Illegality Aside, Chemerinsky’s Perjury Joke Was Just That — A Joke

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Dean Erwin Chemerinsky (public domain photo via Wikimedia)

Future is one of my favorite musicians. Erwin Chemerinsky is one of my favorite constitutional law experts. You could say they live their lives on opposite sides of the spectrum. One spends his time working with students who go into fight or flight whenever Themis is down; the other created the masterpiece that is Dirty Sprite 2. That said, if I had a nickel for each time Future and Erwin said they’d lie under oath, I’d have two nickels. Which isn’t a lot, but it is still a little odd when you think about it. From The College Fix:

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In late June, a short video of Chemerinsky was posted on social media in which he said to students: “I’ll give you an example from our law school, but if ever I’m deposed, I’m going to deny I said this to you. When we do faculty hiring, we’re quite conscious that diversity is important to us, and we say diversity is important, it’s fine to say that.”

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This is very plainly a joke. It’s pretty clear the student knew it was too judging by the audible chuckling. It’s no sitcom laugh track belly laughing but going by the very low standards of telling a joke in a Con Law class, Chemerinsky killed the house.  All competent lawyers who aren’t named Jimmy McGill know better than to admit felonies to their friends and family. Right? There’s also nothing per se illegal about this statement. Even if the members of the faculty consider diversity to be important, it’s not like that’s enough to prove some sort of diversity quota or that diversity considerations go into the hiring process. That didn’t stop the joke from being spun as a smoking gun that proves California is violating Proposition 209:

The video was posted by popular conservative scholar and activist Christopher Rufo under the wording: “Berkeley Law School dean Erwin Chemerinsky explains how he has secretly enacted a policy of racial discrimination in faculty hiring—which is illegal in California.”

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I think that the legal term for what Rufo here has done is called a stretch. Not much of a secret if you announce it to a class and a camera, you know. It is also expected. We’re not far from the Supreme Court’s rulings in the use of affirmative action at Harvard and University of North Carolina. Anything involving affirmative action — even Chemerinsky’s caveat that it is a motivation that cannot enter the reasons why someone is hired — is being viewed as an opportunity to strum up a case that will broaden out the opinion. It really is just a fishing expedition:

If you've recently applied to Berkeley Law as faculty and received a rejection, which you suspect might have involved discrimination, send me an email at [email protected]. I will connect you with public interest lawyers who might want to sue.

— Christopher F. Rufo ⚔️ (@realchrisrufo) June 29, 2023

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It isn’t really that different from America First Legal sending out a threat to law schools demanding their public revocations of affirmative action and special policies about how writing for a journal works. I know comedians have lamented about how PC culture has made it hard for them to tell jokes in public — looks like teachers will have to dial back the humor too.

Berkeley Law Dean Caught Telling Class He’d Lie In Deposition Now Says He Was Joking [The College Fix]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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Affirmative Action, Berkeley School of Law, Erwin Chemerinsky, Law Schools, Perjury