Friday, September 21, 2007

The Horse's Mouth

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 Chemerinsky objected, saying he wanted to be honest and make clear that the offer had been withdrawn because of conservative opposition. Drake proposed that they say the offer had been withdrawn because it had become “politically controversial,” a phrasing Chemerinsky agreed to.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.

Thomas Healy

20 comments:

Sobek said...

"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."

It's a very different example. No one (to my knowledge) has accused Chemerinski of plagiarism, which was the basis for his (extremely belated) removal. That Churchill tried to immunize himself from plagiarism charges by hiding behind his 9/11 comments was self-serving and shallow.

While I don't profess to speak for conservatives in general, I will say on my own behalf that Churchill had every right to say what he said about 9/11, without fear of reprisal, just as his critics have every right to call him a hateful piece of human garbage. And if he never wanted his plagiarism to come into the spotlight, he should not have jumped up on the stage.

Sally said...

"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."

I do not recall many liberals defending academic freedom when Larry Summers was run out of Harvard and was recently disinvited from speaking at a dinner for the UC regents (at the behest of a group of UC professors no less).

Thomas Healy said...

Sobek:

He was eventually removed for plagiarism and and academic fraud, but lots of conservative pundits called for his removal on the basis of the content alone.

Sally:

Without going into the Larry Summers affair, let me just say that you make a fair point. People who are short-sighted on the left and right are often willing to compromise academic freedom when they hear something they don't like.

Sobek said...

"...but lots of conservative pundits called for his removal on the basis of the content alone."

I know, which I why I didn't claim to speak for conservatives in general, or even to deny your point.

Ward Churchill is a loathsome piece of crap, but even loathsome pieces of crap are entitled to their opinions. Can't say I'm sorry to see him go (for the plagiarism and fraud). It's a bit like chickens coming home to roost.

Sally said...

I read a fair number of blogs, many of them written by attorneys. Many conservative/right of center lawyers with blogs wrote in defense of Chemerinsky. Their non-lawyer readers? By their comments, I would say not so much. Apparently he angered quite a lot of them with his representation of Valerie Plame or something like that.

The lawyers see him as a brilliant, ethical attorney who participates in a reasonable way in matters of public discourse. All the non-lawyers who crowed at his initial firing see him as a partisan hack.

So maybe it's just lawyers sticking up for one another, regardless of their political persuasion. Why this did not happen for Larry Summers among his academic colleagues I don't know. But they definitely hung him out to dry.

Matt said...

Sally,
You're over-simplifying a bit on Summers. What he was finally removed for, it seems, was not the fact that he thinks women are likely genetically inferior to men in the areas of the science, but his shameful handling of the criminal behavior of his friend, Andrei Schleifer (SP?), a fellow Harvard economist who defrauded the US government and stole from the Russian people on the scale of millions of dollars when he (Schleifer) was running a Harvard-run program in the early days after the fall of the Soviet Union. Schleifer cost Harvard millions of dollars in a settlement suit designed more to keep Schleifer safe from criminal charges than to protect Harvard's interests and _that's_ what cost Summers his job. Additionally, the other dissent was not from outsiders but from insiders fed up w/ Summer's management style. It's one thing to bow to outside pressure and quite another to dismiss a president who can no longer work with the faculty for reasons that go well beyond his completely unsupported beliefs about the genetic inferiority of women. Given all of this I think there's no clear parallel with the Chemerinski case.

Sally said...

You're over-simplifying a bit on Summers, Matt. Summers didn't say that women were genetically inferior. He "suggested three things that might limit the number of women in top scientific positions -- the stresses of family life, innate biological differences and social pressures and prejudices. And after raising these possibilities, he said that, as much as he would like to be convinced otherwise, he believed the first two -- family and innate differences -- are probably the strongest factors, while social pressures were a lesser force."
(from the Washington Post, which I would link but I'm not sure if it's allowed)

Innate biological differences are not the same as genetic inferiority. And in any event, my point was that liberals did not jump to their feet to defend academic freedom when he said it. I'm sure Harvard found a number of justifications to support his ouster (this is a common practice for any employer) but it is clear that his unpopular views caused him to be ostracized by the academic community. And that banishment continues, as with the recent UC flap. The latter has nothing to do with favoritism towards an old friend.

Matt said...

Sally,
At the risk of thread-jacking, do you think there's a big difference between my saying that Summer's thinks that women are "likely genetically inferior in the area of the science" and saying that "innate difference" might "limit the number of top women scientists"? I don't really see it. And of course "family pressure" isn't distinct from social pressure. The sort of pressure that a family exerts on women is largely determined by the social expectations. But anyway, the Harvard Corporation was pretty clearly behind Summers until he gave away huge amounts of money to protect his criminal friend, and then they got rid of him. I'm sure that if Chemerinski ever does the same that he'll be fired again, and that reasonable people will think it's justified.

Sally said...

Matt, I know that in the English language the word "different" is not the same as "inferior".

There ARE innate biological differences between men and women. There are some rather obvious ways in which those differences play out. Do they have a role in academic endeavors? I don't know. I'm an attorney, not a scientist. But I don't think anyone else can say for sure either.

The blog writer stated that conservatives didn't speak out in defense of academic freedom when Ward Churchill came under fire at UC Boulder. I was simply making the point that liberals didn't speak out in defense of academic freedom when Summers was pilloried for his comments about how relatively few women pursued careers in science.

If he was fired for other reasons then fine, my original point still stands. He is still being banned by academia for those very same comments.

P.S. And this is to say nothing about the Group of 88 at Duke, professors who thought it was perfectly fine to take a public position on the lacrosse players' guilt in the rape case before the players were even indicted. Was that academic freedom, too?

And yes, this last part by me is definitely a thread hijack. But this blog seems rather loosely policed so I don't get the sense we're going to be summarily banned or anything. At least not without a warning.

Sobek said...

Sally said: "Do they have a role in academic endeavors? I don't know. I'm an attorney, not a scientist. But I don't think anyone else can say for sure either."

The offensive part about the Summers fiasco is the demonstration that, at least at Harvard, you aren't even allowed to ask those questions.

Matt said...

Sally,
If "inate differences" limit the ability of some group to do some task, does that not mean that that group is inferior in the area to the group that is not so limited? You need to look at the full sentences- what Summers was saying is quite clear (and unsupported).

Also, you're wrong that no left-leaning accademics supported Summers. Brad DeLong did, for one.

Sally said...

Matt, men can't bear children. This is one innate difference. Does it make men inferior? Of course not (unless you believe, like Sally Field at the Emmys the other night that the world would be a better place if moms ran the show).

Perhaps this is slightly off-topic but I think this has been an issue in many law firms for example, the so-called "mommy track", women wanting to get off the career path for awhile or slow it down to be able to tend to child rearing responsibilities. Men generally don't have to concern themselves with that. The controversy has been over whether or not those women should be or are penalized for not moving forward at the same rate as the men hired at the same time.

Granted this has more to do with societal issues, the expectation that women will bear most of the early child rearing responsibilities although I have to say based on the women I know, they have WANTED to take on that responsibility. Does or should this limit them career wise?

As I said before, I'm a lawyer not a scientist or a geneticist or whatever specialty might come into play here. But when I read Summers' comments I thought to myself, hmmm...I wonder what the truth is, what is the evidence either way? Is he right, Is he wrong? I thought it sounded like an interesting inquiry, not an effort to put women back into hairnets and aprons with a broom in their hands.

If one buys the initial premise, that there are few women pursuing careers in science (and I think everyone agrees that relatively speaking this is true), then the question is: Why? And Summers' suggestions as to possible answers didn't sound like male chauvinism to me.

But then I'm not the kind of woman who is easily offended. My sensibilities aren't that tender (but maybe women professors are more emotionally fragile).

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