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Erwin Chemerinsky and the Danger of the Partisan Dance

It’s difficult to get through three years of law school and not hear the name of noted constitutional law scholar Erwin Chemerinsky; if you take the bar exam you’ve likely spent a lot of time listening to him teach (Chemerinsky lectures on constitutional law are a mainstay of what is likely the most popular bar preparation course, BAR/BRI), and if you specialize in constitutional law (like many of my favorite people have), avoiding his work is comparable to walking between the raindrops. Simply put, Erwin Chemerinsky is one of the best-known scholars of American constitutional law. That is why it came as a particular shock that this well-respected professor was fired from his position as the inaugural dean of UC Irvine’s new law school before his tenure there even began. Making matters far worse, it seems that he was fired because the school believed that Chemerinsky’s liberal views would make him a “lightning rod” for conservative critics and donors.
As Professor Chemerinsky explains today in an LA Times op-ed

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.

As he goes on to explain, “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.”
The traditional media and the blogosphere has rightly been abuzz with outrage about this, with too many entries to list. Michael V. Drake, the chancellor of UC Irvine, defends himself today in his own LA Times op-ed, claiming that “My decision was absolutely not based on Professor Chemerinsky’s place on the political spectrum,” and that “The decision was mine and mine alone. It was not based on pressure from donors, politicians or the University of California Board of Regents.” I think Drake is going to find this to be a hard sell for two reasons: First, he offers no substantive alternative reason for revoking an offer made to a famous scholar who inarguably would have given UC Irvine’s new law school the kind of national credibility that would have been hard to establish with someone less prominent. Second, he is arguing against a scholar who has unusually high levels of cross-spectrum credibility—simply put, regardless of his politics, other scholars trust and admire Chemerinsky.
So this question has been posed to us by FIRE fans: Can UC Irvine, as a public institution bound by the First Amendment and the California Constitution, do this? The answer is, “probably.” When choosing the dean of a department or school, or the head of a college or university, an institution is free to base those decisions on almost any criteria they like—wise or unwise, political or apolitical (with the usual exceptions for discrimination on the basis of race or gender). Actually, deanships are almost always “political” appointments, although perhaps in a different-than-usual sense of the word. The ability to raise money, use connections, charm donors, etc. are all important to the success of a law school dean. And certainly anyone who has ever observed the process of the section of a university president knows how “political” the process tends to be.
This is quite distinct, of course, from the proper criteria for selecting a professor. Professors should be chosen on the basis of their scholarly accomplishments, and must not be fired because they might have controversial views. To operate otherwise would mean the death of academic freedom. This differing standard for professors versus academic administrators is best represented by the 1995 case of Jeffries v. Harleston (21 F.3d 1238 (2d Cir. 1994)), in which a professor at City College of New York was removed from his post as department chair after giving a harshly anti-Semitic speech. The Second Circuit held that while City College could not remove the speaker as a professor, they could remove him from his position as chair of the department. I initially bristled at this opinion, but there is much common sense in it: we cannot and should not use professors’ outside speech or political opinions in deciding whether or not someone can be or should remain a professor, but a school is within its rights to decide who it wants representing and speaking for the university.
But this is just the minimum that the law requires. Just because a school can do this doesn’t mean that it should. If UC Irvine revoked Chemerinsky’s offer because of his politics, that was a truly foolish move on their part. He is a top-notch, well-respected, well-known scholar, and there is no report of anything that would indicate he could not be an excellent, fair-minded and effective dean. This is precisely the wrong message to send in an academic environment and only legitimizes pernicious political “litmus tests.” It is also truly bad form to hire someone after an exhaustive search process and then fire them under any circumstances unless something comes up that the institution could not have known about. Chemerinsky has never made any secret of his politics, and UC Irvine’s decision reveals the school not just to be wrongheaded, but also possibly incompetent for not doing its homework before hiring. The “good news” (at least in the karmic sense) is that UC Irvine will doubtlessly suffer for its bad judgment. The bad news is that the students of the new school will also feel the effects of this poor administrative decision. They turned away a professor who certainly could have attracted top-notch talent, and they made themselves the rightful target of national scorn. This is an inauspicious way to start a law school, and such bad judgment will likely inspire students to apply elsewhere.
The saddest thing about this case, from my perspective, is that the partisan dance of “now it’s my turn to censor” just seems interminable. It’s true that under the current campus environment, you are more likely to be punished if you have an un-PC, religiously orthodox, or socially conservative opinion.  This has to end if we are to make the academy a true marketplace of ideas. The worst possible response to politically motivated intolerance or censorship from one side is simply to exercise censorship or intolerance from the other direction. Can’t we at least try to accept the (apparently still radical) idea that society is best served by free speech, free minds, and open discussion, rather than descend into party-polarized mindlessness? 
Poor show, UC Irvine. You lost a candidate who might have been a truly world-class dean, and you did so through an approach that just perpetuates the long, tiresome, hyper-partisan myth that you can’t be good at your job if you have the “wrong” internal beliefs. 

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