Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium. The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.
While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.
A new study of the ideological imbalance in the legal academy, The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are indeed substantially more likely to be left-liberal than white males and be even more left-wing. Racial and gender diversity does reduce ideological diversity.
The effect of racial, ethnic, and gender diversity policy are probably greater in perpetuating ideological imbalance than even these general statistics suggest. Public law faculty are not surprisingly the most important faculty in setting the tone of debate on public policy issues at law schools. Yet often in business subjects there are relatively few minority and women teaching applicants. Thus, it is easier to fulfill diversity objectives by hiring minorities and women onto the public law faculty, thus creating a more ideologically homogeneous atmosphere for the most debated issues. Consistent with this surmise, the latest study shows that while professors in business law subjects are liberal they are not as liberal as those in public law subjects, like constitutional law, civil rights law, and criminal procedure.
The authors of the recent study suggest preferences for right leaning faculty are not “straightforward,” because they might compromise diversity policies in favor of minorities and women. But this is not necessarily the case. One would still give the traditional preferences the primary priority but add a secondary priority for conservatives and libertarians. The losers would then be entirely white male left-liberals. Perhaps some of them would be even happy to give up more of their nondiscrmination rights for the collective good!
That said, in a first-best world I would prefer purely meritocratic hiring. But the argument that preferences for conservatives and libertarians are a second-best policy is much strengthened by the recent proof that the current diversity policies make law schools even less ideologically diverse than they would otherwise be.