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Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

Posted by Carissa Byrne Hessick on June 17, 2017 at 04:11 PM in Culture, Law and Politics, Life of Law Schools | Permalink

Comments

I agree, Carissa, but on the other hand I'm not entirely sure I have encountered someone taking the position you criticize. I'm also not sure how you would know someone identifies as a Republican party member. Do you ask the candidate how they identify? Do you look at state party registration records? What do you do in states (like Virginia) that do not have party registration? If they are #NeverTrump, do they not still count?

I recognize that there are studies that look at ideological diversity by looking at the party affiliation of campaign donations. But in that context, I take the donations to be a rough proxy for ideology, not a way to determine party registration. The thinking is that someone who donates mostly or entirely to Republican candidates is probably right of center, or at least not on the left side of the spectrum. But that doesn't mean they identify as a Republican. For example, I know a lot of law professors who are right of center and who donate mostly to GOP politicians but who don't identify as Republicans and often vote Libertarian for President.

Posted by: Orin Kerr | Jun 17, 2017 9:02:56 PM

Ah, it just occurred to me that UNC is in the midst of a particular controversy right now involving the ideology of the faculty. I should add that the debate there may be different from the one heard elsewhere!

One more thought: I have understood the argument about intellectual diversity to be about not discriminating against those who would bring intellectual diversity, not about trying to hire those who would increase it. That is, it's about overcoming the confirmation bias that leads people to see ideas on the other side as naturally weaker than those our side holds. If I'm right about that, party registration is a particularly bad proxy for addressing the motivating concern.

Posted by: Orin Kerr | Jun 17, 2017 9:13:06 PM

Let's say a college admissions policy requires 90% of students admitted to be registered democrats. Then it changes the policy so that 40%+ of students admitted have to be something other than registered democrats (at least 25% to be registered republicans or libertarians). Would you expect this to increase ideological diversity on campus? If so, in what way?

Posted by: Horton Reads a Label | Jun 17, 2017 10:19:22 PM

Orin, in Iowa, a crackpot legislator actually introduced a bill to create a political balance on our state universities by political party registration. Obviously it didn't go anywhere, but at least some people do seem to think that party is the issue... https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=SF288

Posted by: Paul Gowder | Jun 18, 2017 1:17:46 AM

It may help just to frame what you're talking about as "Philosophical Diversity."

I suspect the amount it's necessary depends a great deal on the field. For instance, in the field of ethics, even if a professor subscribes to virtue ethics, he is still quite likely able to fairly teach consequentialism. On the other hand, if you go to the creative writing field, a professor who specializes in misery lit may not at all be well suited to teach farce. When discussing philosophical diversity, perhaps the right thing to look at is not the professor's own point of view, but the breadth of their expertise. I know with my own class I've had to answer plenty of questions with basically "There are two schools of thought on this..." and I try not to give too much emphasis to the one I think is stronger.

As for the political diversity issue, I think this has mainly come up when discussing academia as a means rather than an end in itself. The concern isn't that our young literature students might not be thoroughly schooled in both postmodernism and structuralism. The concern is that the lit classes will be co-opted to serve a political purpose. Political diversity would then serve two goals: (1) to expose students to a diversity of political points of view, and (2) to push back against politicizing the classroom in the first place.

Posted by: Derek Tokaz | Jun 18, 2017 9:48:57 AM

It may help just to frame what you're talking about as "Philosophical Diversity."

I suspect the amount it's necessary depends a great deal on the field. For instance, in the field of ethics, even if a professor subscribes to virtue ethics, he is still quite likely able to fairly teach consequentialism. On the other hand, if you go to the creative writing field, a professor who specializes in misery lit may not at all be well suited to teach farce. When discussing philosophical diversity, perhaps the right thing to look at is not the professor's own point of view, but the breadth of their expertise. I know with my own class I've had to answer plenty of questions with basically "There are two schools of thought on this..." and I try not to give too much emphasis to the one I think is stronger.

As for the political diversity issue, I think this has mainly come up when discussing academia as a means rather than an end in itself. The concern isn't that our young literature students might not be thoroughly schooled in both postmodernism and structuralism. The concern is that the lit classes will be co-opted to serve a political purpose. Political diversity would then serve two goals: (1) to expose students to a diversity of political points of view, and (2) to push back against politicizing the classroom in the first place.

Posted by: Derek Tokaz | Jun 18, 2017 9:49:00 AM

It is true that "party affiliation" is not a perfect indicator of where one stands philosophically, morally, methodologically, politically, etc. But, as Orin suggests, it's certainly a pretty reliable "first cut" way of identifying someone who might stand outside the standard left-liberal consensus of nearly all American law-school faculties. It's unclear to me why one would resist the suggestion that (for, inter alia, the reasons Carissa mentions, such as avoiding marginalizing right-of-center students), to the extent possible, law schools should avoid hiring practices, and work to unsettle hiring premises, that result in faculties that include few, or no, scholars who (for whatever reason) vote for Republican candidates.

With respect to the Catholic death-penalty opponent: I am one, and my sense is that such a colleague *could* contribute to the "diversity" of the typical law-school faculty through the possibility that his or her reasons for opposing the death penalty might be interestingly different, and might -- if taken seriously -- connect to other salient issues.

Posted by: Rick Garnett | Jun 18, 2017 9:50:04 AM

Carissa:

It is pretty clear that whatever is being done at present to promote ideological diversity on law school faculties is failing. As you acknowledge, when it comes to criminal law scholarship, there is at present an "overwhelming imbalance" in the academy. It is also clear that law schools are not at present using party affiliation to increase diversity. The available evidence also finds an "overwheliming imbalance" on that front. Given the failure of the status quo, perhaps it is time to try an objective marker of ideological diversity, such as party affiliation. I expect, however, great resistance from incumbent academics to this (or any) proposal for change, since, in my experience, for a bunch of people who fancy themselves progressives, no one is more conservative about their own professional lives than law professors. Or, as the crits teach us, all hierarchies are self-reproducing.

Larry Rosenthal
Chapman

Posted by: Lawrence Rosenthal | Jun 18, 2017 12:33:30 PM

The mistake many responders are making is that they are interpreting "ideological diversity" to mean "philosophical diversity". However, this post isn't about "philosophical diversity". This post is basically reasoning around hiring Republicans--it is a call for applicants who are Democrats with one or two divergent ideas, rather than a divergent political philosophy (i.e. A Democrat who happens to support the death penalty).

That way, the overall political philosophy of the institution remains unchallenged, but "ideological diversity" is achieved because not every faculty member expresses the exact same idea.

Posted by: YesterdayIKilledAMammoth | Jun 18, 2017 1:54:06 PM

At the risk of repeating some things that have already been said, let me add a few comments to expand on my Twitter comments.

First, other than politicians, I've not seen or heard many folks focusing on party affiliation as anything more than a very rough proxy for viewpoint diversity. Most of those who focus on this issue talk about liberals and conservatives, not Republicans and Democrats. That said, there is increasing empirical evidence that individuals discriminate based upon partisan affiliation in hiring and the like, so it's not an irrelevant characteristic.

The empirical studies on viewpoint diversity on law faculties (or the lack thereof) that reply upon political measures typically rely upon contributions to candidates, rather than party affiliation. This is still a rough proxy, but a much better one, and for several reasons (including those identified by Orin above). Among other things (as with the most recent Bonica, et al., study), it allows for measuring rough gradations in ideology -- such as distinguishing moderates from those closer to the extremes -- and captures those who don't affiliate with a party for one reason or another. It also captures a larger percentage of faculty.

I certainly agree that it's important to separate someone's personal policy preferences from their legal views, but it's also important to recognize that a) not everyone's legal and policy views are that distinct, and b) certain legal views are far, far more prevalent on one side of the political spectrum than the other (which is shown by, among other things, each major political party's dominant views of what makes a good jurist).

I think we'd both agree that it would be good to have better data. the problem is that the it's hard to come by. The AALS has allowed researchers to look at FAR data to look for evidence of racial and gender bias, but has thus far refused to allow researchers access to the same data to look at potential political bias. That's a shame, because it would help us all understand the relevant dynamics a little bit better.

JHA

Posted by: Jonathan H. Adler | Jun 19, 2017 1:48:30 PM

I'd also like to add to this conversation (that I have come far too late too) that not all ideologies are created equally, and we shouldn't be trying to fill faculties with every possible ideology just for the sake of it. For example, there are lots of people who don't believe in climate change in this country, but I don't think law school faculties should reflect that disagreement. Being a well-educated and intellectually-honest academic is going to affect your opinions on particular topics, such as whether to believe in the overwhelming scientific evidence of climate change. I think we should be ok with not having that opinion represented on a law school faculty. (Now, where ideological diversity could be useful is in having a variety of different positions on how, if at all, the law and the state should respond to climate change. )

Another way to think about this might be: what is the problem that's meant to be solved by these conversations? What benefit does it have to find someone who supports the death penalty, even though the vast majority of the universe of criminal law scholars (as well as the majority of people around the globe) oppose it? Why would any given law school become a better place for having a voice that far outside of the mainstream of the field? It's entirely possible there *are* advantages; I just think you need to have a fairly clear answer to that question before you can move forward with the conversation, though. Is it affirmative action for people with minority views? Is it a commitment to making sure that all views, no matter how marginalized, are represented? Is it a belief that an anti-death penalty scholar can only teach one side of the argument and so their students will be unprepared to continue the argument in the real world of litigation? Or (perhaps the best argument in my opinion) is it because the legal landscape in the United States is one where the death penalty is used in the majority of the states, and we should bring the legal academic norms closer in alignment with legal practice norms?

Finally, and I imagine this will be my most controversial opinion — I dislike the idea of calling this diversity at all. Calls for diversity in the academia started to try and include people who previously had no access: women, people of color, LGBT folks. Referring to "intellectual diversity" as a type of diversity really dilutes the power of the claims to access being made by those still-marginalized groups. We might still think it's important that a faculty represent a variety of viewpoints on various topics, but that's a fundamentally different type of claim than attempting to ensure equality among groups of people who have historically not had equal access to legal educations, and a claim with a fundamentally different level of moral valence, and so I would suggest we find a different term to use when discussing this to make that difference clear.

Posted by: JJ | Jun 20, 2017 5:37:56 PM

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