Why is political viewpoints not diverse amongst law professors
by Anne O'Dell
The results of McGinnis' survey of professors at America's top-22 law schools show that 80 percent of professors who donate to political campaigns give predominantly or exclusively to Democratic candidates.
McGinnis—noting that Georgetown University's law professors have donated around $137,000 to Democrats, $3,700 to Republicans, and $1,500 to third parties over the past six years—concluded that "mainstream conservative ideas are no better represented than those on the leftist fringe."
Indeed, many students of the law have complained in recent years about the lack of political diversity among law school faculty and its questionable justifications.
In early 2004, Duke University professor Robert Brandon famously told the campus newspaper, "If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire...Members of academia tend to be a bit smarter than average. There is a good reason for this."
This controversial statement, which was not based on any empirical evidence, was followed by a flurry of writings from other members of academia.
Northwestern law professor James Lindgren wrote, "Consider a thought experiment: imagine that the numbers were reversed and Duke's faculty in the humanities or social sciences had 17 times more Republicans than Democrats. Would the education, research, and mentoring still be broad enough to make the existing Duke faculty feel that viewpoint diversity was not a problem? I doubt it."
Lindgren has become one of an increasing number of white, male professors who, in the past several years, have shown an interest in exploring the link between ethnic and academic diversity.
Yale's Knight Professor of Constitutional Law and the First Amendment, Jack Balkin, believes that these two types of diversity are "distinct but mutually reinforcing."
In his article "Diversity Offers Everyone a Stake," Balkin writes, "Demographic diversity isn't the same thing as diversity of perspective, but it helps produce it."
Although most law schools conspicuously espouse beliefs in all types of diversity and consider applicants' ethnicity in their hiring and admissions processes, many in the community question whether political and intellectual diversity are considered with the same level of concern.
In 2003, the Supreme Court heard arguments in the case Grutter v. Bollinger, which concerned whether or not affirmative action policies should be used in law school admissions. Based on the desire to achieve a "critical mass" of ethnic and racial minorities, which it hoped would increase viewpoint diversity, the University of Michigan was using race as one of several determining factors in its law school admissions.
"If you have the viewpoint diversity rationale, which the Supreme Court upheld in the Grutter case, you have to apply it to ideological diversity, as well," said McGinnis.
"My argument is that…these law schools should also engage in affirmative action for conservatives. The only position we take is on consistency. We do believe that ideological diversity is as important in the classroom as racial diversity is."
Although his study did not examine the specific political affiliations of students, McGinnis noted, "My experience with students is that law students are more liberal than average, but there is a wider diversity of opinion."
Still, he says, "The fact the students may be somewhat more ideologically diverse than professors does not guarantee viewpoint diversity in the classroom, because as we note, in most classes professors speak far more than all students combined. Moreover, they set the tone on campus more generally by inviting outside speakers, et cetera."
McGinnis says that although Northwestern is "somewhat more conservative than other schools, I am not at all clear that there is great ideological diversity at other elite schools; and indeed, based on conversations with students at some of those schools, I doubt it."
At Yale Law School, Professor Peter Schuck says, "Yale, which is an extraordinarily selective school…accepts students who, for one reason or another, tend to be politically liberal."
Based on donation amounts, McGinnis found that professor of economics-based subjects such as antitrust and corporations were likely to be more politically conservative than their colleagues teaching constitutional and international law. McGinnis said this leaves "the subjects that set the agenda for debate on the hot-button issues of our time with scarcely a conservative voice."
Some have linked this dearth of political difference to the affirmative-action policies followed in many universities' considerations of job applicants and prospective students.
Schuck recently made this unpopular assertion: "Viewpoint diversity will almost always cut against affirmative action hires."
"You might think that was true," said McGinnis, "but only if minority professors were more liberal. However, that is simply not the case. If anything, it's white women professors that do seem to be more Democratic than other professors."
The alleged link between political and ethnic diversity is nowhere more clearly suggested than in the work of James Lindgren, who could not be reached for comment. In an upcoming article for the Yale Law and Policy Review, he claims that ethnic diversity does not promote viewpoint diversity, but actually undermines it.
Lindgren, notorious in the academic community for his disastrous defense of gun rights propagandist John Lott, claims, "Promoting further ethnic and gender diversity, particularly in faculty hiring, often would not foster a wider range of intellectual or political views.
"Promoting intellectual diversity would often point away from hiring more minorities and toward hiring more Republicans or evangelical Christians.
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."
In any event, all these professors agree that greater political diversity in law school faculty and students is a worthy goal, if only because providing a genuine challenge to the ideological norm will force both sides to hone their arguments and create an intelligent debate.
"Peter [Schuck] argues in his op-ed that a single-minded focus on demographic diversity will not serve important dimensions of ideological diversity," said Balkin.
"He is right about that. I agree with Peter that law school faculties should promote greater ideological diversity as well as demographic diversity. I believe that law schools can and should emphasize both goals in their search for new faculty."
McGinnis also opined on the potential benefits of a wider range of viewpoints and political affiliations.
"With increased pluralism in faculty scholarship, there will be a definite advantage to students. There will be vigorous discussion; people will express their positions better in the classroom."