The Columnist Manifesto

Where do I start with Adam Liptak's kinda stupid NYT story yesterday, entitled "If the Law Is an Ass, the Law Professor Is a Donkey"? (Doff of cap to Althouse.)

Liptak reports on a forthcoming Georgetown Law Journal "study" that

analyzes 11 years of records reflecting federal campaign contributions by professors at the top 21 law schools as ranked by U.S. News & World Report. Almost a third of these law professors contribute to campaigns, but of them, the study finds, 81 percent who contributed $200 or more gave wholly or mostly to Democrats; 15 percent gave wholly or mostly to Republicans.

Whoa, there fella. The study wants us to assume that these 1/3 of professors who give money are a representative sample of the views of all law professors: 80% democrats, 15 % republicans, and 5% "other." (New flash: Law profs are more likely to hold nutty fringe views than Americans in general!) But there are all sorts of reasons to assume that this sample is skewed. Sample hypotheses: What if donors at this income level are more likely to be activists, who may be more likely than an average sample of American voters to be liberal (or fringe)? And what if Democratic fundraisers direct a higher proportion of their appeals to middle class intellectuals, while Republic grass roots fundraisers tend to ignore lawprof types and hit the evangelical Christians? Bad, baaad social science.

And let's put these numbers in context. Assume an average of 45-50 law professors on a law faculty (that number is probably high), we're talking about fewer than 1,000 law professors in the study. About 270 of these professors supposedly gave money to democrats, and about 50 gave money to Republicans. It is certainly conceivable that among the 650 "non-activists" on these faculties, there could be more Republicans than Democrats. The study doesn't sample them, of course, but if there were 400 Republicans among the non-activists, then you would get a very unremarkable 50-45 Democrat-Republican split, and you could just throw out the entire Georgetown study. If there is any doubt that these numbers can be extremely misleading, look no further than the fact that one of the most conservative faculties among the top 20 law schools, Chicago, came across as "liberal" in this study and "more liberal than Berkeley."

Really, the "study" is just a veneer of academic methodology to justify a publication revealing the shocking fact that law professors as a group are more liberal than Americans as a whole. Let's just forget the bogus sociology and just assume lawprofs are more liberal than your average bear -- as are university professors are said to be generally. So what? What's the game here?

Certainly, it is part of a broad conservative strategy to exaggerate how liberal the legal system is -- look at the far right's attack on the "liberal, activist judiciary" we supposedly have now -- and exaggerating the liberality of law schools fits neatly into this strategy.

The article apparently has a related axe to grind: academic, as opposed to judicial, appointments. The Georgetown study argues that while law schools pursue affirmative action plans to "promote diversity in the classroom," they discourage diversity in faculty hiring by creating a liberal orthodoxy among faculty. Aha.

The truth is that law schools pursue affirmative action plans primarily to compensate for historical and ongoing vestiges of race discrimination. Diversity of viewpoints is just a side benefit of racial diversity, but schools have to pretend they are primarily seeking viewpoint diversity only because the Supreme Court has said that redressing historical and societal discrimination is not a valid justification for affirmative action, while viewpoint diversity is. (Thanks, Justice O'Connor.) The Georgetown article is trying to play a manipulative game of "gotcha" with a glitch in the law created largely by conservative justices.

But let's take the argument through to it's conclusion. Again, so what? The Georgetown study author is talking about faculty hiring, not student admissions: but to suggest that qualified conservative applicants for law professor jobs are facing rampant discrimination from liberal professors based only on the fact that more professors are liberal than conservative is faulty inferential reasoning. Law professor applicants are a self-selected group, and you can't simply assume that conservatives seek academic jobs in proportion to their numbers among JDs.

Is the author of the Georgetown study proposing affirmative action for conservative applicants for law teaching? Talk about inconsistency -- (no affirmative action based on race, but yes based on conservative political views) -- and a terrible idea. While there is a tendency for academic departments to replicate their own orthodoxies in hiring, the implied affirmative action proposal in the Georgetown study would require hiring committees to make intrusive inquiries into the political views of job applicants -- something that doesn't happen now in law school hiring and that seems quite perverse if the goal is to promote diversity of political views.

So why exactly should measures be taken to "correct" the "liberal bias" of law schools?

Is it to protect students from "liberal indoctrination"? Anyone who thinks that law professors are able to "indoctrinate" their students should, well, talk to a few law students. Attempts at liberal indoctrination are met with cold stares and invective-filled course evaluations. Law students are just not looking to have their minds molded like impressionable clay. As Posner nicely put it in the Liptak article, students view law school as "career preparation, not Sunday chapel."

Is it because conservative ideas are simply shouted down or crowded out by the overwhelming liberal orthodoxy of our public discourse? Hmm, maybe that's it.

There's a certain strand of conservative whining within law schools that I've heard for years, since my own law school days. "We control all three branches of the federal government, but, boo hoo, we don't control the law schools and we feel so ... so alienated here." Some social scientist should do a study of why conservatives feel it grounds for complaint unless they control every institution in society.

The Georgetown study should be nominated for some type of award for in-depth analysis of a big societal not-a-problem. And Liptak should win a journalism award for breaking the story that law professors are more liberal than other Americans as a whole -- an anecdotal impression that may or may not be accurate.