Academic Career Success and the Importance of Ideological Conformity: An Anecdote

|The Volokh Conspiracy |

While doing some research today, I came across a student article (known as a "note" in law review parlance) from the 2006 Yale Law Journal with a provocative title: "Grutter at Work: A Title VII Critique of Constitutional Affirmative Action."

The title made it sound like the note would argue that Title VII of the 1964 Civil Rights Act is an independent limitation on racial preferences in the workplace, and thus Grutter's "constitutional" rationale for the pursuit of "diversity" being lawful in the educational context, i.e., that academic freedom permits universities to take diversity into account if they think it will enhance students' education, could not be applied in the employment context.

I was surprised that a Yale law student would publicly take a position against affirmative action, even if only via statutory interpretation, even more surprised that the Journal would publish it, and also surprised that I had not heard about any controversy surrounding its publication.

Then I glanced at the author's name. A professor at Columbia now! Now my mind went from surprise to "virtually impossible."

I don't know the author personally and I'm not familiar enough with her work to know her ideology, but at that point I deduced that the title must be misleading, and the author must have been arguing in favor of affirmative action, and against importing any restrictions from the constitutional context of state university to the private employer context. I just couldn't imagine anyone getting hired by a school like Columbia these days who wrote her student note critical of affirmative action.

I then went to the abstract, which confirmed my deduction: "Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The opinion reaffirms principles of contested Title VII precedent and suggests how employers might use affirmative action to meaningfully integrate their workforces."

There is something very rotten in the state of the legal academy when you can make the deduction I made, on the grounds I made it.

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  1. “There is something very rotten in the state of the legal academy…”

    It’s the people. A very, very large fraction of them are “very rotten”.

  2. If there are indeed as many liberals as you say in academia, your deduction may have just as easily been random chance.

    1. To be fair, I think his deduction was that the title would be misleading. Which it arguably was.

    2. There are damn few (if any) liberals left in academia.

      There are a lot of folk who identify as Liberals — but most are way too far to the Left to even be that….

      1. Why are our strongest schools operated in the liberal-libertarian mainstream, while nearly all of our conservative-controlled schools are low-ranked institutions?

        1. For the vast majority of history all our institutions were run by people who held views that would make Ted Cruz look like a filthy hippy.

          1. I just read an article about a current American citizen whose father was a slave.

            History is not kind to your arguments or preferences, AmosArch. Being on the wrong side of history has consequences, especially for conservatives.

  3. The logic here seems a tad circular.

  4. Key word: “her.”
    No male student would have gotten away with this, and notice that all of the challenges to Affirmative Retribution have been by White FEMALES — themselves a protected group in the academic spoils system.

    Yes, there is something very rotten in the academy as a whole — of which the legal academy is only a minor component thereof. Society is littered with the wreckage of bright, ambitious persons whose careers never existed because of their skin color and plumbing. It’s part of why about half of the population has open contempt for higher education and why Trump got elected — and unless the Dems are successful in rigging the election this fall, will be re-elected.

    I don’t know how this will all shake out, but like to remind people that Hillary Rodham entered Wellsley College as a “Goldwater Girl.”

    1. “And unless the Dems are successful in rigging the election this fall, will be re-elected.”

      It couldn’t possibly be the case that enough voters in the states that decide the electoral college think that the President’s record is absolutely terrible in a wide variety of areas, most prominently a global pandemic, and that the President himself is a complete buffoon who isn’t going to improve.

      Nope. Definitely “rigging.”

      1. You are responding to someone who thinks Trump is going to get 40% of the black vote in November.

        Hardly a rational observer.

        1. No, who cited a reputable poll finding this.

          1. The Democrat Party is the black party. The black party is the Democrat Party. Absent an asteroid strike, nothing will reset this.

    2. No male student would have gotten away with this

      What is “this”? Writing a law review note supporting affirmative action?

    3. If you are counting on the American people to make the right choice in the election, you should stop. There are enough shallow middle-school-clique-oriented voters to turn the election either way. You should have learned that in 2012 when they picked the divide and conquer grievance pusher over the straight-laced finance guy who adopts orphans.

    4. ” Society is littered with the wreckage of bright, ambitious persons whose careers never existed because of their skin color and plumbing.”

      Yep. It’s so hard to find even a single example of a bright ambitious white dude who had any career success in American Society. Something else that’s holding people back… inherited wealth. People who inherit wealth early in life almost never achieve any kind of success her in America.

      1. By the same token, when Obama was elected President it meant racism was a thing of the past in America.

      2. That statement is more correct than he realizes but not in the way he thinks.

    5. People who emphasize the word FEMALES are always going great places.

      1. Grand Nagus.

        1. My first thought as well 😛

  5. I don’t quite understand Bernstein’s point here.

    Yes, the title might be misleading, but is the complaint that someone who published a note supporting affirmative action got a job at Columbia? I don’t think that’s it.

    Rather he seems to be saying that he was astounded that the author of a conservative note could get an academic job, and concludes that his own astonishment somehow indicates a problem in the legal academy.

    That’s bizarre.

    1. He didn’t explicitly state his premise — that in a rational world, the idea that Title VII places restrictions on the use of racial classifications in decision-making is a perfectly legitimate argument to make.

      However legal academia is not a rational world. Therefore it is incredibly unlikely that (1) a Yale student would write such a note, (2) even more unlikely that the YLJ would publish that note, and (3) even more unlikely still that the writer of such a note would subsequently go into academia and be employed at Columbia.

      Much more likely, and in fact true, was that the title of the note was misleading.

      1. Yep, you said it better than I did.

    2. yes, you clearly did not understand.
      what he’s saying is that it is a sad state of affairs when he could read the title, then look up the author’s current job, and conclude that title is misleading w/o having to read the article.

  6. I had a mental image for some random Columbia diversity administrator starting to read this article then scrambling to try to figure out what law professor might be a closet conservative, slipping through their rigorous ideological review process, so this person can be put on the “cancel” blacklist. Then being relieved as they finish reading the article to find out that the person has not gone of the ideological plantation.

  7. Maybe I could propose changing the title of the above post to, “I judged a book by its cover, and I was right! A study: sample size 1”.

    1. Anecdotes traditionally have a sample size of one.

  8. Rather he seems to be saying that he was astounded that the author of a conservative note could get an academic job

    We seem to be diverging into different language communities.

    bernard’s sentence (a) desperately needs to sneak into the subjunctive mood and (b) “astounded ” needs to get off the stage right away, so as to leave a slot for “deeply sceptical”

    As Ridgeway explains, since it is impossible to conceive of the circumstances in which the title might be representative of the contents, one can infer with confidence that it is not. Prof B regrets that the circumstances are such that one can make this inference.

    Since bernard is a leftie, and therefore largely blind to the slant the overwhelmingly lefty media puts on things, it is understandable that he fails to spot another example ubiquitous utility of inference.

    Non lefties however find it easy. We only have to glance at a headline and read :

    SENATOR APOLOGISES AFTER PEANUT BUTTER INCIDENT WITH STAFFER

    to know with perfect confidence that the Senator is not a Republican. This has nothing to do with any differential proclivity in the misuse of staffers (and peanut butter) between Senators of different parties, it is simply because we can infer with absolute certainty that if the Senator had been a Republican, that would have been mentioned.

  9. ” I just couldn’t imagine anyone getting hired by a school like Columbia these days who wrote her student note critical of affirmative action. ”

    Where “school like Columbia” = ‘a strong, first-rate school’

    There are schools that would eagerly welcome a viewpoint more palatable to conservatives.

    They tend to be low-ranked, censorship-shackled, conservative-controlled schools with stale content, sketchy accreditation, lackluster faculties, undistinguished graduates, and downscale students.

    Must be the liberals’ fault.

  10. There is something very rotten in the state of the legal academy when you can make the deduction I made, on the grounds I made it.

    Legal academia has always held dubious value. The real work in the legal system occurs in the chambers of judges and Congress, not academia.

    The volume of legal academia dwarfs actual citations to legal academia. Ergo, even if legal academia were to be dominated by actual fascists, the impact on the actual legal system would be minuscule.

    The progressive rot infecting other academic systems is far more dangerous.

    1. A month from now should be very interesting — I’m wondering how many checks will or won’t be written.

  11. Scientifically, there is no such thing as ideology.

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