University of Arkansas Withdraws Offer to Emily Suski Due to an Amicus Brief

A new low. One week after the University of Arkansas announced it had hired University of South Carolina law professor and Associate Dean Emily Suski (below) as the new dean of its law school in Lafayette, it retracted its offer. In mid-January, as Stephanie Saul reports in The New York Times, the offer was withdrawn after the University received “feedback from key external stakeholders.” Associate Dean Suski’s sin? She, along with more than a dozen other legal scholars, signed off on an amicus brief in support of a transgender athlete in a recent Supreme Court case.

The brief was quite moderate, stressing common ground on the facts of the case. The respondent has not undergone male puberty and is undergoing female hormone therapy and thus experiencing female puberty. West Virginia is nonetheless forcing respondent to compete against boys undergoing male puberty. People who are terrified of transgender athletes claim they are protecting girls and promoting fairness in athletics. But if we accept this child’s self-understanding that she is a girl, forcing her to play with boys does not protect her nor does it promote fairness. You may not agree with the position, but it is not so unreasonable as to be disqualifying.

The absurdity of Arkansas’s actions ought to be clear, so let me just share a few bullet points:

• Law school deans do not make policies relating to participation in college athletics;
• Skilled educators are capable of teaching material on which they have a position without denying the plausibility of countervailing arguments;
• Lawyers and legal scholars routinely advocate for positions that have a political valence, and educational opportunities would be curtailed dramatically if people were barred from leadership roles in higher education because they took positions on political issues;
• As far was we know, there is no evidence that Arkansas withdrew its offer to Associate Dean Suski based on anything other than the amicus brief, indicating that the University only imagined harms that might arise from having a Dean who advocated on behalf of a transgender athlete and that its true aim was to stifle expression with which the state disagreed.

The Times quotes an Arkansas state senator who argued that the views represented in the amicus brief are inconsistent with state law. Well, if taking positions at odds with existing law is disqualifying, then any legal scholar or lawyer who advocated for law reform would be disqualified. People who challenge existing gun regulations would be disqualified as would be people who advocate for abortion bans that provide for no exceptions even in cases of rape or incest.

I am on record as thinking that our First Amendment is, as I prosaically put it, “dumb.” The dumb part is that we provide the same protections for trivial speech as we do for core, political speech. Thus a cheerleader who posted a profane rant on Snapchat and breached her promise not to disparage her school or cheerleading was given the same protections as the Tinker children were when they engaged in a silent and dignified protest of the Vietnam War. We lose track of what is really worthy of protection — the speech vital to democratic participation, when we protect all expression equally. The First Amendment protects political speech first and foremost. The University of Arkansas, an instrumentality of the state, withdrew its offer to Associate Dean Suski based on her political speech. Its actions are impermissible, both as a matter of contracts law and as a matter of constitutional law.

The Times reports that Associate Dean Suski was to be paid $350,000 a year for five years. That should make the calculation of damages pretty straightforward. Of course, Associate Dean Suski would have to mitigate by taking on other, similar work, but decanal positions don’t open up all that often. There are only around 200 ABA-accredited law schools in the county, and now it will be hard for her to find work in state schools in red states. It may take some time before she can find the right fit. Or perhaps Arkansas can just align its actions with the rhetoric favoring fee speech that some on the right have championed when supporting purveyors of misinformation and hate speech on the internet.