Diversity Policies Favoring Minorities and Women Create Less Ideological Diversity

Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium.  The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.

While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.

A new study of the ideological imbalance in the legal academy,  The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are  indeed substantially more likely to be left-liberal than white males and be even more left-wing.  Racial and gender diversity does reduce ideological diversity.

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Renew the Struggle for Colorblindness

The classical liberal strand in Western political philosophy has historically opposed special government privileges for groups and prized equality before the law. Classical liberals favored eliminating the benefit of clergy and the privileges of the nobility. They fought against slavery. And, unlike some progressives of the late nineteenth and early twentieth century, they opposed Jim Crow.

Whether classical liberalism should embrace laws that prevent private actors from treating people unequally on the basis of characteristics, like race and sex, is a more complicated question. But in my view, given the long history of Jim Crow in the United States, laws against discrimination on the basis of race or ethnicity were justified to break ingrained habits encouraged by government discrimination against African-Americans. But here again the classical liberal view molded these laws into general prohibitions against discrimination, not special privileges for certain groups.

In the 1960s and 1970s progressives began to transform these laws into mechanisms of social engineering that took account of race in their planning.  But for a brief period in Reagan administration, the classical liberal strand of universalism reasserted itself as part of the core ideology of the Republican party. The result was an effort to treat laws on discrimination as general prohibitions on discrimination on the basis of race and ethnicity, no matter which race and ethnicity was at issue.  Colorblindness was banner under which the movement marched.

Sadly, this movement has dissipated.

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Free Association, Not Safe Spaces, on Campus

Many universities are now in the business of creating “safe spaces.” The concept is not well defined but includes establishing actual physical spaces that will be reserved for some group, generally a group that a university defines as a minority. But some of these same universities also impose so-called “all comers policies,” in which no group is permitted to exclude anyone even from its elected offices on the basis of their beliefs. Thus, for instance, Christian groups would have to admit atheists even as potential leaders.

But policies that create safe spaces are in substantial tension with those that require clubs to accept all comers. A group of Christian evangelicals might well believe that it may be more effective in its mission if its members shared its basic beliefs. It might also make its members feel more comfortable discussing them, if  the organization did not have opponents in its midst.  That is not to say that a restrictive charter creates the ideal form of such an organization: some groups of evangelicals might well welcome embrace debate at every turn and benefit from the intense scrutiny of every argument.

One of the virtues of allowing groups to make such decisions is that a community would no doubt get a range of distinctive spaces for speech generated by different trade-offs between mission and openness. Another is that the university would respect many different forms of diversity that bubble up from below rather than just those that conform to its official line on what kind of diversity matters.  Most importantly, a university that is dedicated to creating places where people can feel comfortable, but does not want to be in the business of creating official restrictions on speech in student life should also be pleased with the self-organization of overlapping spheres of debate.

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Standards v. Diversity in Law School Accreditation

The ABA has generated a revealing debate between those who want to strengthen law schools’ accreditation standards and advocates of diversity. Given the many recent stories about law students burdened by huge debt and yet unable to pass the bar, the ABA is considering requiring law schools to get 75 percent of their students to pass the bar within two years to retain accreditation.. Put aside for the moment arguments that we should not require graduation from an accredited law school to take the bar—arguments with which I have some sympathy. Assuming states do accredit law schools, it hardly seems like a draconian requirement that a large majority of their graduates be able to pass the bar

But a variety of schools and groups have objected that this requirement will threaten diversity, because minority candidates from lower ranked schools fail the bar at substantial rates.  This argument seems a desperate one.

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The Jurisprudence of Multiculturalism is a Jurisprudence of Obfuscation

Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications.  The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of  the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.

Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth.  Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in  a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.

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The Ultras and Their Ultimatums

Students at a recent protest on the campus of Oberlin College.

As we know, the term “diversity” is the buzzword of the century. Few public policy debates in the realms of business or education in this country are conducted without it. The use of racial/ethnic admissions preferences at public universities, for example, is often defended by grossly exaggerating the types of diversity they promote.

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The Big Short Goes Long on Bias

For most people who see The Big Short, what it teaches about the 2008 financial crisis will likely be the sum total of their knowledge about the event. And that is troubling. The movie is entertaining and offers a good description of securitized mortgages and similar financial instruments but oversimplifies the cause of the crisis as the greed of bankers. Worse still, it omits important facts that about the crisis that are at odds with this explanation.

The Big Short has been nominated for Best Picture. Its great commercial and critical success may portend Hollywood’s growing capacity to manipulate public opinion, because the film perfects a smoothly innovative form—the hybrid fact-fiction documentary. Except for Michael Burry, the characters are fictional but loosely based on real people. This fictionalization creates a powerful mechanism for spinning the facts to support a tendentious and politically motivated thesis.

The movie’s most important omission is the role of government in creating the crisis.

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Diversity Bureaucracies are a Cancer on the Modern University

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There are no doubt many causes of the renewed rise of political correctness on campus, but one of the most important is the increasing power and size of universities’  diversity bureaucracy. The recent events at Yale began with an e-mail from a collection of no fewer than thirteen university bureaucrats (e.g, officials of LGBTQ Resources, Gender and Campus Culture, Native American Culture, La Casa Culture, to name just a few) who advised students how to dress for Halloween. Similarly, at Harvard the Office of Diversity, Equity, Diversity and Inclusion created politically correct place mats for “social justice” to help students confront benighted family members on the issues of the day.

Cornell University distributed guidelines on the public display of holiday symbols (short version: avoid religious symbols but mistletoe too). That ukase issued from the Department of Environment Health and Safety, since it also included fire safety tips. But there can be little doubt that advice on how to be inclusive came from diversity bureaucrats. The rules have the Orwellian touch we have come to know from these officials: promote diversity by preventing people from offering in public evidence of their diverse religious sentiments. As in 1984 War was Peace, in 2015 Diversity is Uniformity.

Diversity bureaucracies are proliferating for three reasons.

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Universities Should Be as Concerned with Political as with Racial Diversity

Fisher v. University of Texas turns on whether Texas’s preferential treatment of certain minority groups is necessary to achieve “diversity.” Diversity in the academic world is now one of its central organizing principles, although diversity remains an instrumental good, not a good in itself. Racial and ethnic diversity, it is said, helps students learn about different points of view and prepares them to live and lead in a multiracial and multicultural society. This new orthodoxy creates a relentless focus on race and ethnicity in admissions, and at times even more so in faculty hiring.

A few days before Fisher was argued but not in connection with the case, Ezra Klein of Vox amassed data suggesting that the greatest cleavages society were not between racial and ethnic groups, but between members of different political parties. A high percentage of members of both parties, for instance, expressed horror at thought of a daughter or son marrying outside the faith. Large majorities of both parties would be likely to hire a member of their party over that of another.   As Ilya Somin has noted, such partisanship has troubling implications for democracy. Partisans will be more likely to dismiss opposing views reflexively, making beneficial decision making far less likely.

Thus,  assuming we accept diversity as essential in higher education, it would seem that we need at least as much political diversity as diversity with respect to race and ethnicity.

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Competence, Cultural and Other

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Last Friday, the following missive (sent, I believe, to the entire George Mason University “community”) landed in my inbox:

Dear Patriots,

Racism has no place at George Mason University.

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