Facebook Twitter

Perspective: The problem of liberal law schools

Conservative scholars like Eugene Volokh are leaving liberal institutions. What can be done to restore ideological balance?

SHARE Perspective: The problem of liberal law schools

Alex Cochran, Deseret News

Thanks in part to decades of enormous subsidies, America’s universities are among its most influential institutions. They train the future leaders for every sector of the American elite; they produce and promote ideas that set the political and social agenda for decades at a time.

They are almost uniformly progressive. And they’re getting worse.

Some recent news in my own discipline is that Eugene Volokh, founder of the Volokh Conspiracy blog and among the most famous libertarians in the legal academy, is retiring early from UCLA. He is leaving to join the Hoover Institution, a conservative think tank at Stanford whose fellows include such luminaries as Condoleezza Rice, Thomas Sowell and Michael McConnell.

Announcing his move to Hoover, Volokh concluded, “The important point is that I’ll be able to write and say what I think is right, regardless of whether I’m mostly, partly, or not at all in step with my colleagues or the administration.” Left unsaid — and for all I know unintended, but nonetheless true — is that there are people at UCLA who would rather not afford him the same freedom.

Marking a lousy year for SoCal legal conservatives, Volokh’s departure coincides with the retirement of five right-leaning professors from the University of San Diego’s law school. According to one of them, civil rights scholar Gail Heriot, “in recent years it became obvious that USD’s administration would rather not have someone with my views around.”

In one sense, none of this is news. Since at least the 1950s, conservatives have always been outnumbered on university faculties, even if the ratio used to be more like 3:1 rather than 12:1. Consequently, conservatives have always faced a dilemma:

Should we join powerful liberal-run institutions and try to make them more conservative?

Or should we invest our money and talent in forming our own institutions?

Professor Heriot illustrates the problem with option 1: Liberal-run institutions do tend to be run by liberals, and it’s a rare liberal who thinks his powerful liberal institution should become more conservative. More common is the liberal professor who claims to support free speech while discriminating against conservative applicants.

This leaves conservatives pursuing option 1 in a bit of a bind. Some try to hide their conservatism, writing on noncontroversial topics until they get tenure; others are open about their views but try to convince schools to hire and tenure them anyway. Either tactic puts them at a disadvantage compared to progressives: Progressives don’t have to stick to boring, noncontroversial topics, and they don’t have to stand out so far above the other applicants as to win over the faculty members who think three conservatives on a faculty of 120 “might be one or two too many.”

And even tenured professors, if they question the liberal consensus in public, can wake up to discover the “academic freedom” at their institution isn’t quite what they were promised, or that even if no formal action is taken, they can be made uncomfortable enough that they’d rather leave.

So improving liberal institutions is a hard uphill climb and has been getting harder. But if option 1 seems like a daunting task, option 2 might be even more difficult.

Volokh couldn’t leave UCLA for an equally prestigious conservative law school, for the simple reason that there aren’t any; not a single law school out of the top 50 is as conservative as UCLA is liberal. (See page 53 here.) Starting a top-tier conservative law school would be expensive, of course — you’d need tens of millions of dollars just to build the building — but in this contest, money is only the entry fee.

The influence of a school like UCLA (to say nothing of Yale or Harvard) isn’t something that can be bought. It depends on the slow accumulation of trust over decades as the school’s scholars and alumni make their mark; on whole careers’ worth of publications and conferences; on the quality of the surrounding university and even the success of the university’s football team.

It takes generations.

And that fact presents a further problem: Every change of generations is a new chance to drop the torch. Just because a law school says it’s conservative doesn’t mean liberal faculty and students won’t apply, and if they’re admitted, they’ll understandably want to make the place more liberal. Will you shut them out, and risk becoming an irrelevant echo chamber? Or if you let them in, how will you stop them from taking over, when the weight of the rest of the academy is on their side?

So, if you can’t bring liberal institutions back to the center, and if building competitors takes decades, costs billions and often fails, what do you do?

In the long term, you keep trying. There are institutional success stories like the Hoover Institution and the Antonin Scalia Law School and the Federalist Society, and there are prodigious scholars who succeed in liberal institutions despite the bias.

There are even liberals who have come to realize the bias is a problem — that the free inquiry that made them love the academy needs defending. This insight has inspired the founders of the University of Austin, and even my own law school, which not so long ago was in the news for persecuting conservative students and speakers, has just hired a conservative constitutional scholar and put him in charge of “a new center focused on academic freedom and free speech issues.”

And in the long term, we might also do something about those enormous subsidies I mentioned earlier, and find out what market discipline does to institutions that haven’t cared much lately about the people footing the bill.

In the short term, the best advice I’ve heard is Ross Douthat’s: Stop donating money to schools we can’t trust and find more direct ways to support the students who need help, whether “through political or religious groups that promise to work against the school’s dominant assumptions, or through student associations that seem to foster free debate, or through campus-adjacent institutions that serve students but are independent of the schools.”

This won’t fix the academy; the problems are too big for that. But even if all we can do is make life a little easier for conservative students and faculty, even if we can only bring them together to become, as Douthat put it, “microcosms of the university” as it ought to be, and “cells in a body yet to be restored,” then we can still do a lot of good.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.