Erwin Chemerinsky, unhired as UC Irvine's founding law school dean, says his ordeal is a lesson in academic freedom.

By Erwin Chemerinsky
September 14, 2007

After so many years of commenting on the news, it is strange to be the news. But, in a sense, this story isn't really about me, it's about academic freedom in our deeply polarized times.

As has been widely reported, on Aug. 16 I was asked to be the founding dean of the new law school at the University of California at Irvine. After a couple of weeks of negotiations, I formally accepted the position and signed a contract on Sept. 4. It always was understood that the job was contingent on approval of the University of California Board of Regents, and it was to be on the agenda for the regents' meetings on Sept. 18-20. I was tremendously excited about the possibility of being part of starting a new law school at an excellent university.

On Tuesday, Sept. 11, however, the chancellor at UC Irvine, Michael V. Drake, withdrew the offer. He told me that I had proved to be "too politically controversial." Those, by the way, were the exact words that he said I could use to describe the reason for the decision. He told me that he had not expected the extent of opposition that would develop.

What was it about my views that was too controversial? Only one example was mentioned: an Op-Ed article I wrote on these pages criticizing a proposed regulation by then-Atty. Gen. Alberto R. Gonzales to shorten the time death row prisoners have to file their habeas corpus petitions. There are more than 275 individuals on death row in California without lawyers for their post-conviction proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court.

The Op-Ed article was written and published before I was offered the position as dean. More important, the whole point of academic freedom is that professors -- and, yes, even deans -- should be able to speak out on important issues. It would never have occurred to me that arguing against a proposed federal regulation on behalf of those on death row would be deemed objectionable. On the ideological spectrum, it is not radical.

Some people, in speaking to me, have compared this to McCarthyism, but in an important way that analogy is not apt. I did not lose my job. I am a tenured law professor at a terrific university, and I can continue to teach and write and handle legal appeals, as I have for the last 28 years. I have received nothing but support over this from my university president, provost, dean and colleagues. During the McCarthy era, some faculty members lost their jobs for what they wrote and said.

A key lesson learned from those tragic times is that academic freedom matters. Tenure has many costs, but it exists so that academics will feel free to express themselves without fear of reprisal. It is based on the idea that everyone benefits from the free exchange of ideas. Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost.

This is not a liberal or conservative proposition. I said to Chancellor Drake that if I were conservative and my appointment had been blocked by liberals, the right would be justifiably outraged that "political correctness" had done me in. The truth is that a person's politics should play no role in the decision to hire them for a faculty or administrative position. All that matters is that the individual be committed to creating an institution where all viewpoints will be respected and flourish. That is what academic freedom is all about.

My concern is that the message from this episode, especially for my more junior colleagues who may aspire to be deans someday or, for that matter, judges, is that if you speak out -- liberal or conservative -- you may lose your chance at a position that you really want.

That's why I decided to answer questions about what happened and to accept the invitation to write this article. Chancellor Drake initially asked that I simply say that we had mutually agreed to end my prospective deanship. I refused and said that all I wanted was that the truth be told. We live in such ideologically polarized times. It is important for those on both sides of the ideological spectrum to realize that their common commitment to academic freedom is far more important than blocking a particular faculty or dean candidate based on ideology.

What now? I have enormous fondness for the many wonderful people I met at UC Irvine, and I hope they find a terrific dean and create a great law school -- a school that, like all schools, should be committed to a rich diversity of ideas and views.
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Erwin Chemerinsky is a professor of law and political science at Duke University.