Friday, September 14, 2007

Thoughts From A Former Anteater on the Chemerinsky Debacle

Updated as of 9/15/07, 11:00/1:00/2:00 in "News Sources" and "Blog Commentary"

(This post is ironic considering how much effort I've put into being ambiguous about the schools I've attended and where I'm from. But now you know which school is Suburban State University, and that my home state is California--not just Sunny Desert State. And I spent the first 21 years of my life in Orange County. I am a native daughter and alumna, and feel that I am duty-bound to offer my thoughts.)

Brief Recap:

Prominent constitutional scholar Erwin Chemerinsky (Duke) was hired to be the inaugural dean of the new law school at UC Irvine. UCI had been campaigning to be the site of a new public law school in Southern California for the last decade (it was in competition with UC Riverside). Currently, there are three public law schools in Northern California (Hastings, Davis, Boalt Hall at Berkeley) and only one in Southern California (UCLA). Despite a negative vote by the UC Regents last year, UCI has pressed ahead with the plan to open a new law school, funded in large part by a $20 million donation from local real estate developer Donald Bren.

UCI began a nationwide search for an inaugural dean, and Chemerinsky was one of the finalists--and up till this week, the chosen candidate. However, within a week of hiring him, Chancellor Michael Drake of UCI flew to North Carolina to personally inform Prof. Chemerinsky that UCI would have to rescind the offer. The reasons for this revocation is disputed; Prof. Chemerinsky asserts that Chancellor Drake explained to him that due to his liberal views, Prof. Chemerinsky would be a "lightning rod" for criticism by conservatives. Chancellor Drake disputes this account. Many academics speculate that politcs, particularly the political pressure exerted by Donald Bren, is really the reason for the revocation of the offer.

I attended UC Irvine for my undergraduate degrees in English Literature and Political Science, graduating in 2002. Initially, I was going to write a detached blog post about the Chemerinsky Debacle without admitting my own affiliation with UCI--but that appeared to me to be cowardly and disingenuous. As an alumna, it can be argued that I have the responsibility to either defend my institution to the death, or else lead the charge in its criticism (I choose the latter). And after consulting with a trusted group of academic mentors and friends, I think I can admit to this without compromising my pseudonymity (which is compromised all the time by the fact that I come out to any friendly type who asks). And I shall endeavor to write about this in a judicious manner while offering my own personal experiences and insights.

But first, a massive link round up of some of the best commentary on the Chemerinsky Debacle. I am going to excerpt the news articles and blog posts to help with the vast amount of reading:


Chancellor Michael Drake's Second Statement, 9/18/07:

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.

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.

My decision was absolutely not based on Professor Chemerinsky’s political views; they are, in fact, quite similar to my own. Nor was this a matter of “academic freedom.”

Open Letter to Chancellor Drake

We find deeply disturbing the many reports now circulating regarding the hiring and “firing” of Erwin Chemerinsky as the founding Dean of the UC Irvine Law School because he is too “politically controversial”, and not least regarding your role in this unfortunate debacle. 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 expertise, leadership capacity, and personal integrity. By your own admission, Professor Chemerinsky exhibits all of these qualities in very considerable measure, which is why you sought to hire him in the first instance. Thus to withdraw the offer even after it has been formally accepted confirms that it is for reasons that should play no role whatsoever in the process, as even self-professed conservative deans of law schools have been quick to point out.

But perhaps above all we are deeply concerned that, if the reports are true, as our institutional and intellectual leader, and as our representative, you have failed to defend the integrity of the university, its recruitment process, and the sanctity of academic freedom you have given voice to supporting in the past. We have no idea what pressure you came under from those promising to support the university financially or politically, but we have heard nothing of your public undertaking to stand up for the intellectual independence of the university, its hiring processes which weren’t allowed as a consequence to run their course, of academic integrity and of the principle of reasonable independence. It is this that disturbs us most deeply.



LA Times: UCI reportedly working on a deal to rehire Chemerinsky

UC Irvine officials on Friday were attempting to broker a deal to once again hire liberal scholar Erwin Chemerinsky as dean of its fledging law school, just three days after its chancellor set off a national furor by dumping him.

An agreement would be an extraordinary development after Chemerinsky contended this week that Drake succumbed to political pressure from conservatives and sacked him because of his outspoken liberal positions. The flap threatened to derail the 2009 opening of the law school and prompted some calls for Drake's resignation.

Also Friday, details emerged about the criticism of Chemerinsky that the university received in the days before Drake rescinded the job offer, including from California Chief Justice Ronald M. George, who criticized Chemerinsky's grasp of death penalty appeals. Also, a group of prominent Orange County Republicans and Los Angeles County Supervisor Mike Antonovich wanted to derail the appointment.

LA Times:

The decision to drop Erwin Chemerinsky as dean could delay the 2009 opening. In the wake of the turmoil, some faculty members have called for Chancellor Michael V. Drake's resignation.

The Wall Street Journal

Chemerinsky, who was slated to begin at Irvine next summer, said the chancellor “said he hadn’t expected that I would be such a target for conservatives, a lightning rod. It’s clear that significant opposition developed,” including, Chemerinsky added, from certain members of the Regents of the University of California. The chancellor told him that even if regents ended up approving the appointment, it would be after a “bloody battle,” and damaging the law school.

“I’ve been a liberal law professor for 28 years,” Chemerinsky said. “I write lots of op-eds and articles, I argue high-profile cases, and I expected there would be some concern about me. My hope was that I’d address it by making the law school open to all viewpoints

The Los Angeles Times

Drake disagreed with the account. "No one said we can't hire him," he said. "No one said don't take this to the regents. I consulted with no regents about this. I told a couple people that I was worried and that this might be controversial, but no one called me and said I should do anything."

LA Times Op-Ed Columnist Dana Parsons

Orange County is obviously conservative political territory. And UCI, like most universities, longs for a sustainable base of financial donors to keep it moving forward. Did a deep-pocketed cadre of conservative donors put the heat on Drake to rescind the offer?

Or did the impetus for the Dump Chemerinsky movement originate with the UC system's Board of Regents, which would have to approve the contract?And, if either speculation is correct -- and Drake didn't simply change his mind, as he says -- why didn't Drake stand his ground and fight for Chemerinsky?

You may think I'm avoiding the obvious, but I'm not: Yes, I know conservative Orange County businessman Donald Bren has pledged $20 million to the new law school and will have his name on it.Is Bren the heavy? Did he learn of Chemerinsky's hire and throw a billion-dollar fit?

Could be, but it's almost inconceivable to me that UCI would offer Chemerinsky -- or anyone -- the job without, if only as a courtesy, telling the man the school is named after. That just doesn't make sense, and unless I'm hopelessly naive about such things, that means Bren would have had time to indicate his displeasure -- if, in fact, he would have had any -- before Chemerinsky had a contract to sign.

Orange County Register (local paper)

Yet as early as Aug. 29, Republican political consultant Matt Cunningham said he received a forwarded e-mail in which Los Angeles County Supervisor Mike Antonovich asked fellow Republicans how Chemerinsky's appointment could be stopped.

Attorney Scott Baugh, chairman of the county GOP, said Chemerinsky shouldn't have been picked in the first place.“It's not because he's a liberal,” Baugh said. “It's because he's polarizing. You wouldn't hire Jerry Falwell to be the dean of religious studies at Berkeley.”

In UCI's case, many Republicans in Orange County were shaking their heads.“He's exemplary. He's a marquee name,” said Irvine attorney Michael Capaldi, former president of the venerable GOP Lincoln Club and a former Chemerinsky student. “Every attorney I know – Republican or Democrat – thinks this is silly.”Republican attorney Jim Lacy, a former Dana Point councilman, called the firing “sad,” noting that Pepperdine University's law dean is conservative hero Ken Starr.


Brian Leiter:

UCI Fiasco, Part 1: "UCI has disgraced itself."

UCI Fiasco, Part 2: " 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."

UCI Fiasco, Part 3: "One fears Chancellor Drake may not be long for his own administrative post at this point. In order to recruit a credible Dean candidate, the University will have to at least give the appearance of independence and being able to stand up to political pressure, and it is no longer clear the current Chancellor can do that."

UCI Fiasco, Part 4: "Given the facts that are now coming out--which make clear that the Chancellor (his increasingly incredible protestations to the contrary notwithstanding) caved into the most venal kind of political pressure from partisan hacks outside the university--it's getting hard to see why anyone would want this job."

The Volokh Conspiracy:

Ilya Somin: "Indeed, UC Irvine's decision to rescind the offer is likely to do far more harm to the school's reputation than hiring him ever could have. "

Jonathan Adler: (quoting Prof. Douglas Kmiec): "I will continue to believe that the law has its own place above politics, but Erwin's dismissal surely makes that belief harder to sustain. UC Irvine's inability to keep politics out of its decision-making will make things difficult for the new law school. It will become more difficult to recruit new faculty and to attract the respect that the school would have so easily acquired by giving the deanship to Erwin -- and which it so tragically forfeited by its casual, and all too last-minute, withdrawal of the offer."

Eugene Volokh: (on whether issues of academic freedom are implicated in the hirding of an adminstrative dean, as opposed to scholar): "Naturally, some decanal hiring decisions may still be too narrow-minded, or otherwise foolish. And, as I've said, the way the decisions are made and publicized may well be extraordinarily counterproductive, as they seem to have been here. But the First Amendment and academic freedom standards for them must be vastly different than the standards for hiring professors."

Ilya Somin, #2: "Like Eugene Volokh, I believe that ideology can sometimes play a legitimate role in assessing candidates for deanships. A school can legitimately refuse to hire a dean whose ideology prevents him from enforcing administrative policies he disagrees with or does serious damage to the school's image. However, there is no reason to believe that Chemerinsky's fairly typical liberalism falls into that category. Indeed, Chancellor Drake says in his statement that Chemerinsky's views are similar to his own. "

Eugene Volokh, #2: (on whether not hiring Chemerinsky based on his being politically controversial violates article 9, § 9 of the California Constitution): " Can it really be the case that a university can't consider (and in some instances try to avoid) possible political controversy in making such decisions? As to the selection and retention of faculty and students, the First Amendment and academic freedom principles should indeed preclude such considerations. The question is what should be done in other contexts, such as choosing whom to invite to give a lecture to donors, whom to appoint as a fundraiser, and the like."

Eugene Volokh, #3: (regarding whether California Employers may avoid political controversial employees): "it's possible that a California state statute nonetheless prohibits this. In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer's customers, donors, employees, or others."

Stuart Benjamin: (trying to figure out why UCI did this): "3) Willful Self-Destruction: This one is less obvious. Suppose you were a Regent, or some other powerful person in California, and you strongly opposed creating another publicly funded law school but knew that it was moving forward. What would you do? You might try to inflict maximum damage on the law school before it even started, in the hope that this would so harm the school's prospects that it would never open. And I can't think of a better, realistic way of sabotaging the new law school than this one. Yes, I can imagine better unrealistic ways, but in terms of things that could ever happen, this one is an amazing carom shot. In one fell swoop, UC Irvine has lost the best Dean candidate it's going to find, made itself look incompetent and/or cowardly, and made it unlikely that anyone of merit will want to be a Dean or even a professor there (unless they change their minds and offer Erwin the Deanship after all). "

Workplace Prof Blog:

Paul Secunda: (discussing whether ot not this implicates First Amendment issues under the Connick/Pickering Test): "I actually think this is a hiring case, rather than a firing case, because although Erwin signed an employment agreement with Irvine, it was apparently contingent on the Board of Regents signing off on it...So I think for these purposes, his "firing" can be treated as a "failure to hire" case. In all, it appears that Erwin, who probably knows better than I do, has a viable First Amendment retaliation claim for its failure to hire him based on passed expression on matters of public concern. Of course, this is just a legal analysis and there are many reasons why Erwin may choose not to pursue this course."

Black Law Profs:

Prof. Trina Jones, Duke Law: "The law school at UCI was to be devoted to the public interest. Yet, Chancellor Drake rejected a candidate with a lifetime of demonstrated commitment to serving the public. It appears the Chancellor acted out of fear - a fear that the appointment of someone with Chemerinsky's record, someone with stated and expressed views, would stir up too much debate, stimulate too much dialogue, and incite too many people to action. In other words, he seems to have feared that UCI law school, from its inception, would do precisely what academic institutions are supposed to do - encourage us to think critically and to engage in robust and spirited debate. "


Sam Kamin: "That's really, really bad for UCI. First, Erwin's views, while on the left, are pretty solidly within the mainstream. Second, did they not know his politics before they hired him? No one thought to Google him? Third, if you open your law school by making it clear that you will allow your donors to dictate the political views of your dean, good luck finding qualified candidates of any political stripe willing to take the job."

Professor Bainbridge (UCLA Law):

"To be sure, hiring and firing a Dean is different than hiring or firing a professor. As a school's chief administrator and fundraiser, the Dean must be able to work with people of all political persuasions. Given how important fundraising is in the modern job description of law school deans, an ability to work well with donors is essential. The new UC Irvine law school will be smack in the middle of Orange County, which is less of a conservative bastion than it once was, but since a new law school will have no alumni to tap for funds, the UC Irvine Dean will have to attract money from local boosters, who are still mostly GOP-leaning real estate barons. So Chemerinksy always struck me as an odd choice. But, shouldn't they have figured that out before signing him to a contract? "

UCI Grad Student Bloggers:

Scott Eric Kaufman:

"I'm a graduate student.

Do you really think I'll be able to do anything about it? I could lodge a complaint. I could get those conservatives who listen to me to write something about how they wouldn't have opposed Chemerinsky's appointment because he had sought to create an ideologically diverse department.


I'm a graduate student. Do you really think anyone in administration will listen to me?"


"I’m not advocating that we protest whenever a conservative gets hired to an academic position; I’ve known a number of intelligent and professional center-right professors who would be good on any faculty, and I teach conservative thinkers who I respect. But at minimum we have to reject attempts to dislodge qualified employees because they hold left-wing views. (Think about what I just wrote; is it 1947?) So to answer Scott Kaufman’s post (linked above): yes, write a complaint. Write complaints to everyone involved. Tell everyone you know to write a complaint. Get UCI—or whomever—to realize that the outrage it provokes from, horror of horrors, hiring liberal employees is nothing compared to the outrage it provokes from firing them out of fear before they’ve even stepped in the door."

My Own ("Belle Lettre") Thoughts:

I can't really add much to the above other than my own experiences living in Orange County for 21 years, and having personal knowledge and perspective on UC Irvine's academic and institutional culture.

UC Irvine was founded in 1965 as a part of UC President Clark Kerr's California Master Plan for Education. The Plan is something I believe in fervently: that everyone, regardless of economic means, should be able to have access to quality higher education. It was in the spirit of democratizing higher education that UCI, and its sister campus, UC Santa Cruz, were born. The ten UC Campuses--Berkeley (1868), San Francisco (1873), Davis (1905), Los Angeles (1919), Riverside (1954), Santa Barbara (1958), San Diego (1959), Irvine (1965), Santa Cruz (1965), Merced (2005) are famous across the nation, and to a certain extent internationally, for offering quality education at good value (this has changed with recent budget crises). For most California residents, an education at any of the above institutions is an excellent deal.

UCI is the 5th best school in the UC system, after Berkeley, Los Angeles, San Diego, and Davis. I chose to attend this school, rather than other higher ranked schools (I was admitted to Berkeley, UCLA, San Diego, and selective liberal arts schools) for a variety of personal reasons: I grew up poor and could not turn down the full scholarship; and family care reasons compelled me to live at home with my parents in a neighboring city and commute only 8 miles to school, saving on living expenses and allowing me to help out at home. And so I've never regretted the decision to attend UCI instead of the other ("better") schools--until now.

It is the number one critical theory program in the nation. As an English literature major, I was happy to take classes in Krieger Hall (named after Murray Krieger) and knew that the department was much shaped by Yale deconstructivist J. Hillis Miller. I lurked in the back of graduate classes taught by the late Jacques Derrida. Slavoj Zizek has taught at UCI. I say this to communicate that UCI is not exactly the most conservative school in the country in terms of its curricula. Perhaps no one takes postmodern deconstructionist theory as a credible threat to conservatism, but I never really thought of my education there as being controlled by conservative politics. I might reconsider that belief now. But during my years there, I thought that UCI was like any other "liberal" institution of higher education--particularly in the context of the liberal state of California and the liberal UC system. During my time at UCI, ethnic-studies majors such as Asian American Studies, African American Studies were added to the undergraduate division. I took classes from the Women's Studies department. UCI's academics, if anything, would appear to tilt left--just like most schools in California.

Indeed, if anything, UCI suffers more from collective apathy than conservatism. But that doesn't mean that there aren't those at the campus who weren't politically active (and indeed, in recent years I believe that political activity has increased, particularly the anti-war movement). I was a campus activist. I was an editor of the campus feminist newspaper, and volunteered for the Center for Women and Gender Education. We often collaborated with the Cross-Cultural Center and the LGBT Center to give informative talks, sponsor Take Back the Night vigils, and organize protests. During my college years, hot topics included Prop 209 (repealing affirmative action); SP-1 and SP-2 (UC Regents initiatives barring any use of race, gender, national origin or religion in admission considerations); the Knight Amendment (to bar recognition of homosexual marriages); and the unionization of graduate student teachers in the UC system.

However, the active left at UCI does run up against the consesrvative admnistration--but by "conservative," I mean generally stodgy and penny-pinching, like most adminstrations are. In my junior year of college, the administration wanted to shut down the Center for Women and Gender Education. I had by this time spent two years volunteering there, believing in the Center's mission to educate the campus community on gender issues and provide resources such as rape crisis counseling and sexual health information. My co-volunteers and I used our feminist newspaper as a platform to decry the administrative shortsightedness; that in their quest to trim the budget they were threatening to cut out a vital service to the university. We passed around petitions. We staged protests. We used our campus radio show to get out the word. In the end, we were successful. The Center was kept. But then it was renamed "The Center for Women and Men," a move that pissed me off--after all of our work, our efforts to claim a separate, safe space on campus for women's issues was for naught. They might as well have named it "The Center for Everybody but Transsexuals and Hermaphrodites."

This episode to me is emblematic of the institutional and academic culture of UC Irvine. While the curricula, faculty and student body of UCI generally tilts left, they're often constrained by the generally conservative, apathetic environment. Again, by "conservative," I mean "excessively restrained" and "over-cautious." Change is glacially slow, and activists and innovators engage in uphill battles ending in Pyhrric victories. Protests are as much preaching to the converted as they are preaching to the deaf. Even if there is some victory (keeping the Center; unionizing the TAs) such victories are always constrained by institutional recalcitrance to change (or else very much muted, as was the case with the Center). But I don't think the administration is draconian or influenced by the extreme right. But now UCI definitely gives that impression, and that is very unfortunate.

UCI is situated in Orange County, where I was born and bred. Orange County is generally characterized more by its fiscal conservatism than its social conservatism, despite the proximity of Rick Warren's Saddleback Ministry and the annual Harvest Crusade. Everyone votes with their wallet, but most express generally libertarian views rather than socially conservative ones. The local newspaper, The Orange County Register, is a terrible paper--because of its bad reporting and writing, not because of its excessive libertarian tilt due to the fact that it's owned by Freedom Communications, a libertarian outfit. Even though Orange County is a big Red dot in the middle of a Blue state, it's not so far out to the right as the recent coverage would depict. Yes, Orange County votes Republican--but if any of the candidates expressed strong conservative views regarding abortion, I doubt they'd find as many constituents.

Chemerinsky appears to me to fall within the mainstream of the political spectrum--to the left bank, to be sure, but not extremely outside of it. That he is against the death penalty is not to me sufficiently radical (in fact, I think it commendable). That he is generally in favor of a strong, central federal government and is generally left on social welfare issues does not make him a Communist, even by Orange County libertarian standards. I do not say this to criticize Libertarians, or their prevalance in Orange County--I say this to situate Orange County in the political spectrum, and to argue that Chemerinsky's dismissal as a "polarizing" "lightning rod" for conservative backlash is wholly insupportable. I can't believe the idiocy of denying such a prominent, respected scholar the deanship of California's first public law school in 40 years.

In the wake of yet another scandal, one that hits to the heart of my fundamental beliefs in academic freedom and excellent-but-accessible higher education, I am ashamed of my school. Despite its past scandals involving frozen embryos and donated organs, I have not felt so embarassed about my school until now. I have spent the last five years speaking nostalgically and admiringly of my school, and how even though it was the lowest ranked school to which I gained admission, I was grateful for the quality of education I obtained. I started attending UCI in high school, when I was lucky enough to get admitted to the University Program for High School Scholars--a few students at my high school were selected to take college courses (lower or upper division) for credit. While at UCI, I crafted my own liberal arts program by enrolling in two separate honors programs, each culminating in a senior thesis. I took advantage of every opportunity at UCI: the Campuswide Honors Program, the Undergraduate Research Opportunity Program (which gave me a President's fellowship), the Scholarship Opportunities Program. I have never had reason to complain about the excellency of my instructors or the quality of my peers. My education there is instrumental to my belief in public education--that one may indeed obtain an excellent education at a state university, and that by subsidizing and democratizing higher education we as a community, state, and nation benefit.

But in the wake of this scandalous, cowardly failure to hire Professor Chemerinsky, ostensibly due to his political beliefs, I am embarassed for my school. I am unhappy that my school is so shortsighted that it has compromised its own commitment to excellence and academic freedom. I am unhappy that it has allowed politics to infect the selection process for the steward of a new law school that was to be devoted to public service and public education. As an alumna of UC Irvine, I am signing the petition to the Chancellor.

I sign the petition as an alumna of UC Irvine; a native daughter of Orange County and the community UCI Law intends to serve; and an aspiring academic who believes in the potential for excellence in public education and academic freedom. I do not believe that the goals of excellence or freedom are being served by the failure to hire Professor Chemerinsky, whose credentials and stature are beyond doubt. I write this post in protest, and hope you all will join the chorus of voices against this terrible decision.