better dicta than holdings. Indeed, in a case from the early 1990' s, University of Pennsylvania v. EEOC, when a litigant invoked a strong form of the academic freedom argument to justify its position, the Court responded by saying much of what I' m saying here:

Obvious First Amendment problems would arise where government attempts to direct the content of speech at private universities. Such content-based regulation of private speech traditionally has carried with it a heavy burden of justification. Where, as was the situation in the [so-called] academic-freedom cases [of the 50s], government attempts to direct the content of speech at public educational institutions, complicated First Amendment issues are presented because government is simultaneously both speaker and regulator. (Emphases added.)

This language, as well as the other considerations I have outlined above, suggests at a minimum that a court may think long and hard before invalidating Proposition 54 on academic freedom grounds.

Rather Than Being Invalidated, the Proposition May Simply Be Read Narrowly

Nevertheless, Professor Chemerinsky is certainly correct that there is at least a significant constitutional question concerning Proposition 54' s application to individual university professors. But the remedy may not be to invalidate parts of the Proposition, as he suggests. Rather, in light of this possible problem, many courts may simply want to read the Proposition narrowly - that is, as not applying to those professors - so that the whole constitutional question is avoided.

It is a venerable, if sometimes controversial, practice to read state constitutional and legislative enactments narrowly, if to do so avoids difficult federal constitutional questions. And it seems to me that First Amendment academic freedom is precisely the kind of difficult federal constitutional question we would do well to avoid.

In this regard, I note that at least some legal analysts - and conservative ones at that (for example, the Pacific Legal Foundation ) - have taken the position that Proposition 54' s definition of "State," to which the ban on classification applies, does not include individual public university faculty members. This kind of "saving construction" may appeal to a court that is troubled by the academic freedom issues the Proposition raises, but that does not want to thwart the voters' will directly.

Alas, academic freedom, it turns out, is just one of the thorny constitutional issues Proposition 54 raises. And some of the others may not be avoidable by a narrow construction of the measure. More on these, in my next column.