Saturday, September 15, 2007

Chemerinsky Chimera

Despite the fact that almost everyone expressing "learned" opinion about the hiring and firing of Erwin Chemerinsky as Dean of the Donald R. Bren School of Law at the Univeristy of California at Irvine is a tenured professor of the law, rumor and innuendo appear to be ruling the day in an unseemly rush to judgment. As Chemerinsky was hired and fired in an administrative capacity, it seems to me the claim that this is an assault on academic freedom is without foundation. Administrators do not have tenure.

Irvine, California, is not a hotbed of evangelical Republicanism (See Agran, Larry: kingmaker of Irvine for almost three decades). The law school will not be confined to drawing applicants from the local area, so the idea that because the locals wouldn't like Chemerinsky he got fired is laughable. If the University of California was so afraid of what the locals thought, they would not have established a law school specializing in public interest law, arguably not a field of law near and dear to conservative hearts and minds, at that particular site.

The Board of Regents of the University of California voted unanimously to establish this law school, knowing full well at the time its intended mission and despite the strong oppposition of the California Commission on Post-Secondary Education (the independent body responsible for planning and coordinating higher education according to the state master plan for higher education). The idea that there would be sufficient votes on the Board of Regents to cause any but a minor problem for approval of a contract with Chemerinsky is quite comical.

It seems to me what this probably boils down to are two alternative scenarios:

1) Donald Bren had not yet transferred the promised $20 million and made his views known. If he has already given the money or signed any type of contract to do so with the Regents, his opinion, if it was expressed, is irrelevant - the Regents have a long track record of ignoring donor opinion once they have cash in hand.

2) Chancellor Michael V. Drake is telling the truth when he writes, "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."

When Chemerinsky violated their mutual agreement, Drake realized that Chemerinsky was not a team player and could not be trusted to confine himself to his administrative duties. I don't know how many law school deans regularly publish political op-eds but I imagine the number is small, as most are too involved in their administrative duties to do so. However, it seems to me that UCI's law school's stated mission, public interest law, is quite political in and of itself, almost guaranteeing to be a continuing source of controversy once established, and Chemerinsky thought (and thinks) his behavior appropriate to his position. Drake obviously disagreed, and still does.

I am surprised, however, by the overwhelming rush to judgment by law professors nationwide, including Ann. Most of them have little knowledge of the actual facts and are quite content to rely on rumor and hearsay as if it were fact because it conveniently buttresses their personal, uninformed, opinion. Although I have not checked his recent comments, it seems to me that the only professor of law who has maintained the standards of his profession in this controversy is Eugene Volokh.

[UPDATE: In fairness to Donald Bren, I finally got around to double-checking, and his check had long since been cashed, so I doubt he played any part in this public relations fiasco.]

Erwin's Enemies]
(Adapted from a comment originally posted on Althouse)

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