Law Schools

Conservative Law Profs Want 'Viewpoint Diversity,' Which Is Kinda Racist

These professors need to knock off the "diversity" reappropriation.

By  
on
Check out all our ideological diversity!

Check out all our ideological diversity!

Over at Volokh Conspiracy, everyone’s really hot for law schools to consider some more “viewpoint diversity,” which is their trumped up complaint that law schools aren’t hiring enough people willing to reduce a Con Law semester to a guy in a tri-corner hat delivering a 20-minute dramatic reading of the Constitution.

To the folks over there: you seem to be having fun writing open letters to the Association of American Law Schools, earnestly imploring them to investigate the dearth of conservative and libertarian professors, but… just stop. Seriously, just stop because you’re generally smart people and this new hobby horse is getting downright offensive. This is going to sound harsh, but it’s tough love. I don’t think you’re trying to sound this racist and sexist, but that’s what’s coming across, so it’s time for a timeout, okay?

Let’s take a second to discuss what “diversity” means in the hiring context, shall we?

See, there are these are individuals from groups that face systemic and unwarranted discrimination based on immutable characteristics, and whose underrepresentation in the legal academy is a product of that discrimination as it compounded itself over the years. No black law professors means fewer role models and mentors for black law students looking to enter the profession. Fast forward a decade and the problem is worse because a generation of scholars who might have joined the profession are left outside. Hence the professional interest in diversity.

On the other hand, being a conservative is not to be the victim of systemic and unwarranted discrimination. And if you think, “MSNBC says I’m stupid” is systemic and unwarranted discrimination then you’ve got what we term “a persecution complex.” Seek help.

To put it more bluntly: you’re literally getting judged on content, and not the color of your skin, or your sex, or gender identification, or religion, or national origin. Sorry, the Dr. King test has spoken.

Sponsored

But you’ve nonetheless appropriated the rubric of diversity and clumsily appended it to your, frankly, whiny snowflake complaints about law schools not appreciating your work. See how that is prima facie demeaning to victims of racial, sexual, or any other form of discrimination based on some immutable characteristic? Because as it is, this looks like you woke up one day and said “hey, that Latina benefitted from this ‘diversity’ thing, so we should get some of that too?” Probably not what you were aiming for.

You sound like the kids in school who watched the diabetic kid get force-fed a cookie after a blood sugar crash and demanded cookies for the whole class. But I guess textualism is the celebration of contextual ignorance so maybe this shouldn’t be surprising.

So this is why you can’t try and crowd in on the rhetoric of diversity. But at least “viewpoint diversity” is ever-so-slightly less offensive than the language of “intolerance” that kicks off Randy Barnett’s post featuring this infamous open letter to AALS. Quoting a speech by John Etchemendy:

Over the years, I have watched a growing intolerance at universities in this country – not intolerance along racial or ethnic or gender lines – there, we have made laudable progress. Rather, a kind of intellectual intolerance, a political one-sidedness, that is the antithesis of what universities should stand for. . . .

Not since D.W. Griffith filmed Intolerance has there been a more suspect hijacking of the concept. I doubt law professors really want to pull this thread. Because this is the rhetoric of politicians who want intelligent design added to Biology textbooks to “present both sides.” Academic freedom isn’t a virtue per se, it’s a tool to encourage new, unconventional thinking to build on the accumulated knowledge of society. Freedom doesn’t require medical schools to tolerate the guy who still swears by phrenology.

Sponsored

That’s what tenure is for.

Look, there’s a marketplace of ideas. Go out and win there if you can. If you can’t, then that actually is what the university should stand for. Unlike the disingenuous arguments of the sort of people who think the progress on racial, ethnic, and gender lines in the American university can be described as “laudable” — as opposed to, say, “interminably slow yet mercifully steady” — there really isn’t anything stopping conservative academics from pulling their themselves up by their Bluebooking bootstraps.

It’s just not “intolerance” when the market doesn’t value your ideological scholarship — as opposed to non-ideological “practical” scholarship — as much as you might wish it did. That’s the market. On the other hand, in a post yesterday suggesting the AALS was “scared” because they refuse let their data on hiring practices be deployed in service of this farce, Jonathan Adler raised what some suggested a market failure in hiring:

As I’ve noted before, there is almost some degree of self-selection (i.e., some conservatives and libertarians are more likely to pursue more remunerative careers than some liberals). At the same time, academic institutions — like many other institutions — tend to replicate themselves, meaning that they are institutionally unlikely to diversify themselves without concerted effort.

That’s actually how it always works. Libertarians are so cute when they see decisions made based on “imperfect” factors like comfortability and tradition and try to find any way to say, “well that’s not the free market Ayn Rand told me about!” Yeah, I remember when I learned that Optimus Prime wasn’t really coming to my birthday party. It’s tough to have your dreams dashed, but you can pick up the pieces.

Once you’ve put your intellectual faith in the power of the free market, then these are the lumps you have to take. If you don’t like it then, well, that might explain why the rest of the academy doesn’t have a lot of patience for your ideology.

But, hey, maybe there’s some unique advantage to hiring more FedSoc panelists beyond the work they’re putting out:

Training lawyers requires teaching students how to understand and get inside the arguments of those with differing interests, outlooks and orientations. It requires developing the ability to understand and articulate points of view that one does not believe. Doing this effectively requires exposure to differing points of view, and this is more difficult to achieve when faculties are ideological monocultures and echo chambers.

That’s a bit hyperbolic. When that future associate is up at 2 a.m. drafting that debt offering or toiling over that motion in limine they really aren’t going to say, “I had no idea how to put this together, but thankfully one of my professors thought clean water regulations were fascist so I’m golden.” Also, it’s not like left-leaning educators have their Devil’s Advocate powers lobotomized out of them the moment they first decided women deserve equal pay for equal work. My professor from the Bush the Elder administration was just as adept at spinning liberal justifications during Socratic questioning as my Carter administration IRS commissioner professor was at channeling the nascent Tea Partiers.

But even if that’s not a great argument for hiring more conservative professors, it is a very good reason not to exclude a conservative professor from a faculty outright. Excellent educators come in all ideological stripes. Well, maybe not the hip geologist prof going down the “Young Earth” road, but that’s not really what we’re talking about here.

But the point is, no matter where this whole inquiry goes, knock off the  “diversity” and “intolerance” terminology. If you simply can’t help but concoct an awkward, early-90s political correctness inspired name for your professional griping, just label academia “Originalist Challenged.”

It’s just as descriptive and doesn’t come across as callously tone-deaf to actual discrimination.

What is the Association of American Law Schools afraid of? [Volokh Conspiracy / Washington Post]
Our letter to the Association of American Law Schools [Volokh Conspiracy / Washington Post]

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

Topics

, , , , , , ,