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UC Irvine Chancellor Michael Drake's New Statement on the decision to Rescind Chemerinsky's Offer:

UC Irvine Chancellor Michael Drake has issued a new statement on his decision to rescind Professor Erwin Chemerinsky's offer to become the dean of the new UCI Law School. This statement is a lot more substantive than the Chancellor's previous effort. It denies rumors that the Chancellor's decision was influenced by pressure from conservative donors, and emphasizes that the "the decision was absolutely not based on Professor Chemerinsky's political views."

I'm willing to give Drake the benefit of the doubt on the donor issue. We don't really any proof that the decision was based on donor pressure. However, the assertion that it wasn't based on "Chemerinsky's political views" seems to directly contradict Chemerinsky's own account, which claims that Drake told him that "he hadn't expected I [Chemerinsky] would be such a target for conservatives. A lightning rod."

Drake's statement would be easier to credit if he had provided some other, nonideological justification for rescinding the offer. However, neither this statement nor the previous one does so (except to say that it was a "management decision"). Others have speculated that the offer was rescinded because Chemerinsky recently published a controversial anti-death penalty op ed. If so, isn't that little different from rescinding the contract because of Chemerinsky's liberal views? If the op ed were objectionable to UCI, it is because the liberal views expressed there might offend conservatives.

Like Eugene Volokh, I believe that ideology can sometimes play a legitimate role in assessing candidates for deanships. A school can legitimately refuse to hire a dean whose ideology prevents him from enforcing administrative policies he disagrees with or does serious damage to the school's image. However, there is no reason to believe that Chemerinsky's fairly typical liberalism falls into that category. Indeed, Chancellor Drake says in his statement that Chemerinsky's views are similar to his own.

My bottom line: if Chancellor Drake wants to refute claims that Chemerinsky's offer was rescinded for ideological reasons, he could help his case greatly by explaining what the real reason for the decision was.

Pin Head (mail):
Chancellor Drake took the opportunity this afternoon to speak to the UCI faculty and answer some of their questions. He began by stressing two "truths" about the situation: 1) "The decision had nothing to do with academic freedom." 2) "The decision was made only by me." No one told him to rescind the offer.

He gave no further subsstantive insight into the issues that most of the audience wanted to hear, namely what were the issues that led him to change his mind and where did they come from. Drake indicated that he sought the advice of approximately a dozen advisors in confidence and when he had explained the situation as he understood it, all supported his decision to rescind. He indicated that he would not divulge the identity of these confidential advisors. When asked specifically about Professor Chemerinsky's statements to the LA times regarding his conversation with Chancellor Drake, the Chancellor was vague and evasive about the substance of conversation. He indicated that he didn't want to say anything negative about Chemerinsky. I wouldn't expect to hear any more details about this from him.

One new revelation was that the Chancellor stated that there was no single reason that alone was sufficient to cause him to reach the conclusion to rescind the offer, but rather an "accumulation of reasons". This led him to conclude that Chemerinsky was not someone that he could "partner" with in the future development of the law school. No doubt, many of the faculty left the meeting with the feeling that perhaps the best solution to this problem would be to rescind the appointment of the Chancellor.
9.14.2007 3:11am
Golda Meir (mail):
Chemerinsky's Introduction to Federal Courts is indispensable and the man has argued before the Supreme Court. I hate his politics, but there's no reason this scholar shouldn't be a dean of a law school. I do not think publicly humiliating this man is appropriate, for any reason.
9.14.2007 3:46am
Visitor Again:
Drake has now twice issued statements claiming that his astonishing turnabout was NOT based on Chemerinsky's political views or on pressure from donors, University Regents or others who might oppose Chemerinsky's views. He has said that it was a management decision and that it was the consequence of not any one thing but a cumulation of things.

Yet he still has not told us what his decision WAS based on. He has claimed that he does not want to criticize Chemerinsky in public, but things really have gone well beyond the point where that is going to be accepted without more. Chemerinsky himself has said he wants the truth to be told; he says that he so informed Drake when he rejected Drake's suggestion that both of them merely state the appointment had been rescinded by mutual decision. There is no legitimate reason for holding back.

Until Drake stops hiding behind bureaucratic evasion and comes clean on the reasons for his turnabout, the firestorm will continue and his viability as leader of the Irvine campus is open to grave doubts. Not that revelation of his reasons will resolve those doubts in his favor, but it is certainly a prerequisite if he is to continue as an effective chancellor.
9.14.2007 7:42am
PersonFromPorlock:

I do not think publicly humiliating this man is appropriate, for any reason.

Speaking of "appropriate," has Chancellor Drake said yet that he concluded it would be "inappropriate" to hire Chemerinsky?
9.14.2007 7:49am
FC:
It seems clear to me from his several statements that Drake decided he didn't like the cut of Chemerinsky's jib.
9.14.2007 12:01pm
TruePath (mail) (www):
Just to play the devil's advocate what is worse about not hiring someone because they are a liberal than because they are a nazi? Or advocate child abuse or something else horrible?
9.14.2007 12:38pm
Hans Bader (mail):
I doubt that Chemerinsky would in good faith enforce California's Prop. 209, which is part of the California Constitution.

So his ideology would prevent him from, in Ilya's words, enforcing "administrative policies he disagrees with." (After all, a state constitutional provision is, by law, a fundamental administrative policy for the state institutions covered by it).

Moreover, he habitually demonizes, and falsely depicts, the positions of conservative judges and judicial nominees, based on their legal philosophy.

So it's hard to have much sympathy for him.

On the other hand, any likely successor to Chemerinsky is likely to also be a hardcore leftie, and to also seek to evade or flout Prop. 209.

So it's not as if removing him achieved much.

So while Chemerinsky has no grounds to complain or act like a victim, the University should probably not have rescinded his deanship.

It just didn't achieve much, and resulted in unnecessary controversy.
9.14.2007 12:39pm
Pin Head (mail):
UC never "enforced" in Prop 209 good faith because it is anathema to them. "Comprehensive review" means that they can accept pretty much anybody they want to without having to worry about Prop 209 because the acceptance criteria are sufficiently vague that any decision can be justified.
9.14.2007 1:19pm
U.Va. 3L:
Just to play the devil's advocate what is worse about not hiring someone because they are a liberal than because they are a nazi? Or advocate child abuse or something else horrible?

Seriously? What's worse about not hiring someone because they're a liberal than not hiring someone because they're a pedophile?
9.14.2007 1:44pm
Visitor Again:
Just to play the devil's advocate what is worse about not hiring someone because they are a liberal than because they are a nazi? Or advocate child abuse or something else horrible?

The devil in me tempts me to draw too fine a distinction, so ... half a dozen of one, six of another, eh, what?
9.14.2007 2:14pm
Henry Bramlet (mail):
While I agree that it was stupid to handle the termination in this manner, I'm still shocked at the "circle the wagons" response from the lawyer crowd.

Yes, we should be disappointed in the handling of this event. But that mis-handling doesn't validate or invalidate the contention that Chemerinsky is the right man for the job. And while plenty of people insist that Chemerinsky would be great for the job, they are not the Chancellor of the school responsible for making that decision.

As a hiring manager, I have often interviewed very competent people whom my colleagues have recommended for hire. But they don't have to work with these people, and so may overlook flaws or traits that I, as the responsible party, cannot. Many times, I have been questioned on my decisions, at which point I must use a delicate touch to avoid offending them or their friends with whom I work. Often, I must merely say, "They weren't the right fit," or, "I found someone better qualified," and hope that my colleagues can leave it at that.

Just as a great programmer doesn't necessarily make a great manager of programmers, I would guess that a great legal scholar doesn't necessarily make a great Dean of legal studies. While I believe that the handling of this matter was bungled, it is possible that as the Chancellor got to know and work more closely with Chemerinsky further, he realized that he wasn't up to the task of running a school.

Yet people keep going back to the bungling of the matter and confusing that with the decision to rescind Erwin's offer. I don't think any of these same people would be afraid to terminate someone who they hired and- after a week- realized they weren't working out. And they might likewise want to keep that information under wraps for numerous reasons- including the desire to avoid needlessly hurting the reputation of the person they let go. This is why we usually try to keep such matters discreet- it can hurt both parties.

I could be wrong- this could have been solely politically motivated. Another possibility is that the Chancellor found someone he considers better for the job. But if there was some other reason- personal flaws in Chemerinsky that came out after the offer was made- his "allies" in this ordeal may be doing him a disservice by constantly digging.
9.14.2007 2:21pm
Jay Myers:
U.Va. 3L:

Just to play the devil's advocate what is worse about not hiring someone because they are a liberal than because they are a nazi? Or advocate child abuse or something else horrible?

Seriously? What's worse about not hiring someone because they're a liberal than not hiring someone because they're a pedophile?

You might want to watch that knee. It jerks uncontrollably. Unlike pedophilia, none of the things TruePath mentioned are illegal in this country. His point was that we are being inconsistent about what we regard as acceptable grounds for not hiring someone. If someone is not hired because of being a liberal then it is decried for being a "political" decision, but if the grounds were something that is nearly universally despised in this country then nobody complains. In other words, it depends on whether it is your ox that is being gored.

Similarly, many of the same people who think it is wrong for Chemerinsky to be disqualified for being too liberal have no problem with Democrats in the Senate proclaiming that they will not confirm (or even allow to come to a vote!) Presidential appointees if they are not liberal enough. This isn't a new situation either. As Joe Biden said to appellate court nominee Daniel Manion in 1986, "I do not think I can vote for you because of your political views."

Before someone responds with the inevitable, "Republicans do it too" claim, compare either the number or percentage of appointees Clinton got confirmed per year during the six years the Senate was held by Republicans to Bush's numbers for six years when his own pary had a majority in the Senate. How many times were Bush appointments stymied because, although there were enough votes to confirm, Democrat's obstructionist tactics prevented a vote?
9.14.2007 3:23pm
BD (mail):
I agree the situation was botched.

IMO, it was botched at the front end, when the Chancellor made the hire in the first place - it seems pretty obvious there were some "considerations" which weren't even considered until after the fact.

Like it or not, the Dean of a law school is its public face; and like it or not, the Dean of a public eduction system law school has to be 'acceptable' to the public. While a public system law school would prefer a Dean who is well-regarded and an excellent salesman for the program, they'll usually define "acceptable" as "Just don't be controversial, OK?"

Why?

Because academic politics are ruthless; because an institution dependent upon public finance offends significant blocks of the public at its own risk; because there will always be other institutions competing for the same public funds who'll be happy to use any excuse to suck money from your institution to help theirs; because politicians looking to score easy points WILL.

IMO, Chemerinsky would've had to at least change his style to serve as a Dean - there are things he did/said as a professor speaking solely for himself which I doubt many law schools would find acceptable from their Dean.

While he may well have been able to make the transition, a more thoughtful Chancellor would at least explore the question beforehand - and one part of the equation would necessarily be "Will the public give him a chance?"
9.14.2007 3:55pm
ejo:
as an academic, are you allowed to slime anyone and everyone and then, when it splashes back on you, bleat about academic freedom? that seems to be the tenor. let's see-EC is a gentleman. not if you read his editorials that heap scorn and contempt on others and often stretch the truth just a mite. do you get a dispensation with tenure allowing you to do that and never suffer any consequences?
9.14.2007 3:55pm
Dilan Esper (mail) (www):
I doubt that Chemerinsky would in good faith enforce California's Prop. 209, which is part of the California Constitution.

There is no basis for that statement, and no reason to think that Erwin wouldn't obey California law.

UC never "enforced" in Prop 209 good faith because it is anathema to them.

FYI, admissions rates of minorities which used to get the benefit of affirmative action in UC schools are way down from pre-209 levels. It is true that they are trying to find various race-neutral workarounds, but nobody believes they haven't been obeying 209. Indeed, if they weren't obeying it, Ward Connerly knows his way to the courthouse.
9.14.2007 4:05pm
Dilan Esper (mail) (www):
Similarly, many of the same people who think it is wrong for Chemerinsky to be disqualified for being too liberal have no problem with Democrats in the Senate proclaiming that they will not confirm (or even allow to come to a vote!) Presidential appointees if they are not liberal enough.

Judicial appointments are inherently political (they are screened for ideology by the President) and structurally political (the elected Senate is empowered to withhold consent and there is no constitutional constraint as to the reasons for withholding it).

That's a lot different than faculty appointments.

In any event, Erwin has been quite clear that he thinks that as an initial matter (i.e., before the job offer), taking into account whether a dean candidate would be a political lightning rod is not inappropriate.

There is no hypocrisy here-- just a bunch of conservatives who want to change the subject to judges rather than admitting that a liberal got screwed.
9.14.2007 4:08pm
Zebo:
Hans Bader:
Seriously? If anyone wouldn't enforce 209 it would be Dean Christopher "Affirmative Action" Edley. It doesn't take long for you to look around Boalt and tell that there isn't that much racial balancing. I don't know why people think liberals can't be trusted to be honest.
9.14.2007 4:28pm
Kevin T. Keith (www):
Has anybody talked to Donald Bren, the conservative donor who funded the school and got them to put his name on it? When this story broke, it was assumed the pressure came from him. Drake has made vague denials of outside pressure, but nobody believes him. Now we've heard from one member of the Board of Regents, but nobody has heard from Bren.
9.14.2007 6:39pm