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This Article is Not About Erwin Chemerinsky

Academic Freedom and What the UC Regents Should Do

By Susan R. Estrich
Professor of Law and Political Science
University of Southern California

That is what happened to my friend Erwin Chemerinsky. He signed a contract to become the first dean of the new law school at the University of California, Irvine (UCI) last week. Then, days later, he was fired because the UCI chancellor decided his liberal opinions made Erwin, one of the most respected, quoted, cited and beloved constitutional law scholars in the country, "too politically controversial" for the job.

Hogwash.

This column isn't about Erwin. In the world of law professors, everyone who knows Erwin — liberal and conservative — respects him. The outpouring of support for him and the disgust at what was done to him have been overwhelming. It's about the cowardly fool who is leading his university down the tubes, the one who should be fired by the Board of Regents when it meets next week.

"Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."

So wrote Professor Lord Acton, who was the Regius Professor of Modern History at Cambridge University, even though he had not been allowed to attend Cambridge as a student because he was Roman Catholic. In the same year, 1877, in a famous lecture on "The History of Freedom in Antiquity," Acton defined liberty as "the assurance that every man shall be protected in doing what he believes his duty, against the influence of authority and majorities, custom and opinion."

By Lord Acton's standard, Dr. Michael Drake, Chancellor of the University of California at Irvine, is the most corrupt man in California. His job is, or should be, to protect the "liberty" of both students and faculty, the academic freedom that is the cornerstone of great universities.

But Dr. Drake has a twisted view of academic freedom, one that allows Muslim students to engage in open anti-Semitism, to hold rallies on campus attacking Zionist control of the media, equating Jewish support for Israel with Hitler's Nazis, even (according to campus Republicans) displacing previously scheduled Young Republicans meetings with rallies denouncing Israel's right to exist.

But there's no room for a liberal, Jewish law professor who is routinely the object of bidding wars between top-rated law schools vying for his services.

Last February, Hillel of Orange County formed a task force to investigate what it viewed as a troubling number of anti-Semitic speeches and incidents on the UCI campus, including complaints by Jewish students that they were being followed and harassed by their Muslim classmates. That was before UCI's Intifada week this past spring, which included speakers supporting the terrorist group Hamas and a speech entitled "Zio-Nazis." That was before the infamous Ward Churchill, defender of the 9/11 attacks, was invited to speak on campus.

This past June, at a meeting attended by hundreds of concerned members of the Jewish community in Irvine, Dr. Drake told one parent, whose children don't want to attend UC Irvine because of the virulent expressions of hatred, not to worry because these incidents "are not every other day. It's a couple times a year." Asked why he didn't exercise his own right to free speech to "speak directly to statements made on campus" (as former Harvard President Lawrence Summers did when he opposed calls for divestment from Israel by terming such actions "anti-Semitic in their effect, if not their intent"), Dr. Drake ducked. "We have 1,000 guest speakers on campus every year. Could I evaluate them and say this one is anti-Semitic? I could not. What I could say is that as a person and a campus, we abhor hate speech, period."

On the other hand, we have no room for a liberal law professor — whose views were well known before he was hired, who is squarely in the mainstream of modern constitutional thought — because we're afraid to take the heat that may be coming from some of Drake's biggest donors. While Drake told Erwin it was the Regents he was worried about, that was an out-and-out lie. He later admitted he didn't consult a one of them, and instead pointed to an op-ed Erwin wrote back in mid-August about death penalty procedure — even though he signed a contract with Chemerinsky three weeks after the op-ed was published.

No, this was Drake's call, and it will doom his law school, if it doesn't doom him first.

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

A woman of firsts — she was the first woman president of the Harvard Law Review and the first woman to head a national presidential campaign (Dukakis). Estrich is committed to paving the way for women to assume positions of leadership. Books by Estrich include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders, and the best seller, "Sex & Power," which takes an impassioned look at the division of power between men and women in the American workforce, proving that the idea of gender equality is still just an idea. This article is published with her permission. To find out more about Susan Estrich, visit the Creators Syndicate.

Posted on September 17, 2007

Comments

As a graduate and former faculty member in the U.C. system, I'm mortified by the actions of Dean Drake.

The last time the University Administration chose to genuflect to outside influence - instead of protecting the University from outside influence - was in 1964.

A serious price was paid by the entire University Community.

Posted by: william cavala at September 17, 2007 08:55 AM

this is strictly a financial decision, the University would never be able to raise money in OC if it hired a prominent liberal to run its law school. Without the ability to raise money the school will fail.

Posted by: sean at September 17, 2007 02:58 PM

As a retired UCI professor, I am very disturbed by La Estrich's article (and a similar one she wrote for Yahoo before the weekend). The subtext of both her pieces appears to be that Drake's motivation (since he is African-American) was Black antisemitism. If that's what she's getting at, she's being both absurdly paranoid and dangerously inflammatory. Even if she doesn't mean this, that's what comes across, What about the theory that Drake was caving in to conservative politicians? Problem is, nobody has been able to name any such politicians except for LA City Councilman Mike Antonovich, and it's merely silly to think that any UCI Chancellor would give a hoot about what he thinks. Same goes for alleged conservative Regents (both Drake and individual Regents assure us no pressure was applied). Despite Sean's suggestion, same apparently goes for donors (the principal Law School donor, Donald Bren, has explicitly denied any involvement, and doesn't seem to be very politicized anyway). So what did motivate Drake? God knows. Maybe he had extracted a promise from Chereminsky that there would be no more outside activity, so that he would be free to devote 100% of his time to his UCI job, and simply blew his top when he saw the outside activity wasn't stopping, thinking he had been lied to. In any event, by justifying his action the way he did, a clear violation of a Standing Order of the Regents forbidding political considerations in the hiring and promotion of UC faculty, which will very likely cost him his job. If Estrich were thinking like a law school professor, she would have pointed out this one fact and let it go at that.

Posted by: Dana Sutton at September 18, 2007 01:39 PM

I must say Susan that you are living in a fantasy world where decent pro-Israel Jews and Erwin Chemerinsky are on one side, and rabid Jew-hating Israel-criticizers (horror of horror!) are on the other. In fact if you did your homework you would know that Erwin Chemerinsky represented in a lawsuit against Caterpillar, Inc the family of Rachel Corrie, the American peace activist run over and crushed to death by your Israeli heroes operating an American-made Caterpillar bulldozer paid for by American taxpayers. You were so hasty to paint a false portrait of a romantic struggle putting the Chemerinskys of the world with the *pro-*Israel side against the Jewish state's critics that you missed Chemerinsky's position on the Israeli-Palestinian conflict--something you should have double checked given his thoroughly liberal credentials.

So don't play this "boo hoo everybody hates us Jews" poor-me nonsense. Chemerinsky is Jewish and at least as smart as you and I, and he is not taking the side of Israel's right-wing militarists. You're free to have your own opinions, but don't use your Jewishness as a tool to speak for Chemerinsky on the topic of Israel/Palestine just because he happens to share your faith and/or heritage.

Posted by: Go Chemerinsky at February 4, 2009 10:06 PM

I must say Susan that you are living in a fantasy world where decent pro-Israel Jews and Erwin Chemerinsky are on one side, and rabid Jew-hating Israel-criticizers (horror of horror!) are on the other. In fact if you did your homework you would know that Erwin Chemerinsky represented in a lawsuit against Caterpillar, Inc the family of Rachel Corrie, the American peace activist run over and crushed to death by your Israeli heroes operating an American-made Caterpillar bulldozer paid for by American taxpayers. You were so hasty to paint a false portrait of a romantic struggle pitting the Chemerinskys of the world with the *pro-*Israel side against the Jewish state's critics that you missed Chemerinsky's position on the Israeli-Palestinian conflict--something you should have double checked given his thoroughly liberal credentials.

Posted by: Go Chemerinsky at February 4, 2009 10:07 PM

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