George W. Dent, Jr. is Professor of Law, Case Western Reserve University.
The by-laws of the Association of American Law Schools (“AALS”) provide that it “expects its member schools to value [inter alia] diversity of viewpoints.” Despite this supposed commitment, the paucity of conservative and libertarian scholars is almost as bad in law schools as it is in humanities and social science departments. For several years now I have helped to lead an initiative to persuade the AALS to live up to that commitment. Our group thought we had achieved a breakthrough when the Executive Committee (“EC”), the ruling body of the AALS, agreed to meet with some of us and hear our requests in January, 2016. Since then, however, the EC seems to have taken no action on those requests. Apparently the EC has no interest in viewpoint diversity.
The AALS is an unusually important organization in higher education. For a law school to be respectable, membership in the AALS is virtually mandatory. The AALS reviews each school’s membership through an inspection that is conducted in cooperation with the American Bar Association’s review for a school’s re-accreditation every seven years. Thus it is essential for a school to comply with AALS policies. The AALS is also the only comprehensive body for legal scholars; its annual meeting is by far the largest gathering of law professors.
In 2010 a study found that among new newly hired law professors liberals outnumbered conservatives by seven to one, and that in constitutional law and other politically sensitive fields the ratio was eleven to one. The report drew so much fury that it was withdrawn from the internet and one author dissociated himself from it, but there is no reason to doubt its accuracy, and no reason to believe that the situation has improved.
The 2010 study was criticized for its methodology, which was necessarily imperfect because of the limited data with which the authors had to work. Accordingly, several years ago some scholars asked for access to the AALS’s Faculty Appointments Register (“FAR”), the central register of standard-form applications from nearly everyone who seeks a teaching job in law.
This seemed to be a reasonable request; the AALS had granted access to the FAR to two liberal scholars in 2007. Faced with similar requests from conservative scholars, however, the EC suddenly discovered that the prior grant of access had been a mistake and no further access would be granted because of confidentiality issues. The EC promised to seek a way to allow access while protecting confidentiality. Scholars who do empirical research say that this problem is not hard to resolve. Nonetheless, after several years the EC persists in refusing access and gives no indication of when that refusal might change.
Racial and gender diversity are central to the AALS’s sabbatical inspections. Although the AALS has never expelled a school on these grounds, it is almost routine for schools to be found wanting and required to report on their efforts to improve their numbers.
So how much attention does the AALS pay to the viewpoint diversity valued in its by-laws? None. One action we requested from the EC was to make viewpoint diversity part of its inspections. We have no indication that the EC has done anything about this.
In 1999 the EC created a Racial Diversity Task Force to investigate racial diversity in law schools and to make recommendations. We asked the EC to create a similar task force for viewpoint diversity. We have no indication that the EC has done anything about this.
As the largest gathering by far of legal scholars, offering over 100 scholarly programs, the AALS annual meeting is an important opportunity for law professors to publicize their work and exchange ideas. Unfortunately, the composition of program panels on issues of political interest is almost always heavily tilted to the left. It is common for programs on racial preferences, to take but one example, to have several speakers--all of whom favor racial preferences.
The three presidents of the AALS in 2014-2016 and its Executive Director have all been very cordial to our group and seemed to take our concerns seriously. An effort was made to remind program organizers of the importance of viewpoint diversity, and at the January, 2017 annual meeting the number of conservative and libertarian speakers on programs, while still small, seemed larger than at prior meetings. The ban against the (conservative) Federalist Society’s holding events in the official AALS hotels during the annual meeting has also been dropped. However, these gains are marginal. The lack of viewpoint diversity remains essentially unchanged.
And it seems unlikely that it will change. Most members of the EC and most law professors (and, especially, those active in the AALS) are on the left and, despite the by-laws, want to shut out conservatives and libertarians.
Nonetheless, we are continuing our initiative. For the last few years we have kept our efforts private so as not to embarrass or antagonize the EC, which we hoped would treat our issues seriously. Now that it has brushed us off, we are making our concerns public. Some state legislatures are starting to ask why their universities that are so committed to racial and gender diversity are so hostile to viewpoint diversity. Our respectful requests have accomplished very little. Perhaps more is needed.
Some state legislators are starting to ask why their public universities that are so committed to racial and gender diversity are so hostile to viewpoint diversity. At the least, legislatures could persuade state law schools to withdraw from membership in the AALS. The AALS receives financial support from several law firms, corporations, and law schools (including some public law schools). These donors could be urged not to support such a politically partisan organization. Individual scholars could be urged not to attend the AALS annual meeting (and pay the hefty registration fee). Perhaps a combination of public criticism and financial pressure will succeed where our polite requests have failed.
Image Credit: Paul Sableman, cropped.
