I have been lucky enough to give many talks at law schools, and whenever I take the microphone--and, inevitably, lower the microphone--the question flashes on people's faces: "Why him?" For one thing, I have no data to share, no findings to report, no technical solutions to offer. And unlike the faculty who have spoken, my experience of the legal academy hardly spans even two years. On the other hand, I have spent those years pushing the most hated conservative position on the most heated political issue at the most socially liberal law schools in the nation. What my experience of the legal academy lacks in length, it has amply made up in intensity.
So you will have to go elsewhere for general and systematic data, with all its probative force. But I hope my remarks do have the motivating force of the personal and anecdotal. In that mode, I will draw on my experience at Yale, and in talks and debates at other law schools, to say a word about our topics: Is there a diversity problem? Should we care? And what should we do?
Finally, I have titled my Essay "How the Law School Can Succeed--an Invitation," which of course riffs on the title of Duncan Kennedy's famous 1971 student note, How the Law School Fails: A Polemic. (1) I do this first in the hope that my piece, too, becomes a classic, if only through failed Google searches for his. But I also intend the contrast between our titles to highlight a shift of emphasis. Professor Kennedy focused on diagnosing the legal academy's ills. (2) I will begin there--with its failures of diversity--but my emphasis will be on reasons to improve, and on the evidence that improvement is well within our reach. The fact is that I have loved my time at Yale and visiting other law schools. I am writing not as an alien or exile with idle grievances to air, but as a member of the minority, pushing for reform from within, with all the zeal and hopefulness of a local who intends to stay.
IS THERE A LACK OF INTELLECTUAL DIVERSITY IN LAW SCHOOL FACULTIES?
The problems that bedevil the social science on this question are well-known. What are good proxies for ideological diversity? Along what axes should we measure it? Can we measure it meaningfully across disciplines as different as antitrust and admiralty? In truth, of course, we cannot answer these questions until we know why we care about diversity in the first place. A professor at Yale once told me that she absolutely agreed on the need for conservative faculty. "After all," she said without irony, "we liberals have trouble getting you all internships in Republican administrations."
Now if that is your purpose, then party affiliation is what you should tally. But if your purpose is also to enrich discussions on major issues of the day, then all the law-and-economics scholars from Coase to Calabresi will not make up for the absence of, say, a single pro-life professor. (And as far as I know, Yale has about that many law and economics professors, and no pro-lifers.) So there is no all-purpose answer to the question of whether we have a diversity problem, or how to measure it.
But if sociological precision is elusive, and the population of interest--your colleagues--is manageable and familiar, then personal impressions matter more. Indeed, one reason to care about diversity is its effect on classroom climate; yet that is something that personal experience more immediately captures than comparing campaign-donation rates. And from this personal vantage point, I think certain diversity deficits become clear.
A few weeks into my 1L fall, I had to miss an afternoon class to drive down to Seton Hall for a marriage debate. The following Monday, a classmate made small talk by asking where I had been. "A debate!" I said. She cheerfully obliged by asking what the debate was about. I told her it was on gay marriage--at which point she asked, with a knowing smile, "And which side were you on?" When I told her I was against, an immensely long pause followed. She searched and searched, and then her face lit up with understanding. "Ah, so it was one of those debates where you go and they assign you a position?"
This classmate is one of the warmest people I know, and has become a friend. But within weeks of arriving at Yale, she had internalized the social norm: Like other members of the guild, I was to be treated as innocent until proven conservative. That was not just the safe assumption; it was the only charitable one. It was also, of course, alienating.
This particular social effect of homogeneity even has a name. Mark Bauerlein calls it the "first protocol" of academic society: In professional settings, you take for granted that all the strangers are liberals. (3) If we specify this claim to social liberalism or secularism, it can hardly be denied: Both are presumed by almost all.
That presumption is so pronounced that it even affects people merely contemplating a change of mind. A friend told me that he was once a lone apologist for the pro-life view in a class discussion that had veered onto Planned Parenthood of Southeastern Pennsylvania v. Casey (4) and Roe v. Wade (5)--which at Yale can happen in a course on maritime law. A few days later a classmate of his who had been quiet during that discussion sidled up to him and confessed, almost in a whisper, "I think I might be ... pro-life."
Anecdotal or otherwise, the evidence is clear: Social conservatives and people (believers or not) who draw on religious traditions in developing their normative views are both radically underrepresented. (6) They are surely just two groups of many, but they will be my focus here.
In short, then, we do have a diversity deficit that affects what people feel comfortable saying, and hence all the social and pedagogical interests that we might want diversity to serve. But what are those interests?