The Radicalization of American Legal Education: Why the Left's Dominance Is Bad for Law Schools and the Law

By SCOTT GERBER

Monday, May. 30, 2005

At America's law schools, the 2005 commencement season is now complete. It was a time of joy, but also a time for reflection. One issue I thought a lot about during this year's ceremonies was the radicalization of American legal education.

Most Americans are probably aware that the vast majority of the law school professorate falls on the far left of the political spectrum. As conservative law Professor John McGinnis aptly notes, "Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our universities today are the Democratic Party at play."

Statistics support this proposition. For example, Professor Deborah Jones Merritt conducted a survey in the late 1990s that indicated that only 10% of American law professors characterize themselves as conservative to some degree, while Professor James Lingren reported that 80% of legal academics are registered Democrats.

And if those numbers aren't proof enough of the current state of legal academe, here's a fact that's largely unknown outside of the corridors of America's law schools: the Association of American Law Schools--the legal academy's learned society--was recently led by a self-proclaimed "radical" Marxist. (A nice guy, but a Marxist nonetheless.)

Justice Scalia Weighs In: Taking Issue with the Professorate's Departure from the Mainstream

The radicalization of American legal education has profound consequences for the law--as U.S. Supreme Court Justice Antonin Scalia has warned in several of his most powerful dissenting opinions. He criticizes legal education, the legal profession, and the Court itself for being both out of step with the mainstream and oblivious to their own radicalism.

Scalia's dissent in Lawrence v. Texas, the 2003 homosexual sodomy case, illustrates the point. There, he noted, as he had in an earlier opinion, that "the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct." He then complained that "[s]o imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream.' "

As Scalia reminds us, the problem is widespread: There are other examples that reveal how the radicalization of American legal education has affected law student admissions, law faculty hiring, and even law professors' scholarship.

Law Student Admissions: Pluses in Theory, Quotas in Practice

With respect to student admissions, the data indicate that many law schools continue to employ racial quotas in their admissions processes--a fact seized upon by Chief Justice William Rehnquist in his dissenting opinion in 2003's University of Michigan Law School case.

There, the Chief Justice pointed out that "[t]he Law School's Dean admitted that in some cases the race of an applicant was a 'determinative' factor in the admissions decision." In other words, race was a make-it-or-break-it characteristic for certain applicants: their race alone guaranteed their admission.

Given that concession, Michigan's law school shouldn't have survived the plaintiff's motion for summary judgment, let alone prevailed in the Supreme Court (albeit by a 5-4 vote). After all, there was no dispute as to a "material fact"--the summary judgment standard--if the defendant admitted it violated the law.

Law Faculty Hiring: Set-Asides and Political Discrimination

Books could be written about the illegality of the law faculty hiring process: a process in which jobs are frequently set-aside for minorities and women and for which conservative white males need not apply.

With respect to the former, I've heard of faculty searches at various law schools around the nation in which a member of the faculty or administration has stated that his or her law school has an open position, but that the position must (not "could," must) be filled by a minority or a woman. In fact, the faculty hiring process has gotten so out of hand that one law school I know of did not immediately disqualify a minority candidate who recently had failed the bar examination. (That's right: a law professor who failed the bar exam.)

Of course, that sort of hiring practice--marked by set-asides and double standards--flies in the face of controlling federal equal employment opportunity law. Title VII provides that it "shall" (not "might," shall) be illegal for an employer "to fail or refuse to hire . . . any individual . . . because of such individual's race, color, religion, sex, or national origin."

And discrimination isn't just along racial and gender lines: It's also based on point of view. Many of the same law professors who teach students in their First Amendment classes about the evils of "viewpoint discrimination" practice it. Many of the same institutions that tout tenure as a way to encourage free thought censor it by not allowing conservative candidates who think freely to get in the door.

Indeed, I once suggested on the ConLawProf Internet discussion list that law schools needed to hire more conservative faculty candidates (with "more" meaning, at a minimum, at least one). The reaction? One law professor posted that I was "nuts" to suggest such a thing.

As a friend of mine recently joked, "It is not yet criminal to be a conservative lawyer in America, but it is certainly unconstitutional." Clearly, the vast majority of America's law schools have no interest whatsoever in the type of diversity they should value most: intellectual diversity.

Law Professors' Scholarship: How It Reflects Legal Education's Radicalization

The radicalization of American legal education also impacts legal scholarship, the coin of the realm among the law professorate. Two examples come quickly to mind.

The first was when a flood of law professors reported to Congress during the Clinton impeachment imbroglio that lying under oath (as President Clinton had done in the Paula Jones litigation) and obstructing the judicial process were not impeachable offenses. Certainly, the Framers would have characterized that sort of behavior as an "offense against the state": their definition of a "high crime or misdemeanor." Succinctly put, lying in federal court is, and ought to be, an impeachable offense.

The second example of how the radicalization of American legal education has impacted legal scholarship is the recent stream of books by influential law professors calling for a reduced role for the judiciary in constitutional interpretation. You read that right: These professors think courts should get out of the business of interpreting the Constitution. One professor even calls for a constitutional amendment overruling Marbury v. Madison, the landmark 1803 decision by Chief Justice John Marshall that is widely credited with establishing the Court's power of judicial review. You read that right, too: This particular professor thinks the hallowed case that has long been regarded as the source of the strength of the third branch of American government was a bad idea--one that, two hundred years later, should be revisited.

It's obvious what's going on here: Leftist law professors are afraid that the increasingly-conservative judiciary is rolling back too many of their preferred liberal judicial rulings. They are announcing, if you will, a kind of judicial Brezhnev doctrine: "what we have, we keep." If the courts won't subscribe to the left's political agenda, the left's solution is to argue for the evisceration of America's judiciary.

The Left's Position on On-Campus Military Recruiting is Inappropriately Extreme

The above evidence notwithstanding, the most powerful example of the radicalization of American legal education involves a case in which the Supreme Court recently granted review, Rumsfeld v. Forum for Academic and Institutional Reform. In this case, law school elites have challenged the constitutionality of the Solomon Amendment, the federal law that strips federal funding from colleges and universities that prohibit on-campus military recruiting.

A fair-minded position on this controversy is available: If law professors wish to protest the military's "don't ask, don't tell policy"--or any other policy they don't like--they are free to do so. They can even stand near--but not block--on-campus military recruiters' doors with a sign saying "Don't go in. This employer discriminates against gays." But they shouldn't be allowed to rob students who disagree of the opportunity to meet with these recruiters and they shouldn't be permitted to deprive the recruiters of the chance to meet with the talented future lawyers our military needs.

On-campus recruiting is supposed to be about law students finding jobs, not law schools impeding students from doing so. And legal education is supposed to be about teaching and learning the law, not about advancing the left's political agenda.

Perhaps next year's commencement speakers could remind their audiences of that.

For a detailed argument that the Solomon Amendment is constitutional, see Marci Hamilton's May 5, 2005 column for this site. -- Ed.

Scott D. Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. His books include First Principles: The Jurisprudence of Clarence Thomas (New York University Press). He is currently completing his second novel, The Law Clerk. His email address is s-gerber@onu.edu.

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