Does Coalition for TJ portend the outcome of future affirmative action cases in education?
Often when a conference of law professors is announced, a quick tweet complains that not enough women are participating. The person tweeting typically has neither researched the ratio of women to men in the field nor is privy to the invitations that have been issued and turned down. Instead, he or she just assumes that the conference would have been better or more legitimate with more women.
This approach strikes me as exemplary of progressive arrogance—the kind of conceit that top down ordering according to some principle—in this case gender balance—will always make a better world. I have recently experienced this kind of attack and it is useful to unpack all its bad assumptions.
First, there is the assumption that a lot of superb female law professors occupy a particular field or subfield right now. There are certainly a lot of superb female law professors, but they are not at all equally distributed among fields. Moreover, while the proportion of female law professors is rapidly growing, they are not yet very well represented in the mid-career and senior ranks where most law professors make their mark.
My conference concerned the specialized subject of originalist theory, and this field is one where not many women have as yet become important players. There are few female originalists and even fewer experienced in originalist theory, pro or con.
Of course, one could invite as a commentator a female constitutional law professor, but originalist theory is an increasingly technical field. The price of admission to it is reading many dense articles that build off other dense articles, and that requirement creates barriers to entry for anyone who is not a specialist. And the success of a small conference like mine is dependent on all participants being deeply conversant with the literature to be able to ask the most penetrating questions. And originalist theory is not unique. The ratio is probably even more lopsided in some other fields in which I would be qualified to organize a conference, like banking law.
And those complaining about the number of females also cannot know anything about the efforts that were made to recruit them. They assume, for instance, the women accept invitations at the same rate as men and drop out at the same rate. That has not been my experience. Rather than complaining about the compositions of conferences, perhaps law professors could focus on how their home institutions could make it easier for the their female colleagues to travel, perhaps by improving institutional childcare options.
Finally, those complaining about the imbalance do not consider other kinds of balance that may be in tension with a focus on gender balance. The most obvious is ideological balance. The academy is overwhelmingly left-liberal and according to published studies women are even more left-liberal than the men.
Thus, the gender imbalance vigilantes reflect some bad aspects of progressivism. They cannot wait for the natural progression of women in the profession. They ignore the local knowledge of conference organizers, including their professional judgments, and decree one-size-fits-all standards. And, they push a program—surprise, surprise—that will lead to even less ideological balance in at least some conferences. And note that I have not even discussed the question whether it is morally justified to consider scholars’ gender in issuing conference invitations. I leave that issue to a later post.