One Move Puts Future of Law School in Doubt

By ADAM LIPTAK
Sidebar
The New York Times
September 17, 2007

Let’s say you want to start a law school. Now let’s say you want it to fail.

There are a lot of ways to go about this, but it would be hard to top the tactics of the University of California, Irvine. A week ago, the new law school there, set to open in 2009, had a bright future. Now it looks as promising as a Civil War leg wound.

The two crucial events in the drama took place on Aug. 16. That morning, The Los Angeles Times published an op-ed article by Erwin Chemerinsky, a professor of constitutional law at Duke. And that afternoon, the Irvine chancellor offered Professor Chemerinsky the job of founding dean at the new law school.

After Professor Chemerinsky signed a contract on Sept. 4 and as news releases were being drafted, the chancellor, Michael V. Drake, flew to North Carolina on Tuesday to back out of the deal.

“His exact words were, ‘You’ve proven too politically controversial for this to work,’ ” Professor Chemerinsky said.

For evidence, Dr. Drake pointed to the op-ed article, which had criticized a federal law to speed up death penalty appeals. The article was a brisk and sober expression of conventional legal thinking on the issue.

Professor Chemerinsky is, to be sure, a liberal public intellectual and litigator, and he has been for decades. But law professors around the nation of all political views were uniformly appalled by how he was treated and by the array of reasons given.

“It is absolutely clear,” Brain R. Leiter wrote on his influential law school blog, “that across the political spectrum of the legal academy, the reaction to this news is the same: U.C. Irvine has disgraced itself, and it will be hard-pressed to hire any dean for the new law school at this point.”

By Friday afternoon, hundreds of the university’s professors and students had signed an open letter urging Dr. Drake to reverse his decision. “You have failed to defend the integrity of the university, its recruitment process and the sanctity of academic freedom,” the letter said. “It makes attracting to U.C. Irvine administrators, faculty and students of the highest quality so much more difficult.”

The letter was prepared by David T. Goldberg, a professor of comparative literature. He said the mood on campus was somber. “I’ve not heard a word in defense of the chancellor’s actions,” Professor Goldberg said.

The protests seem to be having an effect, and there was talk over the weekend that the university may try to rehire Professor Chemerinsky.

In an interview on Thursday, Dr. Drake sounded earnest and wounded. But he used the vague language of a human relations department, heavy on jargon and light on facts. He talked about “fit,” about “confidence,” about “comfort,” about “relationships.” Dr. Drake denied that he had been pressured by conservative donors to withdraw the offer. “No one — no regent, no donor, no faculty member, no one — told me what to do,” he said.

But did politics play a role?

“His political views did not,” Dr. Drake said of Professor Chemerinsky. “His larger-than-life voice did. It’s not about his political positions, which are the same as mine.”

So it seems to be all right to have opinions as a law school dean, but not to express them widely or well. There was no inkling of such distinctions in the contract Professor Chemerinsky signed, which expressly allowed outside activities. The job, which would have paid $350,000, was contingent on the approval of the University of California’s board of regents.

Dr. Drake did have one prominent defender last week. Christopher Edley Jr., the dean of another University of California law school, Boalt Hall at Berkeley, sent a note to his faculty on Wednesday saying he was “fully supportive” of Dr. Drake’s decision because deans must be prepared to mute their voices.

“The freedom we cherish and defend for the faculty and students is simply not available to a dean,” Professor Edley wrote. Despite “skepticism in some quarters,” he continued, “Chancellor Drake was nevertheless prepared to go forward with the nomination, but for the fact that he lost his confidence that Erwin fully embraced what was entailed in moving from public intellectual to community builder and institutional leader.”

Whatever the rationale, said Eugene Volokh, a law professor at the University of California, Los Angeles, the affair was a fiasco for the school.

“The process has ended up shooting U.C.I. in the foot badly,” Professor Volokh said. “Just imagine what someone thinking about putting his hand up for dean would think.”

At best, the episode demonstrated epic incompetence. “People don’t want to work for people who bumble like this,” he said.

Professor Chemerinsky said he had had big plans for the new law school, ideological diversity among them.

“I’ve been a law professor for 28 years,” he said. “I have lots of views about legal education. This was a chance to do something.”

He is staying at Duke, which says it is delighted to have him. “It’s not like the McCarthy era,” Professor Chemerinsky said, counting his blessings. “It’s not like I lost my job.”

Dr. Drake, for his part, acknowledged that the law school might have sustained a grave prenatal blow. “My greatest fear,” he said, “is that it will be more difficult because people will doubt our sincerity about our support for academic freedom.”