The Newly-Founded U.C. Irvine Law School's Firing of New Dean Erwin Chemerinsky:
Why It Violates the Constitution, Destroys the School's Reputation, and Jeopardizes Its Accreditation

By SCOTT MOSS
Monday, Sep. 17, 2007

Law professors are an ornery bunch; get four of us into a discussion and you'll hear anywhere from two to five different opinions.

So it's remarkable that virtually all law professors, across the ideological spectrum, were united in outrage last week when the nascent U.C. Irvine Law School fired constitutional law guru Erwin Chemerinsky - just a week after reaching a contract with him to be the school's first Dean.

In this column, I'll start by recounting recent analyses of why the firing appears to have been unconstitutional under the U.S. and the California constitutions. I'll then proceed to discuss why the firing may not only tarnish U.C. Irvine's reputation, but also jeopardize its accreditation.

The Clearly Politically Motivated Firing of a Just-Hired Dean

After flying to North Carolina to fire Chemerinsky, U.C. Irvine Chancellor Michael V. Drake reportedly claimed that he somehow "had not been aware of how Chemerinsky's political views would make him a target for criticism from conservatives." Yet as John Jeffries (Dean, Virginia Law) noted, "It seems late in the day to notice that Erwin Chemerinsky is a prominent liberal," given his long history of high-profile publications and litigation positions. "It's rather like discovering that Wilt Chamberlain was tall," Jeffries opined.

Drake declined to name the conservatives who had voiced opposition. Since then, the identities of at least some Chemerinsky critics have emerged: Michael Schroeder, described as one of Orange County's most powerful GOP political players, said that a group of 20 prominent Republicans organized against Chemerinsky in recent weeks, the L.A. Times reported. Michael Antonovich, another conservative politician in the area who started an email campaign to fire Chemerinsky, opined that Chemerinsky's appointment "would be like appointing al-Qaida in charge of homeland security." Better-informed conservatives, however, see Chemerinsky's as a "fairly typical liberalism," nowhere near radical enough to justify Antonovich's juvenile hyperbole. For example, one position Drake reportedly cited as upsetting to conservatives was Chemerinsky's criticizing a Department of Justice regulation enacted by Attorney General Alberto Gonzales - hardly a radical position, given the broad and vocal criticism of the much-maligned and now-resigned Gonzales.

It seems that Drake's sole defender is now U.C. Berkeley Law Dean Christopher Edley, another U.C. administrator who works for the same U.C. Regents. But both Drake and Edley have backtracked on Drake's initial frank admission of political motives. Now they offer only the standard dual fare for futile damage control: (1) amusingly cryptic non-explanations (Drake claiming he suddenly deemed Chemerinsky "not the right fit" only a week after landing him as Dean); and (2) vague euphemisms for the ugly truth (Edley saying that "key people [read: conservative politicians] lost confidence that [Chemerinsky] would be willing to shed his high personal public profile [read: cease expressing liberal views unpopular with Orange County benefactors]").

University of Texas law professor Brian Leiter, on his widely read "Law School Reports" blog, aptly described U.C.'s new positions as "the familiar administrative mode of 'say nothing substantive, pretend everyone doesn't know what really happened, and hope it all just goes away.' It won't."

How Deans Can and Do Set Aside Personal Political Beliefs: A Conservative Example

Although I have never been on a faculty with Chemerinsky, I feel confident that his personal views need not have affected his service as Dean of Irvine. That's because I used to teach at Marquette Law School under Dean Joseph Kearney, a Scalia protégé who's at least as conservative as Chemerinsky is liberal, yet who, as Dean, was as evenhanded as many have vouched Chemerinsky, too, would be.

Kearney drew support from Marquette's liberals, not just its conservatives, because, like any respected professional who becomes a dean, he was entirely fair and inclusive. He massively increased funding for students doing (mostly liberal) public interest work; he interacts effectively with alumni and local luminaries including federal judges of all ideologies; and when I drew some heat for taking a controversial liberal position, he backed me 100%.

In short, there's zero reason to think that a respected liberal professional like Chemerinsky would be unable to run his institution fairly and effectively, as Kearney has done on the other side of the political fence. After all, law professors are especially suited to presenting a wide range of possible positions, results, and outcomes to their students; and lawyers, more generally, are trained to carry out their job as advocates for those they represent regardless of their own personal opinions

An Inauspicious Beginning for an Institution Planning to Teach Law: Its First Personnel Decision Violates First Amendment and the California Constitution's Protection of the U.C. Schools from "Political or Sectarian Influence"

Ironically, in the first major personnel action of its effort to establish a school to teach law, Irvine broke the law. As explained by Paul Secunda (Mississippi Law), Chair of the Employment Discrimination Section of the American Association of Law Schools, and a leading expert on First Amendment rules for public employment, Irvine's decision violated the United States Constitution: "[Chemerinsky] has a viable First Amendment retaliation claim for [Irvine's] failure to hire him based on . . . [his] expression on matters of public concern."

Leiter's blog noted another constitutional problem unearthed by UCLA Law Librarian Kevin Gerson: Section 9 of Article 9 of the California Constitution provides that the University of California,

[S]hall be entirely independent of all political or sectarian influence and kept free therefrom . . . in the administration of its affairs.
As discussed above, it seems clear that political and sectarian influences are exactly what got Chemerinsky fired.

The First Casualty of the Scandal: Irvine Law School's Reputation - and Chancellor Drake's Too

Given the clear politial motives and the weakness of the argument that a prominent liberal cannot lead an institution, prominent professors across the ideological spectrum condemned Chemerinsky's firing as a major debacle for the newly-founded law school. Such critics included self-described "conservative" Douglas Kmiec (Pepperdine Law), who wrote that Chemerinsky's firing "is a betrayal of everything a great institution like the University of California represents."

Kmiec, who noted that he and Chemerinsky "seldom agree," still sees Chemerinsky as an evenhanded, respected expert. He wrote, "I do not hesitate to hold out his treatise on the Constitution as one that handles matters thoroughly and dispassionately. Across the nation, federal and state judges turn to Erwin...."

Even more blunt was the assessment of Samuel Bagenstos (Washington University Law), an employment discrimination expert and "probably the leading authority on disability law of his generation," who was quoted opining that this firing will sink Irvine's reputation: By firing Chemerinsky, Bagenstos said, U.C. Irvine "just declared, before the school opened, that U.C. Irvine Law will never be a serious academic institution."

No wonder, then, that Chancellor Drake's troops are deserting him: U.C. Irvine faculty have penned an open protest letter gathering hundreds of signatures from faculty, alumni, and students.

The Most Significant Possible Casualty: Irvine's Hopes for ABA Accreditation

One significant issue that, to my knowledge, has not drawn any attention thus far is how U.C. Irvine's firing of Chemerinsky calls into serious doubt whether it can meet American Bar Association standards for law school accreditation. Without accreditation, Irvine Law School graduates could not take the bar exam in most states - and, consequently, the school would have little ability to draw talented students, faculty, and donors.

Several distinct ABA accreditation standards pose a serious problem for a law school that fired a just-hired dean due to ideological pressure from local politicians. First, there's Standard 405(a):

Standard 405. PROFESSIONAL ENVIRONMENT

(a) A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

This standard is murky - what are "adequate" conditions? - but it is hard to see how Irvine can meet it. If I were looking for a law professor job, I'd be extraordinarily reluctant to entrust my career to U.C. Irvine. If they'd fire a legal demigod like Chemerinsky, they wouldn't stop to blink before showing the exit door to a nondeity like me. Such fears would be shared by law professors teaching a wide range of subjects, and with a wide range of political views.

Of course, constitutional law professors analyzing cases on abortion and homosexuality might be the first to go if Irvine once again cleaned house based on professors' political views. But topics like corporate oversight, tax policy, and pension regulation sound dry to me but can be major ideological flash points in the business community. Virtually any legal idea worth studying advances a legal interpretation, presses a reform, or makes a finding that upsets somebody.

To take a faculty position at U.C. Irvine Law School, then, is to take a risk not present at other law schools - almost all of which genuinely respect academic freedom and value an intellectually diverse community. To take such an offer, or to remain at Irvine, in the face of any other offer would seem foolish. With this unique and powerful drawback to staying at Irvine, could the ABA find that Irvine maintains conditions "adequate to attract and retain a competent faculty"?

In short, the Chemerinsky debacle made immensely more difficult Irvine's already-daunting task of recruiting two or three dozen faculty quickly to a not-yet-accredited school. Irvine's task of attracting a respected dean is now especially hard, given U.C. Irvine's apparent desire for someone willing to stifle oneself to placate prominent political conservatives (does anyone have Harriet Miers's forwarding address?).

The second accreditation problem posed by firing faculty for legal opinions is the ABA Standard 405(b) requirement of academic freedom in law schools:

Standard 405. PROFESSIONAL ENVIRONMENT

(b) A law school shall have an established and announced policy with respect to academic freedom and tenure of which Appendix 1 herein is an example but is not obligatory.

Appendix 1, the ABA's "Statement on Academic Freedom and Tenure," in turn requires a school to provide faculty,

[F]reedom of teaching and research and of extramural activities, and . . . a sufficient degree of economic security to make the profession attractive to men and women of ability.
It also requires that:
Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

Firing Chemerinsky for his political views must have blatantly violated even the most minimal academic freedom policy. Moreover, hiring an obvious liberal like Chemerinsky and then firing him for being . . . well, liberal probably violated the "stated in writing at the time of the appointment" requirement as well. It's hard to believe Chemerinsky's contract would have included the possibility that he could be fired for his political beliefs, and if it did, that would simply have been a more blatant violation of the academic freedom policy.

Third and finally, giving local pols an ideological veto over a major academic decision like choosing a dean seems a violation of the ABA Standard 208 limitation on outside influence over major law school decisions:

Standard 208. INVOLVEMENT OF ALUMNI, STUDENTS AND OTHERS

A law school may involve alumni, students, and others in a participatory or advisory capacity; but the dean and faculty shall retain control over matters affecting the educational program of the law school.

For all of the above reasons, I strongly agree with the widespread criticism that U.C. Irvine wronged Chemerinsky, violated fundamental constitutional prohibitions, and destroyed any reputation it hoped to build in the next few years. But the reputation of a future U.C. Irvine Law School may now be a moot question. With one of its first decisions appearing to violate multiple ABA accreditation standards, U.C. Irvine's law school may be doomed from the start.

Poetic Justice: U.C. Irvine Law School's and Chemerinsky's Fates May Be in Chemerinsky's Hands

The greatest irony here is that Chemerinsky may hold U.C. Irvine Law School's reputation and accreditation prospects in his hands. According to recent news reports, Irvine is trying to retract its firing of Chemerinsky and bring him back on board as Dean, per the school's original plans. Given the wide-ranging set of serious problems Irvine now faces, Chancellor Drake's and U.C. Irvine Law School's futures may well depend on Erwin Chemerinsky's capacity for forgiveness and ability to take a leap of faith in trusting an institution that just treated him so shabbily.


Scott Moss is a professor at the University of Colorado Law School.

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