Alan: “First, law firm partners are usually focused on the bottom line. If they reject good conservative or libertarian applicants in favor of inferior liberal ones, their pocketbook is likely to suffer.”…

If your firm is prestigious enough to have truckloads of applications pouring in, there’s no reason to think that the partners’ pocketbooks will suffer if they discriminate on the basis of ideology…

Exactly. This is the problem with the the idea that the market will punish those who unfairly discriminate. It’s overly simplistic, based on the first half of Econ 101. In the actual world, the logic doesn’t hold up for many reasons: The ‘rational actor’ has been disproved; A 95% good candidate is still an excellent candidate; People feel good about their choices for far more reasons than mere quality statistics (whether the candidate likes the same sports they do, or whether one’s car is “green”); The entire concept of satisficing, etc.

If your firm is prestigious enough to have truckloads of applications pouring in, there’s no reason to think that the partners’ pocketbooks will suffer if they discriminate on the basis of ideology. The higher the quality and the greater the number of applications, the easier it is to discriminate without losing any money–you can dump the conservative/libertarian applicants and get a batch of liberals with equally (or approximately equally) high grades. At the most prestigious employers, cost-free discrimination should be quite easy.

I wonder what OK thinks…

none: The inverse seem(ed) to be true (i.e, liberal views = obstacle) at UVA Law in the recent past, if Bill Eskridge is to be believed. http://www.uvalawblog.com/2009/10/law-weekly-prof-stanley-henderson-who.html

I, for one, don’t believe him. For one thing, Eskridge wasn’t out when he was at the Unversity (though few people were surprised when he came out while at G’town). For another, as one of the commenters on another post at UVA Law Blog points out, “Meh, if UVA was so homophobic I doubt they’d have treated Whitebread so well.” (I’m not sure whether Charlie Whitebread (may he rest in peace) was out while he was at the University, but I think he was. In any event, I’m pretty sure it wouldn’t have mattered for a tenure decision.)

Randy: Justastudent:“So speaking legally, how many causes of action are left now?” I don’t know. That’s your job! Do some research. It can’t obviate any constitutional issues, though…

Thanks, but I disagree. And I’m taking my Con Law II exam tomorrow, and as a B student, here’s my answer: There’s no gov’t actor here, so the constitutional due process protections won’t apply. They would if the college were acting on behalf of the gov’t, but they’re not.

Now, the school does have work-study students, (receiving fed. funding), and will be bound by some restrictions, but AFAIK they provide Equal Protection causes of action, which probably won’t apply here.

Here’s FIRE’s take on it, which backs me up:

Unlike public universities, private universities, be- cause they are not part of the government, are not legally required to offer students constitutional due process. However, private universities are frequently bound by contract law to follow their own established disciplinary processes. If a private university says that it will offer a certain safeguard, it is obliged to do so, more or less in the manner that any private party entering into a contract with another party would be obliged to fulfill that agreement.

I don’t know. That’s your job! Do some research. It can’t obviate any constitutional issues, though, so I don’t imagine too much would be different.

Of course, if this was all last year, it’s all old news anyway, and few people will care. I do suggest, however, that this Rules Committee be investigated to find out who they are, how they are appointed, and what the rules actually are. Also, where can they be found. They should be on a website easily obtained by any student. Make this a lesson in transparency, not secrecy. Fortunately, secrecy lost, but transparency hasn’t won yet.

Randy: Secret investigations? No right to confront your accuser, or provide a defense? Unconstitutional. Does this rule really exist? If not, another scandal. If it does, then challenge it’s constitutionality. If Mr. X or whomever withdraws the complaint, then make the withdrawal public, but still insist that this rule be reviewed for constitutionality.

You’re totally right. Pretty much every aspect of due process went out the window here. It was an amazing fact pattern.

We’re a private school which does receive Title (whatever) funding. (I don’t know anything about this area.) So speaking legally, how many causes of action are left now? But leaving legal scenarios aside, I’m thinking about what changes need to be made to prevent this in the future.

The final result though, is that the bad guy lost, the good girl won, and the overzealous rules committee member has graduated. And a lot of liberal students had their stereotypes about Fed-Soc people seemingly confirmed; that they’re ideologues, interested in free speech only for right wing groups, etc., etc.

And my participation? I was on most of the email lists. (!) I joined in the discussion saying that I knew Mr. X personally, that he had always been a decent guy, but that I didn’t like the speakers the Fed-Soc invited to campus because they were of the pound-the-table appeal-to-emotion variety and didn’t enhance the campus discourse. All the discussion on the liberal student group lists was shut down via ominous emails:

Hello all, and apologies for the intrusion.

This email list has been subject to an email that has been reported as a possible SBA election campaign violation. The SBA Rules committee is currently looking into that report.

As a recipient of the email that may be in violation, this email list is an “interested party.” [...]

This email list will most likely not receive a follow up email. The Bylaws do not require the Rules Committee to notify interested parties of determinations.

I was then harassed by email -

The SBA Rules Committee has received a report of a possible election campaign violation that is connected to an email that originated with you or was forwarded by you. We are currently investigating this reported violation, and will provide you with the results as soon as possible.

…and publicly on campus (called an asshole, etc.) by the rules committee student. Eventually, he apologized to me.

Demand a copy of the complaint — it’s a public document. If there was no complaint filed, you’ve got a scandal. You’ve a constitutional right to know your accuser — who is it?

What are the rules, and where are they published? Shouldn’t the student body have knowledge or access to them? Why don’t they? If there is no rule about this, then why was the sternly worded email sent? Who sent it? If it wasn’t a member of the rules committee, you have another scandal — impersonating a rules committee member.

Secret investigations? No right to confront your accuser, or provide a defense? Unconstitutional. Does this rule really exist? If not, another scandal. If it does, then challenge it’s constitutionality. If Mr. X or whomever withdraws the complaint, then make the withdrawal public, but still insist that this rule be reviewed for constitutionality.

Were any campaign laws violated by Mr. X by not providing his full resume? Was the successful attempt to shut down campaign discussion a violation of state law? Consult your state Board of Elections to see if any violations occurred and what the penalties are.

Geez, this has everything — issue spotting, rules of law, conflict of laws, constitution law. This has to be much more fun than studying property law. If you all go out for pizza afterwards, it’s sorta like a real life murder mystery dinner. Well, without the murder. But it’s still a fun mystery to solve.

Ming the Merciless Siamese Cat: Membership in the Fed. Soc. is not an honor, accomplishment, recognition, award or credential. I could enroll my dog as a member.

Hell, I did. And I’m almost as leftist as they come (I enrolled to try to have some influence as to who they brought in as speakers). I ended up treasurer of the student chapter (no, I didn’t abscond with the money).

They kept sending me the HJOLAPP … and asking for donations. Eventually they gave up (or lost my address). But FWIW, the HJOLAPP is not a bad read….

Cheers,

Randy wrote:

I wrote: “Therefore, his omission was seen as deliberate concealment. … something of a witch-hunt began with threats against those who publicly discussed his membership role. … Many of us saw this as additional evidence that he was looking to conceal his Fed-Soc activities.”

Ah, yes, what fun it is to be a student again! I would agree that’s a deliberate concealment, but hardly something that is illegal. … A witch-hunt was begun by whom? Members of Fed-Soc? If so, it really doesn’t paint them in a good light. …

Thanks for the candid responses. I’ve been interested in what other Fed-Soc people would think of this. I’ve thought about writing up something about the whole event, but wasn’t sure what venue or style would be appropriate.

* The election had two candidates. Each must write a page-long candidate statement. Mr. X’s (I’m not sure why I’m keeping him and the school anonymous, but it seems like the right thing to do at this point) excludes his membership and presidency of Fed-Soc.

* This message is sent on the student NLG mailing list:

Hi folks! I want to share with you something I noticed regarding the SBA elections (which begin today). Two candidates for President include [Mr. X] and [Ms. Y]. [X] doesn’t mention this in his candidate statement, but he is the President of the Federalist society …

* A conversation starts up on a couple groups’ lists; this is now a hot topic.

The start of the ‘witch hunt’

* Each of the students who posted in these conversations receives formal, sternly worded emails telling them that (1) a complaint has been filed against them with the SBA ‘rules committee’ (most of them had never heard of it) for allegedly breaking campaign rules, which [the letters claimed] prohibit the use of the mailing lists by the campaigns. (2) The recipients would be notified of the results when the investigations concluded.

* The rules committee person refused to name the ‘accuser’. Many of the students on the receiving end were freaked out – had they really broken some ‘rule’? Would this go in their school record? How can this be, if they’re not associated with either campaign? Is there really some committee meeting behind closed doors deciding other students’ guilt? Several uninvolved rules committee people put out the word that there is no such rule.

* The investigations and intimidating emails had the effect of immediately shutting down discussion of the election and the candidates. Free speech was the real victim. We’re a school with many evening students, and the mailing lists are a primary means of communication.

* No one (that I know of) was ever sanctioned or dunned as a result of these ‘investigations’, and at least one person received an apology afterwards from the rule committee person.

So you can see where it’s pretty ironic that the Fed-Soc society would have a role in shutting down free speech on campus, because that’s something that they claim they value.

Ah, yes, what fun it is to be a student again! I would agree that’s a deliberate concealment, but hardly something that is illegal. I would think that membership in an approved student group is public information, so no one really outed him.

A witch-hunt was begun by whom? Members of Fed-Soc? If so, it really doens’t paint them in a good light. They should be proud of who their leaders are — they voted him in! And just what were they going to do to the ones who found out this bit of information? Call him a tattle-tail? Oooo. That’ll really hurt.

This completely ignores, however, the constraints of race, gender and sexual orientation quotas for the overall firm, in order to win approval from the Diversity Community.

Tell me more about these alleged quotas.

About ten years ago, the DC bar association sent out a survey to all DC member firms asking them questions about hiring gay and lesbian lawyers. They were all promised anonymity, and I have a copy of the report. Quite a few said that they would never hire a gay or lesbian for any position, and some were quite ‘colorful’ in their language which showed exactly what they think of gays. Some had open gays, and some thought that they had closeted ones.

But Sandy’s point is correct — if you are openly gay, you may want to list activity in a gay organization to signal to the firm that you are openly gay. If they hate gays, for whatever reason, better not to work there anyway. If, on the other hand, you think you can ‘pass’ and remain happily closeted (which you really can’t, of course), then take it off the resume and take your chances.

http://www.uvalawblog.com/2009/10/law-weekly-prof-stanley-henderson-who.html

*(Now they will accuse me of race discrimination).

If your sexual identity, politics, or religion are critical components of who you are, though, list them. Better to lose a job at a bigoted firm than to get the job and then have to keep your mouth shut lest they discover your dark secret.

DJR: I would find it equally questionable if the person listed “Devout Catholic” or “Mormon” on their resume.

So membership in the Thomas More Society would be a reason for you not to hire someone?

Hope you have a good employment discrimination practice.

Bruce Hayden:
Those can both be pretty easy. Try BYU for undergraduate for the later. Someone pointed out that the other day for me, that some of our new hires were almost assuredly LDS based on having graduated from BYU. I know, not definitive, because I know BYU grads who aren’t, but they seem a rarity. I would think that devout Catholic could be signaled similarly, by undergraduate school. Ditto for Evangelical Protestant. But I think that Mormon is the critical one — I don’t think that it is because of Mormon partners, but rather, you really need Mormon lawyers in your firm when you have a large influential Mormon community in town in order to get their business. Of course, you could argue that that is no different from hiring Jews in cities where they run large businesses and are politically connected, and with Jews, I would think that much of the signaling is through last names.

My understanding of Los Angeles law firm history is that the Westside firms (e.g. MSK, L&L, KL et al) were established and grew because the downtown firms (e.g. OMM, GDC) wouldn’t hire Jewish lawyers and looked down on entertainment business.

Re Ming’s comment; it makes sense. Putting FS, or ACLU, or anything like that which is not merit based but rather political/ideological, is risky. Maybe it works, but no complaints if it doesn’t. Much better to mention relatives who have business to send to the firm.

I wouldn’t bank on this as a motivator. Eons ago, when I was a dozen years out of law school, I sent my CV and inquiry letters to several dozen big firms here. I had decent credentials — law review, moot court, private practice, government work, etc.. I kept getting letters saying they had no openings for a person with my experience. I thought the wording peculiar and called the author of one of the responses. He explained that, absent a pressing need for someone with a speciality, they don’t hire people with more than a few years’ experience — the other associates feeling that they were in an unfair competition for partnership, etc.

So if they are willing to rule out an entire category of employees specifically because they’d be better than the ones they do hire (hence the unfairness of the competition) I see no reason to believe that market forces would induce them to hire people to whose politics they object.

DJR: I would find it equally questionable if the person listed “Devout Catholic” or “Mormon” on their resume.

Those can both be pretty easy. Try BYU for undergraduate for the later. Someone pointed out that the other day for me, that some of our new hires were almost assuredly LDS based on having graduated from BYU. I know, not definitive, because I know BYU grads who aren’t, but they seem a rarity. I would think that devout Catholic could be signaled similarly, by undergraduate school. Ditto for Evangelical Protestant. But I think that Mormon is the critical one – I don’t think that it is because of Mormon partners, but rather, you really need Mormon lawyers in your firm when you have a large influential Mormon community in town in order to get their business. Of course, you could argue that that is no different from hiring Jews in cities where they run large businesses and are politically connected, and with Jews, I would think that much of the signaling is through last names.

Law firms are a different animal. A lot of lawyers are perfectly happy to discriminate against conservatives, liberals, jews, blacks, whites, asians, whatever they feel like discriminating against on any particular day. You can’t hide your ethnic or racial background very well, but it would be prudent for applicants to steer way clear of politics.

Obviously this is even more true in academia, unless you’re a critical race theorist and an anarchist, in which case you’d be wise to highlight your politics.

I wrote: “The president of the Fed. Soc. on our campus hid his membership when running for student bar president.
He was subsequently outed on an NLG mailing list, which led to suspect threatened student bar sanctions against the whistleblowers.

Randy: ”Good lord, where did they have their meetings? In an underground tunnel? Was everyone sworn to an oath of secrecy?

Nope, meetings were out in the open of course, but the fact that Mr. X was the president wasn’t necessarily known to everyone.

I say “hid his membership”, because during the SBA (student bar association) elections for president, the candidates created full-page resume/qualification flyers. He omitted his association and leadership of the Fed-Soc. The Fed-Soc is a sponsored SBA group, and his being president was arguably the most relevant item he could have listed: both in terms of student group organization abilities as well as how well he’d represent the student body.

Therefore, his omission was seen as deliberate concealment. After he was outed, but before the election was closed, something of a witch-hunt began with threats against those who publicly discussed his membership role. Many suspected collusion between him / Fed-Soc and the SBA. Many of us saw this as additional evidence that he was looking to conceal his Fed-Soc activities.

At least if you’re applying to DC, I’d strongly recommend against it, unless you can target certain firms that you think would look kindly on it.

Good lord, where did they have their meetings? In an underground tunnel? Was everyone sworn to an oath of secrecy?

many practicing lawyers simply don’t care about politics as intensely as academics and political activists do. They may have political opinions, but those opinions aren’t a major part of their lives. For such people, hiring associates who disagree with their political views isn’t a big deal because they don’t care about politics that much in the first place.

That certainly describes my firm. Presuming that the applicants politics won’t get in the way of what we do (mostly fight about contracts of one sort or another), Federalist Society membership is a lot like the applicant’s favorite food or last vacation — it might be something to talk about for a few minutes, but we don’t otherwise care.