Not to beat a dead horse (or insult anyone), but I heard Erwin Chemerinsky speak about academic freedom at a conference today, and I thought his remarks might be of interest to those who have followed his recent adventures. I’m not sure how much of this has been reported, so I’m going to err on the side of repeating what many of you may already know.
Chemerinsky began by sketching the timeline of events that led to his firing and rehiring. He said UC Irvine Chancellor Michael Drake offered him the position of dean on August 16 and that they spent the next few weeks negotiating terms. Then on Thursday September 6, Drake called to say that there was conservative opposition to the appointment and that they needed to talk strategy soon. Nothing happened on Friday, but on Monday morning they briefly spoke again and arranged a call for Tuesday. Monday night, Drake phoned to say he was in Washington D.C. and was flying to Durham the next morning. Chemerinsky told his wife he thought Drake was coming to withdraw the offer and to ask him to keep quiet.
Sure enough, when Chemerinsky picked Drake up at the airport on Sept. 11, the chancellor told him the deal was dead. Sitting in the lobby of an airport hotel, Drake said he wanted to issue an announcement that they had mutually agreed not to go forward with the appointment. Chemerinsky objected, saying he wanted to be honest and make clear that the offer had been withdrawn because of conservative opposition. Drake proposed that they say the offer had been withdrawn because it had become “politically controversial,” a phrasing Chemerinsky agreed to.
Chemerinsky was a little vague on what happened next. He said that “through the friend of a friend” news of the withdrawal appeared on Brian Leiter’s blog Wednesday morning. (Chemerinsky also confessed that he had never read Leiter’s blog or any blog, which helps explain his productivity.) Later that day, the report appeared on a Wall Street Journal blog, and soon he was a cause celebre. Saturday night, Drake called to say he was back in Durham, and when they met the next day he renewed the offer. Chemerinsky said he was initially skeptical, but soon accepted. An announcement was issued at 1 p.m. Monday September 17, and within a few hours, he said, he had received 1,600 emails.
In response to a question, Chemerinsky said he did not think he would have had a First Amendment claim against the school had it not renewed the offer. He had not yet resigned his position at Duke, he said, so there were no damages. He also noted that the contract he negotiated specified that he was an at-will employee and that he knew his appointment was contingent upon approval by the California Board of Regents.
I’m not sure about Chemerinsky’s analysis. It’s true he still had a job at Duke, but that doesn’t mean he suffered no damages. Presumably the dean’s salary is higher than his faculty salary at Duke, and he also might have suffered some damage to his reputation (though arguably the whole affair actually enhanced his already stellar reputation). I also don’t think the at-will nature of his employment affects the analysis. In other cases involving at-will employees, the Court has held that the government cannot punish an employee for speaking on a matter of public concern unless its interest in regulating the workplace outweighs the public’s interest in hearing the speech. I think it’s doubtful that UC Irvine has a strong interest in preventing the dean of its law school from writing opinion pieces critical of the attorney general’s position on habeas corpus and the death penalty. And the public’s interest in hearing a law school dean’s opinion on a legal question is undeniable.
On the difference between the academic freedom of a faculty member and a dean, Chemerinsky said he saw none. He said he would not hesitate to write opinion pieces in the future and that Drake has assured him he can say whatever he wants. But Chemerinsky also acknowledged that a dean has to be careful about the effect his speech has on the institution. “The fact that you have freedom to speak does not mean that you always should,” he said.
Noting that both liberals and conservatives had criticized Drake’s actions, Chemerinsky said he thought the entire episode “was a profound reaffirmation of academic freedom.” He also said he doubted that other chancellors would repeat Drake’s mistakes. I think his assessment is a bit too generous and optimistic. It’s true that many conservatives came to his defense, but that is likely because of the good will and respect he has generated over the years. I do not recall many conservatives defending academic freedom after University of Colorado Professor Ward Churchill came under attack for his essay about 9/11. And although I agree that chancellors will learn a lesson from this affair, I’m not sure it’s the one Chemerinsky thinks it is. In the future, I think, a prudent chancellor will simply not extend an offer to someone like Chemerinsky unless he’s sure there will be no opposition.