This is an evergreen issue, but in response to a tweet by the twitter feed of the Feminist Law Professors blog, Mike Dorf has put up some thoughts on the question of diversity on academic panels and conferences, including but not limited to gender and racial diversity. I was involved in planning one conference this year, and am involved each year in planning the list of speakers and attendees for the Annual Law and Religion Roundtable (although the lion’s share of this hard work is done by my friend and co-organizer Nelson Tebbe, and most of the rest of the work is done by our other co-organizer and friend, Rick Garnett). I’ve also helped plan a few other panels and conferences here and there, and have advised the Alabama Law Review on its symposium planning. I’d like to offer some thoughts of my own here.
As a preface, I should add a note by way of confession, since the tweet that sparked Mike’s post suggested that men should refuse to appear on a panel if there is not at least one woman on the panel. I’m not sure that plea, if one agrees with it, should stop at gender, and a person interested in gender, race, class, and intersectionality might ask why the suggestion stopped there. Still, I must confess that I just appeared on a conference panel on which there were five men and one woman, who was “only” the moderator. (She happened to be the most impressive person on the panel, for what it’s worth.) I found it striking and surprising. I will note, though, that panelists often don’t know what the composition of a panel will be until rather late in the process, when they’ve already made a commitment to appear. I’m not rejecting the suggestion of the tweet, and in such situations one should at least write to the planners and urge them to see whether something can be done about it; better yet, one could ask or insist in the first place, upon accepting, that there be at least one woman (or what have you, including insisting that the panel is not all like-minded on the issue) on one’s panel. But the timing and logistics are a complicating factor. I will note, in fairness to the planners of that conference, that the mix of men and women on the overall list of conference speakers was quite strong. I will also note that in past years, I’ve put up one or two posts (which I couldn’t find, alas, but commenters who do are welcome to put up the links) examining the gender composition of panels at the AALS annual conference. Many were reasonably balanced. A number, often associated with particular sections, were composed of only one man or only one woman. A few, to my great surprise, were all men or all women. The AALS usually advises program planners to seek various balances, including gender balances, but the advice apparently doesn’t always take, and I don’t know whether it does any follow-up or not when it looks at the proposed speaker list and finds serious imbalances.
Here are my thoughts, for whatever they’re worth.
1) On those occasions when I help plan panels or conferences, I certainly am always thinking about diversity, definitely including gender and racial diversity. So are most of the people I collaborate with or speak to and this does not break down neatly into (caricatures of) the “liberal” or “conservative” politics on the part of the planners. Some of this may be prudential at an institutional level and some of it fear of embarrassment. Most of it, though, seems voluntary, sincere, and committed. I am not generalizing from this. That personal experience is certainly some cause for optimism at a personal level. But it’s not data, and I have no idea how widespread this commitment is or is not. 2) Invitations do not always equal results. One may reasonably believe that a non-diverse panel is a problem regardless of the good intentions of its planners, and that it should be exposed to wider public view for shaming purposes. I have no particular problem with that. But people viewing such panel descriptions should at least be aware may have tried to achieve gender balance–and tried again after the first and second round of RSVPs were in–and still not met that goal. One might still reasonably believe the outcome is what ultimately matters, but onlookers should be cautious about drawing confident conclusions that the planners didn’t care in the first place. 3) Mike talks in his post about the varieties of diversity one should shoot for. Let me emphasize three categories that deserve lengthier treatment. A) Planners should seek to include a mix of senior and junior scholars on their panels. This is a good idea for multiple reasons. One is the standard one of trying to ensure that paths to “influence” and status are open to all. Another is intellectual: We have much to learn from rising scholars, perhaps especially those of us who have been at it a while and risk becoming ossified in our views or sources of knowledge. A third is “conservative” and distinctly tradition-based. We should encourage conditions in the academy under which there is inter-generational exchange: in which rising scholars get to meet and learn from established people, in which the institutional memory of the field is drawn on, preserved, and advanced, and in which and in which a scholarly area is experienced as a community and a project that extends backwards and forwards in time. In my experience, some people who are interested in some forms of diversity give too little thought to this. They have panels that are diverse across some dimensions, such as gender or race, but nevertheless consist of already-established scholars who already enjoy significant power, opportunities, and social capital. Perhaps I should not judge too harshly based on the makeup of such panels, because I don’t know what efforts those planners made to include junior scholars. But it seems evident, and I have some anecdotal basis for thinking so, that this is simply not a major concern for some planners, even if they care about other dimensions of diversity. B) We should also seek to ensure that some participants are not from elite schools (or, perhaps, backgrounds, although the homogenization and narrowness of hiring criteria in the legal academy makes this more difficult). Instead, we should attempt to ensure that at least some panelists, whether junior or senior, come from less elite institutions or backgrounds. It has been the case for years, if not decades, that the hiring process results in many excellent scholars having positions at non-elite schools. (Some of those hires also have more practice-oriented backgrounds, which can benefit the intellectual and methodological diversity and practical cast of the discussion). Not a few of these individuals lack the mentors or social capital that helps ensure wider exposure to their work, even if they have tremendously interesting and valuable things to say. And that isolation may lead to a lack of a sense of membership in the scholarly “community” of their particular field–to their detriment and to the detriment of that field itself. (Where these relatively neglected scholars are also members of minority groups, they may labor under a double disadvantage.) We should make committed efforts to bring together not only junior and senior scholars, but “elite” and non-elite scholars, and break down the usual name-tag bias that remains so prevalent in our academic discipline. It’s good for everyone, both institutionally and intellectually. Again, without wanting to over-generalize, I would observe that some people who care about some forms of diversity are nevertheless highly elitist along other dimensions. Their panels are gender-diverse or racially diverse, but in other respects are elitist, conventional, and self-perpetuating, inasmuch as appearing on several panels makes it more likely that one will be rewarded with still more and better invitations. Such panels are a major example of the Matthew Effect in action. Moreover, despite the assumption that elite scholars will have something brilliant to say, all-elite panels can be intellectually lacking. People ensconced within the usual elite circles may end up suffering from a certain amount of groupthink or conventionality, and people outside them may have valuable and heterodox intellectual contributions to make. And scholars who don’t get regular speaking opportunities may be delighted and grateful for an invitation, and thus more likely to put in serious effort in preparing for and speaking at the conference, whereas those for whom these invitations are a dime a dozen may occasionally just phone it in. We should resist the temptation to settle for elites when planning panels. C) Relatedly, we should avoid filling panels with “celebrities.” Not completely: their presence serves as a draw that makes it easier to get other invitees to agree to attend, helps with publicity for the conference, and of course some of them are actually meritorious thinkers and speakers. But aside from its ugly elitism, the all-celebrity panel can be seriously intellectually lacking. Some “stars” have extremely busy schedules, and may also take such invitations for granted. As a result, some will either phone it in or will pontificate lazily, over-confidently, and de haut en bas. Others, of course, will take the panel appearance very seriously (some stars are “stars” because they really are good and consistently serious and hard-working). On the other hand, it is likely that we will have heard from them countless times before on the same subject, so that their “value-added” will be more marginal. We see both these things–lazy appearances, and good appearances whose substance is nevertheless repetitive and already well known–from some of the “celebrities” who do two or three (or more!) panels at AALS year after year after year. Moreover, while some of these celebrities are famous (within the legal academy, at least) because they’re brilliant, some are–or remain–famous because they not only come from famous schools but are easily typed politically. For panel planners, they become easy and reliably typed examples of the “liberal” or “conservative” position. When you’re seeking some left-right balance on a panel, these individuals add both fame and a guaranteed position, as opposed to people whose views are more unpredictable, heterodox, or unclassifiable. Finally, it is inevitably true that some of these stars, while they were and perhaps are indeed brilliant, are nevertheless now drafting off of their earlier stardom and have become more conventional, unoriginal, or lazy. Obviously, one shouldn’t presumptively exclude stars, although a more radical anti-elitist or egalitarian might at least want to entertain that idea. Still, relying on and inviting the “usual suspects” is a frequent failing in conference planning, and one should try to avoid it. (Some, of course, consider it not a failing, but simple prudent or cunning planning. This approach offering more bang for the buck, more prestige, a better “reputation” ranking for the school hosting the event, and more publicity for that event or for the print articles that come out of it, resulting in a higher citation count. Not incidentally, it offers a greater possibility of personal advancement for the planner, who gets to meet and make connections with these stars and to confer favors and seek favors in return. Whatever the practical realities, this is at least a scholarly and moral failing.) 4) Mike is basically supportive of ideological or political diversity in his post. But he says relatively little about that (his post, of course, is not as prolix as mine), and more about the proposition that there are valid limits to this kind of diversity. He writes, “Other things being equal, a wide range of viewpoints on contested questions makes good sense. But there are circumstances in which a certain kind of homogeneity makes more sense.” The example he uses is “a panel on litigation tactics within the pro-choice movement,” in which, he argues, the planner “might want to have a panelist who thinks that litigation is a dead end or even counterproductive,” but “would be fully justified in excluding from consideration a pro-life speaker who proposes to use her time to argue that abortion is murder and that therefore the only kind of litigation warranted would be to defend abortion restrictions. (The organizer could sensibly include an expert on litigation and social reform who happens to be pro-life but whose normative views on abortion don’t preclude her from engaging with the other speakers on their terms.)” He adds, “Even when a speaker would stay on-topic, broadly defined, there can be good reason to have an ideologically skewed panel–especially if the skew runs counter to the dominant approach. Relatively small disagreements or disagreements about tactics or strategy among people who support the same broadly defined long-term goals can produce important discussions; those discussions can get derailed if someone who completely rejects the long-term goals wants to shift the conversation to those goals.” And he offers the now-standard cite to the idea, pioneered in law by Heather Gerken, of “‘second-order diversity’ that, in the aggregate, promotes intellectual and ideological diversity.” I quote him at length because while I ultimately disagree with him, at least to some degree, his discussion on this question is fairly nuanced, and certainly shouldn’t be reduced to a caricature or summarized cartoonishly as a willingness to push ideological uniformity or conformity. Perhaps there are conference planners out there who are fine with, or enthusiastic about, ideological uniformity or conformity, or whose views on what counts as a sufficiently “unacceptable” or heterodox position to justify excluding it are extremely broad, despite their surface-level commitment to the general idea of ideological diversity. But that is certainly not what Mike has written in his post. I do not think every panel must include every view, and that goal would be impossible to achieve in any event. Nor do I think that every conference must include every view, although I personally have little or no interest in conferences (sometimes funded by or in concert with particular interest groups or groups with distinct political leanings) organized around a shared viewpoint or a pre-existing, ideologically inflected “project.” There are time and places, I will concede, for panels or even whole conferences with shared views or a common cause–although, again, my personal view is that these are generally not especially intellectually rewarding occasions. But I want to make a few points about this. First, I strongly favor a presumption in favor of genuine intellectual diversity at academic conferences and on individual panels. I don’t think this is terribly controversial in itself, but the point is still worth asserting. I would add that this shouldn’t be reduced, as it too often is, to a panel that seeks to include two establishment liberals and two establishment conservatives. That’s closer to party parity than genuine intellectual, let alone ideological, diversity. Planners should seek to include panelists with different methodologies, with greater or lesser interest or lack of interest in the courts as opposed to action by the political branches, and so on. They should look for intellectually interesting speakers with non-establishment “leftist” or “radical” views, and non-establishment “right wing” views, or religious conservative views, or anti-liberal views, or traditionalist views, or other things besides the academic wing of what was once the Republican Party establishment–more genuine ideological diversity, in short, than a pair of speakers with solid blue blazers and a pair with blue pinstriped blazers. And it should look for people with uncategorizable and “unreliable” views, and/or who reject the standard division of politics on some issue as rather silly or short-sighted. Second, the “second-order diversity” argument works best if there is already genuine diversity within the academy. If there is not, or if the “second-order diversity” consists of a group of people who all share a viewpoint or politics that is already predominant within the legal academy, the argument for such panels or conferences, at least on second-order diversity grounds, is considerably weaker. At the institutional level, schools or law reviews that are nonetheless interested in “second-order diversity” for its own sake might at least try to ensure that the common viewpoint represented on some “second-order diverse” panel or conference is one rarely heard from within the legal academy. But I don’t understand Mike to be arguing for second-order diversity for its own sake, but rather to be arguing that it provides a justification for a panel with a shared view or common political goal. That justification, again, is weaker if there is not already first-order ideological diversity within the legal academy. Third, while I can imagine a conference on abortion that has as one of its panels the subject of “litigation tactics within the pro-choice movement,” I find it harder to justify an academic conference built around a particular political goal–say, advancing the pro-choice or pro-life cause. I’m not rejecting the very idea of such conferences. But I’m not sure why they must, or should, be academic conferences. Indeed, if one shares Stanley Fish’s definition of what it means to be academic–that the academic’s role is to treat an issue or position as an “object of study,” which involves “remov[ing] it from whatever context of urgency it inhabits in the world and insert[ing] it into a context of academic urgency where the question being asked is not ‘What is the right thing to do?’ but ‘Is this account of the matter attentive to the complexity of the issue?”‘–then there is a good argument that such many conferences are, or risk being, non-academic in their nature. My point is not that such conferences should not exist; that question really isn’t any of my business. It’s that they don’t have to be held by universities, using the finite space and resources of an academic institution. Plenty of think tanks, interest groups, political parties, rich donors, and others would, I’m sure, be happy to host them. These conferences might even be better for it, insofar as they would be more likely to feature a mix of academic and practical, non-academic, on-the-ground types all devoted to the same cause. I concede that we need not reject categorically the possibility of academic conferences or panels with a shared vision or politics, even if we need not be especially enamored of them either. But neither is it obvious that every such panel or conference must be hosted by a university or law school; and the more driven they are by a specifically non-academic mission, the more we should entertain the idea that university resources should be spent elsewhere, and that other, more partisan resources and spaces can and should be used for such events. Not every event has to take place on campus. Finally, the assertion that ideological non-diversity or shared missions and views should be the exception, not the norm, should be especially true for what we might think of as general forums or occasions, such as AALS section programs or symposiums put on by flagship (as opposed to more cause-oriented) law reviews. These spaces, which are meant for the exchange of a wide variety of views rather than the advancement of particular views, should be geared toward first-order diversity of various forms, including ideological diversity. AALS panels, I think it is fair to say, sometimes fall short on this. And so, sometimes, do flagship law reviews and their symposiums. (I must admit I have a recent example in mind, which was doubly unfortunate and ironic in that the cause it sought to advance was ostensibly egalitarian, but the actual attendance list involved mostly elite allies reaping prestige from appearing in an elite law review whose elite status derives in part from the supposition that it welcomes the best ideas from all comers. In my view, the law review’s advisor should have prevented this, and the outside funding and sponsorship offered by a group with fairly identifiable views should have been rejected.) Whatever exceptions we make in allowing some panels, or even whole conferences, to consist of a general shared viewpoint or mission, those exceptions should be extremely rare if not non-existent for forums that are supposed to reach a broad audience and be open in principle to all contributors, no matter their views.
Posted by Paul Horwitz on May 23, 2018 at 11:56 AM
Comments
I should just point out that the AALS Criminal Justice Section explicitly seeks to achieve diversity along all the lines Paul identified: race, gender, law school standing, celebrity/non-celebrity, viewpoint—and region is another one that is important to us (who wants to have a bunch of folks from one area, especially when the criminal justice system varies so much by region). We also have a list of prior panelists, and so try to share around invitees to make sure it’s not the same old faces. It helps with AALS, because there is some institutional memory there. It’s harder in other settings if there is no institutional memory. All this is to say that if there is a commitment to diversity, it is possible to achieve it. And I’ve tended to find that including different viewpoints that challenge the orthodoxy has generally made the panels much better than they otherwise would have been.
Posted by: Eric J. Miller | May 31, 2018 4:22:34 PM
If you’re willing to sign a public pledge to ask the diversity question (however you define it), please feel free to add your name to the list of signatories here: https://www.thepetitionsite.com/268/743/150/ask-about-diversity-on-legal-academic-panels/
Posted by: Bridget Crawford | May 31, 2018 10:32:27 AM
As the originator of the tweet on Feminist Law Professors, I am grateful for the thoughtfulness with which Michael, Paul, Orin and others are engaging in the question of diversifying academic panels. I’d like to take it to a simpler level. Who would be willing to sign a public pledge that before accepting any invitation to speak on an academic panel, you will ask what efforts have been made to secure diversity in speakers, whatever “diversity” means to you?
Posted by: Bridget Crawford | May 31, 2018 9:30:19 AM
While everything you say sounds good I kinda feel you are dodging the elephant in the room. Ultimately, given the limited number of willing participants and the time/resource constraints on the organizers one can’t simultaneously achieve diversity in all dimensions. At some point the problem becomes zero-sum and diversifying in one regard means forgoing it in another and given the very organizational difficulties you cite above we may already be at this point or at least relatively close.
More specifically, the claim being made by those who advocate shaming/pulling out of panels that lack sufficient gender/racial diversity isn’t merely that this is a nice property to have but that it trumps almost all other panel selection considerations. Listing other kinds of diversity that might be nice to have without taking a position on whether or not these other kinds of diversity can outweigh the benefits of racial/gender diversity is kinda avoiding the real question: which considerations should be paramount when choosing a panel.
Posted by: Peter Gerdes | May 24, 2018 6:31:27 AM
[Just a quick note by way of fairness: Although the tweet I mention above referred to gender alone, another tweet on that feed (God, I hate talking about Twitter) did discuss race as well.]
Posted by: Paul Horwitz | May 23, 2018 7:00:04 PM
I have one more thought on the very limited issue of ideological diversity — which I realize is not the most important part of this debate, but my views on the important parts are more in flux and tentative so I’m not sure I’m ready to write on them. In my experience, achieving ideological diversity can be pretty difficult in some subjects. I’ve been involved in panel planning, including for AALS panels, and sometimes there are so few people on the other side that it’s hard to offer an ideological range. The field I know best is my own, criminal law and procedure, where there are pretty strong orthodoxies. For most highly controversial issues, the kinds that make for good panels, there are widely-shared views among professors from which few disagree. You end up with a small number of people who can be called on to present contrasting views. And few want to hear from those same people again and again, assuming they are willing to attend and speak on the panel.
Posted by: Orin Kerr | May 23, 2018 6:05:05 PM
There are lots of complicated issues raised by this topic, and I’m still thinking through my thoughts on a lot of them.
On the limited issue of ideological diversity, I would make the point at a somewhat different level of generality: It’s a bad thing when panelists who follow the first speaker begin by saying, “I agree with everything that has been said so far, and I just want to add a few additional thoughts.” In assembling a panel, the goal should be to present different positions of some kind; each speaker should have a distinct topic or perspective, so that each panelist brings something new to the broad subject of the panel. Sometimes that will be ideological diversity, and sometimes that will be a different way to think about the topic. But the audience doesn’t learn all that much when panelists are all saying the same thing, which happens more often that it should.
I also tend to share Paul’s view that a panel narrowed to a particular viewpoint can be problematic. I’m reminded of a panel at an AALS criminal justice mid-year meeting I attended when I was a junior professor. It’s been a long time, so maybe I am misremembering, but my recollection was that the panel was about diverse ways of thinking about the death penalty. The panelists then presented different methodologies that could be used to oppose the death penalty. You could use philosophy to oppose the death penalty; you could use empirical studies to oppose the death penalty; you could use economics to oppose the death penalty; etc. As I recall, the point of the panel was to show that you could use lots of different tools to make a single argument — showing that professors had lots of methodological tools in their toolkit. But it also tended to suggest that the job of law professors was akin to that of litigators, and that we were supposed to be looking for modes of argument to support our preexisting conclusions rather than using those tools to arrive at whatever conclusion they brought us to reach. A broader range of perspectives that suggested tools might lead to the opposite conclusion might have been more illuminating, I think.
Posted by: Orin Kerr | May 23, 2018 5:52:43 PM