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The AALS Should Investigate Potential Discrimination Against Conservative and Libertarian Faculty Candidates

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.

Reader Discussion

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on August 07, 2018 at 10:06:54 am

There is a fascinating article, "Culture War as Class War" by David E. Paul, over at First Things that suggests that discrimination of the sort described by McGinnis in the institutions may be just the victors in the current cycle of class and culture warfare purging the losers from the institutions they control.

https://www.firstthings.com/article/2018/08/culture-war-as-class-war

I suspect there may be no remedy in the law as the institutions are their's by right of conquest.

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EK
on August 07, 2018 at 10:28:12 am

Wow. Nice work, Phillips. When making disparate impact/discrimination claims, finding more-or-less objective things to measure is a big part of the game.

Why might we not find so much discrimination in law schools ranked 75-100? Perhaps the higher-ranked schools are busy trying to overcome their lack of faculty members of COLOR, and perhaps there's some correlation between having these backgrounds and not being libertarian/conservative in the legal sense? The lower-ranked schools may have no prospects of picking up these candidates, and so are not as constrained.

Here's the larger question: Can ideological discrimination be justified as a kind of bona fide occupational qualification? We oppose forms of discrimination based on criteria that we believe to be unrelated to how work would be done. In contrast, people sincere in their ideology would presumably want to acknowledge that the ideology influences how they do their work. After all, I wouldn't be surprised to learn that some Catholic law schools discriminate in hiring on the basis of ideology. (I wouldn't be surprised if some didn't.)

I expect many schools have mission statements characterizing the study/practice of law as an explicitly SOCIAL calling, a calling to submit to ethical norms for the common good, and otherwise to strive and sacrifice for the common good. Could such schools legitimately decide not to hire faculty that forthrightly declare themselves ideologically opposed to such a vision of their enterprise?

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nobody.really
on August 07, 2018 at 14:29:58 pm

Stop whining!

in any event it is already too late by the time a young student seeks admission to Law School.
The damage has already been done in high school and now grade school as shown by this:

https://www.breitbart.com/big-government/2018/08/07/drag-queens-teach-children-no-such-thing-boy-girl-things/

By the time these young folks enter law school they have been so indoctrinated in Leftist lunacy that I suspect that they want EVEN more leftist idiocy.

How about we put some right thinking individuals in grade and high school teaching positions.

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Guttenburgs Press and Brewery
on August 07, 2018 at 14:30:21 pm

Implicitly as to both public and private institutions, McGinnis suggests that under either the First and Fourteenth Amendments, or federal employment discrimination law and similar state laws, or under federal educational grant standards, or under the charters of public and private universities, ideologically-based employment discrimination by law schools is, arguendo, unlawful if it's "invidious," as McGinnis suggests, and, thus, maliciously and without rational justification treats individual members of a disfavored, politically unorthodox class of persons ( suspected political subversives, aka "conservative" applicants) unequally from members of the ideologically-favored, politically orthodox class (known Lefties patriotic to the political cause.) And McGinnis decries the likely invidious conspiracy between the major law school culprits and their AALS facilitators to cover-up what he believes is the data to show it. (Perhaps a Republican Congressional Oversight Committee focused on education and chaired by a person of courage, say a Devin Nunes-like politician, could uncover the cover-up and bring transparency to that dark web of academic intrigue, but only if Rod Rosenstein is not in charge of the documents:)

But do we need the hidden (or redacted) statistics of the conspirators in order to draw a reliable conclusion about their conspiracy, about what is, after all, a mere statement of the obvious as to law schools? Might we not, rather, as was said by John Lennon in the (recently resurgent) "Yellow Submarine," "Be empirical. Look!" Besides just looking at the biographies of the members of the legal academy, at who's been in it for the past 40 years, we might just do a survey of the political opinions of law school graduates for the past 40 years or of how those students would characterize their law school prof's on a political scale or a synopsis of the publicly-stated political positions taken by law school professors during that period or a survey of the presidential and senatorial candidates for whom they voted or to whom they contributed or for whom they advocated.

As for the candid suggestion (not by McGinnis) that it's in their self-perceived social justice self-interest of the law prof's and in accordance with their self-perceived social justice mission of the law schools to hire social justice warriors, now as Holmes might have lamented into "three generations of (social justice) idiots", I would suggest a) that that is PRECISELY what's been going on for over 40 years and b) that the ideologically-acceptable, "elite" law prof's who profit personally from that invidious group-think practice and the ideologically-homogenized elite law schools which protect, defend and gain high rank because of their group-think-elitism know full well that that's exactly what's been going on.

And they simply lie about it.

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Pukka Luftmensch
on August 07, 2018 at 19:45:55 pm

That is an alluring essay on the culture war, seeing it not just as a class struggle but as a moral/religious divide centered on sexuality. Mary Eberstadt has written expansively on the relationship between sexual liberation, starting with birth control, and social/cultural/moral decline. https://www.catholicworldreport.com/2018/03/20/what-mary-eberstadt-told-notre-dame-about-humanae-vitae/

This First Things essay you cite takes her theme a step further and sees sexual liberation as a cause of the culture war, not a consequence of it.

But, back to McGinnis' complaint about the insidious practice by law schools of ideological hiring: there can be no doubt, as the First things essay you cite says, that "culture wars are never strictly cultural. They are always economic and political struggles as well." By the late 1970's the Left had captured the political and economic high ground of legal education, the courts and the legal profession, itself, and its victory flag remains planted there. The Left's dominance of institutional policy and decision-making in those fields (as you say, especially in the legal academy) is but an exercise of the spoils of victory.

But those are fields of battles in, not the totality of, the culture war, a war which is far from over. A major counter-offensive is underway.

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Pukka Luftmensch
on August 13, 2018 at 20:51:51 pm

I would suggest that the elite law schools like the elite universities of which they are a part have become ideological hate machines intent on deploying their vast economic influence and social power to undermine the common culture and the constitutional order. Hence, these law schools and their university principals are highly selective in their employment choices to recruit, empower and promote only academic storm troopers who are True Believers in the law school's/university's ideologically revolutionary mission.

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Pukka Luftmensch
on August 16, 2018 at 15:31:15 pm

Interesting point of view. I too feel that the AALS needs to investigate this matter. It's getting out of hand.

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SEO Portland
on November 08, 2018 at 06:32:42 am

[…] John McGinnis frequently points out the leftist domination of legal academia (e.g., here, here, and here), but the same is true of the judiciary, the organized bar (not just the American Bar Association, […]

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The Pro Bono Hoax: Part II

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.