More from the L.A. Times on the Chemerinsky Matter:

The L.A. Times reports:

Chemerinsky and [UCI Chancellor] 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 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." ...

More from The Recorder (a San Francisco legal newspaper):

Christopher Edley Jr., dean of University of California, Berkeley's Boalt Hall School of Law who has been involved with the new law school -- and was handpicked by Chemerinsky to serve on his advisory board -- said it wasn't about Chemerinsky's "political leanings or ideology, which everyone knew" about.

"I think key people lost confidence that he would be willing to shed his high personal public profile in the service of the law school -- whether that was the right or wrong conclusion," Edley said, though he declined to identify the individuals who opposed Chemerinsky.

Edley continued: "At the end of the day, the chancellor had to have confidence that Erwin would be able to earn the trust, loyalty and investment of a diverse constituency, and for a startup venture that's an exceptionally delicate proposition."

Oh My Word:
The dismissal was perfectly valid and presents no serious First Amendment concerns.
9.13.2007 1:43pm
Kieran (mail) (www):
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

So instead he decided to publicly subordinate the autonomy of the institution for the good of, uh, the institution. Like destroying the village in order to save it.
9.13.2007 1:53pm
Thorley Winston (mail) (www):
So basically it wasn't Erwin Chemerinsky's beliefs that cost him the job, it was his inability to put them aside in order to do the job for which he was hired.

So that makes two cases that we know of where Erwin Chemerinsky was offered a dean's position and ultimately didn't get it (one by his choice apparently) but then proceeded to trash talk the people who offered it to him to make himself look like a martyr.

At some point Erwin, the person you need to blame is the guy in the mirror.
9.13.2007 2:02pm
Kent Scheidegger (mail) (www):

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

Stand up, yes. Make patently false assertions of fact, no.
9.13.2007 2:02pm
Mr. Impressive (mail):
I think this idea that political advocacy fatally conflict with being dean is very interesting.

Is the writing of advocacy pieces (whether liberal or conservative) in the New York Times in fatal conflict with the duties of a law school dean?

Should present promises to discontinue writing remove the fatal taint of past advocacy pieces? Is someone concerned about an excessively liberal or conservative dean going to be satisfied with a choice merely because they discontinue writing absent other indicia of an internal change in ideological commitments? Or will they be satisfied if their ideological opponent simply shuts up after taking the position, regardless of what they actually believe? Is an important qualification for being a good dean never having an opinion on a controversial matter?

I think UC Irvine would have been very lucky to have such a prominent scholar as dean. Hopefully, not too much damage is caused to the future UCI law school by this fiasco.
9.13.2007 2:08pm
I wonder what Pepperdine thought when Ken Starr took up the Bong Hit for Jesus cases to the Supreme Court?
9.13.2007 2:16pm
Thorley Winston (mail) (www):
I think UC Irvine would have been very lucky to have such a prominent scholar as dean.

I think any law school would be lucky to have a prominent school as a member of their faculty. For the position of dean, I think they'd be better off with someone with the requisite temperament and willingness to put aside their pet causes and focus on doing the job.
9.13.2007 2:17pm
hey (mail):
Prima donnas are horrible enough among the faculty. As a Dean, prima donnas destroy institutions, especially an upstart one.

This looks more and more like a more than well-deserved smackdown of a pretentious posterior orifice who was unable to do the job he was being hired to do. The academy needs many more dismissals like this, especially of administrators currently inhabiting Durham NC (Brodhead +++)!
9.13.2007 2:19pm
Ken Starr is dean of Pepperdine Law but he still gets to sign amicus briefs against gay marriage in California, but Chemerinsky is too political because he is against fast-tracking execution?
9.13.2007 2:20pm
PatHMV (mail) (www):
Pepperdine and UC Irvine are, of course, entirely separate institutions. That one school is ok with its dean being an active advocate in controversial cases does not mean that all schools have to be ok with it. If Pepperdine decides tomorrow that it wants its dean to cut back on outside activities, and decides to fire Ken Starr when he won't do that, I certainly would have no objection to their firing him. But until that happens, bringing Starr and his institution into this is utterly irrelevant.
9.13.2007 2:32pm
Richard Riley (mail):
Edley's involvement gives this a racial tinge. According to this latest L.A. Times piece, it looks like Edley was consulted by Drake and - in contrast to every other law professor or law dean who has weighed in on this so far - is backing Drake here. Edley is black as is Drake. Chemerinsky is white. I think we may see more black solidarity with Drake as this controversy continues.
9.13.2007 2:35pm
CDU (mail):
The dismissal was perfectly valid and presents no serious First Amendment concerns.

The issue here is academic freedom, not the First Amendment.
9.13.2007 2:35pm
Certainly writing high-profile opinion pieces is incompatible with being a law school dean, in my view. Most CEOs, law firm partners etc. would consider it incompatible with their positions, too. These positions require a willingness and ability to get along with people who hold a wide variety of political beliefs. Actual legal work, such as amicus briefs, is somewhat different.

Incidentally, as a Boalt alum, I think Edley has been a little too political. (Of course, if his views coincided with mine, I might not notice it so much.) But I know he has made a definite effort to rein in his political activism for the good of the institution, though I think he might have done a little more.
9.13.2007 2:36pm
Mr. Impressive (mail):
Thorley Winston,

Given the overwhelming view among legal scholars, whether liberal, conservative or libertarian, that UC Irvine (an as of now non-existent law school) would have been lucky to get Chemerinsky as Dean, I disagree with your point of view quite strongly.

You may have an ideological litmus test in mind when it comes to the qualifications you think that a dean should have. But apparently, the legal academy overwhelmingly rejects such ideological litmus tests. I am going to have to side with the legal academy on this one.
9.13.2007 2:36pm
Mr. Impressive (mail):
In contrast to my views regarding law school deans...

I think ideology should be considered an extremely important factor in the selection of Federal judges at all levels.
9.13.2007 2:39pm
Mr. Impressive (mail):

Actually, the example of Pepperdine is quite relevant. The question is, what qualities are necessary in a successful dean.

If Pepperdine, which I think most would agree is a successful law school, has a dean that speaks out on issues of public importance, and has yet done no harm to Pepperdine, then one question the value of an ideological litmus test to the job.

Your question goes to the exercise of arbitrary discretion. You are simply saying you will not criticize the exercise of arbitrary discretion by either Pepperdine or UC Irvine. But, others apparently have the view that there should be limits to the exercise of arbitrary discretion when it comes to terminating job offers that have already been made. That is, before you jerk someone's chain and terminate a job offer after a contract has already been signed, you should have a good reason. You should not fire someone based merely on the fact that you did not like what you had for breakfast.

The question is whether firing a dean (after an offer is already made) because of ideology constitutes a good reason. The Pepperdine example is relevant based on the assumption that job offers should not be rescinded for arbitrary reasons. Since you may not share that basic assumption, it may not be relevant in your view however.

In fact, the consensus seems to be that UC Irvine has greatly harmed its new law school, even before it got off the ground. Anyone who takes the deanship now is going to look like a tool.
9.13.2007 2:50pm
PatHMV: Yes, because all things are different, all comparisons are irrelevant. Comparisons are stupid, so don't make them ever. Ignore the fact that you don't explain WHY Pepperdine should be different from UCI in this regard.

The point is, other law school deans continue to be controversial and active. Being controversial and active does not prevent you from being a law school dean.

Another example: Yale Law School Dean Harold Koh and Franklin Pierce Law Center dean John Hutson testified in Congress against the appointment of Alberto Gonzalez.
9.13.2007 2:54pm
Oh My Word:
"The issue here is academic freedom"

Fair enough, though I think that there is too much academic freedom, also. There is near-unimpeded freedom for academics to make idols out of absurd ideas all in the name of the proposition that students should be tested and challenged and what have you. The problem is that ideas that are so absurd as not to be able to make it anywhere else find a little intellectual welfare in the university.

That little mini-rant is obviously not directly relevant to Chemerinsky's situation, but it does answer what I consider to be an errant proposition that there are larger principles at stake, such that even if Chemerinsky is an uncontrollable left-wing partisan, he should be stuck up for because of the larger importance of academic freedom.

There is an excellent case that the academic freedom pendulum has swung so far in favor of absolute power of academics in their fiefdoms that some trimming of the sails is highly advisable anyway. (And I have spent many years in grad school errantly believing in the wisdom of the academic system, so I guess I've seen its faults up close).
9.13.2007 2:55pm
Anderson (mail):
What horse manure Irvine has come up with! Law school deans aren't supposed to write op-eds?????

I've seen the veracity of EC's op-ed challenged in these threads, and that WOULD be a valid concern ... but Irvine has expresssly denied that they took the substance of the op-ed into any consideration. Wowzer.
9.13.2007 3:04pm
I was initially very much on Chemerinsky's side, but the more I read and think about it, the less charitable I am.

Schools need deans that, regardless of their personal beliefs, can socialize with all different sorts of people, since one of their primary duties is fund raising. A school needs confidence that a dean is not going to scare people off by constantly being in the news on the frontlines of controversial issues. If UC-I lost that confidence, they made the right decision.

There are lots of effective law school deans out there with leftist political views, but they have the good sense to not be constantly writing op-eds on hot-button issues.
9.13.2007 3:08pm
Let's also look at what Edley was doing when he was "about" to be come dean of Boalt:
Giving talks on affirmative action.
[D]iscuss[ing] the outcome of Election 2004, civil rights and race.

And since then:
Calling Ward Connerly "profoundly wrong" for getting affirmative aciton axed in California via prop 209 and reforms at the UC system.

In fact, Edley has been a fervent advocate for Affirmative Action, before becoming dean, during the process of becoming dean, and after becoming dean. He has given talks about it, given interviews about it, and written about it.

But Chemerinsky is too controversial because he wrote an op-ed against fast-tracking execution?

Dean Edley needs a reality check (unless he thinks Affirmative Action in public schools, which is not only illegal in California, but borderline unconstitutional, is less controversial than Chemerinsky's left of center views on the death penalty.)
9.13.2007 3:10pm
Dilan Esper (mail) (www):
Stand up, yes. Make patently false assertions of fact, no.


See my comment on the other thread-- you are making a lot out of this newspaper piece, which the Chancellor also mentioned. And Erwin said the pressure started coming after the LA Times published a piece that said he was the frontrunner.

Were you involved in this? Did you make any phone calls or e-mails to anyone in the decision tree? Did anyone at your organization do it? Anyone you know?

Also, you are really stretching things to call an error in a newspaper article-- even a deliberate one-- a test of scholarship. Those things are written on short notice; they are not law review articles.
9.13.2007 3:22pm
Oh My Word:
The problem is not that he wrote an op-ed, it's that he apparently did so right after being asked to pipe down by his boss. Apparently, Chemmy thinks he is above such inanities as bosses and discipline. He's been an academic far too long to understand that. It's that attitude that was rightly seen as not displaying the requisite deference to authority right out of the starting gate.

I would have terminated him too for that sort of thing, even though had he come to me and asked permission to write the op-ed, I might have given it.
9.13.2007 3:25pm
Thorley Winston (mail) (www):
Also, you are really stretching things to call an error in a newspaper article-- even a deliberate one-- a test of scholarship. Those things are written on short notice; they are not law review articles.

IIRC it was Chemerinsky who tried to defend his decision to write the factually-challenged op ed piece as part of his role as an "academic." In which case if he's going to defend it as such, he ought to be willing to be held to scholarship standards.

But I think it does address somewhat the point about Pepperdine being willing to allow Dean Starr to write an amicus brief on the marriage issue. I haven't read the brief but I'm guessing that it was rigorously researched, edited, and fact checked before Dean Starr sent it in.

I'm guessing that a law school, particularly a new one, is going to be a little more concerned about how their new dean making off-the-cuff remarks in an op ed piece about a controversial issue reflects on them as an institution then they are about him submitting something of a more scholarly nature.
9.13.2007 3:36pm
PatHMV (mail) (www):
The characteristics of a good law school dean for one school may not be the same characteristics needed to be a good law school dean at another school.

In this case, for example, UC Irvine is a new law school, and the first dean of a new law school usually plays a huge role in setting the tone for the school, its general political leanings, its philosophy of education and the role of educators. It's entirely appropriate for the administrators of this new school to decide that a dean intent on playing a strong public role advocating his own personal politics may not be the best choice to be the initial dean of the school.

In other words, there's no one single set of characteristics for what constitutes a good law school dean. Different schools have different needs at different times. Unless you can show me how Pepperdine's needs at this point in its development as a law school are the same as UC Irvine's, I will continue to maintain that any comparison between Starr and this case is shear political demagoguery.
9.13.2007 3:52pm
Dilan Esper (mail) (www):
In which case if he's going to defend it as such, he ought to be willing to be held to scholarship standards.


Academics are often public intellectuals. They are seen by the public as experts who can give useful information and opinions about public policy issues within their specialties.

That doesn't mean that everything an academic says to a newspaper needs to be up to the same standards of repeated fact checking and peer review as a law review article.
9.13.2007 3:54pm
Mr. Impressive (mail):

I think your hyperbole, accusing those who think that a comparison to the dean of Pepperdine is relevant (not necessarily decisive) of engaging in "shear political demagoguery," makes your argument less, rather than more, persuasive.

What are, in the scheme of things, minor disagreements, does not make your opponents demagogues.

EV has also made the argument that Pepperdine is in a different situation.

I think that the needs of a new law school, above all else, is to get faculty that have some degree of academic fame so as to increase their prestige. That is someone like Erwin Chemerinski. I think that it is especially helpful to have a famous and very well-respected academic like Mr. Chemerinski in the position of dean. This would lend gravitas to the whole department.

I do not think the fact the Chemerinski is liberal would hurt UC Irvine any more than the fact that Kmiec is conservative would hurt Pepperdine. And even if it would hurt slightly with some donors (just as Kmiec as dean of Pepperdine surely hurts with some donors), I think the fact that he has a big name would help far more.

Most of all, I believe a comparison between Pepperdine and UC Irvine is rational and reasonable, even if not in all respects decisive. Pepperdine has a very important lesson for the case of UC Irvine. Having a dean with an opinion does not cripple the fundraising potentional of a law school.
9.13.2007 5:01pm
Kent Scheidegger (mail) (www):
See my comment on the other thread

Answered in the other thread.
9.13.2007 5:09pm
Dilan Esper (mail) (www):
Answered in the other thread.

And just to be clear (so someone doesn't read this thread and make a negative inference about Kent), Kent indicated that he made no attempt to influence the decision unless one counts putting up a blog post.

And as I also observed in the other thread, I do think that Kent's position, even if one accepts his view as to the seriousness of the error in the piece, ignores the difference between newspaper op-eds and scholarship. As far as I know, nobody has found any serious factual errors or misrepresentations in Erwin's scholarship.
9.13.2007 6:05pm
Q the Enchanter (mail) (www):
I think Kent's piece ultimately turns on a stingy reading of Chemerinsky's piece. (For what it's worth, I argued as much in a comment on his blog and a post on mine.)
9.13.2007 7:51pm
Hei Lun Chan (mail) (www):
Did Chemerinsky really write that a regulation is "mean-spirited"?
9.13.2007 8:29pm