The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, I posted a letter a group of conservative and libertarian scholars sent the Executive Committee of the Association of American Law Schools [AALS] in which we acknowledged the efforts that had been made by the AALS to improve the diversity of its annual meeting. In our letter, however, we explained how these efforts were nonresponsive to our requests concerning the diversity of law school faculties. (More on this below.) In my blog post, I also said I would be happy to post any reply from the AALS. Here is a letter we received this morning from my former-Georgetown colleague Judy Areen, who is now the Executive Director of the AALS.
Thank you for your letter of February 23, 2017. AALS has long considered "diversity of viewpoints" to be a core value as our Bylaws confirm. This is, of course, consistent with our commitment to foster diversity of all kinds in law schools. Indeed, in 2016, the Executive Committee highlighted viewpoint diversity as part of a general revision of the Bylaws. The Association has also modeled this value in its recent approach to its Annual Meetings. In addition to collaborating with the Federalist Society and including its programs and speakers in the AALS Annual Meeting program, we appointed one of the signatories of your letter, Professor Dent, as one of the five members of the Program Committee for the 2017 meeting. We also included two other signatories on major committees: Professor Barnett as one of five faculty on the planning committee for the 2017 AALS Workshop for New Faculty; and Professor Ware on the Editorial Board of the Journal of Legal Education. Both of the main Presidential Programs at the last Annual Meeting included a range of views on controversial topics.
We encourage all of you who signed the letter to consider submitting proposals for programs at future Annual Meetings. We are confident that Program Committees will be receptive to such proposals. Such programs also would be an effective way to encourage member schools to be more attentive to viewpoint diversity. We also encourage you and other conservative or libertarian colleagues to become active members and officers of AALS sections, and in that role to shape more of the programs at future Annual Meetings. Finally, we encourage you to volunteer for service on AALS committees and boards as Professors Dent, Barnett, and Ware have done.
We are committed to continuing to seek the engagement of faculty of diverse views in all of the meetings, panels, sections, and committees of AALS. Beyond this, we do not think that our sabbatical review of member schools should include a review of individual faculty viewpoints or a tallying of party affiliations of faculty. Any such step risks creating political litmus tests—something that would be at odds with the core principle of academic freedom.
We look forward to seeing all of the signatories of your letter at the next Annual Meeting and hope that each of you will become an active participant in at least one AALS section as well as work to strengthen viewpoint diversity at your home law schools.
Executive Director on behalf of the AALS Executive Committee
Again, as we noted in our letter to the Executive Committee, we appreciate the efforts that were made to provide a more balanced program at the AALS Annual Meeting. But we also asked for two specific action items to address the current radical imbalance of law school faculties, neither of which is addressed in the Executive Committee's response to our letter.
- First, we repeated our request for access to the Faculty Appointments Registry [FAR] data so an objective analysis could be made of the current fairness of the hiring process-access that was previously granted other researchers researching matters related to diversity. As we told the Executive Committee, any such research should adopt protocols, such as omitting any identifying information so as not to threaten the privacy of any job applicant.
- Second, because we were a self-selected rump group of professors, we did not feel authorized to make specific reform proposals. Nor were we a deliberative body with access to the logistical hurdles of implementing an AALS policy. Instead, we urged the formation of an Intellectual Diversity Task Force like the one that was formed in 1999 to address the problem of racial diversity on law school faculties and others that were formed more recently on other topics, such as globalization. Such a task force would then make recommendations to the Executive Committee for its consideration. Only such a task force could thoroughly consider possible AALS initiatives. But such a committee should be chosen for its political balance, unlike the Executive Committee itself, which (to our knowledge) includes no identifiably right-of-center member.
During our general discussion with the Committee, we mentioned one idea that such a task force might consider recommending: asking AALS member schools to report on the intellectual diversity of their faculty as part of their sabbatical evaluation-the way they currently report on other forms of diversity. In response, various Executive Committee members expressed objections to such a proposal- objections that Dean Areen reiterates in her letter on behalf of the Executive Committee. Fair enough. But this is the sort of issue we proposed be hashed out by a balanced task force, not between our rump group and the currently unbalanced Executive Committee. And we did not mention this idea in our letter of last week.
As we previously expressed in our letter, we are grateful to Dean Areen for her courteous reception and to the Executive Committee for meeting with us in January of 2016. We wrote our letter because we had received no formal response to our requests in over a year, and appreciate the response we have now received. But, with all due respect, this response fails to address, or even mention, the thrust of our proposals to address the current imbalance on law school faculties-proposals which we reiterated in our letter of last week.
Indeed, this letter can fairly be read as a silent rejection of these suggestions. Oddly, it discusses an idea we do not mention in the letter to which it is responding, while failing to respond to the ones we do.
I cannot speak for other members of our informal group. But I, for one, still believe that the Executive Committee should make access to FAR form data available to an outside researcher who will follow agreed-upon protocols, and should name a politically-balanced task force to investigate and make recommendations to the Committee for how the current imbalance on law school faculties might be improved.
In the end, this not about us. I, for one, am very happy with my position at Georgetown and how I am treated by my colleagues. This is about the quality of the legal education we provide our students. Imagine how political progressives would react if all, or nearly all, constitutional law courses were taught by political conservatives. Without some semblance of political balance-especially in their public law courses-students on the left, right, and center are deprived of information about the legal and constitutional positions that are now being debated in courtrooms and in Congressional committee hearing rooms-positions they may one day be asked to advance of respond to in litigation.