[NYTr] Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

[All the News That Doesn't Fit]

Counterpunch - Sep 17, 2007
http://www.counterpunch.org/cohn09172007.html


Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

By MARJORIE COHN

One week after the 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 September 11 attack on academic
freedom under the guise of protecting security.   Two weeks after 9/11,
former White House spokeman 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 cite
called Campus Watch was launched.  It publishes dossiers on scholars
who criticize U.S. 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 that "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  September  11, 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
U.S. 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, "Chermerinsky 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 Chemerinksy
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-Atty. Gen. Alberto
Gonzales to shorten the time death row inmates have to file habeas
corpus petitions.  In an op-ed in the Sep. 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 that 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.


[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/ ]