Drake: I’m Just Incompetent

UC Irvine Chancellor Michael Drake defends himself in the Los Angeles Times today for his firing of Erwin Chemerinsky as the school’s first dean for their new law school. He claims that he did not renege on the signed contract a week after signing it because of Chemerinsky’s political views, nor did he get pressured by the UC regents, donors, or politicians. So why did he fire Chemerinsky and embroil UCI in a completely avoidable controversy?

The University of California at Irvine over the last several months has conducted a nationwide search for the founding dean of our school of law. Last week, I made an offer to Duke Professor Erwin Chemerinsky, an eminent academician, legal scholar and commentator. I subsequently made the very difficult decision that Professor Chemerinsky was not the right person for the dean’s position and informed him that we were rescinding our offer and continuing the recruitment process.
My decision — and the motivation for it — have been the subject of extensive media coverage over the last few days, much of which has been characterized by assumption, conjecture and hearsay.
Let me set the record straight. I made a management decision — not an ideological or political one — to rescind the offer to Professor Chemerinsky. The decision was mine and mine alone. It was not based on pressure from donors, politicians or the University of California Board of Regents. It was a culmination of discussions — with many people over a period of time — that convinced me that Professor Chemerinsky and I would not be able to partner effectively to build a world-class law school at UC Irvine. That is my overarching priority.

Really? So after conducting a lengthy search process and whittling the choices down to a select few legal scholars, Drake chose Professor Chemerinsky, presumably after interviewing him on at least a couple of occasions. He negotiated a contract with Chemerinsky in order to secure the proper level of compensation. They managed to agree rather quickly on terms, and both men signed the contract.
And somehow, after all of this effort together reached a successful conclusion, Drake suddenly discovered that he couldn’t “partner” with Chemerinsky? Does that sound honest to anyone? At what point in the week that followed the execution of the contract did he figure this out, and why?
Just taking this at face value, it serves as an admission of incompetence. Hiring managers sometimes have to make decisions quickly when it comes to lower-level positions — and I have plenty of experience with regretful hiring decisions. In my fifteen years managing call centers and hiring entry-level office staff, I never rescinded an offer to an applicant unless a background check or drug test failed after the decision was made.
And Dean of Law isn’t exactly a walk-in application type of job. Executive hires involve talent searches, tons of money, lunches, dinners, and plenty of personal contact, a process in which I have participated in the past. They take months to get right, and all indications are that Drake searched for a long time before settling on Chemerinsky. If, after all of that effort, Drake didn’t know that he couldn’t “partner” with Chemerinsky until after they both signed the contract, then he’s at best a complete incompetent as an executive and should be fired.
At least in terms of the regents, Drake seems to be telling the truth. Stalwart conservative and former UC regent Ward Connerly told the Washington Post that the regents couldn’t have done anything about the hiring decision, and would have been extremely unlikely to even express disapproval:

Calls to several University of California regents were not returned, but Ward Connerly, architect of the state’s anti-affirmative-action law and a UC regent for 12 years, said he does not believe concerns from regents could have derailed Chemerinsky’s hiring. The regents “give great deference to the decisions of the chancellors and the president, whether they believe in them or not,” he said.

Drake got cold feet. Something happened in that week to intimidate Drake, and he breached Chemerinsky’s contract rather than defend his own hiring decision. Even if Drake’s explanation in the LA Times is honest and accurate, it demonstrates his unfitness for any executive position. UCI doesn’t need a law school, but it needs a lawyer — fast.
UPDATE: Professor Victor Davis Hanson wants Chemerinsky rehired.
In response to Nauseated Don in the comments, it doesn’t take a legal expert to know that when two parties sign a contract, one party can’t just act as if it doesn’t exist. I’m not a lawyer but I spent years as a hiring manager in call centers, as well as someone who had to deal with contracts on a regular basis. Breach of contract is not a difficult concept.
Chemerinsky obviously got fired for his political beliefs, and even commenters who disagree with me on my position here accept that. If that’s OK, get prepared for firings of conservatives from campuses around the nation, and don’t bitch about it when it happens; we will have validated the effort. That’s even worse than not hiring someone for their political beliefs, an option that was open to Drake up to the point where he signed the contract.
UPDATE II: The selection process took nine months. It took Drake nine months to select Chemerinsky and agree on compensation, but in the week after signing the contract, he discovered that he couldn’t partner with Chemerinsky. Two sources tell the LA Times that the firing was ideological (one on the record, one off).

34 thoughts on “Drake: I’m Just Incompetent”

  1. Intimidation?
    I think he realized that this extremist lefty would not be a good team player, would hog the limelight and do to UCI what he works so hard to do to the Constitution – destroy it.
    Why are you defending the firing of a man who would lead the charge in running off conservatives?
    He was fired by a lefty.
    I like Hugh, too. But this is becoming surreal.

  2. “…and he breached Chemerinsky’s contract rather than defend his own hiring decision.”

    Since when did you become a lawyer, Captain? Is there no profession in which you don’t expertly practice? From what I can tell, Chemerinsky had been given an offer. While he may have signed the contract, it wasn’t yet binding on UCI and could be withdrawn at any time for any reason. That Chemerinsky or his law professor buddies chose to go public with this turn of events has no bearing on the legalities of the situation.
    Methinks this post is additional evidence – on top of many recent examples – that EM has succumbed to the same sort of get-alongitis with the lefty blogosphere that most Republican congressmen succumb to once they hit the D.C. cocktail circuit. And it’s nauseating.

  3. The Captain is right. A contract is a contract. Only nonperformance on the contract should have triggered the action Drake took.
    With regard to Chemerisky’s politics, it would have been a draw here in California, not a drag. As long as Chemerisky didn’t attach UCI’s name to his opinion pieces, he was well within the bounds of free speech at the University. [If anyone wants to understand the bounds of university free speech, just look at the case of Ward Churchill, who was eventually done in by plagiarism, not by his original content or its publication.]
    I rather detest Chemerisky’s politics [his application of his knowledge], but if you examine the blog over at the LA Times, he has lots of conservative students from his time at USC coming to his defense. They say politics did not invade his classroom, and they came away with a tremendous understanding of our Constitution.
    Of course, California is an employment-at-will state, so an employment relationship exists only at the will of both employer and employee. What will be the nit is what’s in the contract relative to Chemerisky’s compensation in the event of his dismissal prior to the end of the contract. Hopefully enough to cause Drake nightmares.
    And Don, don’t try to be a lawyer too. I know of one instance here in California in which a contract was placed in front of person B by person A, person B signed the contract, person A then took possession of the contract but didn’t sign it, and later claimed the contract was invalid because it lacked his signature. Person A lost the resulting case; the contract was valid. I was on the jury. And, by the way, nobody is contesting the validity of Chemerisky’s contract, not even Drake. He’s just asserting the right to terminate it.

  4. Sorry, Cap’n, I’m having a very hard time understanding why the hiring decisions of UC Irvine have become a sudden cause celebre amongst CONSERVATIVE bloggers this week.
    Let’s get back to the important subjects that your readers actually care about, which this assuredly is NOT.

  5. Ed,
    Who cares? Why are a few “conservatives” concerned at all with the left coast hires at UCI? There are more important issues than this that you could validly cover. One serious issue is the HSU fly caper, and Hillary’s position in that deal.
    You and Hugh need to get back to basics.

  6. Yeah Captain, what’s with using YOUR blog to post about things that interest YOU? Better be careful or athingortwo and tomshup will cancel their subscriptions.
    I find this story fascinating, in a train wreck kind of way.

  7. This is a ginned up talk radio issue, something for the proles to get ‘outraged’ about, hiring disputes happen all the time. This one is now a cause becuase the Prof is a FOH (Friend of Hugh). Yawn.
    Who beside Hugh is losing any sleep over this?

  8. >>In response to Nauseated Don in the comments, it doesn’t take a legal expert to know that when two parties sign a contract, one party can’t just act as if it doesn’t exist.>If that’s OK, get prepared for firings of conservatives from campuses around the nation, and don’t bitch about it when it happens; we will have validated the effort.

  9. If this is politically motivated, where’s the conflict? I mean, seriously, where’s the conservative in the woodpile to make this political? While I agree that the reason that Drake did what he did is a mystery, the biggest mystery is why this story is still making headlines here now that the principle of “fired for his beliefs” is no longer evident.
    This is a big like Sean Hannity defending George Soros for getting an unjustified parking ticket.

  10. I have no dog in this hunt, but I suspect that an examination of the major alumni (or other) donor list, actual or planned, would lead to some likely suspects for who put the pressure on Mr. Drake concerning the hiring of Mr. Chemerisky. It’s always a good idea to follow the money.
    BTW, it’s always a treat to read the troll comments. One fellow has said he “detests Chemerisky’s politics.” Here is the list of synonyms from the Random House Unabridged Dictionary for detest: “abhor, loathe, abominate, execrate, despise. See hate.” Perhaps, the fellow would like to comment on why he the case of “Chemerisky’s politics” reaches the level of detest rather than disagree.

  11. The Captain cares because there is a principal involved, and even if both parties were scum the principal needs to be upheld.

  12. >>In response to Nauseated Don in the comments, it doesn’t take a legal expert to know that when two parties sign a contract, one party can’t just act as if it doesn’t exist.
    As The Yell noted, Capt. Ed’s statement is incorrect. While it may not take a legal expert to determine the legal ramifications of a contract, an analysis of the language of the contract between the parties is required before pronouncing that the contract was breached. Many contracts, by their terms, can cease to exist as a result of certain acts or omissions. It all depends on what the contract itself says.
    On a more basic level, do people believe that it is always inappropriate to analyze a potential hires’ political leanings before offering him or her a job? From all I’ve read, Chemerinsky is eminently qualified and his politics were not so extreme so as to impede his effectiveness.
    But what if they were? Or what if a potential hire was so conservative, and as a result, so controversial, that his or her effectiveness would likely be degraded? In opening a new law school, the first dean must be able to work with potential donors, potential faculty members and potential students. It certainly is conceivable that a radical ideologue, whether from the left or the right, would be ineffective at meeting these obligations of a new dean.
    While as I noted I don’t think Chemerinsky is such an individual, does Capt. Ed (and his readers) accept that politics does have a role in hiring decisions? (Certainly Capt. has indicated that considering politics in the hiring process is less egregious then when used for firing purposes and I completely agree)
    While I generally agree with Hugh, I feel that he goes too far in that he seems to imply that politics should never matter in hiring. I think that the reality of the situation is that they do – and responsible hiring managers must take politics into account for certain jobs. Do others agree/disagree?

  13. Let’s face it. Chermerinsky cut his own throat. He has a big mouth and no sense of propriety, and if he wants to write what ever he wants to write whenever he wants to write it, he should be able to do that … just not as the dean of a law school.
    This is not about ideology. This is about a little bombastic, opinionated self-indulgent man who can’t keep his mouth shut and is not fit to be the dean of a law school.
    Chererinsky deserved to be fired, and I salute Drake for having the cojones to do this to Erwin.

  14. I confess: I’m an alumni of UC Riverside. They’ve been salivating for years to get a Law School. I’ve seen something of how the sausage is made.
    Here’s the UC Riverside Law School proposal to the Regents. Note the argument: UC Riverside is perfectly placed to build a mill for litigators and bureaucrats, using existing faculty in other disciplines who happen to have JDs.
    Is that likely to have been the dream of one of the nation’s most distinguished legal brains? Perhaps we’re missing the real vision of the millionaires who built a law school in Orange County…

  15. First, I disagree with Chemerinski’s political and jurisprudential views even more than most conservatives, but the Captain and Hugh have a good point.
    State sponsored schools are not supposed to discriminate based on politics. We know they do quietly discriminate against conservatives, but that does not make it OK for us to discriminate back in the same context. Chemerinski is a very nice man and would have made a great radical leftist dean. Irvine will probably find someone who has just the same world view as Chemerinski (like 95% plus of the legal academics at national law schools), but who is not as skilled or courageous at expressing themselves.
    If conservatives want traction in legal education they should be donating their millions to conservative Christian law schools like Trinity Law School in Santa Ana California (Full disclosure: I am Dean at TLS), Regent, Liberty. or maybe Campbell, not state run institutions that will turn out Marxist clones by the thousands at worst, or mindless win-at-all-costs secularists at the best.
    On the contract, even if UCI has a right of termination, it still needs to be exercised reasonably, in good faith, and for reasons that are acceptable in light of public policy and educational norms. It does not sound like that is what happened here, but Chemerinski is probably too much of a gentleman to sue UCI for himself (though he might do it in a heartbeat as an attorney for someone else). Nevertheless, if I were the UCI chancellor, I would be talking to my errors and omissions coverage carrier and I would not have given my reasons for the firing to anybody.

  16. The Dean up at UC Berkeley’s Law School; no right-wing nutter, he;
    Came out and said Drake was CORRECT in cancelling Chermerinksy’s contract.
    Doesn’t matter WHEN the discussion took place; a DEAN has to be aware of a college’s philosophy. It’s not your own boat to row.
    And, the Dean at Berkeley said he, himself, had to learn he couldn’t use his Dean’s Chair to spout political rhetoric. Because the SCHOOL is allowed to keep it’s own boat “intact.”
    If there’s a lawsuit, ahead?
    I think you’d learn about Chemerinksy’s political stance; which is why the school “wavered.”
    In other words? ALL LAWSUITS have two sides. Can Chemerinksy get money? Sure. But does that fix the problem that people think he’s a left-wing firebrand? NO. Will it make it easier for professors on the left to stay on their course?
    You’re kidding me. Even with dogs on the supreme’s like Anthony Kennedy and Souter; there’s a good chance there are cards in play where Bush names another one, or two, bench warmers. More Red than Blue.
    By the way, to prove “damages” … Chemerinksy’s gotta go to show how he’s been “damaged.” BEING DAMAGED GOODS BEFORE ARRIVAL, sure doesn’t bring ya refunds.
    Drake? Well, seems to me, if you are in da’ law; and you’re interested: THERE ARE TWO POSITIONS open at UC Irvine. Where the weather’s gorgious. And, the housing market is sliding down a little. Where’s the down side?
    Why doesn’t Glenn Reynolds send his friend, Daniel Drezner, in for a peek, to see if his shoes would fit? You think I”m kidding?
    You think there are no professors out there who are top notch; and who aren’t commies? Give me a break.

  17. There are many questions that cannot be asked before an offer has been made and accepted. Sometimes the answers will cause a re-think.
    This is a contract issue. I am sure there is language regarding damages for early canecellation. Unless financial damage has been done, there should be no further compensation required.
    At this point, It’s all about the money. How much to make the issue go away?

  18. Erwin agreed to stop writing political op-eds. He did not stop writing political op-eds.
    End of story. If the guy can’t keep his word to the school’s chancellor for TWO MONTHS, it pretty well tells you they were going to have problems down the road.
    “Breach of contract,” my asp! If it were, Chemerinsky would just sue – he knows a few good lawyers. It was NOT, however, so he runs like a little girl (or a leftist practicing foreign policy) to someone big and strong to protect him.
    I’ve lost a lot of respect for Hewitt over this. Not that he defends his friend, but his complete misrepresentation of the situation. Too many conservatives are rushing to join the bandwagon to burnish their “You see? I’m not all about ideology!” credentials without regard for the facts of the case. The academics can be forgiven, because no one expects them to be honest anyway, and this ensures invitations to better dinner and cocktail parties for them.

  19. Erwin agreed to stop writing political op-eds.
    Says who? I haven’t seen either Drake or Chemerinsky assert this. Why would he have to agree to that in any case? Should political silence be a precondition of employment, especially when working for a government institution outside of defense and security? Would conservatives want to see that standard applied to Victor Davis Hanson, for instance?
    If that was the case, why didn’t Drake assert that in his op-ed?
    You are assuming facts not in evidence here.

  20. Cap’t – it does seem that Erwin was asked to stop writing op-ed’s. Drake, as reported in an LA Times article said, “we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn’t the subject, it was its existence. What he said doesn’t matter.”

  21. “Why are a few “conservatives” concerned at all with the left coast hires at UCI?”
    Because the coward running UCI tried to blame his decision on the nonexistent opposition of nonexistent conservatives and deserves to be called on it.

  22. Am I understanding correctly the tenor of the Captain’s and his sympathizers’argument to be that political ideology should have no place in the selection of a law school dean? Law schools; those places from which Supreme Court justices and judges serving in say, the Ninth Circuit graduate.
    Who knew that those “activist” tendencies and “expansionist” Constitutional constructions that conservatives often complain about (Messrs. Morrissey and Hewitt included?) were genetic and not taught?
    As Prof. Chemerinsky knows and might well say himself, “Baloney.”

  23. Captain,
    We all love and respect Hugh, but enough of carrying water for this lefty law professor.
    He made his future employer nervous, and the employer chose not to fulfill the contract.
    Too. Friggin. Bad.

  24. Actually this is one of the great indicators of our current state of politics.
    Conservatives will fight for principle even when said principle will hurt them. Liberals generally fight for their own self interest irrespective of their nominal principles.
    Well it is an admirable conservative trait – it has certainly cost the movement time and again…

  25. “Chemerinsky obviously got fired for his political beliefs, and even commenters who disagree with me on my position here accept that. If that’s OK, get prepared for firings of conservatives from campuses around the nation, and don’t bitch about it when it happens; we will have validated the effort. That’s even worse than not hiring someone for their political beliefs, an option that was open to Drake up to the point where he signed the contract.”
    You may be right about the result, but it wasn’t conservatives who fired Chemerinsky – it was the Dean, who, per the web, is politically sympathetic to his Chemerinsky’s views.
    Moreover, it’s not exactly the case that the left doesn’t already do this … Lawrence Summers, anyone?

  26. Please see professor Chemerinsky’s op-ed in the LA Times. He claims that Drake said it was conservative pressure that led to retracting the offer, and that Drake asked him to say the change of heart was mutual (which he refused). He also claims that Drake never asked him to stop writing op-ed columns, and that the columns in question were written before he was offered the job.
    And the Captain is right. If Drake didn’t know Chemerinsky, his work, his reputation, etc. after 9 months, he probably is incompetent.

  27. probably more here than meets the eye. Employer offers conditional contract to applicant, employer then rescinds the offer. Happens everyday. Welcome to at-will employment Professor! If anything its probably better to have this happen than to fire Chemerinsky 6 months into his tenure. To let him go is a BIG deal. I’m sure this wasn’t taken lightly, and Drake made the best decision he could. To charge incompetence without knowing what really happened is just stupid.

  28. UC Irvine and the Chemerinsky Fiasco
    Since I work as a part-time teacher at UC Irvine, I am taking an interest in the affair over the hiring and de-hiring of law professor, Erwin Chemerinsky. In terms of background, Chemerinsky, a noted liberal law professor, currently at Duke, was recently offered the job as Dean of the UC Irvine Law School, which is in the process of being established. The position was offered by UCI Chancellor Michael Drake. Then, just a few days ago, Drake rescinded the hire, reportedly telling Chemerinsky that certain conservative figures were raising strenuous opposition. (I wish to note that I am in no way speaking for UCI in this posting. I am not a full-time hire, and I teach on a quarterly contract in the University Extension (ESL). I speak only for myself.)
    Today, with anger mounting over the affair, Drake under attack, and possible implications for freedom of speech within the UC system, both Chemerinsky and Drake wrote pieces in the LA Times stating their respective positions. According to Chemerinsky, Drake told him that he was being forced to retract the hire due to extreme negative reaction from (unnamed) conservatives (I am paraphrasing.) Drake, in his article, (again paraphrasing) maintained that he made a management decision, which was free of any political influence. Beyond that, Drake did not settle the questions lingering over the incident.
    So the question that is hanging out there is this: Who are these “unnamed conservatives” who allegedly put pressure on Drake to drop the hiring of Chemerinsky? I am certainly no insider at UCI, but to me, it would seem surprising that conservatives had so much influence at a UC campus. Outside of me, I don’t know many people at UCI that could be truly called conservatives, at least not of my ilk, and I know it wasn’t me that put the arm on Drake. I don’t even know the gentleman. Besides, what’s one more liberal in the UC system? There are other professors far more radical than Chemerinsky, so many, in fact, that there is standing room only. If Chemerinski is correct, then I think it would be fitting if Chancellor Drake publicaly identified the “conservatives” in question who forced him to withdraw the job.
    That leads to the next question: Was it right that Chemerinsky’s hiring be rescinded because he is a liberal? I know a lot of conservatives like myself who have no sympathy for the man and take the attitude that for once, a liberal got screwed. I have a little bit different take. First of all, I have seen and heard Chemerinsky speak on TV and radio many times. He is certainly liberal, and I disagree with most of what I have heard him say. As David Horowitz described him, he is sort of an Alan Colmes-type liberal. He is certainly no Ward Churchhill. Would he have been my choice for Law School Dean? Obviously not. But that is not the point. In my view, we as conservatives should not engage in the tactics of the far-left; that is to railroad and bring down those with whom we disagree. That means not trying to scuttle someone’s job. Doing so should be reserved for extreme cases of people who are not qualified, have misrepresented their qualifications or would bring disrepute to the university. In my view, Ward Churchhill fits into that category, but Erwin Chemerinsky does not.
    I hope for the sake of UCI that this issue sees the full light of day. For the most part, UCI is a fine academic school with students that are overwhelmingly serious and a pleasure to be around. In recent years, the school has aroused a lot of negative publicity due to the agitation of the Muslim Student Union and their hate-filled invited speakers. Now it seems that UCI must undergo some further embarrassment. But that’s ok. I am the one always saying that light should be shone on our nation’s universities when they fail to live up to their own standards.
    gary fouse

  29. UCI exists because of the charity and largesse of the Irvine Company. Donald Bren, Chairman of the Irvine Company, is providing the funding for the law school.
    He didn’t like Chemerinsky beating up on Gonzo. This ain’t rocket science.

  30. The UC President position is open with the resignation of Bob Dynes (firing actually). Drake would surely love to have that job, and perhaps he was playing up to some of the Regents because of that.
    Of course his chances are now zero.
    Word around the University of California is that Drake is a poor administrator. Not an uncommon event around the UC system unfortunately.

  31. Gary Fouse: In my view, we as conservatives should not engage in the tactics of the far-left; that is to railroad and bring down those with whom we disagree. That means not trying to scuttle someone’s job. Doing so should be reserved for extreme cases of people who are not qualified, have misrepresented their qualifications or would bring disrepute to the university. In my view, Ward Churchhill fits into that category, but Erwin Chemerinsky does not.
    Well said. It seems to me that discriminating against somebody for their opinions is just as odious as discriminating against them on the basis of their color or gender or sexual orientation. The sole question should be, “Is Chemerinsky the best-qualified applicant?”
    In my view, a core principle of conservatism is fair play, which manifests itself in dispassionate “playing by the rules”. No matter what one thinks of Chemerinsky, nobody deserves to be treated in such a shabby manner or be denied a job for political reasons.

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