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Brian Leiter
University of Chicago Law School

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Friday, September 14, 2007

The Irvine Law School Fiasco, Part II

Confronted with a public relations fiasco of the magnitude of "L'Affaire Chemerinsky," administrators have only a few choices:  they can offer a mea culpa, or they can come clean and defend themselves, or they can deny everything.  The UC Irvine Chancellor, Michael Drake, has now issued a new statement adopting the last strategy:

Last week, we made an offer to Duke Professor Erwin Chemerinsky, an eminent academician, legal scholar and commentator. The offer was contingent on approval of the UC Regents, which we expected next week.

I subsequently made the very difficult decision that Professor Chemerinsky was not the right fit for the dean’s position at UC Irvine. I informed him on Sept. 11 that we were rescinding our offer and continuing the recruitment process. This matter has been the subject of extensive media coverage over the last 24 hours, much of which has been characterized by conjecture and hearsay [ed.-emphasis added].

I made a management decision--not an ideological, political or personal one--to rescind Professor Chemerinsky's offer. The decision was mine and mine alone. It was not based on donor pressure or political pressure; it was based on a culmination of discussions--over a period of time--that convinced me we could not effectively partner to build a world-class law school at UC Irvine. That is my overarching priority.

Chancellor Drake's new statement now directly contradicts portions of Professor Chemerinsky's version of events:

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 [ed.-Los Angeles Times] 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.... On the ideological spectrum, it is not radical.

Professor Chemerinsky's statement about what Chancellor Drake told him were the reasons for rescission of the offer is actually (under the Federal Rules of Evidence) "not hearsay," but putting that to one side, the simple fact is that some reports of what others said or did are a lot more reliable than others, and it is quite reasonable to draw an inference about what transpired from an eyewitness report of what transpired.  Professor Chemerinsky, to be sure, is an interested party, and so there is no reason we should treat his account as the gospel, but here is where we enter the realm of what the Chancellor disparagingly calls "conjecture," and what in the real world we do all the time:  namely, make inferences to the best explanation for the evidence we have.  Why would Professor Chemerinsky report that the Chancellor told him his appointment would be too "politically controversial" if that isn't what the Chancellor said?  And why would the Chancellor say that if that wasn't, in fact, the reason for taking the highly unusual step of rescinding an offer a week after it was finalized?

Enter, then, the Berkeley Law Dean Christopher Edley, who now has the perhaps ignominious distinction of being, to the best of my knowledge, the only academic in the world to have come to the public defense of the Irvine Chancellor:

Christopher Edley Jr., dean of University of California, Berkeley's Boalt Hall School of Law who has been involved with the new law school -- and was handpicked by Chemerinsky to serve on his advisory board -- said it wasn't about Chemerinsky's "political leanings or ideology, which everyone knew" about.

"I think key people lost confidence that he would be willing to shed his high personal public profile in the service of the law school -- whether that was the right or wrong conclusion," Edley said, though he declined to identify the individuals who opposed Chemerinsky.

Edley continued: "At the end of the day, the chancellor had to have confidence that Erwin would be able to earn the trust, loyalty and investment of a diverse constituency, and for a startup venture that's an exceptionally delicate proposition."

The process of recruiting a Dean goes on over many, many, many months:  what in the world could have happened in the one week between the signing of the contract and the rescission of the offer that would have, all of a sudden, caused "key people" to lose "confidence," to worry that "a diverse constituency" (including, among others, powerful conservatives and rich donors--hence the "investment" I guess!) would not "trust" or maintain "loyalty" to the new enterprise?   A benign interpretation of Dean Edley's comments would make some sense if it had been offered as an explanation for why, e.g., an offer was not made on August 16, or why a contract was not forwarded to Chemerinsky to sign.  But it strains credulity as an explanation for why after months and months of a search, Chemerinsky was suddendly dumped after signing a contract proferred by the University.

But there is a less benign interpretation of Dean Edley's comments that render them consistent with Professor Chemerinsky's version of events:  "key people lost confidence" means that powerful political and monied interests behind the scenes finally registered what Irvine was about to do once it was put on the agenda for the Board of Regents and objected to such a highly visible liberal running the new law school.   That is a "conjecture":  it is also a reasonable inference to the best explanation for the peculiar timing of the events.

When I was on Southern California Public Radio yesterday, I learned that a spokesman for Donald Bren (the billionaire real estate developer who endowed the Law School) has denied that Mr. Bren had any involvement in this decision.  That may well be true--conjecture about Mr. Bren's involvement involves much shakier inferences from the evidence than does the conclusion that the University caved in to political pressure from the right.  Although I do not have great confidence in my ability to get "inside the mind" of billionaires who drop twenty million dollar gifts on schools, I would imagine that if one commits resources to a venture bearing your name, you want it to succeed, not fail, as the new Donald Bren School of Law at the University of California at Irvine now seems almost certain to do.  So it may well be that conjecture aimed at Mr. Bren is ill-placed here.  The "conjecture" that still seems rationally warranted on all the evidence, however, is that the University of California at Irvine caved into political pressure, and has now foregone any chance of hiring a credible Dean for the new law school.  What a shame.

UPDATE:  Some UC Irvine faculty have written a very apt "open letter" to the Chancellor about this fiasco.

ONE MORE:  The UC Irvine Administration can not be happy that The New York Times is now editorializing about their Dean search fiasco:

A law school would be mighty fortunate to have Erwin Chemerinsky, a distinguished Duke Law School professor, as its dean. The University of California, Irvine, realized this when it asked him to head up its new law school. This week, however, it rescinded the offer, evidently because of his political views. It’s a disgraceful decision. The University of California system should admit its mistake and, with apologies, extend the offer again.

I share The NY Times's view about the remedy here, though they do get a bit carried away with the claim that "a law school would be mighty fortunate to have Erwin Chemerinsky...as its dean."  There's no doubt that it would have been a huge coup for a brand new law school to have a high-profile legal scholar at the helm.  But Chemerinsky's own law school, Duke, did not choose him as its Dean, no doubt for the obvious reason that not every well-known legal scholar is the right fit for every Deanship.  That is not at issue here, of course, since Irvine did choose him before unchoosing him in the face of apparent political pressures.

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