A Political Target

Erwin Chemerinsky, a noted constitutional scholar and law professor at Duke for 21 years, has just been hired and then fired as the first dean of the University of California, Irvine, Law School, which opens in 2009. Irvine’s chancellor, Michael Drake, explained the firing by saying “he had not been aware of how Chemerinsky’s political views would make him a target for criticism from conservatives,” according to Brian Leiter’s Law School Reports, a blog on legal academia.
If the blog report is accurate, the treatment of Chemerinsky is a test case for conservatives who support free speech and argue vehemently against political tests for faculty and administration appointments. Do these principles apply only to conservatives, or do they protect liberals as well?

Chemerinsky is indeed very liberal and very outspoken. He particularly irritated many religious conservatives by lumping Christian fundamentalists with Islamic fundamentalists as threats to democratic principles. So argue with him, but don’t try to get him fired.

For one thing, the chancellor had plenty of time to think about the impact of hiring Chermerinsky, and to reject him if he chose. But it’s disgraceful to hire the man, fire him immediately and then explain that you are doing so to cave into political pressure. The chancellor, the school and Chemerinsky all suffer from this sort of amateurish behavior. And if the chancellor does not reverse course and accept Chemerinsky, he puts the next choice for dean in an untenable position – he will inevitably be seen as a safe nominee, so harmless that no political pressure group will try to oust him. The reputation of the law school would decline two years before opening.

“I’ve been a liberal law professor for 28 years,” Chemerinsky said. I write lots of op-eds and articles, I argue high-profile cases and I expected there would be some concern about me. My hope was that I’d address it by making the law school open to all viewpoints. He said he has begun to assemble a board of advisors that would have included conservatives such as Viet Dinh, a law professor at Georgetown, and Deanell Reece Tacha, a judge on the 10th Circuit Court.

Writing anonymously on the Wall Street Journal site, different Duke law students offered both praise and criticism for Chemerinsky. A pro-Chemerinsky opinion said: “To respond to allegations of anti-conservative bias – these cannot be further from the truth. Equal air time was always given to both sides during class, and with regard to his Con Law final, I wrote a final exam that could only be described as ‘Scalia-esque’ and received a 4.0.”

Do the right thing, chancellor, and re-hire Chemerinsky.


  • John Leo

    John Leo is the editor of Minding the Campus, dedicated to chronicling imbalances within higher education and restoring intellectual pluralism to our American universities. His popular column, "On Society," ran in U.S.News & World Report for 17 years.

12 thoughts on “A Political Target

  1. “[T]he treatment of Chemerinsky is a test case for conservatives who support free speech and argue vehemently against political tests for faculty and administration appointments.”
    More accurately, it’s a test case to see if conservatives understand the difference the difference between a private university and a taxpayer-funded one. John Leo doesn’t seem to understand the distinction. The Constitution does not say “There shall be no POLITICAL test for any office under the United States”. It would be ridiculous if it did.
    Second, the “political test” against which conservatives normally argue is the one which UCI failed when it HIRED Chemerinsky: that all prestigious public positions must go to Politically-Correct nominees.
    Finally, Chemerinsky’s shameful failure to stand up for due process for the innocent white lacrosse players in the recent case at Duke is an absolute disqualifier for his receiving any taxpayer funded position of influence.

  2. My message to Richard Riley is that if you really feel that hiring Chemerinsky was a “mistake” and that firing him was the best course after that, then you are a phony to be going on about academic freedom in any sense of the word.
    If you’re jolly fine with Kenneth Starr being the head of Pepperdine, then you should be able to live with Chemerinsky–whatever his public profile–being head at a similar nearby institution.
    To think otherwise is counter to the greatest traditions of academic freedom and is, in fact, un-American.

  3. David Ross –
    I followed the Duke Hoax from the beginning, thank you for the link. But his statements to KC Johnson can hardly be called “courageous.”
    All he says is that he hasn’t followed the case, that other lawyers criticize Nifong, and Susanne Estrich wrote a good essay. From my search, he hasn’t spoken about the case – the highest profile criminal case in the nation, involving his own University – since.

  4. As a conservative (and a fundamentalist Christian) who learned of Mr. Chemerinsky only from his appearances on Hugh Hewitt I can assure you that this is entirely UCI’s disgrace. It is a rare moment when I find him persuasive but my gut reaction to reading about this was to feel quite sad for him. I am sure he would have done a fine job, and I hope UCI comes to its senses and gives him that chance.

  5. Exactly right. If Chemerinsky is the right man for the job and he’s not one to use his position to grind his axes to the exclusion of a good legal education, then there is simply no good reason to exclude him.

  6. I agree that Chemerinsky needs defending but did conservatives actually say anything or did the dean simply imagine that conservatives would say something?
    How much did the Group of 88 fiasco taint Chemerinsky? Did the dean fear that people would hear “Duke” and “Leftist professor” and then assume that Chemerinsky was involved in that witch hunt?

  7. Let’s leave aside his statements against Christian conservatives (which I agree with anyway).
    The first test for any scholar of law must involve where that scholar stands on due process. If he is to be a dean of scholars, he must show where in his career he has acted on such principles.
    Where was Chemerinsky when his university was trying to railroad three of its students into prison for a rape which never occurred? Most of the faculty at Duke were and are cowards. The last thing any school in politicised California needs is another Dick Brodhead.
    It turns out that Chemerinsky got out there in August 2006, early enough for it to have been a brave stand, to give a brief in favour of due process in Durham.
    Chemerinsky seems like a decent and courageous man.

  8. The UC Irvine administration is turning Chemerinsky into a martyr for the cause–claiming that “conservative bias” is “forcing” them to fire him. Oh, those EVIL conservatives! Forcing UC Irvine to do this terrible thing to this innocent man! Those conservatives are such bastards! I hear that they kick puppies in their spare time.

  9. If the blog report is accurate, the treatment of Chemerinsky is a test case for conservatives who support free speech and argue vehemently against political tests for faculty and administration appointments. Do these principles apply only to conservatives, or do they protect liberals as well?
    Indeed; here’s hoping they don’t flunk this test the way they did with John Lewis at Ashland University.
    That case is of greater significance than this one IMO, because Lewis is neither a liberal nor a conservative, but an Objectivist; as such, it would serve as a test case for the entire mainstream in relation to small fringe movements, not just the liberal/conservative mainstream.
    After all, is it such cases, involving small minorities and/or unusual ideas, where the First Amendment rubber really meets the road?

  10. IIRC, Chemerinsky has been at Duke since 2004. Before that he was at USC and DePaul.
    I agree – the Chancellor made a big mistake hiring him. With Chemerinsky as Dean, every story that included UCI’s new law school would have been about Erwin Chemerinsky’s latest cause or pronouncement.
    Once he was hired and UCI realized what was rolling downhill at them, they had a couple of options. They could have kept him for a couple of years, then tried to ease him out and get someone much lower profile. Of course, Chemerinsky wouldn’t have gone quietly.
    Or they could be up front and transparent, the way we keep saying good organizations should be. Take immediate steps to correct the problem, be up front and honest in your reasons. Don’t be like the Duke administration in the Lacrosse rape fraud. Be like Johnson and Johnson in the Tylenol poisoning case.
    The Chancellor chose “B.”

  11. Bravo, John Leo, for putting principle over culture-war partisanship.
    Chancellor Drake has just put a huge bullet through his foot and jeopardized the future reputation of the UC Irvine Law School. It would be very illuminating to learn which conservatives made it be known to him that his illustrious new hire, Erwin Chemerinsky, was persona non grata despite being one of the nation’s foremost scholars in his field.
    If these politicizing shenanigans are permitted to stand in academia, literally no one will be safe. I hope John Leo and MindingtheCampus will speak and write in more public forms and publications about this outrage.

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