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Iowa bill seeking partisan balance in higher ed faculty likely unconstitutional

A bill pending in the Iowa Senate would require state universities to consider the political affiliations of faculty when making hiring decisions, but it faces both legislative opposition and constitutional shortcomings.

Sen. Mark Chelgren explained his motivation to The Des Moines Register:

I’m under the understanding that right now they can hire people because of diversity… they want to have people of different thinking, different processes, different expertise. So this would fall right into category with what existing hiring practices are.

The bill, currently before the Senate’s education committee, would work like this: Once a year, the regents of each state university would use voter registration cards to determine the party affiliations of its faculty. If a faculty member identified with one of the two parties that earned the most votes in the general election (presumably, in most cases, the Republicans and Democrats), they get counted; third-party and independent faculty members are ignored in this calculation.

For the next year after that tally, a prospective faculty member affiliated with one of the top parties cannot be hired if their hiring would cause the percentage of faculty members with that affiliation to be more than 10 percent greater than the faculty members identifying with the second party.

The practical effect would be a limit on the number of self-identified Republicans or Democrats that can be hired as faculty at Iowa universities if the imbalance between those parties reaches the 10 percent threshold. And assuming that there are currently many fewer registered Republicans teaching at public colleges in Iowa, the legislation would really mean that only those who are registered as Republicans would be eligible to be hired, until the ratio was more balanced. So, under this regime, even if the world’s leading expert in pathology wanted to join the faculty at the University of Iowa Carver College of Medicine, the institution could not make the hire if the doctor was a registered Democrat.

This mechanism makes the law vulnerable to constitutional challenge, however.

The right to join a political party is fundamental; freedom of association (to join) and freedom of speech (to express a political viewpoint) are two of the five enumerated freedoms granted in the First Amendment.

The United States Supreme Court has held that public employers generally cannot impose political litmus tests when deciding who to hire or promote. In Rutan v. Republican Party of Illinois (1990), the governor of Illinois created an office that reviewed any hiring or promotion decision. The office considered (and rewarded) participation in the state Republican party. The Supreme Court found that the system was coercive and amounted to an infringement on the right of free expression.

The law proposed here, while different in intent, has the same impermissible effect. Some candidates for faculty positions would inevitably be coerced to abandon their political expression to enjoy the same consideration for employment as their political opponents. Moreover, some job candidates might feel compelled to avoid affiliating with party when they register to vote — or they might simply avoid registering to vote altogether, putting the right to vote in jeopardy, too.

SF 288 is not the way to achieve a diverse academy where students learn from faculty of varied political beliefs. An alternative approach would be to foster an environment where all faculty perspectives are welcome by codifying principles of academic freedom, so professors with minority viewpoints have legal protection from retaliation for expressing potentially unpopular views. FIRE would welcome the opportunity to work with Iowa legislators on such an approach.  

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