Color Me Skeptical

Co-blogger Jonathan Adler quotes Professor Herbert Hovenkamp of the University of Iowa Law School, below, as stating:

The overwhelming majority of my colleagues believe in diversity in faculty hiring, and I believe most would include ideological diversity of both right and left. Some would regard diversity more as a “tie breaker” for choosing among people with roughly equivalent records, while others would reach further. I am confident that no one on our faculty would discriminate against a candidate because of his or her views. Our hiring goal, just as that of all other law schools I know, is to hire the most skilled, able teachers for our students.

Color me rather skeptical that most members of the UI faculty are seriously interested [beyond perhaps in response to the p.r. fallout from the lawsuit against the school for ideological discrimination] in pursuing hiring faculty ideologically on the “right” as a goal, much less that they’d prefer a “right-wing” candidate over an equally qualified candidate on the left, much less that any significant number would “reach further” than that. Some of my skepticism is an artifact of my understanding of what goes on at most law schools, but it’s also a product of this paragraph from the New York Times:

According to Ms. Wagner’s lawsuit, the law faculty at Iowa in 2007 included a single registered Republican among its 50 or so members. The Republican professor was appointed in 1984. In 2009, The Des Moines Register found that there were two registered Republicans on the faculty.

But maybe I’m too cynical. After all, not every conservative or libertarian law professor is a registered Republican (conversely, not every Republican is libertarian or conservative), and not everyone who gets an offer for an entry-level or lateral position takes it.

There is at least one way to clear the air. Surely, as part of its defense against the Teresa Wagner’s claim that she was discriminated against based on her conservative views, the law school’s lawyers prepared an exhibit showing all of the right-of-center faculty candidates to whom the law school had offered positions over, say, the decade before Ms. Wagner’s lawsuit commenced. After all, if a significant list of such candidates existed, that would be good circumstantial evidence that the law school didn’t discriminate on the basis of ideology, and thus didn’t discriminate against Ms. Wagner. The exhibit, in turn, would be public information, so if Prof. Hovenkamp or someone else at the law school would forward me this list, I’m sure my cycnicism will be easily overcome. Folks at UI should feel free to send that exhibit, or any other such list, to me at dbernste [at sign] gmu [dot] edu.

(And by the way, I’m pretty confident that there are a lot more law professors who “believe” that their faculties should make more of an effort to increase their ideological diversity than there are those who will actually recruit and vote for such candidates in practice).

UPDATE: I have a friend at a top law school who assured me that his colleagues would never discriminate based on ideology. In fact, he added, he was about to push a candidate with “right-wing” political views, and he was sure the faculty would be interested. A while later, I inquired as to how things went. The answer: “Remember how I said my colleagues wouldn’t discriminate based on ideology? I was wrong.”

FURTHER UPDATE: Several readers remind me that in Ms. Wagner’s case itself, jurors told reporters after trial they thought that she had been discriminated against by the faculty based on her ideology, but perhaps not by the dean, who was the actual defendant. Take the jurors’ opinion for whatever you think its worth, but it certainly lends no support to the claim that the Iowa faculty was actively seeking ideological diversity.

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