Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Professor Duke Law Professor Chemerinsky he had proved to be "too politically controversial." Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of "the top 20 legal thinkers in America."

This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokeman Ari Fleischer cautioned Americans "they need to watch what they say, watch what they do." The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it included the names of 117 "un-American" professors, students and staff members. A few months later, a blacklisting Internet cite called Campus Watch was launched. It publishes dossiers on scholars who criticize U.S. Middle East policy and Israel's treatment of the Palestinians. Earlier this year, the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors.

In 2003, the American Association of University Professors recalled the "still-vivid memories of the McCarthy era" and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that "freedom of inquiry and the open exchange of ideas are crucial to the nation's security, and that the nation's security and, ultimately, its well-being are damaged by practices that discourage or impair freedom."

At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, "Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of 11 September 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled."

Art. 9, § 9 of the California Constitution, which sets forth the powers and duties of the
Regents of the University of California, provides, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake told the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity.

Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California's three strikes law; and a person challenging the Texas Ten Commandments monument.

UCI's November 16, 2006 press release announcing the inauguration of the new law school said, "UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities." Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000.

Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, "Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client."

David Dow, Adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, "I can't imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he's been." Dow's words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky "the nicest person in legal education." Conservative law professor Douglas Kmiec wrote of Chemerinsky, "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."

One of the "controversial" matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, "There are more than 275 individuals on death row in California without lawyers for their post-convictions 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."

Drake's action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, "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."

Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, "We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one-sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity."

Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her articles are archived here.

Comments

[plumbez]

Chemerinsky is a RED pure and simple!!!!

[anastasiabeaverhousen]

Advocate thinks he should have kept his politics out of it? It's LAW SCHOOL. Future lawyers are supposed to be learning and questioning.

I suppose it would have been ok if he supported the bush league administration and publicly said so?

It will take a generation to un-do what these bastards have done to our country.

[yellowdogSC]

WARNING! ALL American Citizens!

Is this in anyway involved with Executive Order (direct from the WHITE HOUSE):
"EXECUTIVE ORDER: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq" http://www.whitehouse.gov/news/releases/2007/07/20070717-3.html
which threatens to SEIZE ASSETS of ANYONE criticizing THE SURGE, or speaking or writing negatively of anything involving the current cabal's so-called "Iraq strategy"?

ANYONE = writers, bloggers, reporters, CITIZENS, congressmen, senators, EDUCATORS, etc¦.

Directly from the linked Executive Order:
"I, GEORGE W. BUSH, President of the United States of America,¦ all property and interests in property of the following persons,¦ any person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense,¦ Persons Who Threaten Stabilization Efforts in Iraq... undermining efforts to promote economic reconstruction and political reform in Iraq¦"

There"s LOTS more substance AND detail. Check the above link, please.

Tell all your friends!

[Advocate123]

I'm from the far-Right and saw Chermerinsky give a speech this past year.

I'm sorry; he is brilliant and deserved better. If he could have kept his politics out of his educational teachings, which I am sure he would, he would have been a fine, fine Dean.

Advocate123
http://copiousdissent.blogspot.com

[mimsnpips]

Goodbye USA, for the ONE I knew is gone. Forever. People are wrapped up in their day to day lives, or don't think it's that bad. They are the ones that will be surprised one day. I won't. We won't.
It is tragic for SHE was great. HER statue in New York Harbor shining bright. Welcoming one and all to HER shores. Now America is rotting the same as Ellis Island. HER blood on the hands of HER leaders. Blood for oil. Greed and power for freedom.
In the name of god. If this is what their god commands, I want no part. I know the bible well. They are wrong but I cannot stop them. "If they were right I'd agree, but it's them I know not me."
No one can convince me why they do this to HER. They are coy, dumb like a fox. Every word carefully chosen. Even Nixon is quoted and they are proud of that.
Goodbye MY LADY. I miss you.

(just having a bad day-I hope)

[AceInTheHole]

No doubt, like just about everything else, the miscreants have vitiated the universities. They are trying to lock down and usurp every means to power and knowledge is the biggest of them all. They want to rule a fallen and fatally flawed world with their hubris. But what they don't realize is that their wisdomless insanity is driving them to try an swollow and consume an rough elephant thats tithered in a forest on fire, at one setting and it will not work because the elephant will not cooperate in it's own demise and nor will the fire.

[maddogbitesback]

Let me think - no habeas corpus. No warrants needed to tap phones and read email. Unending war. Lies to promote war. Corruption beyond anyone,s wildest dreams. Torture. Election engineering. A press controlled by people who align themselves with the government. Now no academic freedom. So there is taxation without representation in reality. And no one can comment on this strange state of affairs in America. So what exactly is the democracy the Iraqis are supposed to embrace? Hopefully not what Americans call democracy. It is a sham right now.

[PoliticalAnimal]

Chancellor Michael Drake is the one that should resign. He has proven himself unfit for his office.