- [Narrator] And now, an Arizona PBS original production.

- [Presenter] The School of Civic and Economic Thought and Leadership presents The Civic Discourse Project.

Ideological conformity on campus and in American society.

This week.

- Many require each faculty member to submit a statement about he or she's advancing the diversity, equity, and inclusion as part of consideration for hiring and raises.

Such statements promote a political litmus test for hiring and promotion because conservatives, libertarians, and even traditional liberals really cannot compete on that kind of ideological access.

- [Presenter] The Civic Discourse Project is brought to you by Arizona State University's School of Civic and Economic Thought and Leadership, and the Sandra Day O'Connor College of Law.

And now Peter de Marneffe, professor of philosophy at Arizona State University, conducts a discussion on ideological conformity with Ilana Redstone, professor at the University of Illinois Urbana-Champaign, and John McGinnis, professor at Northwestern University Law School.

- But laws are not always entirely clear, and men and women legitimately dispute their content.

Thus, a central purpose of the legal system is to clarify those rules through adversarial presentations to aid authoritative decisions by neutral tribunals.

Just as the adversary system perfects the rule of law, so a robust culture of free speech and inquiry perfects the adversary system.

What are the best arguments to make, or even what makes an argument the best, is often itself unclear and disputed.

A culture of exploring these arguments even before they appear in court without fear of retaliation or ostracism compliments the adversary system, and improves our governance.

That culture requires ideological openness, and not conformity.

I want to detail the structural factors, but I wanna make clear that I recognize that conformity can in principle be as much a danger from the right as from the left.

It's just that the most important structural factors today point sharply in one direction.

So let me begin with our faculties of today.

There has been a recent study written called "The Legal Academy's Ideological Uniformity."

Its title sort of sums up its conclusions by some political scientists, not any of them I think conservatives, who describe the legal academy as having a median law professor who's a liberal democrat with very small representation of conservatives.

Moreover, they make the also important point is that law schools now are moving more leftward because of the increased focus on faculty hiring and representation of women and minorities because these professors are even more left wing than the median law professor.

The effect is even more pronounced in the more controversial and more politically salient area of public law because in private law, a minority and female candidates are relatively few thus requiring public law to shoulder diversity hiring.

Moreover, what matters to students, the result of greater ideological uniformity, is that some professors, particularly young ones, don't present or don't present other than to ridicule ideas that are important today's adversarial system, what everyone thinks of them, like originalism.

The case books from which they teach are tending towards bias as well.

For instance, the leading constitutional law case book now has more pages from the dissenting decision in Dobbs, the case that overruled Roe vs Wade and left abortion decisions to the states, than the majority opinion.

Despite the established norms of the profession that majority opinions are more important to analyze for the development of law.

What is key in academics is the location of the conversation, what's being talked about, allow legal academics simply to ignore ideas that are inconvenient to the prevailing views, and a good example is that David Bernstein of George Mason University has just published the first comprehensive overview of racial classifications by government showing how arbitrary and capricious they are.

George Will devoted a column to it and called it perhaps the most important book of 2022.

But despite the endless talk at most law schools for the need for more conversation about race, only a single law school faculty has invited him to a faculty workshop where his work would be discussed despite the thousands of such workshops held each year.

Conversations on such subjects of sensitivity are mostly monologues at today's law schools.

That breeds a culture of certainty on some of the most important issues of our time, not open inquiry.

Second, law school administrations now pressure faculty to be more left wing, particularly on matters of race and gender.

Many require each faculty member to submit a statement about he or she's advancing the diversity, equity, and inclusion as part of consideration for hiring and raises.

For instance, all the law schools at the University of California imposed this requirement on applicants and professors looking for a raise.

At some schools, members of DEI inclusion staff, who are not faculty members, participate in interviews with the appointments candidates.

At my own school, we were asked about our contributions in our research to these goals in our annual review.

Pursuing diversity, equity, inclusion seems to me a thinly veiled code for a left-wing project on race and gender.

Thus adding a unit on how a particular body of law systematically oppresses minorities and women would count as with scholarship that argues for more race and gender conscious society, I think articles on the virtue of colorblindness would not.

It might be disqualifying at many places.

They also encourage faculty members to inject race and gender into every part of the curriculum, and treat it from a left perspective.

Such statements promote a political litmus test for hiring and promotion because conservatives, libertarians, and even traditional liberals really cannot compete on that kind of ideological axis.

What's really worrying is the supine compliance with such statements was it underscores how many legal academics have now subordinating longstanding principles of academic freedom to politics.

Let's assume instead that schools required faculty members to tell how their teaching and scholarship recognized that the United States was an exceptional country in order to help, for instance, foster civic bonds between students.

One can only imagine the torrent of complaints about academic freedom emanating from private schools and law schools about the First Amendment rights filed by professors at public schools.

Yet no such resistance has occurred internally at law schools, even though the immediate past president of the American Association of Law Schools is a famous civil libertarian.

And because of the pressure for conformity, there are now, I think, coming to be some examples of sort of classic censorship, and some prominent law school deans are instituting disciplinary proceedings about race.

The dean of the University of Pennsylvania Law School has recently called for his university to discipline or indeed fire a professor named Amy Wax for a variety of reasons, including statements that Brian Leiter, a famously left legal philosopher noted, are obviously statements of extramural opinion protected by traditional norms of academic freedom.

I think it's interesting in this way to look at that some of the dean's charges not only threaten academic freedom, but also demonstrate his own lack of adherence to standards of scholarship.

In his bill of particulars against Wax, he complains that she showed an interview with a former British politician, Enoch Powell, in class, which was wrong because Powell had made, at another time, what the dean characterized as a racist speech.

But as another professor, Seth Tillman, a professor in Europe shows in a devastating review of this charge, the dean offers no support whatsoever for the disputable assertion that Powell's famous speech was racist.

Something that Powell long denied, let alone that his interview was.

This incident I think demonstrates how the norms of scholarship can disappear when the new sacred values about race and gender are attacked.

Second, the conformist orthodoxy of today has also undermined the rule of law by alienating conservative law students.

Conservatives have traditionally been strong defenders of following formal legal rules, creating an anchor for society amid the turbulent world of politics.

But now many conservatives are rejecting these formal methods in favor of approaches that will allow political actors to choose the interpretation that best advances their own view of the common good.

This is most associated with Adrian Vermeule at Harvard.

The abandonment of the ideal of legal neutrality is not surprising because conservative students now experience the faux neutrality of universities where admission is suffused with considerations of race and ethnicity, where conservative professors face discrimination, and mobbing against conservatives is sometimes tolerated.

Thus, the left orthodoxy of law schools makes many conservative law students think that neutrality is a mug's game because the left will use it as a facade to advance their objectives.

More generally, I worry that one of the causes of the rise of the populist right is the decline of the sense of neutrality of many of our institutions.

- I think professor is largely pointing to the symptoms of the problem rather than, sorry, and I'm gonna use a medical metaphor here, rather than the disease, to a certain extent.

And I think that it's alluded to in a couple of times in his talk.

So in the beginning, and I'm sorry I'm working off of an older version here, but I know you talked a couple of times about certainty and sort of the certainty in the orthodoxy, which I think is actually worth zooming in on a little bit more.

And so I think that that's when we talk about the orthodoxy and the conformity in higher education, which is I'm certainly in full agreement that it is a problem, and but I think that the cause really fundamentally is a narrow way of thinking that assumes that we have all the right answers already.

So in the interest of time, let me speak to a couple of examples that he gave.

One of them is, so in the pursuit of diversity, equity, and inclusion, sort of the idea that articles of on the virtue of colorblindness would not qualify in most places.

That is certainly true.

And so then the question becomes, well why?

Well, what's driving that?

Why would something on colorblindness not qualify as a statement in support that would sort of work towards one's diversity, equity, and inclusion statement?

And it's because what we tend to do, and this is the certainty piece, is behave when it comes to these issues around race, gender, around anything contentious, that we have answers to questions that we never bothered asking.

So for example, in the colorblindness case, is there a limit to how much we should be leaning into identity categories?

This is not a question for us to answer, but this is a question when you call something colorblindness, you are assuming that there is no limit, right?

That there's no end, that we can just endlessly lean into sort of racial and ethnic identity categories with no downside, all upside, right?

And that the benefits will always outweigh the cost.

We never talked about that question.

That's not a question that's ever been on the table, right?

So why at what point is there a limit?

If you think there's a limit, you can't call... then it becomes impossible to say, well, actually I think not focusing on identity categories is a version of racism, right?

So then, so to get back to the example that he said, then the idea of colorblindness does become something that you can talk about in a diversity statement.

So again, but in the term itself, we're assuming that there's always going to be sort of endlessly better the more we lean into these categories.

And I don't, I mean, I think there's good reason to think that that's not the case.

Where should the limit be?

I don't know, but it's certainly something that should be on the table for a conversation.

So just to point out another example, in the Amy Wax case, and I know Amy Wax is, you know, she's found herself in hot water for a variety of things, and in this particular example about the river of blood speech by Enoch Powell, you know, there are questions there about, so for example, rather than just saying this was a racist speech, and the dean then therefore condemning it, well, first of all, and according to what the professor says, based on Professor Tillman's argument, was it a racist speech?

I've just read a little bit about it, I think there's a question there about was it a racist speech?

And then even if you think it is, there's a separate question about should that be disqualifying?

Does that mean that his name should never be invoked in a classroom?

Should we never talk about him?

Even if you think that the speech in 1968 was racist, does that mean that he is therefore sort of just we erase him from anything that important?

So in the response, in the dean's response, there is an assumption that we have answered that question, and I don't know that we've ever bothered asking it.

And so that's sort of when I say that sort of getting at the question, the sort of core questions of certainty, and the questions that we haven't bothered asking, and yet we behave as though we know the answers to, I guess I will close with kind of one more example with respect to the conversation around preferences in hiring preferences and admission, which he also talked about, which is going to obviously, we'll hear from the Supreme Court in the coming months on this topic.

Right, when we think about the conversation around Affirmative Action, and I'm using Affirmative Action as sort of a broad umbrella term for everything that fits under it including racial preferences and admissions and in hiring although it's certainly broader than that, there is an assumption there about the causes of inequality in the first place, right?

So again, this assumption, and this is without taking a position for or against Affirmative Action, but if you think that if you wanna make the argument that the only sort of right way forward is with Affirmative Action, right?

And there are certainly people who have made this argument, you have to assume that you have then accurately assessed the causes of inequality, the inequality that you care about in the first place.

And so again, there are these questions that we haven't asked, but we behave and respond when it comes to contentious topics as though we already have answers.

And so what I would say in terms of transforming higher education, and in terms of transforming how we think about these issues, I agree that everything that the professor is talking about is a problem.

I think that the way forward is to pull back a little bit, in some ways, slow down our thinking on these topics and say, "Look, what are the assumptions?"

When we think that something is easy, when we think that a contentious issue has an easy solution, or that the answer is obvious, we're making some assumption.

What is it?

Right, and so that's where we should be starting.

(audience applauds) (soft bright music) - Why is there not a sufficient diversity of opinion to prompt honest intellectual inquiry and to produce good lawyers?

- Well, first I note that I think the term I use, ideological uniformity, was the title of the article.

It was the title of the article, "Ideological Uniformity of the Legal Academy," written by again, not by conservatives.

So of course that is something of an exaggeration.

There are conservatives in the academy.

There are fewer conservatives in the academy for reasons I've discussed because of the move to consider race and gender, and that creates even fewer in the pipeline for two reasons.

One, there are just fewer conservatives of that, women and minorities.

And secondly, anyone who says controversial things about these subjects, and of course, as you know, with some of the descriptions of what is thought to be racism and gender seems to encompass all sorts of different subjects today.

That also makes it harder.

So I certainly agree there are conservatives.

I think the worry is that the trend is quite going the other way, and so I would've been much more optimistic.

Indeed, in a different article, I was the first person to look at the ideological composition of the legal academy.

I was optimistic, and that was published around 20 years ago, that it was becoming better.

But now I'm much less optimistic, and then so you ask, well, how many is enough?

Well, I think it depends.

I think it depends again on the culture because a few can be enough if there's a culture where there's no sense that you're going to be ostracized for speaking out about these issues.

But some of the examples I've given suggest that there can be ostracism, or perhaps even worse.

So you could have a very few people if you had a culture of great openness.

That's really not the kind of culture we have, and that's why I try to focus on some of the administrative actions.

I think it's very troubling.

- So sort of what Professor McGinnis was just saying that the numbers actually, it more depends on the culture.

But what I would say is I'll just give an example of how I sort of see this problem.

If I talk to, and I'm in a sociology department at the University of Illinois, if I talk to a room full of students, and we talk about race and social problems constantly all semester, and if I say to them and I say, "What are the benefits of the concept of white privilege?"

And they say they can give me answers, like, well it helps us think about the role of unearned advantage, or it helps us think about the way race continues to play a role in everyday life, right?

And I say, "Yeah, that makes sense.

I don't know, it seems reasonable to me."

And then I say, "Well, what can you tell me about why someone might object to or have concerns about the concept of white privilege?"

And they say nothing, they have nothing.

Whether they have ideas and don't say them, or whether they literally don't know how to answer the question, it almost doesn't matter because the point is, that like, there is nothing that comes out, and so then we have a conversation about it.

But I don't know how, that's not something that you're gonna capture in a disinvitation in a self-censorship.

And so that's sort of where I would focus.

- [Moderator] Okay, thanks.

- Christie Emba from the Washington Post.

There's much conversation about how law schools need to choose the best students based on LSAT scores, et cetera.

But if you think about the role of lawyers in a judiciary in a pluralistic modern society, is not part of their use being able to understand multiple groups of people, to have a sense of what our society looks like, to have different perspectives that are based not just in their ability to sort of manipulate sentences in the LSAT, but also bring something of themselves, something of their knowledge of society to the table?

Do you think that law schools are doing well enough in that regard?

Are there other ways of measuring merit than just scores or grades?

- So your question about meritocracy, and so my position on that is that there are going to be people of all races, of all genders who are gonna be very good students, who can be admitted without preferences, and we should consider such people.

The difficulty is that once you decide that people are going to come to a class with different standards that predict their performance as an academic matter are going to be different, that's going to create a lot of tensions, and some of the problems that I've indicated even that go to the nature of bias in law school.

So I'm much more optimistic perhaps that without preferences, we are going to have people of different views.

And of course, it's not only that people have different views because of their race, or their gender.

People of the same race and gender have a whole variety of different views, and they come from a whole variety of different kinds of economic circumstances.

I think sometimes I worry that by defining difference in terms of just a very few categories, we're actually distorting the real differences that people bring as individuals to the classroom.

So that's another concern that I have with at least the kind of preferences that are practiced by some of our elite institutions.

They create a category that actually does not capture all the different kinds of experience.

- Hi, I'm Mike, I'm an undergraduate at ASU.

My question is for Professor McGinnis.

You talked a lot about like, getting rid of Affirmative Action and how it would benefit the universities and such, and I don't wanna necessarily argue against that, but my question is, do you think the problems that inspired Affirmative Action still exist?

And if so, do you have any type of solution instead of Affirmative Action that you think would be better?

- Oh, I certainly think we should all be concerned about how to improve the lot of people in society, and certainly the least fortunate among us.

So if this were a policy discussion, I could give a list of things that I think would be important.

Sadly, of course, one problem I think this would might even have some general agreement is that by the time people are admitted to law school, they already have had a lot of education, and so it's hard to change their radically improve their writing at law school for instance.

So a big focus of mine would be K through 12 education, and I tend to think that we need more competition in K through 12 education, so as to get people to the best they can be because then we'll have for a variety of reasons.

One, that will give a diversity of approaches, and that's good because we don't know exactly, again going back to the certainty point, exactly what is the best approach for a lot of education.

Particularly we don't know what's the best approach for particular people because surely some people learn better in one way than another way.

And moreover, with competition, just as competition happens in the market, places that perform better are going to attract more students, and places that perform worse are gonna attract fewer students, and so that kind of dynamic is also helpful.

So if I were to focus on one thing to try to improve the education and then make Affirmative Action even less necessary in the eyes of those who think it necessary, it would be a relentless focus on competition.

And the other thing I think I would certainly be willing, if you create a competitive structure, I think we should think about distributing more money to people with children.

That kind of distributional demography is one of our real problems.

So one thing would be credits for people with children.

Trying to give and trying to make sure that money gets to be used to children.

That also I think would be a good way of addressing these things.

- Thank you so much, Professor McGinnis and Professor Redstone.

Please help me thank our distinguished panelists.

(audience applauds) - [Presenter] The Civic Discourse Project, Ideological conformity on campus and in American society is brought to you by Arizona State University's School of Civic and Economic Thought and leadership, and the Sandra Day O'Connor College of Law.

(upbeat music)