The Association of American Law Schools (“AALS”) accepts one proposal for a three-hour symposium at each annual meeting. For the meeting just held in San Diego it selected a proposal (which one of us helped to prepare and on which both of us spoke) entitled Why Intellectual Diversity Matters (and What Is To Be Done).
The program began with a statistical introduction by Professor James Lindgren (Northwestern University School of Law). He showed that the percentage of conservative/libertarian/Republican law professors was already low a couple of decades ago and has dwindled since then. He then cited extensive empirical data showing that, contrary to some claims, this dearth is not a result of conservatives’/Republicans’ being less intelligent, less well educated, or more obsessed with making money than progressives. He also showed that conservative scholars tend to be more productive than progressives at the same school—just what you would expect from political discrimination.
The first panel discussed Why Intellectual Diversity Matters. Lack of intellectual diversity harms scholarship because discourse moves toward an extreme and weak ideas ascend when the dominant ideology goes unchallenged. For example, most legal scholars opined that the Solomon Amendment (which cut off federal funds for universities that barred military recruiters because of the military’s policy on gays) was unconstitutional. The Supreme Court, however, upheld that law unanimously.
Students are also cheated when they hear only one side of major legal debates. They are ill prepared to practice in a country where many judges and most lawmakers hold conservative views that they never even heard in law school. Contrary to some claims, most scholars have difficulty presenting both sides of controversial issues—especially when (as with the Solomon Amendment) nearly all scholars are on the same side.
The second panel discussed What Is To Be Done. Past AALS Presidents Kellye Testy and Dan Rodriguez confirmed the importance of intellectual diversity, but acknowledged that faculties are unlikely to pursue it; change must come from leadership at the top. Professor Gail Heriot (a member of the NAS Board of Directors) expressed pessimism, pointing out that the trend in academia has long been to move further to the left, not to increase intellectual diversity. Academic administrators suffer constant pressure from the left; they would risk their careers if they tried to hire more conservatives.
Professor George Dent (also a NAS director) agreed with Professor Heriot that change would not come from within academia, so it must come from outside, especially from federal and state governments. To overcome the public’s ignorance of current conditions, those who want intellectual diversity must publicize how politically partisan our universities have become. Although governments should not handle administrative details, there is much they can do, from demanding respect for free speech and due process to creating independently governed institutions (as was recently done at Arizona State University).
The program was received favorably by most of the 45-60 attendees. We suspect that most on the left chose to ignore it.
It is commendable that the AALS chose intellectual diversity as the topic for this year’s Symposium; many on the left pretend that there’s no problem to discuss. But discussing a problem isn’t the same as doing something about it. The AALS’s by-laws state that it expects member law schools (which is virtually all law schools) to value diversity of viewpoints. For several years a group of law professors has prodded the AALS to abide by this commitment. Inter alia, we asked the AALS for research access to its Faculty Appointments Register, subject to well-established protocols to protect confidential information; and to create a task force to study the issue of viewpoint diversity and make recommendations.
Several recent presidents of the AALS (including Deans Testy and Rodriguez) seem to have sympathized with our concerns. They exert considerable influence over the format of the annual meeting, and through their efforts, there has been more viewpoint diversity in programs in recent years. However, the Executive Committee (in effect, the AALS’s Board of Directors) has refused all our requests other than to hold a brief meeting with us. This response certainly gives credence to Gail’s pessimism and to George’s belief that change will have to come from the outside.
Steve Balch, long-time former president of the NAS, often said that the left would never accept the right in academia; if conservatives wanted forums, they would have to create their own. The (conservative and libertarian) Federalist Society holds an annual conference of legal scholars in conjunction with the AALS annual meeting. Unlike the AALS, which charges a hefty registration fee for its meeting, attendance at the Federalist conference is free. And the programs are both more diverse (unlike the left, the Society regularly includes speakers from the other side in its programs) and of higher intellectual quality than the AALS programs. It may be time for conservatives and libertarians to give up on the AALS and work instead to enhance their own institutions.
Image: uniformity by ·júbilo·haku· // CC BY-NC-ND 2.0
