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Published on Thursday, September 13, 2007 by Los Angeles Times

UC Irvine Aborts Hiring Chemerinsky as Law School Dean

by Garrett Therolf and Henry Weinstein

In a showdown over academic freedom, a prominent legal scholar said Wednesday that UC Irvine's chancellor had succumbed to conservative political pressure in rescinding his contract to head the university's new law school, a charge the chancellor vehemently denied.

Erwin Chemerinsky, a well-known liberal expert on constitutional law, said he had signed a contract Sept. 4, only to be told Tuesday by Chancellor Michael V. Drake that Drake was voiding their deal because Chemerinsky was too liberal and the university had underestimated "conservatives out to get me."

Later Wednesday, however, Drake said there had been no outside pressure and that he had decided to reject Chemerinsky, now of Duke University and formerly of USC, because he felt the law professor's commentaries were "polarizing" and would not serve the interests of California's first new public law school in 40 years.

News of Drake's decision quickly made its way through academic and legal circles nationally, where it came under criticism from liberal and conservative scholars who said Chemerinsky was being unfairly penalized.

"It seems late in the day to notice that Erwin Chemerinsky is a prominent liberal," said John Jeffries, University of Virginia Law School dean. "That's been true for as long as I've known him. It's rather like discovering that Wilt Chamberlain was tall. How could you not know?"

Drake said he worried that the firing had the potential to harm the university's reputation. "It was the most difficult decision of my career," he said in an emotional interview, his voice at times quavering.

Legal academics said Chemerinsky's sacking could make it difficult for UCI to attract a top-flight dean, students and faculty.

Douglas W. Kmiec, a prominent conservative constitutional law professor at Pepperdine Law School in Malibu, called the development "a tremendous setback for UC Irvine. It is a profound mistake in my judgment to have obtained the services of one of the most respected, most talented teachers of the Constitution in the United States and to turn him away on the specious ground that he is too liberal or too progressive. That is a betrayal of everything a law school should stand for."

Chemerinsky and Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in The Times, the same day the job offer was made. In it, Chemerinsky asserted that Atty. Gen. Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."

But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.

"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.

Drake said that "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter."

Chemerinsky, one of the nation's best-known constitutional scholars, will remain a professor at Duke University in Durham, N.C. He said he had lined up a board of advisors for the new school, including the deans of the UC Berkeley and University of Virginia law schools and three federal judges, including Andrew Guilford, a Bush appointee from Orange County.

Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that "concerns" had emerged from the University of California regents, which would have had to approve the appointment. The professor said Drake told him that he thought there would have been a "bloody battle" over the appointment.

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."

Drake drew support from Christopher Edley, dean of the Boalt Hall School of Law at UC Berkeley, whom Drake consulted on the decision to let Chemerinsky go.

"It appeared to me that Michael was willing to go forward in the face of opposition but for the fact that he lost confidence in Erwin's willingness to subordinate his autonomy and personal profile for the good of the institution," Edley said.

Edley, who worked in the Clinton administration, said it was nothing that he had not been called to do himself.

"I was questioned explicitly by people who feared I would turn the deanship into a platform for my own ideological commitments," he said. "But it was clear to me then, and it's clear to me now, that the job requires something else."

Chemerinsky has been a professor at Duke since 2004, after 21 years at the USC law school. He was a finalist for the dean's job at Duke last year.

During his time in Los Angeles, Chemerinsky was a well-known figure who helped write the city charter and was a frequent legal commentator in the media.

In April 2005, Legal Affairs magazine named him one of "the top 20 legal thinkers in America."

UCI's law school, which is expected to welcome its first class in 2009, will be the first new public law school in California in 40 years.

Last month, the university announced that Newport Beach billionaire Donald Bren had donated $20 million to fund the salary of the dean and 11 faculty positions and have the school named in his honor.

A spokesman for Bren said he had nothing to do with the ouster. "Mr. Bren doesn't know Erwin Chemerinsky or know enough about him to have an opinion about him or enough to express an opinion about him to anyone."

Chemerinsky had told supporters that the first six to eight faculty members would be from top 20 law schools, and they would be "stars."

"The goal is that UCI will be a top 20 law school someday," he said in an e-mail.

Among those Chemerinsky had approached about joining the faculty was Laurie Levenson, a former federal prosecutor who teaches criminal law and legal ethics at Loyola Law School in Los Angeles and who is a frequent commentator on TV and radio.

Levenson said she was deeply disturbed by the news. "For a new law school to start infringing on academic freedom, even before it opens its door, does not bode well for this institution," Levenson said. "I have talked to Erwin quite a bit about his plans for the new law school. He did not have a political agenda. He had an excellence agenda."

"If there's room for Ken Starr and John Eastman to be the dean of a law school, there's room for Erwin Chemerinsky," Levenson said, referring to the conservative constitutional scholars who are deans at the Pepperdine and Chapman law schools, respectively.

Eastman and Chemerinsky frequently debate constitutional law issues on television and radio, and he said their approach to these issues was nearly always in conflict, but "what I appreciate is his willingness to engage in the debate."

Jon Wiener, a UCI history professor, called the dismissal "the biggest violation of academic freedom in the history of UCI. Nationally, it is the biggest academic freedom case of the year. Some people are saying we have to take this to the faculty senate and make a faculty-wide statement condemning it."

Times staff writer Richard C. Paddock contributed to this report.

© 2007 Los Angeles Times

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