Do Law Schools Discriminate Against Conservatives?

Teresa R. Wagner, a conservative Republican who applied for a faculty job at Iowa and was turned down, thinks so:

Ms. Wagner, who graduated from the law school in 1993 and had taught at the George Mason University School of Law, was not hired. She sued, alleging discrimination because of her political beliefs. Late last month, a unanimous three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that her case should go to trial, saying she had presented enough evidence to suggest that “Dean Jones’s repeated decisions not to hire Wagner were in part motivated by Wagner’s constitutionally protected First Amendment rights of political belief and association.”

I have no information other than the Times piece about the Iowa case.  It wouldn’t surprise me, though, if there was a non-trivial amount of ideological discrimination occurring in law school hiring around the country – even though it takes a very different form than that alleged by Wagner, viz. direct, intentional reluctance to hire because of ideology.

Just about any piece of scholarly work — and particularly legal scholarship — relies upon assumptions about the way the world works.  It’s unavoidable: you can’t reinvent the wheel in every piece.  But if the majority of people in a department have certain background assumptions, a candidate whose work carries different assumptions will be seen as having significant gaps and flaws.  A candidate whose work contains the same assumptions will not fall victim to such assumptions, because those assumptions will seem simply like “common sense” or at least “reasonable.”  This is why faculties tend to reproduce themselves, even if there is nothing conscious occurring.

In contemporary environmental law, an area where I do a lot of writing and teaching, the problem might be worse because Movement Conservatism has so totally gone off the rails when it comes to environmental issues.  The problem is that in environmental law, if you are a conservative with an actual goal of influencing policy, you might have to say things that are quite inane.  You might have to endorse Congressional efforts to block “farm dust” regulation.  Or to get rid of energy-saving light bulbs.  Or deny anthropogenic climate change.  But if you do that, it will be hard to get hired at any law school worth its salt.  Those law schools will “discriminate” against conservatives, but that would be discrimination simply based upon a scholarly record.  No one who denies anthropogenic climate change would or should get a faculty position.

Well, what if you don’t seek to be a Washington insider?  The problem is that what now passes for the ” mainstream conservative” environmental position ranges from neglect to abuse.  So if you advocate positions that a few years ago would have been thought of as Republican environmental positions — say, cap-and-trade, or even a carbon tax — you still run the risk of not being thought of as a conservative, because those positions no longer are considered conservative.  Rock-ribbed conservative South Carolina Congressmember Bob Inglis advocated a revenue-netural carbon tax, and lost his primary by more than 40 points.  David Frum favors a carbon tax, and has been written out of the movement.  Put another way, conservative environmental scholars have to deal with discrimination as much as from their supposed ideological allies as by the “liberal establishment.”

Can a conservative environmental scholar avoid embracing the anti-environmental stance of Movement Conservatism and still maintain his or her standing in the Movement?  Yes; some do.  But it is a difficult balancing act.  It’s hard enough to be a productive scholar without also having to look over your shoulder — or, given what I have said above about assumptions, over both shoulders.  It’s little wonder that, under these circumstances, there are fewer conservative environmental law scholars than I would like.

As I see it, we have three choices: 1) affirmative action for conservatives, which might counteract the problem of assumptions; 2) a return to sanity within Movement Conservatism; or 3) maintenance of the status quo.  The first would be, shall we say, ironic, and unlikely given conservatives’ supposed hatred of preferences.  The second would be the best solution, but is unlikely in the foreseeable future.  So the status quo it is.  Which in some ways is the most “conservative” result of all.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

47 thoughts on “Do Law Schools Discriminate Against Conservatives?”

  1. In my experience, law schools (at least the big-name ones) are quite friendly to plutocratic conservatism. Cultural conservatism, not so much.

  2. In my experience, social conservatives are occasionally discriminated against. And we could use more ideological diversity in many parts of academia.

    1. That is very true about diversity. But we don’t often know how to evaluate the intellectual contributions of people who are too different from us, and so they end up being screened out. This even happens when we are explicitly seeking someone with a different slant on the discipline.

      Also, in many disciplines the screening cuts both ways, with young faculty not applying to join departments too different from their home.

      And finally, we get hosed by our own human resources procedures when they push us to write position requirements too narrowly. (For example, the HR rep insisted on language like, “Ph.D. in Discipline X required”, rather than something like, “Earned doctorate in Discipline X or close related area required on appointment.”) I have been on search committees that were forbidden to invite candidates who were expected to defend after the interview date, and forbidden to invite candidates who were qualified and interested in us because the doctorate was not a Ph.D. or was in the wrong field.

      We hire people who look like us because we understand them and they understand us.

    2. I’m not really a friend of discrimination (for whatever reason), but … as a female computer scientist I find it difficult to feel a whole lot of sympathy here.

      I’m comparatively lucky in that I am an academic and my colleagues generally couldn’t care less about my lack of a Y chromosome, so I generally don’t have to deal with the garbage women in the industry often have to put up with. But still, even then, being sometimes the only woman in a workshop of 20-30 people can be pretty darn lonely.

      That’s the result of a lifelong discrimination process (starting with pink baby clothes) that the self-same social conservatives rarely seem to have any problems with and may even have been actually perpetuating themselves.

      I’m still against discrimination of anybody (including social conservatives), because I think perpetuating discrimination is hurtful for society (and two wrongs don’t make a right). But in the case of social conservatives, it often feels like I’m helping a brewer with a drinking problem. Also, Matthew 7:3 for the Christian variety of social conservative.

      1. Any evidence on the pink baby clothes? Many high-technology gadgets now come in girly pink: digital cameras, mobile phones, laptops. The problem IMHO is more when a girl is steered away from the red toy truck.

        1. James, I was using that as a throwaway example of social conditioning (the color of baby clothes is, as far as I know, a purely social construct). I agree that, for instance, gender stereotyping in schoolbooks is more likely to have an actual negative effect on the development of children.

          That said, it’s worth thinking about why so many people feel compelled to color-code their children based on gender at an age where gender arguably matters the least. As such, it may still reflect on society’s tendency to discriminate based on gender without actual reason. Plus, the colors are often eye-numbingly garish. 🙂

          1. Katja, you are right on the color-coding. But I came of age in the 1970’s, although I didn’t have a child of my own until recently. Most of my friends tried to raise their children in a gender-neutral manner. It didn’t work. Most of the boys wanted their trucks and guns, and weren’t all that interested in dolls. (There were exceptions, of course.) The girls may have been a bit less gendered than the boys as a group, but were often enough much foofier than their parents liked. Oh, well, some things seem to be hard-wired.

            On the other hand, I have heard that gender differences in math scores tend to collapse when there is gender equality in broader society. Maybe they’ll even reverse?

          2. Ebenezer, gender differences as such do not bother me a whole lot. Heck, I can be a very girly girl if I want to (like, when I’m going out with my husband) and enjoy that, too. I’m looking at them primarily as the symptoms of discrimination, not the causes (though, obviously, it can go both ways).

        2. Just as an anecdote — and I don’t deny that little girls generally do seem to like dolls more, fwiw — and has nothing to do with their later math ability, imho — but when I used to do day care, *all* toddlers were fascinated by construction sites (for a minute or two). So there can be areas of overlap as well as differences.

      2. In the several computer science departments I’ve encountered in North Carolina, large or small, social conservatism is the plurality, and there still is some overt discrimination against women. If the poor lawyers are attached to their worldviews, they just need to change fields.

  3. The irony is that so many conservatives think that employers should be able to hire and fire their employees at any time for any reason. So a staunch conservative would have no problem with a company not hiring an employee who was liberal and wanted to start a union. I have to laugh at this Wagner.

    1. Skimming the opinion, it looks like the lawsuit is based on the theory that the University of Iowa, as a state school, infringed on Wagner’s First Amendment rights by not hiring her. If she had been rejected by Harvard, she would have no case (or at least, she would have a completely different case).

  4. Well, one reason social conservatives may face discrimination is that academia tends to take gender and sexual orientation discrimination extremely seriously (as it should) and a lot of social conservatives have big issues in those areas (especially homophobia).

    1. Yes, but allowing discrimination is *true* diversity. Ask a conservative intellectual if you don’t believe me, or if you just need a laugh.

  5. “No one who denies anthropogenic climate change would or should get a faculty position.”

    Why does rejecting a scientific claim – as indeed some prominent scientists have done – disqualify one from teaching law?

    1. as indeed some prominent scientists have done

      Yeah, really? There are those who argue about magnitude, and about best response, but I don’t think there is any significant number of prominent scientists who refuse to accept the data that serve as evidence climate change is happening, or who strongly protest against the hypothesis that the climate change is a result of human activity.

      Look, it’s the very definition of “science” that everything is only a valid hypothesis so long as no-one can show where it’s not working. There’s plenty of room for respected scientists to reexamine and to try to disprove the arguments for AGW. But only for honest ones, willing to accept the data and to rationally consider others’ arguments – not the kneejerk or paid-off denialists we see protesting against the overwhelmingly accepted consensus that AGW is real.

      1. This finding indicates that about 90% of all active publishers in science accept the likely fact of man-made climate change. In a natural science department, it is a fatal flaw in your personality and/or education if you are on the fringe and don’t accept the evidence.

        But I think FF asks a good question – if you are teaching tort law, why do you need – strictly speaking – to accept scientific findings in general? I understand that, say, not accepting gravity makes you a little kooky, but to teach law?

        1. I was specifically referring to environmental law. If you are an environmental law scholar who rejects the findings of environmental science, you have no business teaching in any law school. This would actually also apply to tort, where the complex toxic tort cases also rely heavily on scientific data and the scientific method.

          1. Got it now, understood. I didn’t know just anyone could litigate any case & would have thought there were specialists for toxics, pollution, environmental harm, etc. Learn something new every day!

    2. Some ‘scientists’ believe whites are smarter than blacks.

      So should we hire a law professor to teach discrimination law, constitutional law etc. who agrees?

      What if we have non white students? Do they have to take that professor’s course?

      Setting that aside, I think the point was can we have an Environmental Law teacher who is a global warming denialist?

  6. According to what I read of the case (one moderately long newspaper story, perhaps – I’m certainly not claiming to be especially well informed), the plaintiff submitted as part of their tenure package a selection of the columns they had been publishing, to demonstrate that they were engaging with the community or raising the profile of the university or some such. And apparently these columns had little or nothing to do with academic legal questions, but were instead rather poorly argued and hideously bigoted screeds about Teh Ghey Menace and the like. The plaintiff literally asked that this material be considered in assessing their tenure candidacy, apparently believing it should be seen as an asset to the university. I don’t think their committee agreed, and I suspect they were right not to.

    Disreputable (but not unethical) personal behavior or disagreeable political views or activities outside of a professor’s service to the university probably shouldn’t affect the professor’s tenure candidacy (though if they so poison the professor’s relationships with their peers that the professor cannot be a constructive member of the faculty community I could see that being a legitimate issue), but in this case it was the plaintiff’s decision to ask that the activities be considered a part of their service to the university. Once they do that, the quality and the likely effects of those outside activities would seem to be fair game.

    1. Except that when a professor submits material as part of a RPT portfolio she is specifically asking to be judged on the basis of that material.

      A law professor submitting that sort of not-peer-reviewed material is exhibiting a horrible lack of good judgement. In the absence of mitigating peer-reviewed material it might even be sufficient to merit a vote for a terminal contract.

  7. The result is troubling for a much simpler reason–George Mason Law School is teeming with conservatives. Some were home-grown and some have been hired away from other institutions. Would it not have to be a necessary condition for discrimination that Wagner had been singled out for her views? It seems judges are as bad with statistics as are reporters…

    1. She was already at George Mason and applying to Iowa, wasn’t she?

      (Something I find weird: the opinion’s reference to “repeated decisions not to hire Wagner.” There have been plenty of schools where applied for jobs several times, but I wouldn’t say that they made repeated decisions not to hire me. They hired someone else each time.)

      1. Rather, she had in the past adjuncted at George Mason and is now at a non-faculty (or non-tenure-track) position at Iowa, applying for a tenure-track position.

        Anyway, more info:

        “Wagner said that during the interview process for the University of Iowa job, she mentioned to then-Associate Dean John Carlson that she had gone through a similar interview process at Ave Maria School of Law in Florida, where she had been offered a tenure-track law school teaching position. Wagner said that Carlson told her to conceal this fact during the interview process, because Ave Maria is viewed as a conservative school, according to court documents.”

        Ave Maria is not just a conservative school, like George Mason — it’s a bit of a fly-by-night operation that came close to losing its accreditation, and where several former faculty are suing over unjust firings.

        “During the interview process, Wagner said she received positive feedback from faculty, staff and students, according to court documents. But on Jan. 26, 2007, Wagner learned via email that the university would not be hiring her, according to court documents.”

        This is only the sort of thing that has happened in every academic hiring process ever.

    2. There is an irony in her having taught at George Mason, which like Iowa is a public institution and thus subject to First-Amendment suits based on perceived ideological bias. As you note, George Mason is notorious as a hotbed of conservative thought, undoubtedly of a more extreme tendency than anything to be found at Iowa. Will we be seeing future suits by liberals who are denied jobs or tenure at George Mason? This could be fun!

  8. But if the majority of people in a department have certain background assumptions, a candidate whose work carries different assumptions will be seen as having significant gaps and flaws.

    A pointed observation… Which you spend the rest of the post confirming. Was that deliberate, or irony? I’m having trouble deciding…

    1. OK, let’s see. The “rest of the post” after that quote consists of four paragraphs, making the following points:

      (1) Contemporary “movement” conservatism generally embraces a variety of untenable positions on issues related to environmental science and policy. Holding crazy and intellectually dishonest positions on environmental science and policy does (and properly should) represent a significant handicap for someone seeking a faculty position in environmental law.

      (2) People who start out as conservatives but who accept basic science and reality-based environmental policy tend to get written out of the early 21st century conservative movement.

      (3) Trying to avoid the fate mentioned in (2) is a difficult balancing act. As a candidate for highly competitive positions in academia, persons who are handicapped by any kind of “difficult balancing act” are inherently going to be at a disadvantage relative to persons who can focus unencumbered on their scholarly productivity.

      (4) A few sentences considering alternative ways of resolving this problem, noting that neither of them seems objectively likely to occur, and concluding that the status quo will probably continue.

      So, which of those do you actually disagree with? #1 is obvious to anyone who isn’t a movement conservative and who has at least a passing familiarity with reality-based science. There are numerous examples of #2, a couple of which are cited in the OP but I could name others if you’d like. #3 is just a statement of fact that transcends the specific issues here. If you think there’s some glaringly obvious alternative that’s omitted from #4, please provide it.

  9. In clinical psychology graduate programs, which are highly competitive, evangelical christians are at a disadvantage. This is so ingrained that surveys of program directors show them actually reporting, blandly, that they don’t want to admit evangelical christians, not seeming to realize that their conduct is illegal.

    1. But are they at a disadvantage because of their religious beliefs per se, or because they take actions based on those beliefs that are contrary to good clinical practice? Consider the case of Kansas, where one of the factors that helped get mandated science-curriculm standards back on track was the decision of universities in other states that science course taught under the faith-based standards would not be considered adequate for admission.

      Meanwhile, I mostly agree with the people who say that conservatives are really complaining about the loss of their former overwhelming privilege. (Back when my father was an academic economonist, his department was proud of the fact that it supported diversity by reserving one faculty slot for a marxist.)

      1. They are at a disadvantage regardless of their behavior. Studies of program directors given similar applicant files except that one mentions the religion shows that these candidates are more likely to be rejected. Maybe some of them would have made bad practitioners, but striking them all out on that supposition is discriminatory.

    2. I would be interested to know more about this. I used to know a fair number of Grace Brethren, a long time ago, and I do not recall them being anti-science. Some/most did tend to be more literal interpreters of the Bible than me, it’s true.

      I can see not admitting people who can’t deal with scientific procedure. Is that what’s going on? But even a secular psychologist might not “approve” of, say, adultery or something, but you’re not going to tell your patient that, right?

      Seems like there should be some way to at least address these issues, rather than just not letting them in.

  10. Can’t wait for the Marxist to apply to the Hoover Institution at Stanford. Or heck, the UCLA Finance Department. Or maybe George Mason University.

    Or how about the Greenpeace activist who is an engineer with a background in communications applying to work for Shell Oil Company.

    At some point, doesn’t this all become ridiculous?

    One can make a better argument that civil practitioners are not welcome in the halls of law schools except as adjuncts…

    1. It became ridiculous in 1971, when the Supreme Court ruled in Griggs v Duke Power Company that apparently color-blind selection schemes constitute illegal discrimination if they disparately impact minorities, even if that’s nothing but an unintended consequence. In other words, you’re discriminating if you don’t hire members of a minority group just because they would appear to be less competent. Ridiculous disrimination lawsuits are a hallowed tradition – like when the EEOC sued a strip club for firing a 57 year old stripper.

      I don’t see why conservatives should not use this doctrine to their advantage, if they can weasel their way into protected minority status.

      1. Not hiring blacks for a blue collar job in a power plant because they are black is a lot different than a law school not hiring a political conservative who provides, in the person’s resume, right wing screeds.

    2. Stanford and Shell are private, so can have whatever ideological tests they want. Iowa (and George Mason) are public (govt entities), which is why they can be sued on this basis.

  11. Jonathan: “As I see it, we have three choices: 1) affirmative action for conservatives, which might counteract the problem of assumptions; ”

    Which is basically saying that if you can get a noisy political faction to say the Earth is flat, that academia should accept that as a valid opinion.

  12. There have always been lots of conservative law professors. Ronald Reagan almost wiped them out a generation of them with judicial appointments for their brightest lights.

  13. Do conservatives have a problem with discrimination when the beneficiary is conservative? As in, having a racial quota for anyone whose first name is not Clarence or whose last name is not Thomas is a really crappy idea? Or “born alive” preterm babies of mothers whose first name is not Karen or whose last name is not Santorum deserve life saving treatment?

  14. According to some contributors to the Volokh Conspiracy, not only do law schools discriminate against conservatives and libertarians, but conservatives and libertarians are routinely hauled out into the center quad of their institutions, de-pantsed, and then have their wee-wee’s pointed and laughed at by the general population.

  15. Given that not being hired is something all academics (as well as lawyers and many other professionals) routinely face, how on earth did Wagner convince the three judge panel of the 8th Circuit Court of Appeals that this case should go to trial??? Employment discrimination in the hiring process is very difficult to prove (the courts have generally restricted such claims to negative job action taken against persons already employed by the employer). I don’t see the failure to hire as state action taken to deprive her of her free exercise rights!

  16. You lost me when you said it was disqualifying to want to “get rid of energy-saving light bulbs.” Let’s put aside that absolutely nobody opposes the availability of CFLs, but only the ban on incandescents. The real issue is that it’s an entirely mainstream and respectable perspective to say that externalities are better handled with Pigovian taxes than by command and control regulations. Denying evidence from the natural sciences that the externality exists is one thing and probably legitimately disqualifying, but differences about how best to handle the externality are another and the kind of thing you should be open-minded about in colleagues.

  17. Jonathan, you write that: “If you are an environmental law scholar who rejects the findings of environmental science, you have no business teaching in any law school.” Are you willing to apply that to issues other than climate change? In the case of agricultural biotechnology, for example, there has been a greater consensus for a longer period of time (as demonstrated by repeated NAS studies with unequivocal language) that rDNA techniques, in themselves, pose no unique risks, particularly with regard to human health. This is a clear consensus finding of environmental science, yet our field tolerates plenty of people who would dispute this, as well as other fairly clear scientific findings.

    I agree with you that much of the bias against conservatives and libertarians in legal academia (and environmental law) is not conscious and occurs because faculties tend to replicate themselves, but it’s also clear there is a double-standard when it comes to the willingness to accept “unconventional,” dissenting, or even erroneous views about environmental science or other matters.

    And, FWIW, I’ve had fewer worries about getting written out of the conservative movement for believing in AGW or advocating a carbon tax than I have had to worry about getting excluded in legal academia for my skepticism of government regulation.



    1. If it’s so safe, why are advocates of frankenfood unwilling to let it be labeled, and let the public choose? They aren’t so in favor of fewer regs, it seems to me.

  18. I think you have to distinguish between advocates of genetic engineering, and representatives of agro-business. The former generally have no problem with labeling, so long as it’s accurate. It’s the latter who don’t want it, for a variety of reasons, such as added complexity in inventory, and public relations. But they’re not the same people.

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