Leftward Leaning
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By Peter H. Schuck
The American Lawyer
December 1, 2005
The American Lawyer
December 1, 2005
Elite law schools cherish robust debate, iconoclasm, and arguing issues from all sides, right? Wrong. The dirty little (not-so) secret about these faculties - that they care much more about diversifying their skin colors, genders, and surnames than about diversifying their points of view-has finally come to the attention of the general public. Now that the truth is out, law school faculties are likely to come under increased pressure to surrender some of their hiring autonomy. But this pressure would be misguided. If these faculties know what is good for them, they will acknowledge the dearth of dissenting voices within them - and work earnestly to correct the problem from within.
The 191 accredited law schools in the United States churn out some 40,000 J.D.s a year. These people will become community leaders in business, politics, education, civic organizations, and many other fields. Even today, after centuries of lawyer jokes and other forms of lawyer-bashing, the legal profession remains, as Tocqueville observed, the natural aristocracy of merit in a society that rejects inherited rank and privilege. How these lawyers are trained matters a great deal not just to them, but to the larger society that they will help to lead. Their political values, shaped in part by their teachers and then carried into their communities, will help define them as parents, citizens, and leaders.
What, then, are the political values of law professors, and how closely do those values resemble those of the larger communities that the newly minted lawyers will enter and influence? The answer to these two questions depends on whether you believe the high-minded ideals about diversity emblazoned on the facades of university buildings, celebrated in academic ceremonies, and proclaimed in the briefs that the schools file in affirmative action and academic freedom cases - or whether you believe, instead, the empirical evidence on law faculty diversity that have recently been published.
In the Winter 2005 issue of Yale Law and Policy Review, James Lindgren, a lawyer/sociologist at Northwestern University, observed that diversity-based affirmative action policies assume "that the groups that have been discriminated against historically are the same groups that are underrepresented in universities and further that these two presumptively coextensive sets of groups are coextensive with the groups that would provide more viewpoint diversity if their numbers were increased in academia."
For most faculties, the groups that would add the most viewpoint diversity are "Republicans, conservatives, and evangelical or fundamentalist Christians-none among the groups that were traditionally locked out by the United States's racist and sexist practices of discrimination." (Lindgren also found that Jews, who were subject to hatred and discrimination, are vastly overrepresented in law teaching, by a ratio of 13:1). Among professors at the top 100 law schools that Lindgren examined, "white female Republicans" is the group most underrepresented. But because individuals in this particular subgroup do not fit the left-of-center academic ideal and stereotype of women, faculties seeking gender diversity do not recruit them. Indeed, Lindgren finds that all of the substantial underrepresentation of white women compared to the full-time working population was among white female Republicans, while white Democratic women were overrepresented on law faculties compared to the demographically comparable pool of lawyers.
"Promoting intellectual diversity," Lindgren concludes, "would often point away from hiring more minorities and toward hiring more Republicans or evangelical Christians. Conversely, promoting further ethnic and gender diversity, particularly in faculty hiring, often would not foster a wider range of intellectual or political views-or more representative ones. Indeed, if most of the women and ethnic minorities who are actually hired on law faculties tend to lean toward the Democratic Party, the faculty overall may become less representative of the diversity of views in the wider public."
A teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm-and also to exemplify-core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren't - as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view - on our own faculties, debated before our own students - to keep us intellectually honest and to enrich learning.
--------------------
The 191 accredited law schools in the United States churn out some 40,000 J.D.s a year. These people will become community leaders in business, politics, education, civic organizations, and many other fields. Even today, after centuries of lawyer jokes and other forms of lawyer-bashing, the legal profession remains, as Tocqueville observed, the natural aristocracy of merit in a society that rejects inherited rank and privilege. How these lawyers are trained matters a great deal not just to them, but to the larger society that they will help to lead. Their political values, shaped in part by their teachers and then carried into their communities, will help define them as parents, citizens, and leaders.
What, then, are the political values of law professors, and how closely do those values resemble those of the larger communities that the newly minted lawyers will enter and influence? The answer to these two questions depends on whether you believe the high-minded ideals about diversity emblazoned on the facades of university buildings, celebrated in academic ceremonies, and proclaimed in the briefs that the schools file in affirmative action and academic freedom cases - or whether you believe, instead, the empirical evidence on law faculty diversity that have recently been published.
In the Winter 2005 issue of Yale Law and Policy Review, James Lindgren, a lawyer/sociologist at Northwestern University, observed that diversity-based affirmative action policies assume "that the groups that have been discriminated against historically are the same groups that are underrepresented in universities and further that these two presumptively coextensive sets of groups are coextensive with the groups that would provide more viewpoint diversity if their numbers were increased in academia."
For most faculties, the groups that would add the most viewpoint diversity are "Republicans, conservatives, and evangelical or fundamentalist Christians-none among the groups that were traditionally locked out by the United States's racist and sexist practices of discrimination." (Lindgren also found that Jews, who were subject to hatred and discrimination, are vastly overrepresented in law teaching, by a ratio of 13:1). Among professors at the top 100 law schools that Lindgren examined, "white female Republicans" is the group most underrepresented. But because individuals in this particular subgroup do not fit the left-of-center academic ideal and stereotype of women, faculties seeking gender diversity do not recruit them. Indeed, Lindgren finds that all of the substantial underrepresentation of white women compared to the full-time working population was among white female Republicans, while white Democratic women were overrepresented on law faculties compared to the demographically comparable pool of lawyers.
"Promoting intellectual diversity," Lindgren concludes, "would often point away from hiring more minorities and toward hiring more Republicans or evangelical Christians. Conversely, promoting further ethnic and gender diversity, particularly in faculty hiring, often would not foster a wider range of intellectual or political views-or more representative ones. Indeed, if most of the women and ethnic minorities who are actually hired on law faculties tend to lean toward the Democratic Party, the faculty overall may become less representative of the diversity of views in the wider public."
A teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm-and also to exemplify-core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren't - as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view - on our own faculties, debated before our own students - to keep us intellectually honest and to enrich learning.
Peter H. Schuck is a law professor at Yale and the author, most recently, of Meditations of a Militant Moderate: Cool Views on Hot Topics and Diversity in America: Keeping Government at a Safe Distance.
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