Erwin Chemerinsky: Dumped over an Op-Ed Erwin Chemerinsky, unhired as UC Irvine's founding law school dean, says his ordeal is a lesson in academic freedom. By Erwin Chemerinsky September 14, 2007 http://www.latimes.com/news/opinion/la-oe-chemerinsky14sep14,0,1499542.story?coll=la-opinion-rightrail
After so many years of commenting on the news, it is strange to be the news. But, in a sense, this story isn't really about me, it's about academic freedom in our deeply polarized times. As has been widely reported, on Aug. 16 I was asked to be the founding dean of the new law school at the University of California at Irvine. After a couple of weeks of negotiations, I formally accepted the position and signed a contract on Sept. 4. It always was understood that the job was contingent on approval of the University of California Board of Regents, and it was to be on the agenda for the regents' meetings on Sept. 18-20. I was tremendously excited about the possibility of being part of starting a new law school at an excellent university. On Tuesday, Sept. 11, however, the chancellor at UC Irvine, Michael V. Drake, withdrew the offer. He told me that I had proved to be "too politically controversial." Those, by the way, were the exact words that he said I could use to describe the reason for the decision. He told me that he had not expected the extent of opposition that would develop. What was it about my views that was too controversial? Only one example was mentioned: an Op-Ed article I wrote on these pages criticizing a proposed regulation by then-Atty. Gen. Alberto R. Gonzales to shorten the time death row prisoners have to file their habeas corpus petitions. There are more than 275 individuals on death row in California without lawyers for their post-conviction proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court. The Op-Ed article was written and published before I was offered the position as dean. More important, the whole point of academic freedom is that professors -- and, yes, even deans -- should be able to speak out on important issues. It would never have occurred to me that arguing against a proposed federal regulation on behalf of those on death row would be deemed objectionable. On the ideological spectrum, it is not radical. Some people, in speaking to me, have compared this to McCarthyism, but in an important way that analogy is not apt. I did not lose my job. I am a tenured law professor at a terrific university, and I can continue to teach and write and handle legal appeals, as I have for the last 28 years. I have received nothing but support over this from my university president, provost, dean and colleagues. During the McCarthy era, some faculty members lost their jobs for what they wrote and said. A key lesson learned from those tragic times is that academic freedom matters. Tenure has many costs, but it exists so that academics will feel free to express themselves without fear of reprisal. It is based on the idea that everyone benefits from the free exchange of ideas. Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost. This is not a liberal or conservative proposition. I said to Chancellor Drake that if I were conservative and my appointment had been blocked by liberals, the right would be justifiably outraged that "political correctness" had done me in. The truth is that a person's politics should play no role in the decision to hire them for a faculty or administrative position. All that matters is that the individual be committed to creating an institution where all viewpoints will be respected and flourish. That is what academic freedom is all about. My concern is that the message from this episode, especially for my more junior colleagues who may aspire to be deans someday or, for that matter, judges, is that if you speak out -- liberal or conservative -- you may lose your chance at a position that you really want. That's why I decided to answer questions about what happened and to accept the invitation to write this article. Chancellor Drake initially asked that I simply say that we had mutually agreed to end my prospective deanship. I refused and said that all I wanted was that the truth be told. We live in such ideologically polarized times. It is important for those on both sides of the ideological spectrum to realize that their common commitment to academic freedom is far more important than blocking a particular faculty or dean candidate based on ideology. What now? I have enormous fondness for the many wonderful people I met at UC Irvine, and I hope they find a terrific dean and create a great law school -- a school that, like all schools, should be committed to a rich diversity of ideas and views. ------------------- Erwin Chemerinsky is a professor of law and political science at Duke University. 22222222222222222222222222222222222222222222222222222 ***************************************************** Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom Marjorie Cohn http://jurist.law.pitt.edu/forumy/2007/09/erwin-chemerinsky-and-post-911-attack.php JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says that the rejection of Duke law professor Erwin Chemerinsky by the administration of the University of California at Irvine as the new dean of its law school because he is "too politically controversial" is the latest chapter in the post- September 11 attack on US academic freedom under the guise of protecting security ---------------------------- One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Professor Chemerinsky he had proved to be "too politically controversial." Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of "the top 20 legal thinkers in America." This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokesman Ari Fleischer cautioned Americans "they need to watch what they say, watch what they do." The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it included the names of 117 "un-American" professors, students and staff members. A few months later, a blacklisting Internet cite called Campus Watch was launched. It publishes dossiers on scholars who criticize U.S. Middle East policy and Israel's treatment of the Palestinians. Earlier this year, the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors. In 2003, the American Association of University Professors recalled the "still-vivid memories of the McCarthy era" and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that "freedom of inquiry and the open exchange of ideas are crucial to the nation's security, and that the nation's security and, ultimately, its well-being are damaged by practices that discourage or impair freedom." At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, "Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of 11 September 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled." Art. 9, ç 9 of the California Constitution, which sets forth the powers and duties of the Regents of the University of California, provides, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs." Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake told the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity. Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California's three strikes law; and a person challenging the Texas Ten Commandments monument. UCI's November 16, 2006 press release announcing the inauguration of the new law school said, "UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities." Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000. Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, "Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client." David Dow, Adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, "I can't imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he's been." Dow's words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky "the nicest person in legal education." Conservative law professor Douglas Kmiec wrote of Chemerinsky, "there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal." One of the "controversial" matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, "There are more than 275 individuals on death row in California without lawyers for their post- convictions proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court." Drake's action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, "Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost." Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, "We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one- sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity." Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School. --------------- Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her articles are archived at http://www.marjoriecohn.com/ September 15, 2007 _____________________________________________ Portside aims to provide material of interest to people on the left that will help them to interpret the world and to change it. 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