07 Cherminsky Matter

THE CHEMERINSKY MATTER
Timing is everything

Jerry Kang / Special to The National Law Journal September 24, 2007

The hiring, surprise firing and awkward rehiring of Professor Erwin Chemerinsky to be the dean of the University of California at Irvine law school has been quite the spectacle. Inside of a week, we quickly learned that Chemerinsky had accepted the offer, then was fired due to political pressures, then was rehired in the face of a furious backlash against Chancellor Michael Drake.

Now that Chemerinsky has been rehired and the relevant parties are playing nice, the post-mortem will probably go on only a little longer, to try to see who applied what kind of political pressure. As this story's newsworthiness dissipates, many people will forget the details and take away some rough lesson about political power: Exercise of naked political power by conservatives fired Chemerinsky, then exercise of naked political power by liberals (and some others) hired him back. But this somewhat cynical interpretation misses something significant.

When news of the firing initially surfaced, very smart people defended Irvine's decision even if it was politically influenced. They emphasized that, first, a deanship is an administrative position not an academic one; thus, complaints about academic freedom are exaggerated. Second, if politics can be used in the initial hiring decision, what's so wrong with considering politics a few weeks later?

These are excellent points. And I do not mean to make any detailed legal argument about academic freedom. But only formalism would suggest that a law school deanship is not also an academic position: The dean is also a tenured professor of law. More substantively, many legal academics view associate deanships and deanships as the natural path of promotion. When Chemerinsky was fired, faculty across the nation were sent a clear signal that straying from the narrow mainstream can endanger upward mobility. This is why in the rehiring, it was crucial and completely expected that both Chemerinsky and Drake would underscore the value of academic freedom.

Still, the timing question remains. If politics can be considered in the initial hiring decision, what's the big deal with considering it later? In my mind, it all comes back to . . . Internet pornography. In my communications law class, I teach U.S. v. American Library Association, 539 U.S. 194 (2003), which addressed the constitutionality of requiring public libraries that receive federal funds to install software filters on Internet terminals. Because filters block far more than indecency, this law was challenged on First Amendment grounds. In the arguments, Board of Education v. Pico, 457 U.S. 853 (1982), was prominent. In Pico, a plurality of the U.S. Supreme Court distinguished between acquiring a book in the first instance and removing the book from the shelves after it had already been bought.

The analytical distinction between acquisition and removal is hardly airtight, but it smacks of common sense. Given limited resources, a library cannot buy every book possible. Accordingly, it must exercise some judgment about quality, content and value added, which in some cases will be controversial. But such decisions should not be strictly scrutinized by courts; that would simply be unrealistic. At bottom, a local library's decision to carry Slaughter House Five instead of The Greatest Generation should not be second-guessed.

By contrast, once a book has been bought, its subsequent removal broadcasts an entirely different message. It focuses attention on a single book, and marks it as educationally, socially and politically suspect. Further, if this decision is made not by professional educators on pedagogical grounds, but by "political forces," red flags are properly raised. And according to Pico, judges should be far more skeptical of book removals than failure to acquire them in the first place.

It turns out that Pico illuminates not only filters of indecency but also filters of deans. What happened to Chemerinsky is galling not because money and politics apparently influenced a hiring decision. We are not so nave to think that this is a rare occurrence. But this was not merely an acquisition question — a failure to hire Chemerinsky in the first instance. Rather, he had already signed the contract and fielded a board of advisors. This was removal. To be sure, firing a sitting dean for being politically incorrect is worse. But what happened was almost as bad.

As Pico revealed, timing is everything. Similar events can mean different things. Not hiring Chemerinsky in the first place, rescinding the contract or firing him in 2010 for some provocative editorial he might write each have the same effect: Chemerinsky is not the dean. That said, each act conveys a very different social meaning — about who wields true power, not only in the Beltway or on Wall Street, but also in ivory towers in Orange County. It is only because the firing so loudly signalled who was in charge that the protests contested that message more loudly.

Of course politics matter, in every field of life, including hiring of prominent deans. That said, politics — whether left or right — should not and cannot matter too much in the academic setting. And what counts as "too much" does depend on timing. The Chemerinsky matter can be best understood in this light.

Jerry Kang is a professor of law at the University of California at Los Angeles School of Law.