Marvel Comics is caught in a dilemma. The company, which went from near-bankruptcy in 1996 to one of the most successful movie studios in the world, first became well known in the 1960s for its depiction of superheroes who had human problems. Spider-Man, the Hulk, the X-Men the Fantastic Four and others didn’t fight their battles in the fantasy world of Gotham or Metropolis, but in New York City. They dealt not only with super-villains but with racism, self-doubt, adolescence, illness, and poverty. As a new book out from Taschen, The Marvel Age of Comics 1961-1978, shows, these characters were as much a part of the 1960s as the space race, antiwar college protests, and John F. Kennedy.
Google and our elite universities appear to inhabit the same ideological bubble and intone the same diversity mantras. And that is not surprising, because almost everyone at Google is a product of the modern university and those at its HR department the likely product of its more PC inflected half—the humanities or soft social sciences. And Google must live within the world of mainstream media and government regulation, and these two sectors are also dominated by elite university graduates of the last quarter century.
But nevertheless the institutions and their employees operate under different constraints. Google is the elite university without tenure and the elite university is Google without market discipline. You might think that tenure is the more important obstacle to enforcing an orthodoxy like modern diversity policy. After all, a professor at an elite university would not be fired for making the largely accurate factual claims about the average differences in temperament between women and men that the Googler did in the memo that got him sacked.
Drew Faust, the President of Harvard, is concerned about the plight of free speech on college campuses and hers in particular. She says all the right words about the importance of free speech to a university. But her suggestions about how to secure it are vague and anodyne. For instance, Faust exhorts those at the university to be “generous listeners.” For a college President, that is a bit like a preacher exhorting his congregation to oppose sin.
It is easy to be a generous listener when you are listening to people who agree you with you. But the ideological and partisan homogeneity of Harvard makes generous listening to sharply dissenting views harder, because it is easier to regard them as irrational or evil when none of your friends and colleagues share them. The problem is a structural and institutional one and cannot be solved by sermons.
Thus, if Faust were serious about free speech and free inquiry on campus she would announce some initiatives to make sure that conservative and libertarian voices punctured the campus bubble. A school as wealthy as Harvard could announce a speaker series to bring in a serious conservative or libertarian scholar once a week to speak to the entire university on an issue of public policy or political philosophy.
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 classical liberal strand in Western political philosophy has historically opposed special government privileges for groups and prized equality before the law. Classical liberals favored eliminating the benefit of clergy and the privileges of the nobility. They fought against slavery. And, unlike some progressives of the late nineteenth and early twentieth century, they opposed Jim Crow.
Whether classical liberalism should embrace laws that prevent private actors from treating people unequally on the basis of characteristics, like race and sex, is a more complicated question. But in my view, given the long history of Jim Crow in the United States, laws against discrimination on the basis of race or ethnicity were justified to break ingrained habits encouraged by government discrimination against African-Americans. But here again the classical liberal view molded these laws into general prohibitions against discrimination, not special privileges for certain groups.
In the 1960s and 1970s progressives began to transform these laws into mechanisms of social engineering that took account of race in their planning. But for a brief period in Reagan administration, the classical liberal strand of universalism reasserted itself as part of the core ideology of the Republican party. The result was an effort to treat laws on discrimination as general prohibitions on discrimination on the basis of race and ethnicity, no matter which race and ethnicity was at issue. Colorblindness was banner under which the movement marched.
Sadly, this movement has dissipated.
Many universities are now in the business of creating “safe spaces.” The concept is not well defined but includes establishing actual physical spaces that will be reserved for some group, generally a group that a university defines as a minority. But some of these same universities also impose so-called “all comers policies,” in which no group is permitted to exclude anyone even from its elected offices on the basis of their beliefs. Thus, for instance, Christian groups would have to admit atheists even as potential leaders.
But policies that create safe spaces are in substantial tension with those that require clubs to accept all comers. A group of Christian evangelicals might well believe that it may be more effective in its mission if its members shared its basic beliefs. It might also make its members feel more comfortable discussing them, if the organization did not have opponents in its midst. That is not to say that a restrictive charter creates the ideal form of such an organization: some groups of evangelicals might well welcome embrace debate at every turn and benefit from the intense scrutiny of every argument.
One of the virtues of allowing groups to make such decisions is that a community would no doubt get a range of distinctive spaces for speech generated by different trade-offs between mission and openness. Another is that the university would respect many different forms of diversity that bubble up from below rather than just those that conform to its official line on what kind of diversity matters. Most importantly, a university that is dedicated to creating places where people can feel comfortable, but does not want to be in the business of creating official restrictions on speech in student life should also be pleased with the self-organization of overlapping spheres of debate.
The ABA has generated a revealing debate between those who want to strengthen law schools’ accreditation standards and advocates of diversity. Given the many recent stories about law students burdened by huge debt and yet unable to pass the bar, the ABA is considering requiring law schools to get 75 percent of their students to pass the bar within two years to retain accreditation.. Put aside for the moment arguments that we should not require graduation from an accredited law school to take the bar—arguments with which I have some sympathy. Assuming states do accredit law schools, it hardly seems like a draconian requirement that a large majority of their graduates be able to pass the bar
But a variety of schools and groups have objected that this requirement will threaten diversity, because minority candidates from lower ranked schools fail the bar at substantial rates. This argument seems a desperate one.
Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications. The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.
Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth. Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.