UC Irvine reverses field on Chemerinsky

The constitutional scholar says university officials told him the deal was off to head the new school because he was too ‘politically controversial.’

Erwin Chemerinsky is one of the best-known experts on constitutional law.

By Garrett Therolf and Henry Weinstein
Los Angeles Times Staff Writers

9:48 PM PDT, September 12, 2007

IRVINE, Calif. -- In a showdown over academic freedom, a prominent legal scholar said Wednesday that the University of California, 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 he 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 the University of Southern California, 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 came made its way through academic and legal circles nationally where it came under criticism from liberals and conservatives scholars who said Chemerinsky was being unfairly penalized.

"It seems late in the day to notice to 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 controversy 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 quivering.

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

Douglas 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."

Former USC law professor Erwin Chemerinsky with his wife Catherine Fisk, also a former USC law professor and their daughter Mara gather some belongings from their home in Los Angeles.

Chemerinsky and Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in the Los Angeles Times, the same day the job offer was made. In it, Chemerinsky asserted that Attorney General 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 "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 advisers 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 Drake told him during a meeting Tuesday 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."

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.