Beyond Mending Administrative Fences: The Real Challenges Facing the New UC Irvine Law School and Dean Chemerinsky

By VIKRAM DAVID AMAR
Friday, Sep. 28, 2007

UC Irvine's decision to hire, then not hire, then hire Duke law Professor Erwin Chemerinsky as the inaugural Dean of its planned law school (to be named after Donald Bren, who donated $20 million to the school) has received much attention in the mainstream media and the blogosphere. Much of the commentary has been poignant and powerful. I especially liked Douglas Kmiec's L.A. Times assessment, published at a time when it seemed that Irvine had passed Chemerinsky over; I rank the piece among Professor Kmiec's most gracefully executed essays.

However, some of the analysis has been, I think, too cursory, as I will explain. Moreover, the true challenges facing the new UC-Irvine Law School, in the receding wake of the Chemerinsky hiring episode, are more important, if less discussed, than many of the points that have thus far dominated discussion.

Overlooked First Amendment Complexity

To give one example of analysis that might need more depth, I believe the easy assertion, suggested even on this website, that Chemerinky's First Amendment rights would necessarily have been violated had he been denied the deanship for being an outspoken liberal, is much too quick. Although the First Amendment has something to say here, surely a public university can consider a person's reputation as a high-profile political advocate in deciding whether he could work well as a Dean with the relevant constituencies that determine a Dean's ultimate effectiveness -- potential students, donors and faculty members. And this is true even if such considerations have no legitimate place in hiring rank-and-file faculty.

Indeed, Erwin - careful constitutional lawyer that he is - seems to have acknowledged in some of his public commentary on recent events that while Deans do enjoy academic freedom, what academic freedom means (as a constitutional and policy matter) for a Dean and for a faculty member, respectively, might differ in some particulars.

To see this, suppose (completely hypothetically) that Irvine had rejected Professor John Yoo (from Boalt) as a Dean candidate because the Chancellor believed Yoo's association with the so-called "torture memos" would create an insurmountable image problem, plaguing his fundraising and community relations efforts. Such a decision, most careful First Amendment analysts I think would agree, would not necessarily violate the Constitution.

Why Dean Chemerinsky Has the Qualities To Help Irvine

For the record, I think Erwin - whom I have known and had the pleasure of calling a true friend for over 15 years -- was a splendid choice for Dean. Moreover, I predict that those persons who worry he will be overly liberal in the discharge of his decanal duties will be pleasantly surprised by the way he is a magnet for talent and energy all across the ideological spectrum. It's hard not to be impressed by his skill in, and passion for, the law. Erwin is a dazzling doctrinal guru; I can't tell you how many arrogant, first-rate constitutional law professors (a phrase that might border on redundancy) are truly awed by his ability to disentangle and synthesize Supreme Court rulings.

The other thing that stands out about Erwin is his sincere sweetness. It takes most people a while to believe he is really as nice as he seems, because his gentleness and kindness - even to people whom he has just met, and who cannot do anything for him -- are almost over the top.

It is largely because of that personal decency on Erwin's part that I do not think there will be any problem created by the suboptimal way Irvine Chancellor Michael Drake handled any concerns he had about Erwin over the past few weeks. Erwin has said that he and Chancellor Drake agree on the important things, and that they have, in Erwin's words, "a special bond." I am confident Chancellor Drake will treat Erwin with the great respect he deserves, and vice-versa.

The Real Challenges

All this brings me to the real challenge that Drake and Erwin face - how to create, define and build a great public law school in an era when the State of California (among others) is no longer in the business of robustly supporting legal education. Providing a first-class legal education is expensive, and law schools compete with each other for resources. (Indeed, law school Deans today have to be public and private fundraisers first and foremost; that is one of the reasons that the roles - the functions of the job, if you will - of Dean and faculty member have diverged, such that, in my view, academic freedom necessarily means different things in the two settings.)

Southern California is awash in new law schools. In the past dozen years, four law schools have received ABA accreditation (including provisional approval). Irvine will join these newcomers in a state with (now) twenty ABA-approved law schools.

Of course, none of the other newcomers has an affiliation with the prestigious University of California. The last UC law school before Irvine to be founded opened its doors close to half-a-century ago.

But much has changed in the last 50 years. And one of the things that used to come along with the UC name - a large public subsidy - is dwindling. Recent changes may call into question a few of the ways in which the Irvine law school hopes to distinguish (and justify) itself. On the Irvine website, in response to questions about the niche that the new school will fill, are the suggestions that "[c]ompared to the best private law schools, a UC legal education is affordable to a wider range of the population. . . [and that] UC Irvine law graduates will be especially encouraged to pursue careers in public service."

That description and aspiration may have been plausible when written a few years ago. And it may still be to some extent today. But it is unlikely to be so for much longer.

That is because, in California, public support for law schools has waned. Although the data varies a bit from school to school, in 1991, state support accounted for more than 60% of the overall budget at most of California's public law schools. In 2006 - fifteen years later -- that percentage has fallen to as low as 18%.

The recent "professional fee" increases that the UC Regents approved last week for the three existing UC campus law schools illustrate the trend, and the problem. Under the plan adopted by the Regents, fees at UC Berkeley's Boalt Hall School of law would jump to $30,931 in 2008-09 and $40,906 in 2010-11, up from the $26,896.50 charged for the current academic year. Although the planned increases at UCLA and UC Davis for the next few years are a bit less than those proposed by Boalt, they are also quite hefty. And many people believe - indeed, fear -- that it is very likely that UCLA and/or Davis will ultimately move to charge the same as Boalt, in order to maintain a top-tier program.

Nor is the state likely to be in a position to support professional students more robustly anytime soon. The California budget that was passed a few months ago was based on some rosy economic assumptions that appear to be in jeopardy as the country and the state face the possibility of a slowdown. This is especially true in California, where the robust housing sector that had accounted for much of the state's prosperity in recent years has slackened considerably.

Looking forward, most economic analyses predict a substantial state budget deficit (as high as $10 billion) for the next few years at least, and because higher education is not protected in the state constitution the way many other spending programs are, it often takes a hit when revenues lag. That certainly was true the last time state coffers were thin; for example, in the years between 2002 and 2005, one UC-affiliated law school suffered a reduction is state general revenue support from over $14 million to just over $8 million.

On top of all this is an expense looming on the horizon - the funding of UC retirement plans. For 17 years, the UC investment portfolio has been doing so well that the state and the UC employees were both spared the contributions they would ordinarily be required to make to keep the retirement system financially sound. These contributions are not trivial - they amount to about 16% of payroll salary. And in the next year or so, these contributions must resume. The timing couldn't be worse: The state will be hard-pressed - unless it raises taxes significantly (an unlikely prospect in an election year) - to help the university out. Moreover, many UC professors already feel they deserve salary increases to keep pace with salaries at the best private universities in the country.

These pressures facing UC public law schools are certainly not unique to California. And the UC has a great tradition and history; indeed, the UC name remains magical in many ways. Still, as noted above, that magic used to be accompanied by (and historically may be somewhat explainable by) a large public subsidy that enabled the UC to compete with Ivy League schools despite the private schools' mega-endowments. The existing UC law schools are already established and have a well-known tradition of national excellence. In Brian Leiter's most recent law school rankings, (which many insiders pay more attention to than other rankings like US News) for example, Boalt, UCLA and UC Davis were all in the top 25 highest-ranked schools.

The Irvine campus has many strengths, to be sure. But getting a new law school going and thriving in this climate will take all of Erwin's skills and creativity. With him at the helm, however, at least Irvine's Law School will have as good a chance of success as its backers could ever have hoped for.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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