By rejecting Abood on "quality of reason," Janus v. AFSCME suggests that the Court will follow a weaker version of stare decisis.
Lawyers on the right are dramatically underrepresented and lawyers on the left are overrepresented in the legal academy, even compared to the pool of elite lawyers from which they would likely be drawn. That fact is itself a challenge to the claim of the legal academic profession that it seeks diversity of viewpoint among its faculties. But more evidence is emerging that the under-representation may be a result in part of discrimination. The American Associations of Law Schools (AALS) should convene a task force to study the issue, as it would have done long ago if confronted with the stark reality of underrepresentation, not to mention claims of invidious discrimination, against any other identifiable group relevant to viewpoint diversity.
Even when I was on the teaching market two decades ago, there was anecdotal evidence suggesting ideological discrimination. For instance, a colleague at the Department of Justice was asked how he could possibly teach Roe v. Wade to women, given his views about abortion. (I am confident that those favoring abortion rights were not asked how they could possibly teach faithful Catholics!) When I was interviewing for a position, one of my interrogators (questioner seems the wrong word given his affect) angrily asked me to defend various Bush administration policies with which I had nothing to do. And ideological discrimination would comport with a rational choice model of hiring in which professors enjoy being around others who reinforce their own views and righteous self-image.
But now there is stronger evidence. Two years ago James Phillip provided a study that showed conservatives and libertarians write about three quarters of an article more per year than other law professors, both liberals and those of unknown ideology. They garner 13 to 37 more citations than these other professors, which is quite a lot given that the average for a year across faculties is only 41 citations. This study itself raises questions about discrimination, because it suggests that those on the right who get over the hurdle of being hired are stronger scholars than those who are not on the right. Most law schools do not appear to be following a “Moneyball” approach.
Phillips has recently published another study that suggests that most schools (except for those ranked 75-100) engaged in some discrimination in favor of professors who signal that they are liberals. The amount of discrimination can be roughly estimated as 12 places in U.S. News and World report ranking of law schools. That is, someone with same record who is liberal would be hired at George Washington Law School, while the non-liberal would be hired at the substantially lesser ranked U.C. Davis. His statistical approach is quite complex, depending on matching professors of various ideologies in the market.
I am cautious about evaluating the study myself because I am not an empiricist. (One question I would raise is why schools ranked 75-100 do not discriminate. One reason might be that falling out the top 100 is a disaster, as several professors at such schools have told me in the past, and thus the taste for discrimination is balanced by the overwhelming desire to be ranked respectably). But Phillips is a serious scholar with a doctorate in the offing from a serious place and I am not aware of substantial critiques of his previous work.
In any event, there is no doubt that if there were this kind of evidence of invidious discrimination—indeed if there was such striking evidence of under-representation of another identifiable group relevant to viewpoint diversity on campus, the AALS would be extremely concerned. But instead the AALS has made it difficult for researchers to measure ideological discrimination in the hiring market by preventing researchers, like Phillips, from gaining access to forms by which candidates apply for teaching positions, even under confidentiality agreements that would forbid release of identifiable information. And yet the AALS has previously permitted access to the very same forms to study how other groups, like those defined by race or gender, fared in the hiring market.
Sadly, the indifference, if not hostility, of the legal academy’s professional organization to studying the extent of ideological discrimination in its own ranks may provide yet another indication that such discrimination is likely occurring.