Kudos to Dean Paul Caron for assembling a good collection of recent posts on the perennial subject of whether and to what extent universities should become more intentional about viewpoint diversity. These interesting posts were spurred by what appears to be a commitment by Harvard to deliberately pursue faculty hiring of conservatives (resources permitting, a big caveat in these troubled times), and perhaps doing so, at least the reporting suggests, through the development of institutes and initiatives that would channel such efforts into these organizational rubrics.
My own views align with those who regard it as important — perhaps short of an imperative, but still really important — to pursue actively viewpoint diversity in law school hiring. This ought not, imho, be about quotas, and not really even about measuring with inherently flawed tools the pertinent comprehensive ideologies of faculty. That is not really possible, for all sorts of reasons, nor is it appealing as a normative matter. That it is not obviously illegal is small comfort. We are talking here about best practices, not about what taking advantage of the latitude available by the law’s agnosticism on the subject of the viewpoints of our teachers.
What is possible, and desirable as a best practice, is to be intentional and strategic about how we scour the relevant universes for folks who have views different from the majority, from the common views of those who are working in legal academia and at our own institutions on subjects in which they have expertise and a developed research agenda. Further, relevant faculty (and with special attention to deans and those in other positions of institutional influence and power) should aspire to be truly ecumenical in how they read and evaluate work. Maybe, to quote my good friend and leading constitutional law scholar Mitch Berman, “originalism is bunk.” But folks who hire faculty should be dead set on bracketing this view when evaluating folks who are committed originalists. I am not naive in supposing that such reviews will cause the scales to fall from one’s eyes, but I can attest to the fact that one can examine carefully scholarship that has both results and methodology that one ultimately finds utterly unconvincing. There are many examples of this that have nothing to do with originalism, but I trust you get this (admittedly un-novel) point.
Deans are big parts of the culture, and of the enterprise. To be sure, their experience will differ from institution to institution and also by style and temperament. I have seen deans whose own work is conspicuously liberal be fairly successful in setting a tone and also standards (if not necessarily rules) that encourage colleagues to be ecumenical and charitable in their evaluation of scholars with whose work they disagree, often vehemently. Indeed, I have aspired to be such a dean myself. This can admittedly be difficult, both with regard to one’s own self-discipline and, especially, one’s ability to use soft power and respectful influence to help move the needle. Further, I have had the good fortune to serve as dean two institutions (San Diego and Northwestern) who have long enjoyed a tradition, for sure not beginning with me, of welcoming more conservative scholars and ensuring that such voices are amply respected and even encouraged within the law school. Our students have benefitted from such diversity, as have our colleagues. But let me not exaggerate where these and other institutions are with regard to a true condition of viewpoint diversity. Conservative and libertarian viewpoints remain distinctly in the minority in law schools and this reflects our collective failure.
Remedying these deficiencies requires constructive efforts. These efforts should be steadily purposive and, in my opinion, mostly organic. Number counting will be no more successful here than it is with regard to the kind of DEI-focused hiring that is currently under assault. Despite what one spate of ill-intentioned, evidence-free, and ultimately baseless recent assertions suggest, the goal of ensuring that faculty recruitment should be based principally on one’s race or gender has never been a priority of mine, nor would I suggest it should be a priority of other deans and faculty members, even before the Court’s recent affirmative action decision. And so it defies sense that we would and should replicate such efforts with regard to viewpoint diversity.
That said, external threats to punish law schools unless they scramble to assemble a much more conservative law faculty are not the answer. And hyperbole about either facts on the ground or what the world should quickly look like is seldom helpful. Instead, we should undertake the effort as shepherds of our institutions to simply do our level best to improve on this dimension. The tall task of increasing viewpoint diversity — more specifically, bringing in more avowedly conservative and libertarian perspectives, defined in nuanced and contemporarily relevant ways — should be embraced by faculties at law schools across the spectrum of missions and of resources.
Off my soap box, to admit that the difficulty in all this lies mainly in the strategic details. Focusing on such strategies is really essential, but is presaged by what I hope is a broad scale agreement that we are not nearly where we ought to be.
Posted by Dan Rodriguez on July 17, 2025 at 03:54 PM