Dumped over an Op-Ed

Erwin Chemerinsky, unhired as UC Irvine's founding law school dean, says his
ordeal is a lesson in academic freedom.

By Erwin Chemerinsky / Los Angeles Times

September 14, 2007

After so many years of commenting on the news, it is strange to be the news.
But, in a sense, this story isn't really about me, it's about academic freedom
in our deeply polarized times.

As has been widely reported, on Aug. 16 I was asked to be the founding dean of
the new law school at the University of California at Irvine. After a couple of
weeks of negotiations, I formally accepted the position and signed a contract
on Sept. 4. It always was understood that the job was contingent on approval of
the University of California Board of Regents, and it was to be on the agenda
for the regents' meetings on Sept. 18-20. I was tremendously excited about the
possibility of being part of starting a new law school at an excellent
university.

On Tuesday, Sept. 11, however, the chancellor at UC Irvine, Michael V. Drake,
withdrew the offer. He told me that I had proved to be "too politically
controversial." Those, by the way, were the exact words that he said I could
use to describe the reason for the decision. He told me that he had not
expected the extent of opposition that would develop.

What was it about my views that was too controversial? Only one example was
mentioned: an Op-Ed article I wrote on these pages criticizing a proposed
regulation by then-Atty. Gen. Alberto R. Gonzales to shorten the time death row
prisoners have to file their habeas corpus petitions. There are more than 275
individuals on death row in California without lawyers for their post-
conviction proceedings. The effect of the new rule would be that many
individuals, including innocent ones, would not get the chance to have their
cases reviewed in federal court.

The Op-Ed article was written and published before I was offered the position
as dean. More important, the whole point of academic freedom is that
professors -- and, yes, even deans -- should be able to speak out on important
issues. It would never have occurred to me that arguing against a proposed
federal regulation on behalf of those on death row would be deemed
objectionable. On the ideological spectrum, it is not radical.

Some people, in speaking to me, have compared this to McCarthyism, but in an
important way that analogy is not apt. I did not lose my job. I am a tenured
law professor at a terrific university, and I can continue to teach and write
and handle legal appeals, as I have for the last 28 years. I have received
nothing but support over this from my university president, provost, dean and
colleagues. During the McCarthy era, some faculty members lost their jobs for
what they wrote and said.

A key lesson learned from those tragic times is that academic freedom matters.
Tenure has many costs, but it exists so that academics will feel free to
express themselves without fear of reprisal. It is based on the idea that
everyone benefits from the free exchange of ideas. Without academic freedom,
the reality is that many faculty members would be chilled and timid in
expressing their views, and the discussion that is essential for the
advancement of thought would be lost.

This is not a liberal or conservative proposition. I said to Chancellor Drake
that if I were conservative and my appointment had been blocked by liberals,
the right would be justifiably outraged that "political correctness" had done
me in. The truth is that a person's politics should play no role in the
decision to hire them for a faculty or administrative position. All that
matters is that the individual be committed to creating an institution where
all viewpoints will be respected and flourish. That is what academic freedom is
all about.

My concern is that the message from this episode, especially for my more junior
colleagues who may aspire to be deans someday or, for that matter, judges, is
that if you speak out -- liberal or conservative -- you may lose your chance at
a position that you really want.

That's why I decided to answer questions about what happened and to accept the
invitation to write this article. Chancellor Drake initially asked that I
simply say that we had mutually agreed to end my prospective deanship. I
refused and said that all I wanted was that the truth be told. We live in such
ideologically polarized times. It is important for those on both sides of the
ideological spectrum to realize that their common commitment to academic
freedom is far more important than blocking a particular faculty or dean
candidate based on ideology.

What now? I have enormous fondness for the many wonderful people I met at UC
Irvine, and I hope they find a terrific dean and create a great law school -- a
school that, like all schools, should be committed to a rich diversity of ideas
and views.

Erwin Chemerinsky is a professor of law and political science at Duke
University.