Sunday, September 30, 2007

An open letter to the American Bar Association:

Ladies and Gentlemen,

I am writing to you today in regards to the upcoming application of the University of California, on behalf of it's Irvine Campus, for accreditation as an American Bar Association approved law school. There are a few factors regarding the University of California and of it's subsidiary at the University of California, Irvine that you may wish to consider when making your accreditation decision.

Others have already pointed out that the recently newsworthy process of hiring, then firing, Edwin Chemerinsky as the Dean of a putative law school at the University of California, Irvine calls into question the propriety of opening that law school in the first place. At least one author has noted that this process may have violated the Federal and California constitutions and violated ABA standards for accreditation1.

I am writing this letter to point out that, as if such violations were not enough, there are many other events to consider as they relate to the University's fitness to operate a law school. Those reasons relate to the history of the University of California overall and to it's subsidiary at the University of California, Irvine.

Over the last decade, the University of California overall has been an embarrassment to American academia. A 2005 audit by the The (California) Bureau of State Audits found that “UC administrators sometimes circumvented the university's compensation policies, resulting in questionable forms of compensation and improper payments2.” These improper payments went to university managers, including the president of the University.

The estimated amounts of that questionable compensation vary, with at least some of the variance apparently due to the secrecy in which that compensation was delivered. However, all accounts agree that the unauthorized compensation was very large. According to a story in the San Francisco Chronicle, $871 million in “extra compensation,” above regular salaries and overtime, was delivered to UC employees3. California auditors reported such extra compensation in the amount of $334 million4.

Despite University policies mandating disclosure of such compensation to the Regents of the University, and despite clear IRS rules mandating disclosure to the IRS, neither the Regents nor the governor nor the legislature nor the IRS were fully notified of this compensation5. In this case, “questionable compensation” appears to be academic code for embezzlement, and “failure to notify the IRS” appears to be code for tax evasion. With the amounts involved being well into the hundreds of millions of dollars, this episode was a national disgrace.

It is also worth noting that the University has also presided over almost routine damage to US national security. A long list of such security leaks is maintained by the project on Government Oversight6 for the (University of California managed) Los Alamos National Laboratories. I will not reproduce that list here, though there is a reference in the footnotes. Suffice it to say, the University of California has apparently run a national laboratory in such a way as to place the national security of the United States at risk.

The University of California has also acted in ways that are not consistent with the claimed traditions of academia. In September 2007, an invitation extended to Lawrence Summers was revoked due to political pressure apparently brought to bear against the University, and against Summers, by those opposed to his questioning of gender-role orthodoxy in the academy. This was an international embarrassment for American academia overall, as it demonstrated a major American academic institution actively suppressing reasonable questions about the relationship between gender and other aspects of human endeavor. To be clear: the University of California has a history, as exemplified by the Summers debacle, of actively impeding questions into controversial topics. The tolerance of this behavior calls into question the utility of American academia in general, and is thus an embarrassment to academia.

All these are reasons enough, in my opinion, that the certification of any new school that involves the public trust should be seriously considered when the University of California is involved. In the selection of campus for the proposed new law school, however, the University of California has provided a particularly strong example of it's apparent inability to avoid rewarding unethical and criminal behavior.

The University of California, Irvine, is the putative site for the new law school. That same University of California, Irvine, has been a routine embarrassment to American academia, and to academic medicine in particular, for well over a decade now. UC Irvine's active abuse of the trust placed in it has resulted in a national scandal in the 1990s involving the theft and sale of embryonic humans. It was in 2006 that it became public knowledge that some of those stolen embryos have now developed into young adults, and that the University, after a decade of denying the existence of those now young adults, still refused to inform the biological parents of those young adults as to the identity of their children . Presumably, those children were also not being told of the identity of their biological parents. This is an ongoing national disgrace within the medical community.

In another case, from 2003 to 2005, UC Irvine, in conjunction with personnel from UC San Diego, incorrectly advised hundreds of patients with end stage liver disease that UC Irvine had a liver transplant program that could save the lives of those patients. The UC Irvine Dean of Medicine, the CEO of the hospital, and Dr. Marquise Hart, a transplant surgeon from UC San Diego, all inaccurately certified to the United Network for Organ Sharing that UC Irvine would have a full time transplant surgeon available. In fact, for that time, there was no full time transplant surgeon.

Before and during the 2003 to 2005 time frame, the number of transplants done at UC Irvine was well below both federal and state minima required to maintain certification, the few transplants that were done had a low survival rate, and half the members of the department of anesthesia signed a petition acknowledging that they were not adequately trained to perform transplant anesthesia. From 2003 to 2005, thirty-two individuals who were on UC Irvine's notional liver transplant waiting list died even though there were livers available to these patients.

The patient who apparently tired of waiting for a transplant, and whose lawsuit and discovery brought these events to light, had 95 organs offered to her by the United Network for Organ Sharing, while UC Irvine advised her that there were no organs available to her. Apparently UC Irvine was simply waiting for her to die. All the while, UC Irvine was apparently collecting payments for the medical services provided to these patients while they waited for transplants that were never going to come.

The list of UC malfeasance goes on and on. Suffice it to say that the University of California, and it's Irvine subsidiary, have brought shame and dishonor upon fields in which they already provide services, including reproductive endocrinology, transplant surgery, and medicine in general. Based on this history, it is reasonable to believe that accreditation of a law school at UC Irvine may eventually embarrass the entire legal profession.

In fact, the process of such embarrassment has already begun, even in the earliest stages of the accreditation process, with the hiring, and firing, and re-hiring of Edwin Chemerinsky.

I'd like to expand on some of the points made by others regarding this matter. The initial, and thus far most substantive, public explanation given for the firing – that the firing was forced by unnamed conservative forces – was improper on many levels. For one, it is likely that no large group in America has less influence on UC Irvine's decisions than conservatives. It appears to many observers that Chemerinsky's firing may have been blamed on scapegoats (conservatives) who appear to be minimally influential at the University of California, in an attempt to deflect questions about the real reason for Chemerinsky's firing. As for the nature of that real reason: it's probably nothing that suggests good things about the University.

On the other hand, if the real reason is in fact that Chemerinsky was fired for simple political reasons, then that itself is of concern. The implications are too obvious to belabor, so I leave it to you to decide what it means when a law school dean can be unceremoniously removed solely due to opposition from anonymous persons who are not even willing to come forward and make a direct case against the dean.

As troubling as the putative reasons for Chemerinsky's firing, however, was lack of attention paid by UC Irvine to a legitimate reason for the firing. On September 14, 2007, California Chief Justice Ronald M. George Bob Smith, noted that Chemerinsky had .... made a "gross error" that was "very troubling" to the court7 in an Aug. 16 article8 written by Chemerinsky. Given the named reasons for the firing, I find it worth noting that a “gross error” noted by the California Chief Justice was not cause for firing, and, in fact, has been no obstacle to Chemerinsky's re-hiring.

This suggests that flaws in Chemerinsky's work sufficient to generate comment by California's chief justice were of such little concern in the hiring and firing decisions as to be completely buried by concern over possibly fictional opposition from anonymous conservatives. This suggests a lack of concern over the quality of work to be done by the members of the proposed law school. I am certainly not suggesting that lawyers, including prominent professors, cannot be mistaken on points of fact. I am suggesting that the decision to totally ignore such errors, while granting enough weight to political considerations as to result in a firing, is a reversal of the claimed priorities of academia and of the law.

I, like many Americans, am somewhat disgusted by the failure of the legal profession over the last several decades to guard against abusive and self-serving manipulation of the law by many of the most prominent members of the profession. However, the legal profession still maintains a certain, though dwindling, amount of public trust. That public trust allows the legal profession to provide an acceptable method of mediating disputes, and thus serves as a bulwark against anarchy. I have no love for the legal profession, but I am certain that anarchy is to be avoided at almost all costs.

Accreditation of a law school (of all types of schools) at the University of California, Irvine (of all campuses) will send the message that apparent institutional violation of the constitution, large scale embezzlement, theft of national security secrets, censorship, various types of sometimes lethal fraud, dishonesty or whimpering acquiescence to transient political pressures are no bar to the education of lawyers. Even before the real scandals start (and they will), such an accreditation will continue to reduce public respect for the law, and be one step towards anarchy. If you have children, whether or not they follow your footsteps into the law, this future erosion of respect for the law is something that you may realize will have a negative impact on the world those children inhabit.

You may also wish to consider that there may be an intermediate step resulting from accreditation of this new law school: the recognition that ABA accreditation may not correlate with ethical standards. Such an intermediate step might reduce the influence of the ABA in the future. I leave it to you to determine how such a reduction of influence should affect your decisions.

A decision not to accredit the University of California law school, on the other hand, will be a positive step for the legal profession overall and for the ABA. Such a decision not to accredit will send the message that the American Bar Association has some standards of ethics and behavior below which it will not allow it's would-be members to fall. By maintaining the ethical standards of legal education, the American Bar Association would increase respect for the law, and for the ABA itself.

The decision is yours. For the sake of America, I hope you make the right choice. For the sake of your own organization and profession, and for the sake of your children, I believe you might make the right choice.


Peter T. Banos, MD, MBA









Addendum: I think this story: UCI makes dubious claim about prominence of its law school, is relevant to the above post.

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