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Regents' Veto of Erwin Chemerinsky as Dean of the New UCI Law School:

Some tentative, and very quick (I have to run to an event) thoughts, which I hope to supplement later:

1. From my colleague Steve Yeazell: "In some ways Erwin will come out of it much better than Chancellor Drake or Irvine. Think about being the next person Drake calls to offer the deanship: even if you are in fact the very best person for the job, no one is going to believe that, and everyone is going to think that you were the politically expedient candidate, something that will make it much, much harder to recruit good faculty. This is a very bad day for Irvine (and for UC), no matter why it happened."

2. Also from Steve: "[T]he failure to preclear an important nomination like a founding dean with Regents suggests a rather modest level of administrative acumen [on the UCI administration side], something that the next decanal nominee might consider far more important than the 'academic freedom' issues."

3. This having been said, while I hope to have more to say on the First Amendment and academic freedom issues, I should caution against treating Deanships or Chairships the same way as scholarly positions. As the Second Circuit correctly held in Jeffries v. Harleston (cite and details later), the two are quite different. It is generally not proper, for instance, to refuse to appoint a professor because he's too controversial; but it may well be proper to avoid deans who are lightning rods for criticism, or likely to run into trouble with the Legislature or with others.

The example I give is Dean Ken Starr of Pepperdine. If he wanted to move to UCLA, I'd be delighted -- but if the faculty, the administration, or the Regents opposed such an appointment on the grounds that he'd be too controversial, and the controversy would get in the way of his effectiveness, I would not condemn their position as a breach of academic freedom, or of the First Amendment.

As I said, have to run; more later, I hope.

Dilan Esper (mail) (www):
I do not know anything about the First Amendment issues here (beyond that the Pickering balancing test may apply), so I will defer to Professor Volokh on that one.

I do think that on the merits, what Irvine did was outrageous, for the reasons stated by Ezra Klein here:


And my own view of Professor Chemerinsky's strengths and weaknesses as a Dean, and what this says about academic independence, can be seen in the second comment of Klein's thread.
9.12.2007 7:56pm
Dilan Esper (mail) (www):
The link didn't work— here is the link to Ezra Klein's thread.

Ezra Klein's Thread
9.12.2007 7:59pm
wm13:
Is it really true, Dilan, as you seem to say, that Prof. Chemerinsky won't let people speak in class unless they use his preferred verbal formulations? That seems really outrageous to me, although of course I am not a law professor.
9.12.2007 8:16pm
Dilan Esper (mail) (www):
wm13:

Not that he won't let people speak in class-- obviously he can't stop you from using "pro-life"; but he would pointedly rephrase the point using his own formulations.
9.12.2007 8:26pm
Gaius Marius:
Are you f-in kidding me?!?!? Those regents are nuts!
9.12.2007 8:54pm
jonah gelbach:
Dilan

In the Ezra Klein thread, you write of Chemerinsky that

those who oppose abortion rights may not be called by theirs ("pro-life") under any circumstances, but must either be called "anti-abortion" or "anti-choice".

That does sound considerably more draconian than your clarification in response to wm13:

Not that he won't let people speak in class-- obviously he can't stop you from using "pro-life"; but he would pointedly rephrase the point using his own formulations.

I'm an economist, so I don't find myself discussing abortion much in class (though occasionally I do, as when I discuss empirical research concerning the effects of various laws/holdings legalizing or limiting abortion rights).

If I did wind up with a discussion where terms like "pro-life", "pro-choice", etc., were used by students, I'm not sure how I would handle it. I believe quite strongly that "pro-life" is an inaccurate description of the position that seeks to make abortion illegal. This isn't the place to debate the merits of that view (though I'm quite comfortable doing so in general).

The point is that, as a professor I do not see why I should have to use a term I believe is inaccurate (and, incidentally, inflammatory) simply because people with policy--and, obviously, factual--views different from my own would prefer that I do. If I agree to use the term "pro-life" to discuss those with the opposite view of mine, am I not tacitly agreeing that I am "anti-life"? If not, why not? And if so, why should *I* be bound to misdescribe my own views to avoid a student's perception that I am misdescribing his or hers?

The expectation that a professor denigrate his or her own position so as to avoid hurting the feelings of a student strikes me as unreasonable and really not any reason to criticize said professor. If Chemerinsky sought to squelch the speech and arguments of those who call themselves "pro-life", then that is of course a different story. But unlike your comment in EK's thread, which seems to leave this possibility an open one, your clarification above suggests the possibility that Chemerinsky simply chose to describe others' position in a way that he deems accurate. What is wrong with that?
9.12.2007 9:02pm
Simon (391563) (mail) (www):
What role, if any, do precedents dealing with a "heckler's veto" play in these sorts of employment decisions?
9.12.2007 9:08pm
Anderson (mail):
I don't see how Chemerinsky is controversial to anything like the same order of magnitude as Starr.

Irvine now makes its debut as "the school that blew off Erwin Chemerinsky."

Btw, pleased to see in the other thread the generally non-partisan tone. There should be some things that 90% of reasonable people can agree on, and this is one of them.
9.12.2007 9:30pm
jonah gelbach:
It's interesting to note this update to Leiter's post:

Kevin Gerson, Associate Director of the UCLA Law Library, points out to me that Art. 9, § 9 of the California Constitution, regarding the powers and duties of the Regents of the University of California, provides that, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

This seems to suggest that statutory (as opposed to constitutional) accuracy would require changing "may well be proper" to "appears not to be legal" in this quote from EV's original post:

it may well be proper to avoid deans who are lightning rods for criticism, or likely to run into trouble with the Legislature or with others.

Whatever the merits of EV's argument as an abstract or constitutional point, the state law cited above would seem to suggest that stopping the hypo appointment of Ken Starr as UCLA Law dean over a political controversy would also violate the statute. Apparently, no UC institution is entitled to take this approach to Dean selection.
9.12.2007 9:33pm
wm13:
I agree with jonah gelbach: it isn't outrageous to rephrase people's statements (however pointedly) in your own terms. I personally am more libertarian than either Mr. Gelbach or Prof. Chemerinsky, and wouldn't go through the effort, especially since I think it makes the speaker look petty and stupid, but it isn't a trammeling of the students' classroom expression.
9.12.2007 9:33pm
Steve:
I don't see how Chemerinsky is controversial to anything like the same order of magnitude as Starr.

Well, right. Starr wouldn't be controversial simply because he's an ideological conservative, so it's a flawed analogy. And if that were the basis of someone's objection to him, well then, they'd be wrong.
9.12.2007 9:35pm
Freddy Hill:
Jonah Gelbach, wm13: Don't you think that it all depends on context? While discussing reproductive rights questioning the term "pro-life" seems reasonable, but if you are discussing the economic impact of abortion, then going off in such a tangent may be distracting and might strike some students as doctrinaire.
9.12.2007 9:58pm
jonah gelbach:
Freddy

When discussing the empirical work on abortion laws, I try hard to say things like "people who favor legalized abortion" and "people who oppose legalized abortion" or "people who support limits on abortion rights". I do that because

(a) it's an accurate description of the policy positions involved insofar as they concern the actual laws whose effects are under study, and

(b) the political positions and debates really are beside the point.

So yes, questioning the term "pro-life"--for its own sake--would be an unnecessary tangent in such a discussion. But refusing to use it in favor of the descriptions above certainly would not be. And, frankly, I can imagine that if a student continued to use a loaded term like "pro-life" in that context, I might get fed up enough to point out that some people, myself included, find the term inaccurate and insulting. After pointing that out, I would go back to my neutral-as-possible language. (I would like to think that I would make the same point to a student who called those who oppose abortion rights "anti-choice" in such a debate. None of these issues has happened so far, though, so my sample is null.)

In any case, it doesn't sound from Dilan's comment like that was the case with Chemerinsky. My understanding from the comment--and perhaps I misunderstood or there is more to Dilan's story than what I did understand--is that E.C. was discussing legal issues related to abortion rights. Surely it is not unreasonable to rephrase in that context---the position of limiting abortion rights surely does limit choice.

Personally I think if I were teaching con law I would try to use more neutral language like what I offered above, but again, in such a discussion I don't see why professors should be prevented from expressing opinions while students should be encouraged. I think it's appropriate for both sides to express opinions, provided that it's done civilly and in the spirit of open debate.
9.12.2007 10:09pm
Maxine (mail) (www):
You're all forgetting that Donald Bren owns the Irvine Company ...who builds houses....that provide homes to faculty members---one of the perks of teaching at UCI. They know who butters their bread.

It's very simple: For a free home in Orange County, I'll gladly change my ideology to whatever they want!
9.12.2007 10:18pm
c.f.w. (mail):
Maxine is probably right in pointing to Bren. I suspect it was the money. When they say it was politics (or red/blue issues), they mean it was the money. Bren probably said that $x0 million goes away if EC is made dean. Shabby, but in a financial way, more than political, I suspect.
9.12.2007 10:35pm
Dilan Esper (mail) (www):
If I did wind up with a discussion where terms like "pro-life", "pro-choice", etc., were used by students, I'm not sure how I would handle it. I believe quite strongly that "pro-life" is an inaccurate description of the position that seeks to make abortion illegal.

Pro-choice and pro-life are both marketing slogans. People who oppose abortion rights are not against "choice" per se, just that particular choice. And people who support abortion rights are not against "life" per se. They just don't think that killing an embryo or fetus or blastocyst or zygote is the same as killing a born child.

One can choose to use both marketing slogans. One can choose to use neither. One can-- in one's own discourse-- choose to use one marketing slogan and not the other. But in class discussions, it seems to me that you have to be respectful of the fact that this is an issue that reasonable people disagree on. I thought he was pretty clearly stacking the rhetorical deck in favor of abortion rights. (Full disclosure, I am vehemently pro-choice.)

The expectation that a professor denigrate his or her own position so as to avoid hurting the feelings of a student strikes me as unreasonable and really not any reason to criticize said professor.

It's not about hurting anyone's feelings. It's about skewing the discourse on a controversial issue-- not openly, by expressing that he is pro-choice (indeed, he makes a show of soliciting differing views on issues including views that differ from his own, as he should), but rather by a subtle recasting of the discourse, and only in one direction. One marketing term stays in, the other goes out.
9.12.2007 10:40pm
Marla Jo Fisher (mail):
Hi you may be interested in reading my story on this topic here. It wasn't the UC regents that nixed the appointment but the chancellor of The story can be found at http://www.ocregister.com
9.12.2007 10:42pm
Tony Tutins (mail):
I wouldn't expect a university chancellor to have second thoughts unless someone put them in his head.
9.12.2007 11:45pm
jonah gelbach:
Dilan

I guess we'll have to agree to disagree on the terminology issue. I don't see the point of debating it here.

But I do think your comment at Ezra Klein is subtly, but importantly, different in its characterization than your comments on this thread. Also, your concluding statement that "One marketing term stays in, the other goes out" is contradicted on its face by the rest of what you say: that he "makes a show of soliciting differing views" and that he doesn't try and stop students from using their preferred marketing slogans.

So what's the problem? Really you seem to have no legitimate beef at all: you seem just not to like the fact that E.C. uses his preferred term in response to students who use theirs. From what you describe he isn't recasting the discourse any more than the students who use "pro-life".
9.12.2007 11:46pm
Q the Enchanter (mail) (www):
Just wanted to say that I had Chem for con law, and the notion floated above above that he was somehow restrictive about students' speaking up in class or that he was overly fastidious in "reformulating" what students had to say is utterly ridiculous. He was an extraordinarily generous and supportive professor.

On the other hand, Irvine may well have been justified in rescinding it's offer to Chem on the basis of his infamous puns!
9.13.2007 12:07am
Dilan Esper (mail) (www):
Jonah:

My comment on Ezra's site was clear. I never said he didn't allow anyone to say the words "pro-life"-- how could one do that in a law school class? I said that those on the abortion rights side were afforded the favor of having their marketing term used by the professor (again, the only reason I can possibly think of why you don't want to argue this is because you know your position has no merit-- people who are not pro-choice are not against choice in all circumstances any more than people who are not pro-life are against life in all circumstances; they are both misleading terms adopted by the respective movements because they sell better). People who were opposed had their views restated by the professor with the non-marketing term "anti-abortion" substituted. (I believe it was anti-abortion; he may have rarely said "anti-choice" as well.)

That is the antithesis of fairly soliciting views in the classroom. So is your position that it is perfectly legitimate for a professor to use a subtle language cue to make the views of students whom he disagreed with sound less persuasive?
9.13.2007 1:09am
Pin Head (mail):
Chancellor Drake's statement indicates that he changed his mind abruptly, but he doesn't mention what caused this turn about. He states that the appointment was subject approval by the UC Regents, implying that the Regents may have had something to do with it, but since when has being a liberal been a problem for Regent approval? As a Professor at UCI, which has two buildings and 10 endowed chairs named after a particular donor who's company name is synonymous with Irvine, I would not be surprised if a major donor had something to do with the Chancellor's change of mind.

This incident is small potatoes compared to other notable UCI incidents that include the fertility clinic implanting embryos without regard to their genetic relationship to the parents, the sale of human body parts from the willed body donor probram or the more recent non-existent kidney transplant program.

Maxine makes some erroneous claims about the faculty housing program at UCI. 1) Donald Bren had nothing to do with the houses built. 2) The houses are not free. They cost about 70% of comparable houses on the open market, but they can only be sold back to the University at a fixed price. Only the Chancellor gets a free house.
9.13.2007 2:07am
sad, but the Left is as bad:
Think of all the howling over Goldsmith or Yoo being a prof. Prof. Adler, who admirably condemns Irvine today, felt constrained to stay anonymous here on VC until he got tenured. So seeing a lefty rejected in academia is amazing because of its man-bites-dog nature; the reverse just isn't newsworthy.

(Yes, I know that Goldsmith and Yoo were hired, but the controversy shows that many Lefties, were they in charge, would NOT have done so, and it's a tribute to those who stuck by them that they were not that way.)
9.13.2007 12:16pm
jonah gelbach:
Dilan

No, the reason I don't want to debate the merits of the terminology question isn't because I "know [my] position has no merit" as you write. It's because it really wasn't the point at issue. That said, I will now make my point on the merits.

Your counterargument is silly in the following sense. Suppose one takes the view that no position on any complex issue can be fairly labeled X unless the person never deviates from the label X. Then there is no point labeling any position at all. That makes reasoned conversation and general characterization essentially impossible.

The question isn't whether people who are "pro-choice" on abortion would ever support some restrictions on abortion rights, or for that matter some restrictions on some other choices. The right question is how close to characterizing the *policy* views at issue a label comes. From this perspective, "pro-choice" is much more accurate than "pro-life". Indeed one might well be "pro-choice" as a policy matter and still not ever be willing to abort one's own fetus on the grounds that one believes doing so to be morally reprehensible because it ends a human life. Plenty of people at least say that's their position, and it is, indeed, fair to characterize it as "pro-choice" since the position is to allow others to make their own choices, regardless of one's own view of the morality of specific examples of those choices. That basic position is a core element of any libertarian philosophy worth the name (incidentally, by your standard, most people who consider themselves libertarians aren't).

Support for some restrictions on abortion rights---say, week-39 abortions---certainly is a limit on the extent of one's "pro-choice"-ness. In that sense it certainly is more accurate to say something like "pro-choice except in certain circumstances". And indeed there are many gradations in positions "pro-choice" people take. But the key fact is that all people who consider themselves "pro-choice" believe that under at least some circumstances, the decision to abort should be left to the pregnant woman. People who are "pro-life" simply do not believe this: they are opposed to the woman's making her own choice under *any* circumstances. In that sense, I believe that "pro-choice" and "anti-choice" are much more accurate than "anti-life" (or "pro-abortion") and "pro-life".

The term "pro-life" simply has nothing to do with the *policy* at issue. It rather describes (its proponents') *motivations* for their policy position. The fact that there are gradations to different "pro-choice" and "anti-choice" positions is beside that point.

So no, I do not think my view has no merit. (For what it's worth, and I guess this bears saying, like most people I'm not in the habit of taking positions I believe to have no merit.)

To say it again, I do continue to think your original post at EK unfairly (in light of what you later concede) suggested that Chemerinsky limited debate.

And finally, I don't think you are right that a professor's taking sides in a con law class "is the antithesis of fairly soliciting views in the classroom." Most people have opinions on these issues (that is, after all, why they get in to a field as subjective and contested as con law). Why is it anyone's responsibility to hide these opinions in class? I don't think students should have to. And I don't think professors should have to, provided of course that they are open to the expression of opposing views. The fact that he uses his preferred language to make his position known when students with opposing views use theirs isn't at all surprising or in any way unfair.

Try to imagine a world in which professors simply defer to all phrasings. Should he say "dirty Jew" when a neo-Nazi does? Should he say "wage-slavery" to reflect a paleo-Marxian's description of employment in a market economy? Of course not. It's perfectly ok (indeed, it would be stunning not) to respond with "Jew" and "employee". And the only difference between these examples and yours is the number of people who will feel disagreed with.

So, to recap:

(1) I think you're wrong on the merits of the terminological issue, though I continue to think that that issue is beside the point.

(2) I think you are expecting unfair and unreasonable (and probably impossible) things from professors who teach normatively-contested topics

(3) I continue to think your characterization at EK was unfairly forceful given what you've written here.
9.13.2007 6:01pm
jonah gelbach:
One other thing, Dilan -- I have to go teach and then get back to my other day job of research. So, the preceding reply of mine will be my last on this thread.

jonah
9.13.2007 6:03pm
Dilan Esper (mail) (www):
(1) I think you're wrong on the merits of the terminological issue, though I continue to think that that issue is beside the point.

(2) I think you are expecting unfair and unreasonable (and probably impossible) things from professors who teach normatively-contested topics

(3) I continue to think your characterization at EK was unfairly forceful given what you've written here.


On the terminological issue, you are missing a couple of key points:

a. "Pro-choice" is actually inaccurate for the same reason "pro-life" is-- because opponents of the policy are also pro-choice, just as opponents of pro-lifers are also pro-life. Pro-lifers believe that people should be free to make all sorts of choices, just not this one. Pro-choicers believe that life should be protected in all sorts of situations-- they just don't believe that this situation impacts a being with an interest in life (or believe that the mother's interests outweigh those interests).

I do agree with you that pro-choicers are not necessarily "pro-abortion", and I never use that term for that reason. But that doesn't make "pro-choice" accurate, because "pro-choice" doesn't distinguish between people on both sides of the debate who support individual freedom.

Further, though, your distinction is an immaterial one. You argue that "pro-choice", in a sense describes the favored policy while "pro-life" describes the motivation. My first reaction is that isn't true. "Pro-life" could also be said to describe the favored policy-- they believe in protecting the life of the fetus from intentional destruction whereas pro-choicers do not.

My second reaction, though, is that even if this is true, so what? Where is it written that political positions may never described based on their motivation? It seems to me that political discourse is filled with such terms-- "soak the rich", "pro-growth", "Christian conservative", etc.

It doesn't seem to me that this is a damning criticism of "pro-life" in any unique way.

Look, "pro-choice" and "pro-life" are labels that were adopted for purposes of spin. Such labels are very useful-- indeed, I use them. But using them unequally really is bias. Imagine if someone called the Democratic Party by its name but insisted on calling the Republican Party "the right wing" because he or she felt that the Republicans didn't really believe in Republicanism? That's bias, pure and simple.

2. Speaking of bias, I have no problem with professors with strongly held views. Indeed, I agree with about 90 percent of the positions Erwin takes. I also have no problem with professors who express those views in class.

Here's the thing, though. Erwin doesn't. He never makes an actual case that the pro-choice position is accurate. Rather, it is snuck in subtly, in the way I described. He presents a patina of fairness while presenting the issues in a biased fashion under the surface. That's what I am complaining about-- especially when it comes in the form of restating the position expressed by a student.

Again, I don't think you really want to defend using subtle language cues to make the positions articulated by students of one point of view less persuasive. Maybe you do. I certainly think that Erwin is free to do it as a matter of academic freedom. But I don't think it's nearly as defensible as just openly expressing one's views.

3. I just described what his class was like. Remember, my main point was that he is ideological. I used this as an example. I did not say he limited debate. I described the way he shaped debate in the classroom.

I support Erwin's right to his ideology (as well as his ideology itself) and I also think that it was outrageous that he apparently suffered professional retribution for it. But I think I have made my case clear that he doesn't leave it at the door when he goes to work, and that's why I wasn't suprised by what happened at UCI, only outraged.
9.13.2007 8:09pm