Ideological Balance Is Essential to Sound Pedagogy in Legal Academia

The organizations entrusted with regulation of legal education in the United States—the American Bar Association and its “incestuous paramour,” the Association of American Law Schools—have adopted all manner of standards and requirements pertaining to law schools’ libraries, facilities, curricula, student admissions, pro bono opportunities, internal governance, and racial, ethnic, and gender diversity of students and faculty [1], with particular emphasis on “providing full opportunities for . . . members of underrepresented groups.” [2] The ABA standards justify the requirement of making “full opportunities” available to “underrepresented groups” by citing various pedagogical benefits of diversity: students will benefit from “cross-cultural understanding,” the debunking of stereotypes, and a better understanding of “persons of different backgrounds.” [3]

The imprimatur of the ABA is indispensable to law schools because, without it, their students would be ineligible for federal student loans and their graduates would be ineligible to take the bar exam in most states. The U.S. Department of Education and the supreme courts of nearly all states have given the ABA monopoly status regarding accreditation of law schools. E.g., here. The ABA’s “standards” are, therefore, effectively legal edicts. The raison d’etre for granting the ABA these quasi-governmental powers is to ensure that law schools provide a high-quality legal education to their students.

Ironically, however, neither the ABA nor the AALS shows the slightest interest in promoting opportunities for the most underrepresented group of all in legal academia: conservative professors. Georgetown University law professor Nicholas Quinn Rosenkranz quips that there are more conservatives on the U.S. Supreme Court than on Georgetown’s 120-person faculty, but his larger point is no joke: “Elite law faculties are overwhelmingly liberal.” [4] The dearth of conservatives on law school faculties, especially at elite institutions, is well-documented. This imbalance creates a serious pedagogical defect. Indeed, the paltry number of right-of-center faculty members are disproportionately libertarian rather than conservative, further tilting the ideological imbalance in the academy.

Failing to ensure ideological diversity diminishes the quality of legal education. Without a robust diversity of opinions, classrooms become echo chambers for the left-of-center orthodoxy that now dominates legal scholarship. This is unfortunate, because students exposed to only one side of contentious legal and policy debates are less tolerant of opposing views, and may be less capable of zealously advocating their clients’ varied interests upon graduation. Rosenkranz notes the incongruity of lopsided faculties in disciplines—such as law—predicated on the adversarial system, which depends on robust debates to reveal the truth. When balance is lacking, rigorous debate is impossible. The result is intellectual laziness, complacency, and myopia in the academy. Rosenkranz concludes that “Intellectual diversity matters to students. Without it, they are getting only half of a legal education”—if that. [5]

If the ABA’s pedagogical rationale for requiring racial, ethnic, and gender diversity in legal academia is sound, the goal of a well-rounded educational environment must also include ideological balance, which is wholly lacking at most schools. In furtherance of high-quality legal education, the ABA should insist upon intellectual diversity. Northwestern University law professor James Lindgren has found that Republicans and Christians, rather than women and minorities, are the groups most underrepresented in the law professoriate. “Diversity,” a cynic would be justified in concluding, has simply become a more palatable euphemism for racial and gender preferences. Decades of affirmative action hiring have skewed law faculties far out of synch with the legal profession as a whole; among the most over-represented groups on law faculties, relative to the pool of lawyers, are African-Americans (especially African-American females) and white female Democrats. [6]

Affirmative action hiring during the 1980s and 1990s increased ethnic and gender representation at the expense of ideological diversity and, as the remaining (pre-“woke”) cohort of conservative white male law professors dies or retires, the deleterious consequences are now becoming apparent. Liberal hiring committees are disinclined to dilute their progressive hegemony. As Ohio Northern University law professor Scott Douglas Gerber has written, “the vast majority of America’s law schools have no interest whatsoever in the type of diversity they should value most: intellectual diversity.” [7] Lindgren states that “true diversity hiring would not necessarily lead to racial or gender integration. Indeed, if law schools are firmly committed to diversity hiring, they should hire the diversity groups that are significantly underrepresented in law teaching compared to both lawyers and the general population: chiefly white Republicans, Protestants, and Catholics.” [8]

And if the ABA was serious about the importance of true diversity to quality legal education, it would insist on ideological balance within the law schools. Sadly, however, neither elite law schools nor the ABA is interested in anything except promoting identity politics and the leftist dogma of social justice. In an anecdotal report that also finds support in empirical data, Gerber relates in the AALS’s Journal of Legal Education that

jobs are frequently set aside for minorities and women, and conservative and libertarian white males need not apply, or so it seems. I have heard of faculty searches at various law schools in which a member of the faculty or administration has stated that his or her law school has an open position, but that the position must (not “could”) be filled by a minority or a woman. In fact, the faculty hiring process has gotten so out of hand that one law school did not immediately disqualify a minority candidate who recently had failed the bar examination. (You read that correctly: a law professor who failed the bar exam.)

Gerber continues:

Another note of concern is this: Race and gender are used much more aggressively in faculty hiring than in student admissions—and that is saying something—in large part because there are far fewer faculty positions available than there are admissions slots. One law school with which I am familiar was criticized by both the ABA and the AALS for not hiring enough minority faculty, even though that law school had (i) invited every minority faculty candidate listed in the AALS faculty recruitment registry to interview with the law school at the hiring conference in Washington, D.C., (ii) asked every minority faculty candidate who interviewed with the law school in D.C. to fly back to campus, all expenses paid, to interview further, and (iii) offered a job to every minority faculty candidate who accepted the invitation to visit the campus.

Gerber concludes: “In short, the law school could do little else to try to recruit minority faculty candidates—and what it did was illegal—but that still was not good enough for the accrediting bodies.” [9] The aggressive use of affirmative action, and the resulting ideological bias against the hiring of conservative faculty, have produced, in Lindgren’s estimation, law faculties “less representative ideologically [of American society] than they have been for several decades.” [10] Since true diversity–meaning diversity of opinion—is essential to a sound legal education, American law schools face a pedagogical crisis. The organizations responsible for quality assurance in legal education are oblivious to the crisis—and are arguably making it worse. Perhaps the lack of ideological balance is not a bug, but a feature, since many law schools have become—by design—de facto social justice academies.

Many law professors, including Lindgren’s Northwestern colleague John McGinnis and Georgetown’s Randy Barnett, have pointed out the leftward imbalance on elite law faculties, which is exacerbated by “diversity” (actually affirmative action) policies favoring racial/ethnic minorities and women.  McGinnis has gone so far as to call for an investigation by the AALS into potential discrimination against conservative candidates for law school faculty positions. The response? Crickets. The unwillingness of the ABA and AALS, due to their liberal orientation, to take action to address this grave problem in legal education calls into question their fitness to oversee the accreditation of law schools.

The U.S. Department of Education, and the state supreme courts which have entrusted the ABA with quasi-governmental powers in this area, must not allow the nation’s law schools to become monolithic progressive enclaves, indoctrinating students with leftist dogma posing as scholarship. Some reformers have described the status quo as “the left’s Kulturkampf.” [11] It is worse than that. “Kulturkampf” refers to a struggle for control; the Left’s current domination of legal academia constitutes a rout. The ABA’s abysmal dereliction in this critically-important area justifies a re-evaluation of its supervisory role.

[1] ABA Standards and Rules of Procedure for Approval of Law Schools 2018-2019, Standards 206(a) & 206(b).

[2] Id., Standard 206(a).

[3] Id., Interpretation 206-2.

[4] Nicholas Quinn Rosenkranz, “Intellectual Diversity in the Legal Academy,” 37 Harvard Journal of Law & Public Policy 137, 137 (2014).

[5] Id. at 142.

[6] James Lindgren, “Measuring Diversity: Law Faculties in 1997 and 2013,” 39 Harvard Journal of Law & Public Policy 89, 122 & Table 9 (2016).

[7] Book Review, 67 Journal of Legal Education 635, 635 (2018).

[8] James Lindgren, supra note 6, at 133.

[9] Book Review, supra note 7, at 639-40.

[10] James Lindgren, supra note 6, at 150.

[11] Book Review, supra note 7, at 639.