Legal academics is aflutter over the rescinding of an offer of the deanship at the law school of the University of Arkansas, Fayetteville, to
Emily Suski, a law professor at the University of South Carolina, upon pressure from conservative politicians.
I've lately been cited and quoted on the matter, partly because I lived and worked as a law professor in Arkansas for thirteen and a half years, until 2011. I'll say a bit more here.
The Suski story has been much in the news, from The Arkansas Times to The New York Times, and has been framed by our present era of political strife. The rescission was motivated by conservative state lawmakers apparently unhappy over leftward leanings in Suski's record as an academic and a lawyer.
I am not opining, and have not opined, on the rescission in sum, because I don't know what was in the minds of lawmakers and the university president. I have made no study of the record. I said as much to Arkansas Democract-Gazette (ADG) reporter Neal Earley late last week. If you want a view from the ground, my colleague Robert Steinbuch, law professor and columnist, talked about the matter toward the end of this interview with KATV (cue to about 2:05).
I did tell the ADG, where I was fairly represented in a story Monday, to which Earley contributed, that I have First Amendment concerns if, and insofar as, the political decision was motivated by retaliation for viewpoints expressed in litigation or academic work. I agree with a statement of the president of the Arkansas Bar Association that a lawyer should not be discriminated against by a public entity for employment based on positions taken in prior litigation.
But the matter is not that straightforward.
Some Arkansas politicians are vexed by Suski's sign-on
to an amicus brief in the SCOTUS-bound transgender athlete case, on the side of the athlete challenging West Virginia law. Some might be displeased with her
support for the U.S. Supreme Court nomination of now-Justice Ketanji Brown Jackson. A single, clear rationale for rescinding has not been articulated, and likely, motivations are varied.
I have authored, contributed to, and signed amicus briefs myself, I told Earley, in support of principles notwithstanding the position of litigants. For example, my amicus positions on the freedom of information have aligned me with affirmative action skeptics and animal rights activists. Whether, or to what extent, I agreed with the litigants' many public positions was immaterial to my advocacy for transparency, accountability, or civil liberties in the matters at hand.
I'm not shy with my opinions. But if you want them, the responsible thing is to ask, not assume. The world is gray. My own views have nuance. I'm sure Suski's do too.
At the same time, this story ought not be framed merely in terms of contemporary partisanship. I told the ADG that I understand lawmakers' reaction in "a broader context of long-time suppression of (the conservative) viewpoint in legal academics."
That's true. Earley asked for examples, and I gave him several. I've done work with the Federalist Society and with the Heritage Foundation. I supported law students at the University of Massachusetts Law School in establishing a Christian Legal Society (as yet not an official chapter).
That doesn't mean I agree with every position taken by those organizations. (I'm not alone.) It does mean that I have over the years left those groups off my CV when applying for this or that in legal academics, because their mention would have killed my application. At the same time, I have never felt compelled in legal academics to conceal association with the AAUP or the ACLU. Those alignments are badges of achievement.
I didn't make the rules, and I don't approve of them. This is the world as I found it. Having had some privileges and not others while trying to advance my academic career, I have not buried my head in the sand about unjustified biases. For legal academics now to be wringing their hands over censorship of left-leaning causes might be justified in the instant case, but implicates more than a little hypocrisy.
One quote of mine in the ADG story was right, but could benefit from context: "I feel almost a bit of relief to say that thank heavens someone is paying attention." That sounds, erroneously, like approval of the politics of the Arkansas legislators in the Suski case, contrary to my refusal only a sentence earlier in the story to state approval or disapproval.
Rather, I made that statement in discussion with Earley of a different point, namely, that legislators in Arkansas, in other states, and in Washington, D.C., have abdicated their responsibility for the accountability of public institutions, especially in higher education. Regardless of the merits of the decision in Arkansas, the idea is refreshing that Arkansas legislators would hold the University of Arkansas to any standard at all.
In my experience in Arkansas, the university, a political behemoth, did not hesitate to throw its weight around at the capitol. And legislators kowtowed to its will. For example, legislators, with few noteworthy exceptions, happily parrot the fiction that the filthy-rich university foundation is a private entity properly immune from the state freedom of information act, though in fact, public officials dictate how the money is spent.
When I spoke to Earley, I was not thinking about Arkansas legislative accountability in any matter of my personal interest. But maybe I should have been.
For The Arkansas Times blog, Dr. Walter Kimbrough opened an opinion piece with reference to a lawsuit I brought almost 20 years ago when working in Arkansas. Kimbrough is a former president of two HBCUs and now an executive vice president of the UNCF (the "United Negro College Fund," though the organization usually uses just its initials nowadays).
I'm flattered that Kimbrough, whom I greatly respect, remembers my case, the best account of which was penned by the great Scott Jaschik, who retired in 2023, and can be read still at Inside Higher Ed.
Kimbrough's headline highlights the "cancel culture" angle in the Suski story. Invocation of my case shows that what happened to Suski is not new, because it happened to me—even if the shoe was on the other foot, from a conventional political perspective.
At least my takeaway from Kimbrough's comparison is be careful what tactics you use, because it won't feel good when they're turned against you. If abstracted to politics, it's basically the same logic justifying humane treatment of war prisoners, not because you're worried about the enemy, but because you're worried about your own. Regardless of who fired first, conservatives who once lamented the victimization of cancel culture now look hypocritical when they engage in it.
Not necessary to his thesis (and maybe undercutting it?), but salient to me, Kimbrough observed that no Arkansas legislator cared to intervene when I was "canceled." Don't I know it. The same can be said for organizations from the AAUP and ACLU to FIRE and the National Association of Scholars. Crickets for an embattled professor in flyover country. Again, this is not what I was thinking about when I talked with Earley, but it does bolster my point about accountability.
Kimbrough mentioned that I dropped that Arkansas lawsuit. He might have added that I received, as Jaschik reported (same article), a complete exoneration of any wrongdoing by the law school in Little Rock—which is what I had asked for all along.
Some people have asked me privately, don't I feel bad for Emily Suski?
Of course I do. Everyone should. She was a victim in all of this. Yes, the law school's offer letter did say the offer was contingent on university approval. But offer letters contain all kinds of boilerplate qualifiers. For all intents and purposes, Suski was instructed, publicly, to pack her bags. And then she had the rug pulled out from under her.
But while we feel bad for her, let's also place blame where it belongs. That's not just with politically motivated legislators, but with leaders in public academic institutions, who have long acted with impunity, abusing legislative deference and elevating their own agendas and preferences above their responsibility to the taxpayer.
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