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Faith in academic freedom restored: Chemerinsky rehired

By Douglas W. Kmiec

Douglas W. Kmiec

The hiring, firing and rehiring of Erwin Chemerinsky continues to resonate throughout the world of legal education and beyond. Erwin is one of the finest constitutional scholars in the country. He is a gentleman and friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposia, I have never seen him be anything other than completely civil to those who disagree with him.

So the news that the University of California at Irvine had selected him to be the first dean of their new law school was welcome indeed. And the subsequent news — that they withdrew the offer, apparently because of Erwin’s political beliefs and work — was a betrayal of everything a great university like the University of California represents. It was a forfeiture of academic freedom. Thanks to the good efforts of some Orange County legal counsel, UCI Chancellor Michael Drake reversed course, re-extended the offer and committed to affording Erwin absolute academic freedom, including the latitude to write on his usual wide range of issues well beyond legal education. For his part, Erwin acknowledged that the role of a dean requires building a broad base of support.

This is an ideal result.

Erwin and I seldom agree on constitutional outcome. I’m conservative and he’s liberal. We have written competing textbooks. We have debated each other frequently in the media. Before the U.S. Supreme Court, if Erwin is for the petitioner it’s a good bet I can find merit in the cause of the respondent.

Yet there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal. When students have difficulty grasping basic concepts, 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 alike turn to Erwin each year to give them an update on the changes in the law and the legal directions of the Supreme Court.  

It was reported that some of those opposing Erwin had referenced a letter of concern from the clerk of the California Supreme Court, prompted by the Chief Justice, who believed Erwin in an op-ed had understated California’s provision of legal counsel to habeas petitioners. It is inconceivable that Chief Justice George intended his difference of opinion with Erwin to be used in an ill-conceived partisan effort to rescind the offer of decanal service made to Erwin. After all, that the Supreme Court of the state would take note at all is a tribute to the high regard in which Erwin is held.

Erwin has never hidden his progressive politics; as one commentator wittily put it: it would be like not noticing Wilt Chamberlain was tall. In conversation, in the classroom and in the courtroom, he fights passionately for human rights, while giving less deference, in my opinion, to the needs of law enforcement or to those who seek to preserve order and structure and tradition in society. Yet, he does not denigrate his opposition. He engages. He challenges. He inspires.

It was my privilege to serve as a law school dean for a number of years. I know that faculty members look to their deans for leadership, encouragement and support. A law school’s fate, especially one just starting out, is often determined by the hard work and dedication of its dean. The University of California at Irvine will benefit greatly by Erwin’s service. He will be a model for the faculty — widely published, dedicated to his students, civically involved. He will assemble a world-class faculty and in a short period will be competing for some of the most talented students in the country.

A few deans, most notably the thoughtful Dean Christopher Edley of Boalt, suggested that deans must leave their legal and policy personas at the door when taking up a deanship. With respect, this is untrue, or at least, need not be so. What must be banished is any sense of partisanship in the administration of the law program: a law school requires a diverse faculty and a well-rounded and comprehensive curriculum. It does not necessitate, nor is it benefited by, censoring its dean. After all, since it was the scholarship and the public expression that often attracted university officials to a dean candidate, it would be most unfortunate, and as I say, unnecessary, to suppress those very qualities. Oh, to be sure, deans should make an effort, where appropriate, to make as certain as possible that no one misperceives an individual scholarly perspective for an institutional one, but this is more easily accomplished than a decanal lobotomy. And getting down to cases, no one who has ever met Erwin need ever worry on these grounds.

UC Irvine’s ultimate ability to keep politics out of its decision-making together with its renewed affirmation of academic freedom now permit it to recruit new faculty worthy of the great traditions of UC. During those dark moments when the offer had been rescinded, I noted in the Los Angeles Times that Erwin Chemerinsky, as a man of goodwill and abundant kindness, would wish UCI only the best. Having reconsidered its error, UCI now has every bit of Erwin’s goodwill and more importantly, has his good services. It is not for me to advise the UCI faculty or its regents, but it would be prudent now to let the matter rest. Certainly, Erwin has expressed the hope that Chancellor Drake will continue at his side. He should. It is in the best nature of man to seek to correct error, and this perfection is made noble and manifest when forgiveness is then forthcoming. 

Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices whether they are liberal or conservative. Erwin has always been less confident that law and politics can be so neatly divided.

I continue to believe that the law has its own place above politics, and Erwin’s rehiring bolsters that belief. You see, Erwin, I was right after all. 

• Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University.

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