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A good friend of FIREwrote in response to my post regarding Timothy “Moral Retards” Shortell. In that post, I noted that department chairs, as administrators, do not have the same level of freedom to offer public comments as do professors. I also noted that because Shortell’s comments involved an entire class of people covered by employment discrimination statutes, he now is an enormous liability risk to his university. Qualified individuals of religious faith who are denied employment at CUNY Brooklyn’s sociology department now have powerful evidence of religious animus.

Our FIREfriend writes:

I am hard pressed to follow Mr. French’s logic when he suggests that a scholar who declares, as a philosophical matter, that religion is morally bankrupt is perforce unift to serve as a department chairman. It is no great stretch to extend that argument to conclude that people with fervent religious views are likewise unfit to serve in such a role. After all, if a devout professor is on record as deploring atheism and unbelief as evidence of unredeemed depravity, how can that person deal fairly with non-believers subject in some manner to his judgement? Indeed, how could an enthusiastic Evangelical (for instance) deal equitably with Mormons or Catholilcs when heis certain that they are bound for hell? If a school is sure to be on the losing end of any lawsuit brought by a believer on the grounds that a professed atheist department chairman was his nemesis, then symmetry demands he recognize that it would be in the same boat if an atheist grievant blamed a pious Moslem for his troubles.

But, in fact, granting that chairmen are in some important sense university officials and thus subject to removal from office for reasons that would never justify sanctions against a mere faculty member (or against the chairman qua faculty member), we are still a long way from the conclusions French draws. In a legal action such as he imagines, one would at least hope that facts have some relevance to the outcome. And the only really relevant fact is whether the aggrieved individual was or was not given a fair shake. ��֭����, of all organizations, should recognize that scholars are capable of holding a view to be wildly erroneous without feeling impelled to implement sanctions against scholars who happen to hold that view. This certainly applies to department chairmen.

In fact, given the practice of many academic departments to rotate the chairmanship amongst senior members, with the expectation that everyone will sooner or later take a shot at that unwelcome task, barring vehement atheists (or vehement religionists) from chairmanships would be tantamount to crippling their scholarly careers on the basis of their views on these matters. Is that what FIREmeans to endorse?

First, I think the reader is mischaracterizing Professor Shortell’s statements. He did more than simply say that “religion is morally bankrupt.” He declared religious individuals to be “incapable of moral action,” like “children.” He also said that religious individuals are “moral retards.” In other words, instead of an abstract argument regarding religious principles, he made a concrete argument regarding the moral development of an entire class of individuals. It is this distinction that places his comments squarely within the sphere of employment discrimination law.

As with so many legal issues, the discussion depends on context and, for lack of a better term, severity. For example, there is a difference between a person believing there is no God (and by implication, of course, believing that religious individuals are, at best, mistaken) and that person expressing a view that believers are “children.” There is a difference between holding traditional Christian beliefs (which conceive of a heaven and hell) and stating that any person of differing faith is a “retard.” At some level, we all disagree with one another, and the law has never held that mere disagreement can constitute evidence of discrimination. There has to be something more.

While the lines can often be blurry (one need only practice employment law for a short time to be immersed in ambiguity and doubt), Shortell’s comments are not even close to that—admittedly blurry—line. They are akin to a hiring partner at a law firm writing publicly about the grave moral deficiencies of all blacks or Mexicans. Unquestionably, that partner has a constitutional right to make such statements. Does he have a right to make such statements and control the hiring practices of a major corporation or state agency? Certainly not.

Imagine the following scenario. You are an attorney representing an African-American client who seems to have qualifications as good as or better than competing job applicants, yet does not receive the job. The client believes that the rejection may be the result of his race, but you are not so sure. Hiring decisions are subjective, after all, and there were other qualified candidates. But then you do more research—and you find an article by the human resources director on a white supremacist website. The HR director of course claims that her personal views have nothing to do with her hiring decisions, but you are not—to put it politely—convinced, so you file the lawsuit.

I am telling you that you win that case—unless there is a clearly established record of minority hiring. Even then, the case is problematic for the company. In general, the corporation will settle—and settle quickly. The corporation (if it has a brain) will then make sure that the white supremacist employee has absolutely no hiring authority.

If Professor Shortell wants to write essays blasting religious individuals as “children” who are “incapable of moral action,” he has that right, and FIREwould defend him from any effort to censor his writings. But there is a difference between Professor Shortell and Chairman Shortell. FIREwill not defend Chairman Shortell. Universities are under no obligation to retain administrators who bring shame to the institution and create enormous liability risks. When Professor Shortell speaks, he speaks as an individual academic—a person who can and (often) should challenge conventional wisdom and orthodoxy. When Chairman Shortell speaks, he speaks as a representative of an entire institution—an institution with its own legal obligations and its own freedom to shape its own public message.

Given this reality, perhaps it is time for universities (and professors) to view department chairmanships not as rotating obligations (or entitlements) but as important positions that require careful screening. Those individuals who wish to pursue an administrative role would behave accordingly. Those who have no interest in administration—well, they could speak as freely as they wish, consistent with the First Amendment and academic freedom.