Fifteen years ago when John Hinderaker and I started representing University of Minnesota students and teachers with First Amenment claims against the university, we didn’t quite know what we were getting into. Before an aggrieved plaintiff can get his First Amendment claim heard on the merits, he must work his way through a winding path of arcane legal doctrines flowing from the Eleventh Amendment, the Fourteenth Amendment, and federal civil rights law. Even though our clients had strong (and ultimately successful) claims against the university, I quickly came to fear that we might be in over our heads.
Having its own legal department, the university seemed to specialize in grinding plaintiffs into the ground through the assertion of procedural issues that prevented plaintiffs from having the merits of their claims heard in court. Before I had ever heard of him, so to speak, we were able to even up the odds in dealing with the university through the discovery of the treatise on federal jurisdiction by Erwin Chemerinsky. For that I’ve remained grateful to him ever since.
In the spring of 2006, just after the Duke non-rape case broke, I visited Duke to speak there at the invitation of Duke’s conservative student group. With the day free I visited the law school hoping to find a class taught by Professor Chemerinsky. As luck would have it, he was teaching his class on federal civil rights litigation. I found my way to the classroom and sat in. I thought Professor Chemerinsky would be good in the classroom, but I would say he was great.
As he worked his way through one of the Supreme Court decisions with multiple opinions in a difficult area of federal civil rights law, he explained the approach of each of the opinions. He invited and entertained questions until every one was answered. When a student asked for a hypothetical example illustrating a recondite distinction among the opinions, he created the example. Visiting his class on a random day, I found Professor Chemerinsky turning in a virtuouso performance.
I was thus saddened to see Professor Chemerinsky hired and fired within the space of a week as the founding dean of the new law school at the University of California-Irvine. The events seem to me to speak poorly of university chancellor Michael Drake, who does nothing to clear up the controversy in his Los Angeles Times column this morning. Like David Horowitz, I have no taste for Professor Chemerinsky’s clients or his causes. But it seems to me that in hiring and then firing Professor Chemerinsky Chancellor Drake has disgraced his institution.
UPDATE: Appellate lawyer Mark Arnold comments: “Eriwn Chemerinsky was a first class debater at Northwestern in the early 1970’s. He is a very nice guy and has been treated abominably.”
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