Chemerinsky and Irvine: What Happened?

The biggest academic freedom fight of the year was also the shortest -- and the hardest to understand. Duke Law School professor Erwin Chemerinsky accepted an offer on Sept. 4 to serve as founding dean of the new law school at UC Irvine; UCI Chancellor Michael Drake withdrew the offer a week after the contract had been signed; the firing was greeted with outrage on the campus and among law school faculty nationwide, and was condemned in editorials in the Los Angeles Times and The New York Times; and Chemerinsky was rehired six days later, on Sept. 16.

Chemerinsky is a prominent legal scholar and liberal advocate who has argued for judicial review for detainees held at Guantanamo Bay, Cuba, and represented Valerie Plame, the CIA agent outed by the Bush White House. He’s also something of a legal celebrity in southern California, where he taught at the University of Southern California for 19 years and often appeared on local TV and radio, speaking in favor of reform of the Los Angeles Police Department and against the state’s “three strikes” law.

Drake is a former professor of ophthalmology at the University of California at San Francisco who had been UC vice president for health affairs before becoming the first African-American chancellor in the history of the 10-campus University of California. With a search about to begin for a new president of the university system, Drake was considered a strong candidate -- until his firing of Chemerinsky destroyed his chances. The forces that pushed him thus must have been powerful.

It’s widely assumed that political pressure from the right led the chancellor to withdraw the offer. But where exactly did the pressure come from? The answer could reveal a lot about the battle lines over academic freedom in America today.

Drake has offered several explanations for his actions. Chemerinsky reports that when Drake withdrew the offer, he explained that his appointment would have caused “a bloody battle” with the Board of Regents. But it turns out the regents had the appointment on their consent calendar, indicating that they considered it uncontroversial and planned no debate -- which is in fact what happened when they approved it on Sept. 20.

The problem with Chemerinsky, according to Drake, was not his political positions, but rather the fact that he was a “polarizing” figure. But in the furor over withdrawing the offer, Chemerinsky turned out not to be polarizing at all. Not only was the faculty virtually unanimous in supporting him, but he received crucial support from leading conservative legal scholars and commentators in southern California. Pepperdine’s Douglas Kmiec wrote for the Los Angeles Times op-ed page describing Chemerinsky as “one of the finest constitutional scholars in the country.” Chapman’s conservative law dean, John Eastman, called firing Chemerinsky “a serious misstep.” Conservative commentator Hugh Hewitt called Drake’s action “revolting.”

Drake denied that “political pressure” played any role in his decision. After he withdrew the offer to Chemerinsky, he explained that it was “a management decision, not a political one.”

He told the Los Angeles Times that “no one called me and said I should do anything." But that turned out to be untrue. A group of 20 prominent Republicans had organized against Chemerinsky in recent weeks, according to the Times, which reported that "Drake's cell phone number was distributed so the protesters could call the chancellor.” A separate campaign was organized by conservative Republican activist and L.A. county supervisor Mike Antonovich, who said he had e-mailed a “small group of supporters” urging them to contact the university and demand that the Chemerinsky offer be rescinded. Antonovich told the Associated Press that appointing Chemerinsky to head the UCI law school "would be like appointing al-Qaeda in charge of homeland security." So much for “no political pressure.”

Chemerinsky argued that he was fired because of an op-ed in the Los Angeles Times in August that criticized California’s procedures for death penalty appeals. The op-ed appeared the same day Chemerinsky was offered the job. He said (in another L.A. Times op-ed) that Drake had told him that op-ed had made him “too politically controversial.” Drake told the L.A. Times 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.” Drake found support for this position from one prominent source: Chris Edley, dean of the Boalt Hall law school at Berkeley, also an African-American. Edley said it was necessary for a liberal law school dean “to subordinate his autonomy and personal profile for the good of the institution." But where exactly was this controversy over the op-ed? Who told the chancellor that he should fire Chemerinsky because of the op-ed?

The highest-ranking Republican in the story is state supreme court Chief Justice Ronald George, who objected to the Chemerinsky op-ed. According to the Times, a letter expressing the chief justices’s criticism was given to the chancellor by a prominent local attorney. The letter said Chemerinsky had his facts wrong, but apparently didn’t call for his firing.

It’s hard to believe that calls from a couple of dozen local Republicans and a letter from the state’s Chief Justice could persuade the chancellor to withdraw the offer to such a prominent and respected figure. The pressure, many argue, must have come from somebody much more powerful.

Number one on that list from the beginning has been Donald Bren, the Newport Beach billionaire, Republican funder and chairman of the Irvine Company, who gave the law school $20 million to fund the salaries of the dean and 11 faculty members -- indeed it’s officially called “the Donald Bren School of Law.” (But Bren’s spokesman explicitly denied that Bren had pressured the chancellor, telling the press "Mr. Bren said he doesn't know enough about Erwin Chemerinsky to have an opinion and he never expressed one to anyone -- pro or con." That seemed unlikely. But two former UCI deans familiar with Bren’s modus operandi told me it was equally unlikely he had pressured Drake to withdraw the offer, partly because he has a deep aversion to bad publicity.

A few other facts have surfaced. Chemerinsky represented the family of Rachel Corrie in their lawsuit against Caterpillar. Corrie is the 23-year old college student killed in 2003 in the Gaza Strip while confronting an Israeli bulldozer that had been ordered to wreck an Arab house. The lawsuit argued that the bulldozer manufacturer should have known that its product would be used by the Israeli government for "human rights violations." The case was dismissed by a federal judge in 2005 and a subsequent appeal affirmed the dismissal.

A few bloggers -- including David Horowitz -- speculated that Chemerinsky’s role in the Rachel Corrie case “would also explain the reason UCI rescinded its offer.” The chancellor might have been concerned about complaints from Jewish groups arguing that UCI has failed to protect Jewish students from Muslim student organizations that sponsored anti-Israel speakers. In 2005, the Zionist Organization of America filed a federal civil rights complaint against UCI on behalf of Jewish students.

Others have voiced the opposite suspicion. USC Law professor Susan Estrich wrote in her syndicated column, “Drake has a twisted view of academic freedom, one that allows Muslim students to engage in open anti-Semitism.... But there's no room for a liberal, Jewish law professor.” Both theories seem extremely unlikely as explanations for Drake’s motivation for withdrawing the offer, but they do illustrate the intensity of speculation around an action that’s hard to explain.

The UCI Academic Senate met on Sept. 20 to discuss a resolution of “no confidence” in the Chancellor. Drake himself spoke, apologized for not consulting the faculty, and offered the following explanation of why he had withdrawn the offer to Chemerinsky: in the week following the signing of the contract, “my comfort level did not grow.” Period. You might call that “stonewalling.” Then a letter from Chemerinsky himself was read, in which he urged the Irvine faculty “with all my heart” to reject a vote of “no confidence,” which he said would be a “crippling blow” to the future of the campus and the law school.

Apparently what Drake means by “comfort level” is that he did not trust Chemerinsky to modify his public stances so as not to anger conservatives. To fire a dean for that reason is indeed a violation of academic freedom. Because Chemerinsky has immense stature and decades of experience with the media, he was able to regain the position that had been withdrawn. He is now in as strong a position as he will ever be with any chancellor. Well and good -- but what about others who do not command the attention of the national media? This decisive victory for academic freedom has ominous implications.

The fact is that we still don’t really know the sources of the pressure that lead Drake to act against his newly-appointed dean. And at this point, with Chemerinsky himself calling for a focus on the future, it seems unlikely we will ever know what happened to cause the biggest academic freedom fight of the year.