“Diversity” Hiring At Law Schools

From Michael A. Livingston, Professor of Law at the Rutgers-Camden School of Law, an honest (and therefore politically incorrect) critique of affirmative action hiring in law schools.

The exact same thing, of course, could be said of affirmative action hiring in any other part of academia.

The first problem relates to the organization of the hiring (admissions) process. Since race and gender are more or less objective, and quality is not, the former tend to move quickly from being a partial factor in hiring decisions to being the only factor that really counts. At my own law school this has taken on a depressingly familiar form. After two or three years of more or less open hiring there is pressure from the university or outside forces for more rapid process on the diversity front. At this point everything changes: the members and chair of the committee, the methods for selecting candidates, even the voting rules change in order to ensure the desired result. (The university has even been known to add or delete hiring lines depending on the physical features of the candidates, a process equivalent to adding an extra Senator to any State who votes Republican.) One can well ask whether this procedure produces the best candidates: but the point is that no one will believe they are the best candidates, even if they are, so that the process tends to degenerate into a “perpetual first wave” rather than any genuine progress to a more balanced faculty. (In almost twenty years of such policy there has been virtually no change in the female component of our faculty, and the percentage of minorities is actually lower than it was a decade ago.) It goes without saying that conservatives, including conservative women and minorities, are rarely if ever produced by this process.

The second problem concerns the internal operation of the law school that hires on the basis of diversity criteria. Because it is so costly to dip below the required minimum of diversity faculty, in practice almost anything has to and is done to ensure that they are happy. At my school, I have watched sadly as one after another of the unwritten faculty rules — the level of publication expected, the expectation that one’s work would be presented to the faculty before tenure, even the assumptions regarding physical presence at the law school — were compromised or abandoned to accomodate female or minority candidates who the law school simply could not “afford to lose” under the new dynamic. . . .

This leads to the third and in my view most significant problem with diversity programs: their effect on civility and free speech at the relevant institution. Because everyone knows that the people other than the best candidates are being selected, but in the nature of things cannot really say so, they tend to develop a habit of dishonesty and “wink-nod” compromises that is extremely difficult to limit to this one area. The entire trust and honesty that characterize academic exchange accordingly tends to atrophy in very short order. Nor do the proponents of diversity shrink from retaliation against its opponents. Propriety requires me to spare many of the details, but suffice it to say that there have been at least two grievances and one threat of litigation at my school by faculty members who asserted retaliation for the expression of conservative, anti-diversity views, one of whom was specifically told that he would be promoted when he “shut his mouth” and stopped criticizing the policies of the law school. Others have informed me privately that they will not vote against diversity candidates for fear that they will be hurt in the pocketbook if they do so. Many simply avoid faculty meetings, finding this the surest way to avoid uncomfortable issues; I myself have done this more often than I would like to admit.

We have long been aware of the cynicism of liberal academics on this issue. They will typically assert the desirability of “diversity,” but know full well that “diversity” candidates are going to be inferior to real hires. They concoct elaborate schemes to hire a “diversity” candidate — schemes that bypass the normal hiring process in which the “diverse” candidates are unlikely to be the best candidates. When necessary, they will simply vote against a better qualified white male and support a less well-qualified “diversity” candidate — as happened just last year in Political Science. (Happily, the “diversity” faction was outvoted.)

The net effect, of course, is corruption. And not mere venal corruption. The effect is intellectual corruption, which is the worst kind imaginable at a university.