JURIST Guest Columnist Jordan Paust
of the University of Houston Law Center says it's high time for universities to proscribe not only discrimination based on race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation, but also discrimination based on political opinion...
ave you seen the movie “Good Night, and Good Luck” about broadcaster Ed Murrow and his free speech fight against McCarthyism in the '50s? Have you looked at your university’s nondiscrimination policy lately? It is likely that your university policy is in opposition to discrimination on the grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation, or at least most of these categories. The lists have grown over the years, but what is missing?
One category of impermissible discrimination that is ominously missing from most lists is discrimination on the basis of political opinion. Perhaps most lists of impermissible grounds for distinction are holdovers from the McCarthy era depicted in the movie when discrimination on the basis of political opinion was favored by some. Judging by recent conservative agitation for an "academic bill of rights", a few even favor such a form of discrimination today with respect to the hiring and retention of faculty and staff, promotion and tenure of faculty, student admissions, publication of materials in university-approved journals and books, or the selection of deans and other administrators. Nonetheless, a change in university policies to prohibit discrimination on the basis of political opinion is overdue.
Discrimination on such grounds is undoubtedly unconstitutional. It would also violate treaty-based and customary international law evident, for example, in the International Covenant on Civil and Political Rights. Article 2 of the treaty expressly mandates that rights protected therein (such as “the right to hold opinions without interference” and “freedom of expression”) shall apply “without distinction of any kind, such as ... political or other opinion.” Article 26 also assures: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as ... political or other opinion.” Further, Article 50 requires that “[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations of exceptions.” This treaty-based mandate is similar to that of the United States Constitution -- Article VI, clause 2 of which requires that “all” treaties of the United States “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
It is useful to highlight a few points about what would and would not be prohibited under a university policy of nondiscrimination on the basis of political or other opinion. Such a policy would not preclude a decision to deny tenure to an outspoken left-oriented law faculty member for various lawful reasons, including attention to a pattern of lying about the faculty member’s military record, as long as discrimination on the ground of political opinion as such does not occur. Similarly, distinctions based on regulative racist speech (which might otherwise raise issues concerning when such speech is properly regulative on a university campus) are not precluded. For example, racist speech that will lead to imminent lawless violence would not be protected speech under the First Amendment. Speech by students in a professor’s class who are not members of the class and that is significantly disruptive of the educational process should also be subject to controls concerning time, place, and manner. It happens that Article 20 of the International Covenant requires that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” When the United States ratified the treaty, its instrument of ratification contained a content-neutral First Amendment reservation, that nothing in Article 20 shall “authorize or require legislation or other action ... that would restrict the right of free speech or association protected by the Constitution and laws of the United States.” Nonetheless, it is well-known that certain compelling time, place and manner restrictions on speech and association are not impermissible under the First Amendment.
During the Iranian hostage crisis, a newspaper reporter asked for my opinion about the legality of certain forms of economic sanction against Iran in response to its violations of international law. My statement that the use of food as a weapon often does not affect the elite of a country but hurts the poorest of the poor and is highly problematic under international law was printed in a newspaper. Days later, the Dean of our law school called me into his office to explain that a local county chair of one of the two prominent political parties in our country had told the Dean that “as long as Jordan Paust is on the faculty” he would give no more money to the school. The Dean assured me that I was a valuable member of the faculty and that the local party chair had only given $100 that year – a mixed message perhaps. If there had been an effort to terminate my tenure at the university based on my public legal opinion, I’m sure that the effort would have been impermissible. A different circumstance would arise if a law professor’s tenure was denied or terminated because of his abetting of international crime through conduct that included the drafting of legal memoranda while in government service – not an unreal example of criminal conduct in view of the successful prosecution at Nuremberg of certain German lawyers who, while in the Ministry of Justice in the 1930s and 40s, had abetted international crime partly through their legal memoranda. I assume that choice to deny or terminate tenure in such a circumstance would not be based on political or other opinion as such, but on the criminal conduct of the professor and in view of relevant consequences for an institution dedicated to professional legal education.
I have seen the claim that since supreme laws of the United States already proscribe discrimination on the basis of political opinion, a university’s anti-discrimination policy need not be rewritten. This misses the point. Since it is already proscribed, it is more than appropriate and seemingly timely to add the phrase “political opinion” to each university’s list.Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston