In June, more than 100 deans signed a joint letter calling for law schools to support constitutional democracy by teaching students to disagree respectfully and engage across ideological divides. As around 40,000 new law students begin their professional education this fall, it is fair to question whether law schools have demonstrated a commitment to this principle in practice. To ensure that law students graduate with an understanding of a full range of perspectives on complex legal issues, law schools must actively expose students to diverse viewpoints, particularly those that challenge progressive orthodoxy in the legal academy. Yet many law students lack meaningful opportunities to interact with conservative or originalist lawyers, scholars, and jurists during their legal education.
Why does this matter? Nearly half of all federal judges and more than half of federal appellate judges were appointed by Republican presidents. How well will law graduates present their cases to such judges if, as we witnessed at Stanford Law School in 2023, they cannot even allow them to speak? And what about ideologically diverse clients and jurors? Over a third of Americans identify as politically conservative. Will law graduates provide quality legal representation to these Americans? Will they have the skills to persuade ideologically diverse juries? Or will they heckle those who do, as we saw at Yale Law School in 2022?
Law schools shouldn’t get a pass for issuing aspirational statements while perpetuating inquiry-stifling norms. To assess a law school’s commitment to engagement across ideological divides in practice, faculty, students, and alumni should ask hard questions about the following six institutional characteristics: the ideological composition of the faculty; the law school’s commitment to institutional neutrality; the ideological diversity of invited speakers, institutional events, and institutional media; the clarity of institutional commitments to free inquiry; and whether administrators defend faculty when they are targeted for their expression. We discuss each below.
Is there meaningful ideological diversity among the law school faculty?
A recent national study found that only 15 percent of law faculty identify as conservative. The percentage is even lower at many leading law schools in progressive regions. And, as one comprehensive study of self-censorship among faculty revealed, seven in ten right-leaning academics in the social sciences and humanities self-censor and report a hostile climate, compared to only four in ten left-leaning faculty. Consequently, the views of conservative faculty may be heard even less often than one might expect based on their national representation.
Why should this matter even to progressive law professors and administrators? Ideologically homogeneous groups are prone to pluralistic ignorance, groupthink, group polarization, and preference falsification. These phenomena occur when individuals refrain from dissent for fear of social rejection or group dissolution. Consequently, groups may rush important decisions, fail to assess alternatives, and prescribe ineffective solutions to problems they do not fully understand.
These dynamics undermine the quality of legal education and scholarship. If legal professionals only engage with like-minded colleagues, they may fail to anticipate and truly understand opposing arguments, to the detriment of client interests. To address this problem, law schools should expose students to legal arguments that diverge from dominant perspectives at the school. These arguments should be presented by scholars who actually believe them to ensure that law students grapple with the strongest defenses of such positions.
Has the law school committed to institutional neutrality?
In recent years, law school deans have issued biased statements on many political and legal matters, including the 2016 election, Trump’s immigration policies, the Russia-Ukraine war, and the Supreme Court’s decisions on abortion and affirmative action. When deans convey institutional stances on complex disputes, they chill the expression of dissenting viewpoints and undermine the core duty of the university. As the Kalven Report on institutional neutrality explains, this duty is to “sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures.”
The correct institutional response to major political events is to refrain from issuing any statements at all. Over the past year, Vanderbilt University, Columbia University, the University of Wyoming, and the University of Southern California have taken steps in this direction. If institutions formally adopt statements on institutional neutrality, as leading advocates for open inquiry recommend, administrators can cite their logic when pressure campaigns surface.
Does the law school sponsor and promote viewpoint-diverse events and speakers?
Most law schools organize a wide range of institutional events. How often are legal experts featured because their perspectives diverge from dominant ideologies at the law school? Law schools must do more than simply honor their legal obligations to tolerate Federalist Society events. We agree with Eugene Volokh, who argues that law schools should proactively organize discussions of controversial topics themselves. For example, at George Mason University, Voices for Liberty recently hosted a “Discussion over Division” event where participants were “matched with students of differing political views for engaging conversations.” Progressive students should have opportunities to understand ideological counterparts and sharpen arguments through robust debate with legal experts who think differently, just as their conservative classmates do.
Does the law school promote diverse viewpoints in its institutional media?
Institutional communications create and reinforce norms. When browsing a law school’s website or social media, are a range of views represented disinterestedly, or are certain viewpoints favored? Keith reviewed the institutional Facebook feed of his home institution, the University of California Law, San Francisco. Of hundreds of posts during the 23-24 academic year, around a third exhibited a progressive ideological slant, while none had a conservative or libertarian slant. Of course, institutions committed to viewpoint diversity should include progressive views. But a dramatic imbalance chills expression by signaling institutional preferences for certain viewpoints. And, because institutions have an interest in promoting their own events and faculty, such imbalances are a strong indication of problems with viewpoint diversity throughout the institution.
Do law school statements and training clearly commit to academic freedom and freedom of expression?
Most law schools have legal obligations to train community members on unlawful discrimination or harassment. Such training is appropriate and necessary. However, some programs also incorporate lessons that caution against legitimate expression that others might find insensitive. This can leave even law faculty uncertain about the line between protected expression and actionable harassment. Because the potential costs of disciplinary proceedings are so high, students and faculty may err on the side of silence.
To offer reassurance, law schools ought to formally adopt policies that echo the Chicago Statement: “[C]oncerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.” In addition, all students and faculty should receive instruction on academic freedom and expression rights. One list of lesson plans on free expression and the First Amendment is available here.
How does your law school respond to attempts to sanction scholars or speakers?
Law professors are targeted for cancellation more often than professors in any other discipline. FIRE’s Scholars Under Fire database reveals that since 2000, there have been 110 attempts to professionally sanction law professors for speech that is, or in public settings, would be protected by the First Amendment. Over half of the sanction attempts against law professors (62 out of 110; 56 percent) have occurred since 2020. This uptick is largely due to growing intolerance among people on the left, who initiated over 70 percent of these attempts (44 out of 62; 71 percent). In this climate, some law faculty simply avoid discussing sensitive cases or controversial arguments germane to their fields, for fear of triggering complaints. And such fear is understandable, as too many attempts to sanction law professors succeed. Nearly 60 percent of attempts (64 out of 110; 58 percent) resulted in some form of sanction. Even if faculty are cleared, they may endure costly administrative investigations and reputational harm.
While every cancellation attempt chills expression, we highlight four egregious examples here:
- In a 2023 incident at Brigham Young University, law students in the American Constitution Society successfully pressured the administration to cancel a Federalist Society event. Nebraska College of Law professor Rick Duncan and BYU Law professor Fred Gedicts were scheduled to debate the Supreme Court’s decision in Dobbs Jackson Women’s Health Organization, the case that overturned Roe v. Wade. Students opposed Duncan’s invitation because he’d previously argued that requiring the use of preferred pronouns constitutes compelled speech.
- At George Washington University, students penned an open letter in 2022 demanding Supreme Court Justice Clarence Thomas’ removal from teaching in the wake of his concurring opinion in Dobbs. To their credit, administrators did not bow to this pressure. However, a month after the cancellation campaign began, Thomas claimed that he was no longer available to teach the course.
- At Harvard University, students demanded that law professor Ronald Sullivan, Jr. resign as faculty dean of Winthrop House in 2019 because he joined Harvey Weinstein’s legal defense team and expressed concerns about the investigation of economics professor Roland Fryer. Although 52 Harvard law professors expressed support for Sullivan’s “legal advocacy in service of constitutional principles,” the dean of Harvard College refused to renew the deanships of both Sullivan and his wife, citing an “untenable environment.”
- At the University of Florida, administrators barred law professors Kenneth Nunn and Teresa Jean Reid from signing an amicus brief in a 2020 lawsuit. The suit challenged a state Senate bill requiring felons to pay court-ordered costs before voting. Nunn and Reid were told that opposing the state government was “adverse” to the university’s interests. UF faculty filed a lawsuit challenging the policy that allows the university to block them from testifying against the state in legal cases.
Although we have focused primarily on why a deficit of conservative views in law schools should concern lawyers across the ideological spectrum, our last example highlights an emerging threat to progressive viewpoints. As public trust in higher education erodes, conservative politicians have introduced legislation to regulate the teaching of “divisive concepts” or impose viewpoint diversity requirements. Even if courts block the most egregious legislation on constitutional grounds, procedures such as post-tenure review may pass. Such state legislation undermines the ability of progressive scholars to teach and research. Law schools can preempt inquiry-stifling state intervention by promoting viewpoint diversity themselves.
As the American Bar Association observed in adopting a new accreditation standard on academic freedom this year, the “free, robust, and uninhibited sharing of ideas reflecting a wide range of viewpoints” is essential to an effective legal education. To advance this core objective in practice, law schools must take more proactive steps to ensure the presentation of ideologically diverse views and curb implicit institutional signals that stifle such exchange. The quality of tomorrow’s legal minds and our civic discourse depend on it.
Image of Stanford Law School abortion rights rally 3 May, 2022 by Suiren2022 — Wikimedia Commons
First, students are sheep. They are only doing the things they do — whatever they do — because (a) faculty (and staff) are leading them there and (b) the admissions committee has selected applicants who are willing to be led in the desired direction.
The problem is in the law schools themselves and hence I look back a century to the fight over osteopathic medicine. While a DO (Doctor of Osteopathy) is considered the same as a MD (Medical Doctor) in all 50 states today, that was not the case in the early 1900s. The Osteopaths did three things — first, they created their own medical schools which taught their version of medicine. Then they went state-to-state to get their graduates licensed — and in 1966 got the Department of Defense to recognize them as the same as MDs.
What they did was eliminate the monopoly that the AMA had held on doctor licensure, and I argue that we need to do the same thing with the ABA and its current monopoly on lawyer licensure. We need to establish the conservative equivalent to the existing (quite biased) law schools — many have argued it could be and should be an undergraduate program as it is in Europe — and then get friendly state legislatures to license our graduates.
That’s the only thing that is going to change things — politically the battle for the future of the ABA system of education was lost 40 years ago and we should admit defeat and instead concentrate on an alternative — like the Osteopaths did.