Schuck on Viewpoint Diversity:

Yale Law School's Peter Schuck has an article in the American Lawyer on the lack of viewpoint diversity at elite law schools, why it matters, and what to do about it. Among other things, he argues that ethnic and gender diversity are no substitute for real diversity of opinion and perspective. Here are some excerpts:

Elite law schools cherish robust debate, iconoclasm, and arguing issues from all sides, right? Wrong. The dirty little (not-so) secret about these faculties-that they care much more about diversifying their skin colors, genders, and surnames than about diversifying their points of view-has finally come to the attention of the general public.

Now that the truth is out, law school faculties are likely to come under increased pressure to surrender some of their hiring autonomy. But this pressure would be misguided. If these faculties know what is good for them, they will acknowledge the dearth of dissenting voices within them-and work earnestly to correct the problem from within.

* * *

a teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm-and also to exemplify-core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren't-as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view-on our own faculties, debated before our own students-to keep us intellectually honest and to enrich learning. It is all well and good for student groups like the Federalist Society to bring heterodox lecturers to campus, but these extracurricular speakers are no substitute for what should go on in class-and seldom does, I fear.

Schuck does not believe there is an easy answer to this dilemma -- thought he knows that any legislative response would be a terrible idea. If there is to be more viewpoint diversity in legal academia, he argues, elite law schools must commit to changing from within.

As Glenn would say, read the whole thing (especially if you are planning to post a comment).

Senor Chumbawumba (mail):
I'm encouraged that he thinks there is a truth to apprehend. Some of my profs would probably disagree.
12.1.2005 8:34am
Sam Heldman:
Maybe law schools should (a) pay professors as much as the salary of the best-trained lawyers of similar seniority, and (b) ensure that, for those professors who are so inclined, there are numerous opportunities for combat in which one side is declared the victor. Then we could see how much of the putative "lack of ideological diversity" on law faculties is driven by a higher prevalance among "conservative" lawyers of the desire for more $ and for the type of combat that the practice of law provides. My own hunch is that you would find out that this is, in fact, the main reason why more law professors are Democrats than Republicans.
12.1.2005 9:09am
SomeJarhead (mail):
If he (Schuck) weren't from Yale, I'd say he <i>just missed it</i>. However, as is typically found at institutions such as his (isolated from reality, self-righteous, and seemingly beyond reproach), his gloss over the 300lb gorilla in the room is most appropriately attributed to plain old-fashioned ignorance.

I speak, of course, of the inescapable fact that biased faculty cannot form the basis of a sound legal education.

Yale, and other so-called "elite law schools," self-perpetuate their own institutional biases with outrageous hiring and admissions criteria (truly classifiable as the most heinous form of discrimination in the academy), and then spend millions covering it up with slick marketing campaigns and carefully manicured campuses. They consistently produce "lawyers" with unremarkable reasoning skills, a complete lack of perspective, and no ability to think critically (to "challenge your assumptions," as it were).

These ideological advocates have perverted our legal system by their incessant demands for interpretations that fit their particular policy preferences (the consequences and precedents be damned), and they leverage their institutions to do it. With each passing year our law is increasingly obfuscated by their tactics, and their profiles seemingly rise.

We, as studious and motivated defenders of the Constitution, or at least as reasonable Americans, can only wait for the day when legal education is valued in a manner exceeding name-recognition; continuing all the while to ridicule their antics while not holding out breath.
12.1.2005 9:19am
anonymous coward:
I find it revealing that Schuck talks about "viewpoint diversity" almost entirely in terms of a left-right--even more troublingly, Democrat-Republican--divide.

Law professors (and to a lesser extent, liberal professionals generally) share many ideological predispositions, not all of which fit neatly into the liberal-conservative dichotomy. Even if we achived "viewpoint diversity" such that 50% of law school profs voted Republican, the faculty would match the public's views along only one, really quite limited dimension.

Along similar lines, although I'm suspicious of "diversity" rationales for affirmative action, I'm also puzzled why Schuck is convinced that minority and women faculty can add no "viewpoint diversity" just because they (like the white male faculty) are largely Democrats.
12.1.2005 9:49am
dk35 (mail):
I'm all for diverse viewpoints (and I did read the whole article, by the way), but I think that the author undermined his point by pitting intellectual diversity against racial/gender/ethnic diversity, and in reducing intellectual diversity to "Republican" and "Democrat."

On a personal note, as a law student, I have to say that thus far, the one professor I have had who was the least "ideologically inclusive" in terms of allowing discussion of and exposing students to different points of view, etc. was one of the professors who regularly posts on this very blog. Perhaps others will write in saying that their worst experiences were with so-called left-wing professors, but I can definitely say that my least intellectually satisfying class (at least in terms of exposure to diverse intellectual viewpoints) came from a conservative/libertarian.
12.1.2005 9:52am
Kate1999 (mail):
That's a great piece by Schuck. The sad part is that what he says would be highly controversial in faculty lounges if the faculty he describes would actually bother to read it. But they won't bother to read it, as most elite law school faculty care more about perpetuating their own world view than giving their students a better education.
12.1.2005 10:07am
Bob Bobstein (mail):
dk35-- For what it's worth, the best articulation of the anti-Roe-for-moral-reasons viewpoint that I've heard came from a preposterously left-wing professor, who was presenting the other side of the argument for honesty's sake.

Law students need not be treated as though they need to be exposed to 48% Dem and 50% Repub and 1% Green (or whatever) ideas or they won't ever be able to grasp ideas that differ from their own. Still, it would have been fun to have a few more conservative profs at law school.
12.1.2005 10:08am
I'm a little puzzled by the argument made by both Schuck and "Non-Volokh" that law schools should diversify, but that no outside force should attempt to make them do so. Certainly the professoriate doesn't advocate generally for non-interference with behavior by others of which it disapproves, from cigarette smoking to banning gays in the military. Nor is it the case that either their credentials or their performance makes professors uniquely qualified for self-governance. Ah well, I guess the planks in our own eyes are always the hardest to notice.
12.1.2005 10:28am
CJColucci (mail):
I went to an elite law school and could not tell you the political views of most of my professors. And my knowledge of the few about whom I could tell came from my knowledge of their outside activities, not from anything they said or did in class.
I could eliminate what were then somewhat fringe possibilities. Although few of my professors in the relevant subjects (contracts, torts, property,antitrust, administrative law, labor law, corporations, tax) were highly complimentary about much of what passed then for economic regulation or tax policy, I was reasonablty sure there weren't any any whole-hog advocates of social darwinism or any socialists. They all seemed to accept a broadly capitalist society with some role for the government. No one semed to have much use for various forms of discimination, though I couldn't tell you where they stood on certain remedial questions like affirmative action, and I have no idea where any of them stood on Roe, or even on legislative liberalization except for one who opposed it outright as illegitimate and another who thought the opinion embarassing as a matter of craft and counterproductive as a matter of politics. No Crits, no Constitution-in-exile types, but beyond that I could tell next to nothing.
Many former law students I have spoken to had the same experience. Maybe the ones who didn't were like the woman who taxed Samuel Johnson with putting dirty words in his dictionary: "Madam, you have been looking for them."
12.1.2005 12:39pm
CJColucci (mail):
OOPS: "NOT highly complimentary"
12.1.2005 12:40pm
CJColucci (mail):
OOPS: I was right the first time. They didn't think much of then-current regulatory schemes, though they didn't doubt the power of the government to implement them.
12.1.2005 12:42pm
Houston Lawyer:
I believe the relative inbalance of views at law schools is not very important. As I recall, we had only two outspoken conservatives on the entire staff 20 years ago at Texas. I just don't recall that political matters came up often in torts, contracts, property, civil procedure and similar classes. Con law was a different matter, but was only one class among many.
12.1.2005 1:46pm
Justin (mail):
So far from reading "the whole thing", all I can tell is that there are a lot more democratic law professors than the population at large. That should be hardly surprising, given that

a) this is true (to a somewhat lesser degree) to the incoming class of the top law schools


b) that conservatives value money more + the pay relative to any law professor's other options is (significantly) negative

Of course, this says nothing about intellectual diversity once one gets past the silly notion that Bush and Kerry debating in 2004 about who loves puppy dogs more comprises the entirety of the political spectrum. I agree with Brian Leiter that the problem with law schools is not that they are predominantly liberal but they are predominantly centrist and statist.

Schuck uses the term "bias" multiple times in his essay. It's unfortunate - it either shows the Schuck is being obtuse (by assuming bias solely due to the existance of what he considers a disparity) or dishonest (by attempting to assert something he has yet to prove, or to at least imply that something he knows is debatable is evidenced by the facts he presents).

Schuck's "analysis" is the same rotten analysis that comes across saying that there is a liberal bias amongst the smart, and the poor, one which we should correct (perhaps by killing off smart and poor democrats); and an equally disturbing bias amongst the rich, and the stupid (perhaps by killing off rich and stupid republicans).

If conservatives want anyone else to treat this line of arguement seriously, it would be nice if they didn't get outraged every time someone whose on the left speaks up about something equally contraversial. But David Horowitz is good for business these days. Even so, by using terms like "bias" and "discrimination", conservatives fail to engage meaningfully any issue of intellectual diversity.
12.1.2005 2:29pm
T. Gracchus (mail):
This would be more interesting if Schuck would explain how Republicans and Democrats differ on UCC 9, etc. Absent some significant differences on the substantive issues taught in law school, there is no reason to believe that what Schuck is writing about is any more important than right or left handedness among faculty.
12.1.2005 2:54pm
Yale Guy:
I am going to go out on a limb and guess that none of the previous comments came from people who actually attended Yale. Most of what Schuck said is so obvious that it is shocking anyone here would try to dispute it. Of approximately 80 professors, there is exactly 1 who could be characterized as a conservative/libertarian, and in the midwest even that professor would be considered left-of-center. (And that is certainly not Schuck, who is a liberal by any standard except in the radicalized world of elite law schools.)

The political viewpoints of professors spill over into nearly every class. Since most classes there are taught as each professor's personalized version of conlaw-disguised-as-contracts (or whatever the class may be), students end up learning a great deal about each professor's feelings on "justice" and the First Amendment, and very little about the law. Students are routinely taught that statutes don't matter; that the federal rules of procedure have the same value as a law review article (try writing that in a brief and see how far it gets you); and that everything essentially devolves into a public policy argument (and of course it is us, the legal elite, who should decide all policy issues, rather than those peasants in fly-over country). Perhaps CJColucci is accurately describing his experience. In any event, he is certainly not describing Yale. It is not even true that the professors there broadly accept capitalist society. Anyone who doubts this should read Bruce's Ackerman's ludicrous manifesto "The Stakeholder Society."

The only flaw in Schuck's piece is that it is not critical enough. Do we need a 50/50 Democrat/Republican split. No? But don't pretend that students are receiving a balanced education when the actual split is 79-to-1, and the ideological spectrum ranges almost entirely from far-left to neo-socialist. If the roles were reversed, and the Republican/Democrat ratio were 10 or 20 or 50-fold in favor of conservatives, all of Schuck's critics on this board would take the exact opposite approach and would loudly condemn the lack of ideological diversity.
12.1.2005 10:56pm
Justin (mail):
That was a nice invective, Yale Guy, but (as being totally off point), I only skimmed it. I did see:

the ideological spectrum ranges almost entirely from far-left to neo-socialist

which made me crack up. Thank you.
12.1.2005 11:24pm
Yale Guy:
Like I said, read Das Kapital, er, The Stakeholder Society. Then, if you're still "cracking up," explain to me why my characterization is incorrect.
12.2.2005 12:54am
joshua (mail):
Very rightly written article, it arrests the attention of the reader.
12.2.2005 7:39am
Hal (mail):
Yale Guy and T Gracchus bring up what I think is the most interesting question - does the lefty position alleged at these schools matter in subjects like Tax, Evidence, etc.?

Let's say I want to be a tax attorney or work in lots of other areas of the law that are not normally associated with hot button political issues (my grandfather did routine transactional work for local businesses, for example). And let's say that Yale Guy is right and YLS grads get garbage for training in these fields and are filled with lefty con-law-as-tax.

What I don't get, then, is how so many of these graduates pass the bar and seem to do well in the job market, partner progression, etc. Is it all Bar Review and old-boy-network? All on-the-job training? Does the YLS do nothing to help? Other than put a you-are-elite filter on the resume, which is good to have in any case.

This is not a silly question to me, or totally irrelevant to my potential career. Feedback or email would be helpful.
12.2.2005 2:33pm
Yale Guy:
Hal, IMHO graduates pass the bar and do well on the job for the same reasons they got into elite schools in the first place: they are generally pretty smart and/or hard working. Bar passage rates have much more to do with BarBri (and one's willingless to prepare for the exam) than with the material you did or did not learn in first-year seminars.
12.2.2005 3:00pm
Hal (mail):
Yale Guy. At the risk of going off topic, I'd like to follow up. Your response suggests that law school is mostly about sorting students for the benefit of future employers. This is the main value of student-edited law reviews, according to Posner. And I cannot imagine another reason beyond sorting for why one needs an undergraduate degree as a prerequisite for going to law school in the USA.

This leads me into all sorts of heresy - law school as mostly for faculty rather than students, law school as indoctrination camp, etc. Better get off the bus before it heads over the cliff.
12.2.2005 4:23pm
CJColucci (mail):
The "elite law school" I attended wasn't Yale, but even then (the early '80's) it was commonly said that no one ever learned anything about law at Yale. Maybe when you're not teaching law, politics matters a lot more and is a lot more visible. But I know a lot of former sons and daughters of Old Eli, and they complain far more about the lack of law, as lawyers understand it, than about anyone's politics.
12.2.2005 4:42pm
T. Gracchus (mail):
In answer to Hal: The bar is largely the first year of law school on an exam. It is also, uniformly, not very difficult. (Look at pass rates after excluding those from unaccredited schools and taking a third or more time.) Although Yale is traditionally oriented as a legal theory school, that shows up as a slightly (like 1 or 2%) lower overall pass rate - dropping, e.g. from 97 to 95%. With respect to the issue at hand, it is extremely difficult to discern any political line, Demoncrat or Republican, on almost all law school classes or subjects. There just is no, for example, Critical Race Theory account of Tax or Secured Transactions, nor is there a Republican line on Rule of Evidence 702 or a Demoncratic line of (substantive) Criminal Law. Yale Guy's suggestion that there is some link between Demoncrats and belief that the Federal Rules of Civil Procedure are not binding is ridiculous. Bad teaching is not connected to the political views of the faculty. If Yale Guy has a complaint, it is with teaching competence, not liberal faculty. For these sorts of reasons I think Schuck's argument is straightforwardly foolish because it not supported by evidence and is based on a painfully obvious set of mistakes.
12.3.2005 6:14pm
Bezuhov (mail):
Having just finished three years at an Ivy professional school, I'd have to echo Yale Guy's sentiments. In all the "teach-ins", debates, etc... regarding the War on Terror during my time there, not one time did anyone in authority, administration or faculty, manage to articulate any affirmative argument for any aspect of current American policy. It was frankly breathtaking.

Of course, this artificial unanimity bled into the classroom in various ways, but the overall environment thus created was surely not what I had been sold regarding what was supposed to be a top-flight liberal education.

It's as if in the effort to oppose a perceived jingoistic nationalism, the whole idea of American exceptionalism and what makes it exceptional to the millions who have come and continue to come to these shores has been not only deemphasized, but completely forgotten.
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