Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Wednesday, September 12, 2007

New UC Irvine Law School Hires Chemerinsky as Dean, Then Fires Him for Political Reasons

I have all of the following from a reliable source. 

About a week ago, Erwin Chemerinsky, the well-known constitutional law scholar at Duke, signed a contract to be the inaugural Dean of the new law school at the University of California at Irvine.

Yesterday, the Chancellor of the University of Cailfornia at Irvine flew to Durham and fired Chemerinsky, saying that he had not been aware of how Chemerinsky's political views would make him a target for criticism from conservatives.

It is quite amazing that in a purportedly liberal state like California, the Chancellor of a major UC campus has apparently caved into political pressure from conservatives, even though, on the merits, Chemerinsky was a far more prominent scholar than the University had any reason to suppose it would be able to land for a brand new law school. 

It’s fair to say that the future does not look bright for the planned UC Irvine law school. Who will take the job now given this history?

Posted at 10:45 am (CST).

UPDATE:  Some colleagues speculate that Irvine hoped to get more donations from Donald Bren, the real estate developer who endowed the Law School and who is also a major donor to the Republican Party .  Whether Mr. Bren played any role in this is something that perhaps the newspapers which investigate this story may unearth.   Even if financial gain was the motive, the University, I suspect, has miscalculated the costs and benefits of its misconduct, since the reputational damage the school will now incur is likely to be quite substantial.

ANOTHER UPDATE (12:15 PM CST):  The Wall Street Journal has more information, including quotes from Professor Chemerinsky.

AND ANOTHER (2:45 pm CST):  The Los Angeles Times has picked up the story, and added some  details:

Just days after he signed a contract to become the first dean of UC Irvine's new law school, Erwin Chemerinsky was told this week that the deal was off because he was too "politically controversial."

Chemerinsky said in an interview today that UC Irvine Chancellor Michael V. Drake had flown to North Carolina on Tuesday and told him at a hotel near the airport that that he did not realize the extent to which there were "conservatives out to get me...."

Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that the decision "had been difficult for him."

He said that "concerns" had emerged from the UC regents, which would have had to approve the appointment, Chemerinsky said. The professor said Drake told him that he thought there would have been a "bloody battle" among the regents over the appointment.

The chancellor's office said Drake was meeting with the university's communications office and was not immediately available for comment.

John Eastman, a conservative constitutional scholar and dean of Chapman University Law School in Orange, who frequently debates Chemerinsky, called UCI's move "a serious misstep."

4:45 PM CST:  Kevin Gerson, Associate Director of the UCLA Law Library, points out to me that Art. 9, § 9 of the California Constitution, regarding the powers and duties of the Regents of the University of California, provides that, "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." 

ONE MORE (5:15 PM CST):  If one reviews some of the trackbacks to this post (or looks at libertarian law professor Iyla Somin's post about the case), it is absolutely clear that across the political spectrum of the legal academy, the reaction to this news is the same:  UC Irvine has disgraced itself, and it will be hard-pressed to hire any Dean for the new law school at this point.  (As one of my colleagues put it, what self-respecting law professor, let alone one with any scholarly stature, wants to go be an apparatchik answering to unknown political and/or monied interests behind the scenes?)  Irvine's plans to start enrolling law students in 2009 now seems quite unrealistic.  It seems to me there is only one way the University is going to salvage its plan to have an academically respectable law school and to open it this decade:  namely, to reinstate Chemerinsky promptly.  They will only be able to do that, of course, if the Board of Regents makes clear its support.  (A few apologies will probably be necessary too!) 

Meanwhile, the Irvine Chancellor has issued a statement, which appears to be in the familiar administrative mode of "say nothing substantive, pretend everyone doesn't know what really happened, and hope it all just goes away."  It won't.  As Samuel Bagenstos, probably the leading authoritiy on disability law of his generation, at Washington University, St. Louis put it to me in an e-mail (which he gave me permission to quote):   "These guys just declared, before the school opened, that UC Irvine Law will never be a serious academic institution."

HOPEFULLY THE LAST (6:50 PM CST):  Because a couple of folks have asked, I should note that I have never met Professor Chemerinsky, and I think I have had an e-mail exchange with him just once, several years ago.  I have certainly heard very favorable things about him from professional colleagues.  I have also not spoken to him about the events addressed here.  I am sympathetic with many of his public political positions, though I am to his left on some others, and to his right on the remainder.  My personal views of his scholarship are obviously irrelevant here; he is an important contributor to constitutional law scholarship, and it would have been extraordinary for UC Irvine to have landed a legal scholar of his prominence as the inauguaral Dean.  Perhaps UC Irvine will yet clean up this mess of its own making.

9/13 UPDATE (12:30 PM CST):  I am skeptical, as some have claimed, that UC Irvine's bad behavior implicates issues of academic freedom (see my discussion of the Larry Summers case, which also did not implicate academic freedom).  Administrators are, after all, supposed to be devoid of personality, ideas, or opinions that might offend someone (I exaggerate a bit, of course); candidates for Deanships are passed over all the time for this reason, and while one might think it reflects badly on universities and the culture in which they operate, I'm not sure it implicates academic freedom.  Professor Chemerinsky will, after all, continue to produce scholarship and continue to be a tenured professor.  What makes the incident with Irvine so unusual is that, after deciding that Chemerinsky would not be unduly "offensive" as a Dean (going so far, indeed, to present him with a contract that he signed!), the University then reversed itself under circumstances that raise questions about both the independence of the university from external political forces and the judgment and competence of its administration.  This is particularly embarrassing because, in fact, Professor Chemerinsky's public profile was known at the time he was chosen; his public political persona is hardly out of the conventional mainstream in either academic or public life in the United States; and he was so obviously an unusually prominent scholar for a brand new law school to land.  That, nonetheless, the University felt it had to walk away from this opportunity suggests, at best, incompetence and, at worst, something far more nefarious that raises questions about the academic integrity of the institution.

UPDATE 9/14:  More on the latest developments here.

http://leiterlawschool.typepad.com/leiter/2007/09/new-uc-irvine-l.html

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