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Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom
By Marjorie Cohn
The Jurist
Monday 17 September 2007
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 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 9/11 attack on academic freedom under
the guise of protecting security. Two weeks after 9/11, former White House spokesman
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
site called Campus Watch was launched. It publishes dossiers on scholars who
criticize US 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 "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 US 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, "Chemerinsky 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 Chemerinsky 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 Attorney General Alberto Gonzales to shorten the time death
row inmates have to file habeas corpus petitions. In an op-ed in the September
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 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.
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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 at http://www.marjoriecohn.com/.
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