What is the Association of American Law Schools afraid of?

Most law school faculties lack meaningful viewpoint diversity, and this has consequences for legal education. 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. At many law schools, students rarely encounter the forceful articulation right-of-center views. Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.

While right-of-center views may be hard to find in much of legal academia, they are commonplace in the legal profession, in particular on the federal bench. The lack of meaningful exposure to alternative views leaves law students less well prepared to advocate for their clients. This is why some of us have urged the Association of American Law Schools to pay more attention to the causes and consequences of the lack of viewpoint diversity — a lack which is also evident in much of the AALS’s own programming.

The existence of ideological imbalance has been documented in numerous studies, including this analysis by Northwestern’s James Lindgren, in addition to studies of law school hiring, political contributions and legal scholarship that also find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, IP), and are less prevalent in “public law” subjects (e.g., constitutional law).

The lack of meaningful ideological diversity on law school faculties is fairly clear. The causes of the ideological imbalance, however, are the subject of some dispute, likely because a range of factors are in play. 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.

While I do not believe it is the only factor, I believe ideological bias in hiring also plays a role. Recent research has found that partisan or ideological bias in hiring decisions can be quite severe because such bias often results in snap judgments about the worth or capabilities of other people. I have seen such bias in practice firsthand, as have others, but individual anecdotes go only so far.

One way to help resolve the dispute over whether there are meaningful ideological or partisan disparities in law school hiring would be to study the question, such as by analyzing data from the AALS Faculty Appointments Register (FAR). Analysis of such data in the past has produced interesting findings on racial disparities in law school hiring. An analysis of ideological factors in hiring might likewise be illuminating — whether or not it confirms the hypothesis that ideological hiring bias exits. Unfortunately, the AALS has denied researchers access to the FAR data for this purpose. While the AALS allowed other researchers to look at racial and other factors in hiring, for some reason it refuses to allow a similar inquiry into the role of ideology.

The AALS styles itself as a learned society. It’s stated mission is “to uphold and advance excellence in legal education.” Further, the AALS proclaims that “In support of this mission, AALS promotes the core values of excellence in teaching and scholarship, academic freedom, and diversity, including diversity of backgrounds and viewpoints, while seeking to improve the legal profession, to foster justice, and to serve our many communities–local, national, and international” (emphasis added).  On what basis, then, does the AALS refuse to allow researchers access to FAR data to conduct legitimate academic research? The AALS cannot claim this data is inviolate for, as already noted, it has allowed researchers access to this data before. It is almost as if the AALS is afraid of what such research might find. That would be a shame — and a betrayal of the AALS’s stated mission.

One other thing: As it will inevitably come up in the comments, let me add that I oppose any sort of quota or litmus test for law school hiring. I believe ideological bias in the academy is a problem, but many proposed solutions are no better. The point of posts like this is to highlight the lack of viewpoint diversity and its consequences, and to spur discussion of how to support and encourage greater viewpoint diversity without compromising academic freedom.

[Note: I am happy post any response I receive from the AALS about these concerns.]

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/01/what-is-the-association-of-american-law-schools-afraid-of/

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