Debates over the lack of intellectual diversity on law school campuses usually deadlock in one of three ways.
First, many professors assert there is a pipeline problem: on average, fewer qualified conservative faculty members apply for academic positions. Therefore, because the supply of conservative applicants is much lower, it is not surprising that fewer conservatives are hired. Why is the pipeline dryer? Perhaps conservatives–who love money, don’t you know–are more inclined to pursue lucrative careers in private practice. Or, maybe conservatives are less likely to invest the time needed to pursue an advanced degree, so their applications are weaker. Or perhaps the conservative mind, unlike the liberal mind, is less prepared to deal with the delicate, nuanced nature of scholarly discourse, so they choose less rigorous vocations.
Second, other professors claim that there is no overt discrimination against conservative applicants, and indeed, they have never seen a resume that exudes an applicant’s conservative philosophy. Therefore, it is impossible that there is any form of discrimination, because there is no basis on which faculty members could even discriminate.
Third, some professors acknowledge the problem, and candidly maintain that conservative scholars are simply less qualified because their ideas are worse. Or, to use an anecdote one professor related at a debate I attended earlier this year, “the reason why conservatives don’t get hired is because their ideas are just stupid.”
These three defenses illustrate the vicious cycle that is the lack of intellectual diversity. First, because conservatives are less likely to be hired as academics, they are less likely to waste their time pursuing advanced degrees, and more likely to seek careers in lucrative private practice–not the other way around. Further, if law students see that their faculty are overwhelmingly left-of-center, and are less likely to have the mentors to guide them through the process, they are more likely to be discouraged and pass on the career altogether. (Draw whatever analogies you’d like to the impact of an all-white faculty on minority students pursuing legal careers). Second, because any resume that exudes a conservative bend will likely be discarded, right-of-center scholars are drilled on how to make a resume look as innocuous as possible. (I have to laugh, at least internally, when professors insist they have never seen a conservative resume; there are legions of resumes that list employment with NARAL, but not many with National Right To Life). Third, within the academic echo chamber, professors are more inclined to think a theory is “stupid” if it is a theory they are never exposed to in the faculty lounge. Thus, the lack of conservative members on the hiring committee, in the classroom, or at the workshop, reinforces all of these perspectives.
Alas, efforts to challenge this status quo are invariably premised on anecdotal evidence about conservatives being discriminated against at the hiring market. Defenders of the status quo reject this anecdotal evidence, as it does not conform with their experiences on hiring committees, so it cannot be true.
Fortunately, there is a way to resolve this deadlock. The American Association of Law Schools (AALS) maintains extensive records of applicants on the entry-level hiring market through the Faculty Appointments Register (FAR). With proper protections for confidentiality, scholars can systematically compare the intellectual diversity of the applicant pool, with those in fact hired for tenure-track positions. The AALS granted access to the 2007 FAR registry to Professors Trace E. George and Albert H. Yoon. Their research considered how hiring was impacted by an applicant’s race, gender, clerkship, alma mater, advance degrees, and other factors. (Among their findings, “at the intermediate call-back interview stage … women and non-whites are statistically significantly more likely to be invited for a job talk interviews,” but are “no more likely than similarly situated men and whites to get a job offer.”). George and Yoon’s important work, however, did not focus on intellectual diversity.
In January 2016, the AALS executive committee met with several leading conservative and libertarian scholars, including Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and George Dent. These professors asked for the creation of a Political Diversity Task Force, as well as for access to the FAR data, so they could study how ideology impacts entry-level hiring. One month later, the Executive Committee replied that Task Force would not be created, and the professors would not be given FAR access–even to the same data that George and Yoon relied on. In the year since this letter was sent, no action was taken to respond to the concerns.
The first step to improving intellectual diversity on law school campuses is to acknowledge there is a problem. By refusing to even permit a task force to study the issue, and analyze anonymized data that was already released to other scholars, the AALS instead buries its head in the sand.
This absolute frustration led me to sign a letter addressed to the AALS, which was organized by George Dent, and joined by many of my colleagues. I am sick and tired of debating the topic of intellectual diversity, only to have my interlocutor deny there is even a problem. If indeed there is no problem, let the data speak for itself. I will gladly shut up if the law school hiring process is immune to ideological discrimination–especially in public law fields like constitutional law–and that it is merely the case that not enough qualified conservatives are applying. If it is the case that my own personal experiences at the meat market, and those of my Federalist Society colleagues, are mere delusions, I will gladly move onto other matters. However, if there are problems, we can address them. But it is unacceptable to sit by, year after year, and do nothing.
I reproduce the letter, in its entirety:
February 24, 2017
To the Executive Committee, Association of American Law Schools,
There is growing awareness that conservative and libertarian scholars are grossly underrepresented in American colleges and universities and that this imbalance results from political discrimination. For several years now a number of legal scholars have asked the AALS to support the commitment to viewpoint diversity stated in its by-laws. Some officers have taken our concerns seriously. Immediate Past President Kellye Testy was most cordial to us, as were her immediate predecessors, Dan Rodriguez and Blake Morant. I have spoken briefly to the new President, Paul Marcus, and I hope that he will do likewise.
Judith Areen, the Executive Director of the AALS, seems also to take us seriously. She has alerted program organizers to the need for viewpoint diversity. This may explain why a few of us were invited to participate in AALS programs this year. Several people tell me that panels at this year’s Annual Meeting seemed to be better balanced than in the past. In 2016 I was invited to serve on the AALS Program Committee. Other members of that committee seemed receptive to greater ideological diversity in the Association’s special programs.
Unfortunately, these developments seem to constitute the sum total of progress for viewpoint diversity.
The Executive Committee met with Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and me during the 2016 Annual Meeting. At this meeting we urged, inter alia, the creation of a Political Diversity Task Force on viewpoint diversity similar to the Racial Diversity Task Force created in 1999 or the three task forces created to deal with issues of globalization. We also asked that viewpoint diversity be made a regular element of the sabbatical reviews for member schools, and that scholars be afforded access to the Faculty Appointments Register (“FAR”) for research, subject to strong protections for confidentiality of information about registrants.
In February, 2016 a letter was sent on behalf of the EC stating that no access would be granted to the FAR or even to the data obtained by Professors Albert Yoon and Tracey George when they were granted access to the FAR in 2007. The letter said that the EC had formed a subcommittee to study access to the FAR. A year later, we have not heard that any action has been taken.
In February, 2016 we also received a letter from President Testy saying that she had appointed a subcommittee of the EC to begin assessing practices and processes to see if changes were needed to meet the goals of the AALS. However, so far as we know, no task force was created and no steps were taken to make viewpoint diversity a regular part of sabbatical reviews. Indeed, so far as we know, the EC took no further action whatsoever in response to our concerns.
We fear that the Executive Committee does not take our concerns seriously and intends to take no action to address them. We urge the EC to alter this attitude. Both scholarship and teaching suffer when law schools are echo chambers in which only one side of current debates is given a voice. Should the EC decide to tackle the issues we raise, we will be pleased to cooperate with you in any way we can.
George W. Dent, Jr.
Jonathan H. Adler
Randy E. Barnett
Brian T. Fitzpatrick
Elizabeth Price Foley
Gregory S. McNeal
Cassandra B. Robertson
Nicholas Quinn Rosenkranz
Amy L. Wax
Todd J, Zywicki
Randy Barnett offers more thoughts at the Volokh Conspiracy.