Paul L. Caron

Tuesday, May 9, 2023

Political Polarization, Legal Education, And Ideological Discrimination In Faculty Hiring

Eric Segall (Georgia State), Political Polarization, Legal Education, and a Few Modest but Serious Proposals:

Twenty years ago, Justice Sandra Day O'Connor wrote the following in Grutter v. Bollinger:

Law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.

Justice O'Connor told us what we already knew: law schools and especially elite law schools, are the "training ground" for many of our nation's political leaders and judges. Justice O'Connor made this observation in the context of her opinion upholding the use of race in admissions by the University of Michigan Law School. Her point, of course, was that the benefits of attending highly ranked law schools were substantial and should be open to people of diverse races, backgrounds, and experiences.

The problem is that, reflecting society-at-large, America's law schools are becoming increasingly divided along political lines with both sides retreating to their respective corners. This development is troubling because echo chambers produce, well echoes, not meaningful attempts at compromises and solutions palatable to broad constituencies. But if there's no one in the room arguing for different positions, compromise becomes much more difficult and stubbornness runs rampant. ...

Legal education is currently suffering from the extreme polarization haunting our country as a whole. We need to be proactive in fighting the temptation to lie in our own bunkers taking rhetorical pot shots at those who disagree with our core values. Only civil conversation, the sharing of space and food, and a willingness to be humble about our own views can lead us to a better place where hard issues aren't made to to look simple, where token presentation of opposite views is replaced by a genuine exchange of ideas, and most importantly, where our most influential and important judges stop being cheerleaders for either Fed Soc or ACS and role model how even our best and our brightest can learn and benefit from hearing how the other side views the complicated and controversial issues of our day.

Ilya Somin (George Mason), Proposals for Improving Dialogue and Reducing Ideological Polarization in the Legal World:

I rarely agree with prominent liberal legal scholar and blogger Eric Segall. ... But in a recent blog post, he makes some valuable suggestions on improving cross-ideological dialogue and reducing the harmful effects of polarization in the legal world. ...

I agree with pretty much all of [his]! Here are a few additional thoughts and ideas. ...

When it comes to law schools, perhaps the single most important thing they can do to improve cross-ideological dialogue is curb ideological discrimination in faculty hiring. There is extensive evidence of hiring discrimination against conservative and libertarian legal academics. As a result, many top institutions have very few, if any, faculty who aren't on the political left. This is particularly true of public law fields, and others that are ideologically contentious. For obvious reasons, faculty play a major role in setting the terms of intellectual debate in any educational institution. Greater ideological diversity on the faculty would improve the quality of discussion at law schools, and increase the range of ideas that get meaningful consideration.

This is not a call for affirmative action for conservative or libertarian academics, which is a terrible idea. Simple nondiscrimination is all that is needed to simultaneously increase ideological diversity and improve faculty quality. Like racial and ethnic discrimination, ideological discrimination predictably reduces quality, as less-qualified candidates with the preferred views often get hired in preference to better-qualified dissenters.

I also do not claim that, absent discrimination, we would have law school faculties that "look like America" when it comes to the distribution of ideologies. Far from it, most likely. For a variety of reasons, left-liberals would still be overrepresented relative to their percentage of the general population.  But the proportion of conservatives and libertarians would likely be significantly higher than is currently the case.

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