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Footage surfaced online Thursday of University of California, Berkeley Law Dean Erwin Chemerinsky appearing to claim that he secretly discriminates when hiring faculty for the sake of diversity.
In the days following the Supreme Court ruling against affirmative action in college admissions, political commentators across the United States have been debating how race and diversity politics have played out across America’s institutions, especially in education.
Amid this debate, critical race theory opponent Christopher Rufo tweeted undated footage of Chemerinsky appearing to explain to students how "unstated affirmative action" is achieved when a "college or university doesn’t tell anybody, doesn’t make any public statements" about doing it.
"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," he said in the video. "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."
UC Berkeley law school dean Erwin Chemerinsky at his home in Oakland, Calif., on Tuesday, January 19, 2021. (Carlos Avila Gonzalez/The San Francisco Chronicle via Getty Images)
He then went on to say that he is "very careful when we have a faculty appointments committee meeting, any time somebody says, ‘We should really prefer this candidate or this candidate because this person would add diversity’ - don’t say that! You can think it, you can vote it, but our discussions are not privileged, so don’t ever articulate that that’s what you’re doing."
He said, "That works more easily with regard to faculty hiring," then went on to note that such a tactic is more difficult for "student admissions" because of "statistical measure" before the clip ends.
Since Proposition 209 passed in 1996, the California state constitution has banned affirmative action in "public employment, public education, or public contracting." In 2020, the University of California regents board threw its support behind a ballot initiative to repeal Prop 209, but state voters rejected the change 57% to 43%.
When reached for comment, Chemerinsky told Fox News Digital, "I am sad that someone took a video of my class discussion and excerpted it in this way. The Law School strictly complies with Proposition 209 in all of its hiring and admissions decisions."
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Chemerinsky has commented in favor of race being a factor in college admissions before.
"I think the court has gotten it exactly right for the last 45 years," Chemerinsky told Fox News Digital last August. "Colleges and universities have a compelling interest in having a diverse student body and should be able to use race as one factor among many in admissions decisions."
Last November, The New Yorker staff writer Jay Caspian Kang quoted Chemerinsky suggesting that institutions will find ways to give preference to certain minority groups, "that can't be documented as violating the Constitution."
"What colleges and universities will need to do after affirmative action is eliminated is find ways to achieve diversity that can’t be documented as violating the Constitution," the academic said. "So they can’t have any explicit use of race. They have to make sure that their admissions statistics don’t reveal any use of race. But they can use proxies for race."
University of California, Berkeley entrance sign on the corner of Oxford Street and Center Street at Berkeley, Calif. (iStock)
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During the debate over the appointment of Supreme Court Justice Ketanji Brown Jackson, he claimed that Republicans had "no plausible basis for opposing" her.
A variety of commentators across Twitter condemned the new video of Chemerinsky's comments on affirmative action, arguing it reveals a larger problem in American society.
"Berkeley Law School dean and professor admits it's easier to do racial discrimination in faculty hiring than school admissions because the latter has statistical measures," Anti-woke commentator James Lindsay tweeted. "He says he'll commit perjury in court which is a felony. Leftists think they are above the law."
"Should be grounds for a lawsuit—you know it would be if he were using the same tactics to prevent minority hiring. (And in fact, whites are a minority in California.)," The Spectator columnist Daniel McCarthy wrote.
McCormick Professor of Jurisprudence and Princeton academic Robert P. George noted this is allowed to happen because there are no conservatives on the faculty to push back and speak up.
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"What Dean Chemerinsky reveals here in the most glaring way is the lack of diversity--viewpoint diversity--on his faculty," he tweeted. "He can say to them what he reports saying to them when they are violating the law, *only* because he can count on them to share his ideological commitments."
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