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Leftward Leaning--A Commentary by Prof. Peter Schuck

(This essay originally appeared in the December 2005 issue of The American Lawyer.)

Elite law schools cherish robust debate, iconoclasm, and arguing issues from all sides, right? Wrong. The dirty little (not-so) secret about these faculties--that they care much more about diversifying their skin colors, genders, and surnames than about diversifying their points of view--has finally come to the attention of the general public.

Now that the truth is out, law school faculties are likely to come under increased pressure to surrender some of their hiring autonomy. But this pressure would be misguided. If these faculties know what is good for them, they will acknowledge the dearth of dissenting voices within them--and work earnestly to correct the problem from within.

First, a little background. The 191 accredited law schools in the United States churn out some 40,000 J.D.s a year. These people will become community leaders in business, politics, education, civic organizations, and many other fields. Even today, after centuries of lawyer jokes and other forms of lawyer-bashing, the legal profession remains, as Tocqueville observed, the natural aristocracy of merit in a society that rejects inherited rank and privilege. How these lawyers are trained matters a great deal not just to them, but to the larger society that they will help to lead. Their political values, shaped in part by their teachers and then carried into their communities, will help define them as parents, citizens, and leaders.

THE TRADE-OFF BETWEEN AFFIRMATIVE ACTION AND VIEWPOINT DIVERSITY

What, then, are the political values of law professors, and how closely do those values resemble those of the larger communities that the newly minted lawyers will enter and influence? The answer to these two questions depends on whether you believe the high-minded ideals about diversity emblazoned on the facades of university buildings, celebrated in academic ceremonies, and proclaimed in the briefs that the schools file in affirmative action and academic freedom cases--or whether you believe, instead, the empirical evidence on law faculty diversity that a few social scientists have recently developed.

James Lindgren, a lawyer/sociologist at Northwestern University, has noted that elite universities invariably claim that a diversity of viewpoints and cultures are essential to their programs, and actively seek students, faculty, and staff who share this commitment. In the Winter 2005 issue of Yale Law and Policy Review, Lindgren observed that diversity-based affirmative action policies assume "that the groups that have been discriminated against historically are the same groups that are underrepresented in universities and further that these two presumptively coextensive sets of groups are coextensive with the groups that would provide more viewpoint diversity if their numbers were increased in academia."

Which groups would add the most viewpoint diversity to law school faculties? Lindgren's answer, for most faculties, is "Republicans, conservatives, and evangelical or fundamentalist Christians--none among the groups that were traditionally locked out by the United States's racist and sexist practices of discrimination." (He also found that Jews, who were subject to hatred and discrimination, are vastly overrepresented in law teaching, by a ratio of 13:1).

Which group is most underrepresented among professors at the top 100 law schools that Lindgren examined? White female Republicans. But because individuals in this particular subgroup do not fit the left-of-center academic ideal and stereotype of women, faculties seeking gender diversity do not recruit them. Indeed, Lindgren finds that all of the substantial underrepresentation of white women compared to the full-time working population was among white female Republicans, while white Democratic women were overrepresented on law faculties compared to the demographically comparable pool of lawyers.

Universities claim to value viewpoint diversity very highly. I should hope so, for it is precisely the kind of diversity that their students most need in order to sharpen their thinking, nourish their openness to new ideas, and prepare them to live in a pluralistic society. Lindgren shows that the sharpest divisions among people's attitudes on public issues correspond not to gender, but to political party, followed by race. This pattern holds, he finds, not only for political issues but for many legal issues as well, such as abortion rights, gun control, and pornography.

"Promoting intellectual diversity," Lindgren concludes, "would often point away from hiring more minorities and toward hiring more Republicans or evangelical Christians. Conversely, promoting further ethnic and gender diversity, particularly in faculty hiring, often would not foster a wider range of intellectual or political views?or more representative ones. Indeed, if most of the women and ethnic minorities who are actually hired on law faculties tend to lean toward the Democratic Party, the faculty overall may become less representative of the diversity of views in the wider public."
Actually, he understates his case: Viewpoint diversity will almost always cut against affirmative action hires, which will almost always make the faculty less representative of viewpoint diversity in America.

VIEWPOINT DIVERSITY ON ELITE LAW FACULTIES: THE EVIDENCE

When we turn to the elite law schools, the Democratic political bias is even more pronounced. Consider a study published this year in the Georgetown Law Journal by Northwestern professor John McGinnis and two coauthors. Their subject was federal campaign contributions made by law professors. Surveying the 21 schools top-ranked by U.S. News & World Report in 2002, they identified all contributions of $200 or more in any year between 1992 and 2002. Of the 29 percent who made such contributions, fully 81 percent contributed to Democratic candidates. (These figures turn out to be fairly good proxies for these professors' political affiliations.)

The Democratic bias was even stronger at the highest-rated law schools. At Yale, my own institution, 43 percent of the faculty made such contributions, and of those, 81 percent gave only to Democrats; another 12 percent gave mostly to Democrats. At Stanford, 94 percent gave only to Democrats; for the supposedly more conservative Harvard, the figure was 88 percent. Moving down the pecking order, these percentages tend to be somewhat lower but still a preponderance; even the lowest (the University of Virginia) is 50 percent. When the authors compared these figures to the contribution patterns of other Americans with comparable education and income, the elite law professors were, again, markedly more Democratic.

This statistical evidence of the overwhelming Democratic bias on the part of law professor contributors is interesting. (I am scratching my head trying to figure out which of my colleagues--there was only one--gave only to Republicans.) And for those who enjoy irony, it is amusing to learn that the faculties that most loudly proclaim their commitment to diversity do not exemplify it in the very area, viewpoint, that is (or should be) most central to their professional mission. But none of this will really surprise anyone who has spent any time in a faculty dining room at an elite school. Nor will it be news to anyone who has managed to plow through recent law review articles, especially on constitutional and public international law topics. (The data indicates that the Democratic bias is particularly great for teachers of these subjects, which lend themselves to politically inflected interpretations.)

"SO WHAT?"

Ultimately, the important questions are: How does this bias affect legal education, and why is this a problem? These questions, it turns out, are harder to answer than one might expect. First, the studies speak to professors' ideological affiliations, not to what they actually teach in class. It is possible--I hope likely--that faculties are more catholic in their teaching than they are in their political contributions. Perhaps professors are conscious of their bias and believe that presenting diverse ideological perspectives is essential to their teaching effectiveness. If so, the positions that they present in class and represent in their reading lists may be more balanced than those to which they personally subscribe. Perhaps in class they present conservative views that they personally reject, and put those views in the best possible light rather than signaling that the students need not take them too seriously. The studies do not shed light on these possibilities, or on what professors actually teach.

Second, even if their teaching is one-sided, we do not know how much these biases influence students. Although McGinnis et al. do not purport to address this question, they speculate (drawing on studies of group decision making, including panels of appellate judges of mixed political affiliation) "that left-liberal ideas are less theoretically and politically powerful than they might otherwise be because they are rarely tested and improved through conservative challenge within the academy itself." Even if this is true, of course, we do not know whether their students can recognize the analytic weaknesses of these untested positions. Finally, law students, who are less impressionable than undergraduates and have more fully formed views seem to think that they know their professors' political views. If so, perhaps they discount those views accordingly.
Even with these qualifications, however, it seems likely that professors' decidedly liberal ideology has a significant influence on what their students think. After all, spending two to four hours a week for over three months listening to an articulate, knowledgeable, skilled rhetorician expound on the law must have some persuasive effect.

But again, why is this a problem? Liberal faculty at these schools, like their (rare) conservative colleagues, believe what they teach, and there is no reason to label their liberal teachings as wrong just because conservatives often disagree with them. In a society that properly values viewpoint diversity and protects academic freedom, only positions that are demonstrably beyond the pale can amount to educational malpractice. This "crackpot" standard, of course, is notoriously difficult to define, but very few of the views propounded in law school classrooms would qualify.

A TROUBLING CONDITION WITH NO GOOD REMEDY

Nevertheless, a teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm--and also to exemplify--core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren't--as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view--on our own faculties, debated before our own students--to keep us intellectually honest and to enrich learning. It is all well and good for student groups like the Federalist Society to bring heterodox lecturers to campus, but these extracurricular speakers are no substitute for what should go on in class--and seldom does, I fear.

What can be done to make professors practice what they preach on diversity? Alas, no easy remedy exists. The tenure system and the lack of mandatory retirement will project existing faculty bias far into the future. Moreover, the elite schools recruit new law teachers mainly from the top ranks of their recent graduates, whose own predominantly left-liberal views are fortified by their professors. And adopting affirmative action for conservative viewpoints would be odious and, for public law schools, almost certainly a First Amendment violation.

Some conservative critics, recognizing that this bias is endemic in many academic departments besides law, propose reducing the faculty autonomy that nurtures and protects it. Yet we should resist such nostrums. If faculties are to be first-rate, they must continue to govern themselves and select their own colleagues, and academic freedom must be protected even for those who pay mere lip service to viewpoint diversity.

In the short run, the only remedy is for professors to rededicate ourselves to engaging forthrightly with contrary views and respecting the real-world complexity that often challenges our firmly held legal theories, while eschewing the temptation to indoctrinate students with our most cherished beliefs. Universities should be the first to insist that debating societies are better than echo chambers when the goal is to find the truth.

Peter H. Schuck is a law professor at Yale and the author, most recently, of Meditations of a Militant Moderate: Cool Views on Hot Topics (Rowman & Littlefield) and Diversity in America: Keeping Government at a Safe Distance (Harvard University Press).