Debate at SMU Federalist Society: “Intellectual Diversity in Legal Academia”

September 12th, 2016

On Tuesday, September 6, the SMU Federalist Society hosted an enriching debate on “Intellectual Diversity in Legal Academia.” Or, to borrow from the marketing flyers, “Searching for Unicorns.” Joining me where David DePianto and John Browning, who both teach at SMU. I encourage you to watch the video, which runs over an hour. During the last 20 minutes, a number of faculty members, as well as students posed questions. The audio didn’t pick up the questions, which is a shame, because they raised some important issues. I will try (to the best of my recollection) to discuss their questions, and summarize my answers.

First, one professor raised the point that when reviewing resumes, he was never able to even discern an applicant’s personal views. For most resumes, this is emphatically true. Ideology (and I use that term in the loosest sense) will generally only come through when writing about public law, such as constitutional law, international law, administrative law, etc. It is no surprise then that conservative academics deliberately choose areas of the law–tax, secured transactions, corporate law, etc.–where politics really don’t matter. When I was first considering going on the market, a number of people (whose names you would recognize) implored me to focus on intellectual property because of my technical background. They told me focusing on constitutional law would be career infanticide. They were right, but I did it anyway.

Second, another professor asked what the “critical mass” of conservative law professors would be. I had to chuckle, and note that was the same question Chief Justice Roberts posed to the lawyers for U.T. Austin in Fisher. The attorney was unable to provide an answer to the Chief. My response to the Professor was that we are far from even discussing a critical mass–the professoriate denies there is even a problem! The numbers show that (at best) 80% of a faculty is left-of-center, as measured by any conceivable metric, including party registration or political donations. If any campus was 80% white, there would not for a moment be a discussion of whether we need a critical mass, or otherwise, to take action to redress the problem. Now to be clear, I am not calling for some sort of conservative affirmative action. I would find it demeaning and insulting if I was hired as a token conservative. But under any valid disparate impact analysis, the demographics suggest something is awry.

Third–and this gets to the heart of the matter–another professor suggested that the reason why there are fewer conservative professors hired is that there are fewer conservatives in the “pipeline.” That is, there are not that many Reaganites inhabiting the political science departments at ivy league universities. As a result, there are simply fewer conservatives applying, so fewer get hired. Empirically, that is certainly true. Conservatives will (on average) lack the credentials (a doctorate from Berkeley in critical racial economics) that could help with hiring.

Fourth, another professor took the pipeline notion further, but in a direction that is revealing. He relayed a story from a conference he attended where a famous scholar said (paraphrasing) “the reason why conservatives don’t get hired is because their ideas are just stupid.” I’ve now debated this topic a number of times, and invariably the topic of global is raised: Why would a climate science department hire someone who denies the existence of climate change, the argument goes. The professors would be demanding “some artificial notion of equal time” where someone thinks the earth is round must be matched with someone who thinks the earth is flat. Climate science–an area I have no expertise in–can be reduced to formulas. Law–premised on subjective value judgments–cannot. Whenever I debate this topic, someone invariably brings up climate science, and it doesn’t fit. I offer a few alternatives: writing about originalism, an individual notion of the Second Amendment, or that Congress lacks the power to compel commercial transactions (before 2012), etc. Are these propositions so beyond the pale that they are “stupid.” I suspect many scholars would answer that yes, they are.

Fifth, another professor suggested (paraphrasing, because the audio is garbled) “If you attach yourself to a party that doesn’t believe in our best version of facts (referring again to global warming) that is not discrimination, that is something.” It is unfortunate to tar a scholar based on guilty by association: because he gave money to John McCain or Mitt Romney over Barack Obama, he represents the worst of Republican politics. Or, to paraphrase Hillary Clinton, he is in the “basket of deplorables.” Politics is complicated. People vote for a series of complex reasons, and often pick the least-worst option. (This election perhaps more than any other proves this point). It is downright prejudicial to reject a person’s scholarship because of who he votes for. Fortunately, the ballot box is still secret, but job service is not.

Sixth, a student asked why would schools hire professors out of the mainstream, in a way that could injure their “brand.” I was absolutely gobsmacked by her ignorance about the importance of the university to foster dissent and ideas outside the mainstream. But I really shouldn’t blame the student. I doubt this tenet of academic freedom was ever articulated to her. Rather, she was probably taught at every juncture to avoid saying or doing anything that would upset others–that includes writing and thinking about unorthodox ideas. The framing of her question, which danced around the issue, was even more ignorant. She suggested that hiring conservative professors would hurt the school’s “brand.” To the contrary, many donors are withholding their checks because of the hostile environment brewing on college campuses. But that doesn’t resolve the issue–universities should promote the pursuit of ideas, in spite of their unpopularity. After reflecting on the question, a few hours later (always too late) I came up with this response: Would you have hired a scholar in 1972 who wrote that the 14th Amendment protected a right of same-sex marriage. The year before, the Supreme Court dismissed Baker v. Nelson for “want of a substantial federal question.” At a time when homosexuality was considered a mental illness, it certainly could have hurt a school’s “brand” to hire such a scholar, writing material entirely out of the “mainstream.” Four decades later, that position is now the law of the land. I’ll be sure to use this example the next time I debate this topic.

On the whole, it was a very enriching experience for the students in attendance, and for me.