A new study offers further evidence of the alarming decline of ideological diversity on our law faculties. A study by Georgetown University’s Kevin Tobia and MIT’s Eric Martinez was featured on College Fix that finds that only nine percent of law school professors identify as conservative at the top 50 law schools. Notably, a 2017 study found 15 percent of faculties were conservative. This is the result of years of faculty replicating their own ideological preferences and eradicating the diversity that once existed on faculties. When I began teaching in the 1980s, faculties were undeniably liberal but contained a significant number of conservative and libertarian professors. It made for a healthy and balanced intellectual environment. Today such voices are relatively rare and faculties have become political echo chambers, leaving conservatives and Republican students increasingly afraid to speak openly in class.
The trend is the result of hiring systems where conservative or libertarian scholars are often rejected as simply “insufficiently intellectually rigorous” or “not interesting” in their scholarship. This can clearly be true with individual candidates but the wholesale reduction of such scholars shows a more systemic problem. Faculty insist that there is no bias against conservatives, but the obviously falling number of conservative faculty speaks for itself.
In racial and gender discrimination cases, this type of pattern of de facto hiring preferences is routinely the basis for lawsuits. Obviously, intellectual diversity is different from racial discrimination. This is no protected class and there is no statutory mandate to support challenges. Faculties know that it is near impossible to challenge their hiring decisions. However, the de facto result of years of biased hiring practices is reflected in the low number of conservative faculty at these schools.
When confronted, faculty will often shrug and say that they are open to promising conservative faculty but they simply have not found any. They will also question what is a conservative or a liberal — even though professors seem to have little problem in answering such polls with those terms. There is little sympathy for conservative and libertarian students who have few faculty offering opposing views — or liberal students who would like exposure to the full array of legal thought and interpretations.
Having taught for over three decades, I have never seen a more intolerant and orthodox environment. Schools have reached an ideological critical mass where faculties are replicating their own preferences. The overwhelming composition of faculties then serves to replicate and promote the views of liberal faculty on journals and in conferences.
For conservatives and libertarian students, the change in the environment is disheartening. For many schools, panels on decisions like Dobbs are composed of professors offering different views on why the decision is manifestly wrong without a dissenting voice in favor of the decision. Even on issues like dropping a school mascot, like GW’s Colonials, can feature panels without faculty offering the opposing view. Students also complain that conservative justices or theories are openly ridiculed in fundamental and required courses. When a faculty member shows such hostility to such theories in class, it sends a chilling message to students that opposing views may not be welcomed in class or in finals or papers.
There is obviously an academic freedom component to this problem. I take no issue with faculty members disagreeing with conservative interpretations. However, the complaint among students is that professors at various schools increasingly advocate in class and denigrate those with conservative jurisprudential views.
I frankly do not understand why professors want to maintain this one-sided environment in hiring. I was drawn to academia by the diversity of viewpoints and intellectual challenges on campuses. School publications and conferences today often run from the left to the far left. We have discussed a long line of incidents on this blog of conservative faculties being targeted by cancel campaigns with tepid support from their colleagues or administrations. We have become the face of intellectual orthodoxy and it is reflected in these numbers.
Even if one quibbles with these polls, most faculty will privately admit that there are few remaining conservatives or Republicans on their faculties. It is obvious and undeniable. This country is almost evenly divided politically. Yet, less than ten percent of our faculties hold views consistent with roughly half of the country, including many of our students. While no one is suggesting that faculties must reflect the political makeup of the nation, the reduction of opposing viewpoints has reached a crisis level for those who value intellectual diversity.