Recently, the former-Provost of Stanford University, John Etchemendy, gave a speech entitled The Threat From Within in which he observed:

Over the years, I have watched a growing intolerance at universities in this country – not intolerance along racial or ethnic or gender lines – there, we have made laudable progress. Rather, a kind of intellectual intolerance, a political one-sidedness, that is the antithesis of what universities should stand for. . . . We need to encourage real diversity of thought in the professoriate, and that will be even harder to achieve. It is hard for anyone to acknowledge high-quality work when that work is at odds, perhaps opposed, to one’s own deeply held beliefs. But we all need worthy opponents to challenge us in our search for truth. It is absolutely essential to the quality of our enterprise.

As it happens, for several years, a group of conservative and libertarian law professors from a variety of law schools has quietly been urging the Association of American Law Schools, which has taken a leadership role in addressing racial and gender diversity–including by establishing a Racial Diversity Task Force in 1999–to do the same with viewpoint or political diversity. Our complaint was not limited to the gross political one-sidedness of the Annual Meeting of the AALS, but primarily concerned the gross political imbalance of law faculties–especially in such subjects as public law where viewpoint most affects a professor’s legal scholarship and teaching.

Although we were treated respectfully–and some marginal, though welcome, steps were taken this year to diversify the annual AALS program–as the following letter to the AALS explains, our requests for concrete preliminary steps to address the existing pervasive imbalance of law faculties have apparently been denied. I should also note that the meeting with the Executive Committee described in the letter, which took place in January 2016, was the culmination of two years of meetings with the AALS leadership and staff in which we requested, among other things, such a meeting–requests that were initially rebuffed.

And I was also party to similar earlier initiatives. One such initiative eventually resulted in the separate annual Federalist Society Faculty Conference being formally affiliated with the AALS Annual Meeting (as the expressly “progressive” SALT annual meeting had long been). Again, while welcome, this did not address the issue of law school faculty imbalance.

Having worked patiently behind the scenes for several years, we believe it is time to make our complaint more public. To that end, I reproduce below our joint letter to the Executive Committee–drafted by Case Western Reserve law professor George Dent, who led our effort. (I will be happy to publish in this space any reply that the AALS may wish to make.)

February 24, 2017

To the Executive Committee, Association of American Law Schools,

There is growing awareness that conservative and libertarian scholars are grossly underrepresented in American colleges and universities and that this imbalance results from political discrimination. For several years now a number of legal scholars have asked the AALS to support the commitment to viewpoint diversity stated in its by-laws. Some officers have taken our concerns seriously. Immediate Past President Kellye Testy was most cordial to us, as were her immediate predecessors, Dan Rodriguez and Blake Morant. I have spoken briefly to the new President, Paul Marcus, and I hope that he will do likewise.

Judith Areen, the Executive Director of the AALS, seems also to take us seriously. She has alerted program organizers to the need for viewpoint diversity. This may explain why a few of us were invited to participate in AALS programs this year. Several people tell me that panels at this year’s Annual Meeting seemed to be better balanced than in the past. In 2016 I was invited to serve on the AALS Program Committee. Other members of that committee seemed receptive to greater ideological diversity in the Association’s special programs.

Unfortunately, these developments seem to constitute the sum total of progress for viewpoint diversity.

The Executive Committee met with Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and me during the 2016 Annual Meeting. At this meeting we urged, inter alia, the creation of a Political Diversity Task Force on viewpoint diversity similar to the Racial Diversity Task Force created in 1999 or the three task forces created to deal with issues of globalization. We also asked that viewpoint diversity be made a regular element of the sabbatical reviews for member schools, and that scholars be afforded access to the Faculty Appointments Register (“FAR”) for research, subject to strong protections for confidentiality of information about registrants.

In February, 2016 a letter was sent on behalf of the EC stating that no access would be granted to the FAR or even to the data obtained by Professors Albert Yoon and Tracey George when they were granted access to the FAR in 2007. The letter said that the EC had formed a subcommittee to study access to the FAR. A year later, we have not heard that any action has been taken.

In February, 2016 we also received a letter from President Testy saying that she had appointed a subcommittee of the EC to begin assessing practices and processes to see if changes were needed to meet the goals of the AALS. However, so far as we know, no task force was created and no steps were taken to make viewpoint diversity a regular part of sabbatical reviews. Indeed, so far as we know, the EC took no further action whatsoever in response to our concerns.

We fear that the Executive Committee does not take our concerns seriously and intends to take no action to address them. We urge the EC to alter this attitude. Both scholarship and teaching suffer when law schools are echo chambers in which only one side of current debates is given a voice. Should the EC decide to tackle the issues we raise, we will be pleased to cooperate with you in any way we can.

Sincerely,

  • George W. Dent, Jr.
  • Jonathan H. Adler
  • Randy E. Barnett
  • Josh Blackman
  • Gerard Bradley
  • Robert Cooter
  • Richard Duncan
  • Scott FitzGibbon
  • Brian T. Fitzpatrick
  • Elizabeth Price Foley
  • Gail Heriot
  • James Lindgren
  • John McGinnis
  • Gregory S. McNeal
  • Nadia Medzel
  • Seth Oranburg
  • James Phillips
  • Cassandra B. Robertson
  • Nicholas Quinn Rosenkranz
  • Ilya Somin
  • Lee Strang
  • Eugene Volokh
  • Kevin Walsh
  • Lynn Wardle
  • Steven Ware
  • Amy L. Wax
  • Steven Willis
  • Todd J, Zywicki