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Saturday, February 25, 2017

28 Conservative/Libertarian Law Profs Demand That AALS Address Political Imbalance Of Law School Faculties

AALS (2018)Following up on my previous posts:

The Volokh Conspiracy: Our Letter to the Association of American Law Schools, by Randy Barnett (Georgetown):

Recently, the former-Provost of Stanford University, John Etchemendy, gave a speech entitled The Threat From Within in which he observed:

Over the years, I have watched a growing intolerance at universities in this country – not intolerance along racial or ethnic or gender lines – there, we have made laudable progress. Rather, a kind of intellectual intolerance, a political one-sidedness, that is the antithesis of what universities should stand for. . . . We need to encourage real diversity of thought in the professoriate, and that will be even harder to achieve. It is hard for anyone to acknowledge high-quality work when that work is at odds, perhaps opposed, to one’s own deeply held beliefs. But we all need worthy opponents to challenge us in our search for truth. It is absolutely essential to the quality of our enterprise.

As it happens, for several years, a group of conservative and libertarian law professors from a variety of law schools has quietly been urging the Association of American Law Schools, which has taken a leadership role in addressing racial and gender diversity—including by establishing a Racial Diversity Task Force in 1999—to do the same with viewpoint or political diversity. Our complaint was not limited to the gross political one-sidedness of the Annual Meeting of the AALS, but primarily concerned the gross political imbalance of law faculties—especially in such subjects as public law where viewpoint most affects a professor’s legal scholarship and teaching.

Although we were treated respectfully—and some marginal, though welcome, steps were taken this year to diversify the annual AALS program—as the following letter to the AALS explains, our requests for concrete preliminary steps to address the existing pervasive imbalance of law faculties have apparently been denied. ...

Having worked patiently behind the scenes for several years, we believe it is time to make our complaint more public. To that end, I reproduce below our joint letter to the Executive Committee–drafted by Case Western Reserve law professor George Dent, who led our effort. (I will be happy to publish in this space any reply that the AALS may wish to make.)

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.

Sincerely,

  • George W. Dent, Jr. [Case Western]
  • Jonathan H. Adler [Case Western)
  • Randy E. Barnett [Georgetown]
  • Josh Blackman [South Texas]
  • Gerard Bradley [Notre Dame]
  • Robert Cooter [UC-Berkeley]
  • Richard Duncan [Nebraska]
  • Scott FitzGibbon [Boston College]
  • Brian T. Fitzpatrick [Vanderbilt]
  • Elizabeth Price Foley [Florida International]
  • Gail Heriot [San Diego]
  • James Lindgren [Northwestern]
  • John McGinnis [Nothwestern]
  • Gregory S. McNeal [Pepperdine]
  • Nadia Medzel [Washington University]
  • Seth Oranburg [Duquesne]
  • James Phillips
  • Cassandra B. Robertson [Case Western]
  • Nicholas Quinn Rosenkranz [Georgetown]
  • Ilya Somin (George Mason]
  • Lee Strang [Toledo]
  • Eugene Volokh [UCLA]
  • Kevin Walsh [Richmond]
  • Lynn Wardle [BYU]
  • Steven Ware [Kansas]
  • Amy L. Wax [Pennsylvania]
  • Steven Willis [Florida]
  • Todd J, Zywicki [George Mason]

http://taxprof.typepad.com/taxprof_blog/2017/02/28-conservativelibertarian-law-profs-demand-that-aals-take-action-to-address-political-imbalance-of-.html

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Comments

I have never seen evidence at my school, nor at any of the schools I have inspected for the ABA, of a concerted effort to bar possible hires based on their political beliefs. Several of the signers of the letter have been on our faculty in fact. I think that most of the people who seek teaching jobs tend to be liberal but only because the conservatives are much more apt to stay in law firms and move up to much more lucrative partnerships. Pay scales in law schools do not match up well against what one can earn in private practice.

Posted by: Ralph Brill | Feb 25, 2017 1:08:33 PM

As a mildly conservative minority who attended law school over a decade ago, I was shocked by not just the lack of ideological diversity, but the overtly nasty, aggressive ultra-liberal hate displayed by faculty toward non-conforming views. And I'm not just talking about the hot button topics like abortion, etc.

I recall having a very telling experience while doing forced pro-bono hours for a disability rights clinic on campus. I had the nerve to suggest that a particularly ridiculous accommodation they were seeking might not be wise because the cost would literally put the small business under. "Good" was the response i got from the faculty advisor. And she told me with a condescending look of disgust, that, as a minority, I "would be wise to rethink my priorities" if i thought that the plight of the business was relevant. I determined at that moment to never give a dime to my alma matter. This is the sort of indoctrination happening daily on U.S. law school campuses.

Posted by: Anon | Feb 25, 2017 1:34:26 PM

How to commit career suicide? Sign this letter.

Posted by: AnonProf | Feb 25, 2017 3:18:19 PM

"I have never seen a concerted effort to bar possible hires based on their political beliefs." I think it is rare that a faculty hiring committee or group of faculty would overtly come out and say "we aren't hiring any (insert currently academically disfavored group: Republicans, conservatives, Mormons, libertarians, orthodox Catholics, evangelical Protestants, etc.)." They don't have to. The focus becomes "diversity" (not of thought though!), scholarship focus, recommendations from the "right folks" (who are never on the Right), etc. Effective bigots don't shout. They do it all with the raise of an eyebrow.

Posted by: Evergreen Dissident | Feb 25, 2017 3:21:48 PM

Add me as #29

Posted by: Enrique | Feb 25, 2017 4:53:08 PM

Well timed. Plum Book positions are still available, but filling fast. Let's see where all the signatories are this time next year.

Posted by: AnonProfToo | Feb 25, 2017 9:55:46 PM

Ralph Brill:

My sense is that an unusual number of conservative law students become prosecutors. Prosecutors are paid less than law professors. If conservatives are drawn to making money, shouldn't they be trying to be law professors instead of prosecutors?

Posted by: Anon E. Anon | Feb 25, 2017 10:38:58 PM

* insert Ron Paul "it's happening! it's happening!" *

Posted by: Anon | Feb 26, 2017 12:21:45 AM

Much like the Trump administration, there appear to be few women on this list.

Posted by: Jpd | Feb 26, 2017 3:53:54 AM

to Anon E. Anon: As if prosecutors don't move from those positions into law firms as partners?

Posted by: Ralph Brill | Feb 26, 2017 8:46:03 AM

Given that many use "conservative" as shorthand way of saying "sexist, homophobic, racist," please tell me why we should aim to have 50% of our professors come from that pool???

Posted by: lawlawprof | Feb 26, 2017 12:35:23 PM

This will never happen as long as Liberals continue to hold the reigns of power in academia. I say this as someone who's contract was not renewed for working on a successful gubernatorial campaign in the mid 1990's in the SE (the candidate's last name began w/a B). Until state legislatures take the initiative and demand, through legislation, that conservative/libertarians are hired in parity with liberals, then you might as well fart in a gale as much chance you'll have in forcing a liberally controlled organization to bow to your wishes. Good luck w/that gents/ladies.

Posted by: Richard A Vail, Ph.D. | Feb 26, 2017 1:40:49 PM

The emotional needs of scholars who believe that the sun revolves around the earth is not a sound principle for faculty hiring.

Posted by: Robert McDermott | Feb 26, 2017 5:35:05 PM

They are a Guild and they intend to maintain their monopoly on the opinions in law.

Posted by: Thomas Hazlewood | Feb 26, 2017 9:03:16 PM

Response to Ralph Brill (of Chicago-Kent):

I was on the Chicago-Kent faculty from 1990-96, and served on the appts. committee for many of those years (as a member, chair, or assoc. dean serving on the committee).

Chicago-Kent had an excellent record hiring libertarians and conservatives for only about 8 years in the 1980s, essentially ending around the time I was hired in 1990. That short spurt was partly because of the efforts of Randy Barnett who pushed the school to hire on both sides of the spectrum.

Since I was hired at Chicago-Kent in 1990, Ralph, how many conservatives, libertarians—or even moderate Republicans—has Chicago-Kent hired? Ralph, how many current C-K faculty hired since 1990 do you know who voted for any of the last three Republican presidential candidates? Do you think that maybe part of the reason that Chicago-Kent’s amazing improvement plateaued in the early to mid-1990s was that it ceased to do substantial hiring on the right half of the political landscape?

In the early 1990s, Chicago-Kent not only discriminated against conservatives, but even against people who were feared to be conservatives. On the night before a faculty vote on three candidates ranked 1,2,3 out of committee, one committee member admitted to me that she and another committee member had ranked one candidate lower solely because the candidate refused to reveal her politics when she was asked. Since she was in the tax division in the first Bush administration, it was feared that she was “very conservative.” I successfully got one committee member to change his vote so we reported out all three without ranks. The faculty hired the supposed conservative (IMO, the strongest candidate) and she turned out to be a Democrat, spending her first Christmas after being hired working on the Clinton transition team.

On another occasion, I was urging the C-K appointments committee to consider a very strong Asian-Am candidate who had clerked for a conservative justice/judge, whose writing seemed good and apolitical. The most left-wing member of the committee opposed, saying, “What do we really know about him?” I somewhat heatedly responded that all we knew was that—among all the people we were looking at that year—he had the best grades, the best placed scholarship, the best practice recommendations, and the best clerkship. He ended up going to a school slightly higher in the pecking order. Only in the last few months did I meet him again and ask him what his politics were at the time: he was—and is—a Democrat.

When I was a Chicago-Kent faculty member visiting at Texas in 1995, I was asked whether I was a Republican or a Democrat—DURING MY JOB TALK, in front of the whole faculty.

Indeed, at Northwestern, one of the few schools widely open to conservatives and libertarians, one of the most eminent laterals we have ever considered was blocked by a faculty member who admitted to me that she was opposing him because of his politics.

In short, even when Chicago-Kent had a substantial number of conservatives and libertarians, faculty candidates were discriminated against on political grounds. I would be surprised if it’s not worse now.

Jim Lindgren
Northwestern U.

Posted by: Jim Lindgren | Feb 26, 2017 10:11:14 PM

Ralph Brill writes:

"As if prosecutors don't move from those positions into law firms as partners? "

Some prosecutors do this, but the numbers are fairly low.

More broadly, are you arguing that the large numbers of conservative prosecutors is explained solely by a money-maximization strategy (take a low-paying job now to make more money later) and not at all by the association between being a prosecutor and favoring law & order, generally a standard position on the political right?

Posted by: Anon E. Anon | Feb 27, 2017 7:37:22 AM

What is perhaps most concerning to me is that AALS simultaneously feigns that there is no problem, and yet continuously refuses to allow access to FAR data that could confirm this supposition. Scholars have been allowed access to this data to test other hypotheses -- such as racial and other disparities in hiring behavior. There is no defensible reason to prevent other researchers from testing other hypotheses, such as alleged ideological disparities in hiring behavior. What is the AALS afraid of?

Posted by: Jonathan H. Adler | Feb 27, 2017 10:04:48 AM

@Jim Lindgren, thanks so much for writing. Confirms a lot of what I've always thought and (on a few instances) observed.

Posted by: Anon | Feb 27, 2017 1:59:04 PM

Why stop at academia? How about the fact that the military, the police, the border agents, among others, are disproportionately conservative? If anything, the argument is stronger for the latter since these professions tend to have a much more significant impact on people's lives than academics - as conservatives like to point out.

Posted by: Why stop here | Feb 28, 2017 6:47:40 AM

Why stop at academia? How about the fact that the military, the police, the border agents, among others, are disproportionately conservative? If anything, the argument is stronger for the latter since these professions tend to have a much more significant impact on people's lives than academics - as conservatives like to point out.

One of the more recent surveys of soldiers' party identification put the share of Republicans at 1/3 of the total and the share of Democrats at 14%.

The arts and sciences faculty I know best granted tenure to about 100 professors over the period running from 1986 to 2011. Six were discovered by an association of dissident alumni to be enrolled Republicans in a census of the rolls maintained by boards of elections. One of the six is a flat-waving multi culti advocate who either checked the wrong box on the form or enrolled Republican as an ironic prank. The background and general audience writings of another suggest strongly that that he also checked the wrong box on the form; the point is moot because he died in 2011. A third has been subject to two-minutes hate campaigns orchestrated by the chief of the humanities division, a man in the camarilla of the then-provost. A fourth is an open-borders libertarian. The two remaining on the list are rather diffident fellows. The four authentic Republicans on that faculty include one man born in 1950 and one born in 1955. So, out of over 100 professors, you've got four guys, 2 headed out to grass, 1 who will never get in anyone's way, and 1 just the sort of Republican the diversity shtickmeisters fancy.

We can talk about the military when you can get the ratios on the arts and sciences faculty down from 15-1 to 3-1.

Posted by: Art Deco | Mar 1, 2017 2:11:29 PM

Law professors are basically just (social) scientists who study law.

It's not surprising that they tend to have views that are similar to other scientists--man made global warming is real, tobacco is dangerous, sugar might be, and government is useful and helpful to society.

http://www.people-press.org/2009/07/09/section-4-scientists-politics-and-religion/

It's also not surprising that there aren't many law professors who are republicans.

How many scientists do you know who think the existence of man made global warming is a political / ideological issue rather than a well-settled conclusion based on the scientific method?

Republicans have repeatedly politicized scientific issues for cynical political reasons.

Scientists have responded by abandoning the Republican party.

The signatories to this letter have pretty much announced themselves as political hacks rather than real scholars.

Posted by: Science and Ideology | Mar 2, 2017 5:33:25 AM