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Erwin Chemerinsky will become the first dean of UC-Irvine’s new law school, but his appointment process was not smooth skating. In a highly publicized triple axel, Chemerinsky was hired, fired and hired again before successfully landing his new post. The equivocation was caused by UC- Irvine Chancellor Michael Drake’s concern over the impact of Chemerinsky’s well-known penchant for advocating left-wing positions. Ironically, the future dean’s born-again experience may make him more sensitive to the plight of academic conservatives, who face everyday the same kind of suspicious scrutiny that Chemerinsky briefly encountered. To understand why conservative academicians might benefit from the Chemerinsky controversy, one must first study the terrain. The political landscape at the nation’s top law schools is almost uninterruptedly liberal. Here and there, one encounters conservatives and libertarians, but they are rare, beleaguered knolls in an otherwise almost homogeneous plain. A 2005 Georgetown Law Journal study analyzed 11 years of federal campaign contributions at the nation’s top 21 law schools, as ranked by U.S. News & World Report. Among the politically active professors who contributed to campaigns, 81 percent gave wholly or mainly to Democrats and 15 percent to Republicans. At the very top, the imbalance was even more pronounced. At Harvard Law School, 91 percent of the contributors gave to Democrats. At Yale Law School, the figure was 92 percent. At Stanford Law School, 94 percent of the politically active professors contributed to the Democrats. Many observers are concerned about the numerical presence of racial minorities in academia. But at our top law schools, the odds of finding a minority student are two, three, or even four times as high as the odds of finding a conservative teacher. According to a popular stereotype, the more highly educated the voter, the more likely her liberal leanings. But law school faculties are peculiarly leftist. A National Election Study of the 2000 election cycle by the University of Michigan found that only 34 percent of people with advanced degrees contributed exclusively to Democrats. Among law professors, however, the figure was 78 percent. Yale law professor Peter Shuck, who is not a conservative, has expressed concern about the problem. “The politics of Yale law school and the other elite law schools is 95 percent left and 5 percent other,” he wrote. “We have a higher responsibility to our students, ourselves and our disciplines that our preference for ideological homogeneity and faculty lounge echo chambers betrays.” This “ideological homogeneity” extends to the players involved in the Chemerinsky farce. Chancellor Drake, who hired, fired and rehired him, wrote in the Los Angeles Times that Chemerinsky’s “place on the political spectrum is quite similar to my own.” Why, then, did a political leftist face difficulty from a fellow political leftist before finally gaining acceptance to a post in a politically leftist domain? Chancellor Drake worried not about the content of Chemerinsky’s views, but about his willingness to express them off campus. In the “faculty lounge echo chambers” (to borrow Professor Shuck’s phrase), it may be perfectly safe to say that Muslim, Christian and Jewish fundamentalists show “remarkably similar intolerance” but that of the three, Christian fundamentalists pose the greatest threat to liberty in the United States. But when you write that sort of thing in the popular press, as Chemerinsky has done, you run the risk of embarrassing your institution. For the average man on the street � who reads enough to know who was responsible for the terrorist crimes committed against civilians in New York, Tunis, Sharm El Sheikh, Bali, Madrid, London and a dozen other places � knows that such a statement is nonsense. He may not know or care what drivel gets spouted in the law reviews or faculty lounges. But he does notice when it gets printed in the popular press, and he may care that his tax dollars pay the salary of the speaker. But while his fellow liberal Chancellor Drake worried about the appointment, every conservative or libertarian law school professor who weighed in on the subject reportedly spoke in favor it. Douglas Kmiec of Pepperdine, Viet Dinh of Georgetown, Eugene Volokh of UCLA, and John Eastman of Chapman all reached across the political spectrum to voice support for Chemerinsky. One can search in vain for any right-of-center academic who opposed the appointment. Why did the academic Right so soundly endorse such a controversial exponent of the academic Left? They did so because, rightly or wrongly, the appointment of Erwin Chemerinsky was cast as a test of academic freedom, and no conservative or libertarian today can afford to be on the wrong side of that divide. Their numbers are too small, and their status too insecure. Last spring, one quarter of Boalt’s graduating class demanded Professor John Yoo’s resignation. Professor Yoo is by all accounts one of the most erudite and genteel teachers on the law school faculty, but his views on the proper balance between civil liberties and national security are beyond the pale for some. Last month, in the face of pressure from faculty members, the UC Board of Regents rescinded their invitation to former Harvard President Larry Summers to be the keynote speaker at a board dinner. Now Summers is no conservative. He is a liberal economist who served in Bill Clinton’s cabinet. But like many economists, he has a predilection for open-minded inquiry. That got him in trouble in 2005, when he suggested at a conference that it is legitimate to at least question whether innate differences between men and women account for the well-documented differences in their performance in the sciences. For daring merely to entertain that question, Summers was punished. After abjectly apologizing � repeatedly � he was subject to a vote of no-confidence by the faculty and then forced to resign. But that disgrace is apparently insufficient in California academia. Here, his very presence is anathema. Conservative and libertarian teachers know that if a distinguished scholar like John Yoo and even a prominent liberal like Larry Summers risk suppression for espousing politically incorrect views, their own careers are insecure. For that reason, they are committed to protecting the broadest possible scope of academic freedom. Will the future dean remember the unanimous support he received from the Right during the appointment process? The record is not entirely encouraging. While Chemerinsky taught at Duke, three members of the school’s lacrosse team were accused of sexually assaulting a stripper. As soon as the charges became public, a large contingent of the faculty, known as the “Group of 88,” published an advertisement presuming the players’ guilt and portraying their “crime” as an expression of racial and gender oppression. Even when the North Carolina Bureau of Investigation released the results of the players’ DNA tests, which virtually proved their innocence, the faculty members continued their ideology-driven campaign, berating the players in the classroom, and successfully pressuring the administration to cancel the lacrosse season, fire the coach, and suspend two of the accused students. The affair, we now know, was an opportunistic political contrivance. The prosecutor, up for reelection, concealed exonerating evidence so he could pursue the case and enhance his standing in the polls. He has been disbarred and will serve a day in jail. Where was law school professor Chemerinsky while the controversy raged? Did he speak out for the rights of the accused? Did he challenge his fellow faculty members on the Group of 88 by reminding them that even privileged white males are entitled to the presumption of innocence? There is no public record of his taking such a politically incorrect position. No one expects Professor Chemerinsky to change his political views because of his brief encounter with ideological ostracism. But perhaps the experience will make him more sensitive to the real dangers resident in the faculty lounge echo chambers of California.

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