UC Irvine Aborts Hiring Chemerinsky As Law School Dean Page 1 of 3

Los Angeles Times: UC Irvine aborts hiring Chemerinsky as law school dean Page 1 of 3

http://www.latimes.com/news/local/la-me-uci13sep13,0,873705.story?coll=la-home-local From the Los Angeles Times

UC Irvine aborts hiring Chemerinsky as law school dean The constitutional scholar says university officials told him the deal was off to head the new school because he was too 'politically controversial.' By Garrett Therolf and Henry Weinstein Los Angeles Times Staff Writers

September 13, 2007

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.

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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

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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."

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

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http://chronicle.com/daily/2007/09/2007091301n.htm

Thursday, September 13, 2007

Professor Says His Political Views Cost Him a Job as UC-Irvine's Law-School Dean Before He Started

By KATHERINE MANGAN

One week after signing a contract to become the inaugural law dean at the University of California at Irvine, Erwin Chemerinsky had a personal visit from the man he expected to be his new boss. The chancellor didn't come to North Carolina, where Mr. Chemerinsky is a law and political-science professor at Duke University, to talk about Mr. Chemerinsky's plans for creating the new law school. He came to retract the offer because, Mr. Chemerinsky said, of the professor's liberal political views.

"He told me he was withdrawing the offer because I was too politically controversial, that I'd be a lightning rod for conservatives," said Mr. Chemerinsky, a nationally prominent constitutional-law professor whose hiring had been seen by many as a coup for the fledgling law school.

Michael V. Drake, chancellor of the Irvine campus, did not respond to interview requests and has not confirmed Mr. Chemerinsky's account of the conversation.

Mr. Chemerinsky said the chancellor offered the job on August 16 and after negotiating the terms of his contract, Mr. Chemerinsky said, he accepted the position on September 4.

He said he was excited about heading the Donald Bren School of Law, which is scheduled to begin classes in 2009 as the first new public law school in California in more than 40 years.

He was slated to begin hiring faculty members this year, and take over as dean in July.

The first hint of trouble came last Thursday, when, he said, the chancellor told him that some conservative opposition was brewing. A few days later, the chancellor called and said he was in Washington and would like to fly to Durham, N.C., to talk with him in person. "As soon as I heard that, I told my wife, 'He's going to withdraw the offer,'" Mr. Chemerinsky said.

Right after Mr. Chemerinsky picked up the chancellor at the airport, Dr. Drake broke the news to him.

The chancellor confirmed on Wednesday that the offer had been rescinded. "I have come to the very difficult conclusion that Professor Chemerinsky is not the right fit for the dean's position at UC-Irvine at this time," he said in a written statement that did not mention the professor's political views nor any resistance from others to his appointment.

"Professor Chemerinsky is a gifted academic, and his credentials are outstanding. I respect him greatly," he said. "My decision is no reflection whatsoever on his qualifications, but I must have complete confidence that the founding dean and I can partner effectively in building our law school."

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Mr. Chemerinsky said his conversation with the chancellor led him to believe that opposition came from outside the law school.

"My appointment had to be confirmed by the [University of] California Board of Regents, and it was on the agenda for next week. He said it would be a bloody fight, and even if I was confirmed, it could damage the law school," the Duke professor said.

Some legal observers have also speculated that opposition may have come from the law school's billionaire donor and namesake, Donald Bren, who is a major Republican donor. Mr. Bren, who gave $20-million to the new law school and millions more to the university, was not available for comment on Wednesday, but a spokesman said Mr. Bren told him that he didn't know Mr. Chemerinsky well enough to have an opinion about him.

Mr. Chemerinsky said the chancellor asked him to agree to say publicly that the two sides had mutually decided to break the contract. "I refused to do that," he said.

"I'm sad and angry. A job I was very excited about was taken away because of the views I've expressed," he said. "It's almost McCarthyism. It shouldn't be happening."

Mr. Chemerinsky said he visited Irvine over the summer and told university officials he planned to hire a nationally prominent faculty that was also diverse. Although he didn't sense any opposition to his appointment then, "we talked about the fact that I'm a known liberal, and I'd have to reach out and make clear that it was not going to be a liberal law school."

He does not plan to challenge the decision and wishes the new law school luck.

"I'm still a tenured law professor at Duke University, which has been wonderful to me," said Mr. Chemerinsky, who has been at Duke since 2004, after 21 years at the University of Southern California.

His views, which he has expressed in frequent print, television, and radio commentaries, are no secret, so it was unclear why conservative opposition would not have derailed his candidacy earlier. He has also argued several high-profile cases, including a challenge to Texas' Ten Commandments monument.

Brian R. Leiter, a professor of law at the University of Texas at Austin who broke the news about Mr. Chemerinsky on his blog about law-school comings and goings, said his colleagues were shocked. "The consensus seems to be 'Who in the legal academy is going to take the job now?'"

Laurie L. Levenson, a professor at Loyola Law School in Los Angeles, called the contract retraction "a colossal mistake."

"Nobody trusts an institution that lets politics control the institution," she said.

John C. Eastman, law dean at Chapman University, which, along with the University of California at Irvine, is in Orange County, is a conservative scholar who has been debating Mr. Chemerinsky weekly for the past seven years on a nationally syndicated radio talk show. He also thinks the university blundered by yanking Mr. Chemerinsky's contract.

"Erwin and I disagree on just about everything, but when people were saying I was too conservative to be a good dean, he came to my defense," he said, adding that his liberal counterpart has a history of being open to opposing viewpoints.

"I understand internal politics, but usually you vet those things before, rather than after, you sign a contract," Mr. Eastman said.

2 of 2 9/13/2007 8:38 AM Los Angeles Times: In Chemerinsky's defense Page 1 of 2

http://www.latimes.com/news/printedition/asection/la-oe-kmiec13sep13,1,4478606.story From the Los Angeles Times

In Chemerinsky's defense No matter what your politics, UC Irvine's treatment of the legal scholar was wrong. By Douglas W. Kmiec

September 13, 2007

Erwin Chemerinsky is one of the finest constitutional scholars in the country. He is a gentleman and a friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposiums, I have never seen him be anything other than completely civil to those who disagree with him.

So the news that UC Irvine had selected him to be the first dean of its new law school was welcome indeed. And the subsequent news -- that it withdrew the offer Tuesday, apparently because of Erwin's political beliefs and work -- is a betrayal of everything a great institution like the University of California represents. It is a forfeiture of academic freedom.

Erwin and I seldom agree on constitutional outcome. I'm conservative, and he's liberal. We have written competing textbooks. We have debated frequently in the media. Before the U.S. Supreme Court, if Erwin is for the petitioner, it's a good bet I can find merit in the cause of the respondent.

Yet there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal. When students have difficulty grasping basic concepts, I do not hesitate to hold out his treatise on the Constitution as one that handles matters thoroughly and dispassionately. Across the nation, federal and state judges turn to Erwin each year to give them an update on the changes in the law and the legal directions of the Supreme Court.

Erwin has never hidden his progressive politics; they must have been known to the search committee that identified him as a candidate to head the law school.

In conversation, in the classroom and in the courtroom, he fights passionately for human rights, while giving less deference, in my opinion, to the needs of law enforcement or to those who seek to preserve order, structure and tradition in society. Yet he does not denigrate his opposition. He engages. He challenges. He inspires.

It was my privilege to serve as a law school dean for a number of years. I know that faculty members look to their deans for leadership, encouragement and support. The fate of the law school, especially one just starting out, is often determined by the hard work and dedication of its dean.

UC Irvine would have benefited greatly by Erwin's service. He would have been a model for the faculty -- widely published, dedicated to his students, civically involved. He would have assembled a world-class faculty and, in a short period, would have competed for some of the most talented students in the country.

Ironically, Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices, whether they are liberal or conservative. Erwin was less confident that law and politics could be so neatly divided.

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

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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.

However great the difficulties that await the UC Irvine law school, I know this for sure: Erwin Chemerinsky, as a man of goodwill and abundant kindness, will wish it only the best. It will need every bit of his goodwill now that it has forfeited and spurned his good services.

Douglas W. Kmiec is a professor of law at Pepperdine University.

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http://www.latimes.com/news/printedition/asection/la-ed-chemerinsky13sep13,1,3823335.story From the Los Angeles Times

UC Irvine's cowardice Rescinding Erwin Chemerinsky's job offer as the school's founding law dean was an act of self-destructiveness.

September 13, 2007

The decision last month to hire renowned legal scholar Erwin Chemerinsky as founding dean of UC Irvine's new law school was a stroke of genius. Rescinding that action, as the university's chancellor did Tuesday, is an act of intellectual cowardice and self-destruction that brands the school as a haven for political correctness and threatens its academic integrity two years before it even opens its doors.

It won't be much of a lesson for students in the fall of 2009 as they sit down to their contracts class, either. Chancellor Michael V. Drake offered Chemerinsky the post, and the professor accepted and began doing exactly what everyone knew he would do: building an unparalleled board of advisors and founding faculty. Offer, acceptance, binding contract.

Chemerinsky said Drake told him that conservatives were "out to get" him. Drake said the hired-and-dumped dean was not dismissed for his politics, but merely because he was not the "right fit" for Irvine.

What makes Chemerinsky stand out is not his liberalism but the intellectual rigor of his analysis and the effectiveness of his argument. He works well with scholars of other viewpoints, as attested to by the cries of outrage from conservative scholars at his treatment by UC Irvine. Chemerinsky also sets a fine example for law students by putting his abilities to work not just in the courtroom and the classroom but in service to community. He co-wrote the current Los Angeles City Charter. He conducted, for the Police Protective League, a study of the LAPD's handling of the Rampart corruption scandal.

It was a great loss to the region when he left USC for a position at Duke University in North Carolina. It will be a shame not to bring him back to Southern California.

But it is a greater shame that UC Irvine apparently wants a dean unburdened by academic fame or legal point of view. Orange County, contrary to its stereotype, is a politically diverse and creative powerhouse and deserves a law school that will embody California's tradition of academic excellence. The decision to rescind Chemerinsky's deanship puts it on another course altogether.

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Legal Scholar's UC Deanship Withdrawn By GILLIAN FLACCUS – 16 hours ago

SANTA ANA, Calif. (AP) — The University of California, Irvine, has withdrawn its offer to make renowned legal scholar Erwin Chemerinsky dean of its new law school because he is "too politically controversial," he said Wednesday.

Chemerinsky, a liberal scholar and commentator on constitutional law who recently represented exposed CIA agent Valerie Plame, said in a telephone interview that he signed a contract with the university last week after being offered the dean's post on Aug. 16. The offer was contingent on the approval of the University of California Board of Regents, he said.

UC Irvine Chancellor Michael V. Drake met with Chemerinsky on Tuesday and told him the offer had been withdrawn because some board members were Erwin Chemerinsky, speaks to the media after a concerned about his politics, the scholar said. hearing on California's three-strikes-you're-out law outside the Supreme Court in Washington, in "He said that I had proven to be too politically controversial; those were his this Nov. 2002 file photo. Liberal legal scholar exact words," Chemerinsky said. "He said that ... to get me approved in the Chemerinsky says the University of California, Board of Regents would be a bloody fight, and even if we won the fight it would Irvine has withdrawn its offer to make him dean have damaged the law school." of its new law school because he is too politically controversial. (AP Photo/Rick Bowmer) The school's decision, which Drake confirmed, drew immediate criticism from legal scholars.

Related News The institution will be the first new public law school in California in 40 years and Politicized UC Regents? is expected to welcome its first class in 2009. The university recently announced Los Angeles Times - 9 hours ago that a $20 million donation from Orange County developer and billionaire Donald Bren will pay for the dean's salary and 11 faculty positions. In Chemerinsky's defense Los Angeles Times - 9 hours ago Chemerinsky said he had no intention of creating an overly liberal law school.

Excuse for UCI's fumble on law school dean not "I was looking to hire top professors from all over the country, reflecting a great good enough diversity of viewpoints," Chemerinsky said. "I thought we had a chance to create Los Angeles Times - 9 hours ago a great law school." Full coverage » In a printed statement, Drake offered few details on the school's decision.

"My decision is no reflection whatsoever on his qualifications, but I must have complete confidence that the founding dean and I can partner effectively in building our law school," Drake said. "As in all decisions, I must do what I believe is in the best interests of our university."

Observers said they were shocked by the news and predicted it would affect UC Irvine's ability to recruit well-known scholars to the faculty.

"This is such a colossal blunder at the infant stages of this law school," said Laurie Levenson, a professor at Loyola Law School.

"They're trying to get on the map and all they've done is lost the respect of legal scholars across the nation. Nobody wants to sign up for this type of amateur approach."

UCLA law professor Stephen Bainbridge wrote on his blog, professorbainbridge.com, that UC Irvine's decision "sets the worst kind of precedent for all of us in legal education ... who dare express political views."

Chemerinsky taught for 21 years at the University of Southern California law school before moving to Duke University in 2004. In Los Angeles, he helped write a new city charter and was a frequent media commentator. He also served

1 of 2 9/13/2007 9:56 AM The Associated Press: Legal Scholar's UC Deanship ...

on a panel to review the Los Angeles Police Department's response to a corruption scandal.

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

2 of 2 9/13/2007 9:56 AM