Are Law Schools Under Attack by Right-Wing Culture Warriors?
Originally published 8/10/24 at DavidNewhoff.com
Right after the Supreme Court held in June 2023 that “affirmative action” programs are unconstitutional, Stephen Miller announced that America First Legal sent 200 letters to law schools threatening litigation if they attempt to “circumvent” the Supreme Court’s ruling. Granted there’s an element of whiny rattle-rattling in Miller’s promise, but the threat itself cannot be viewed as empty in light of a related lawsuit filed against parties at the Northwestern University School of Law in early July. More about that case below, but Miller’s broadside at American law schools, as part of a general assault on DEI initiatives, begs an obvious question: What evidence would such complaints present to prove noncompliance with the law other than to allege too many admissions or hires who are not White, male, and heterosexual?
Miller’s warning of legal action implies a coordinated effort to go after American law schools with the rhetoric of constitutional justice, but which more likely seeks rejection of viewpoint diversity in the administration of law. Especially in regard to student admissions going forward, Miller’s statement, just days following the Court’s decision, forecasts nuisance lawsuits based on unmeritorious allegations. Because if nothing else, a legitimate suit should require a few years’ worth of evidence after the SCOTUS decision to show a pattern of noncompliance.
Presumably, a plausible complaint by America First Legal would require contrasting accepted students with rejected students on the basis of “merit,” but that’s where the discussion gets tricky. Because transcripts alone won’t do, and even the Supreme Court said as much…
A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. [emphasis added]
It is one thing to insist upon good-faith identity “blindness” in admissions or hiring practices but another matter to prohibit a holistic view of a given candidate. The wealthy kid who gets straight As at Choate should have to compete with the poor kid who worked to get even a B average in Compton. Just because the race of these two candidates may be nullified by the Court, this rule cannot be read to bar an institution from considering the narratives of both students and, perhaps, crediting the latter for achievement through adversity not faced by the former.
Thus, the standard, as described above by Justice Roberts for the majority, implies that thesis question as to what evidence Miller et al. would present to show that a law school has failed to properly consider students’ whole narratives in admitting or rejecting them. At a certain point, it’s like trying to prove age discrimination in hiring—if there is no mention of age, an employer will still consider the factor, and it is very difficult to prove the decision-making included that particular form of discrimination.
The Northwestern Law School Complaint
Rather than speculate about what Miller’s lawsuits might look like, we have a relevant model in the suit filed against Northwestern Law by an organization called Faculty, Alumni, & Students Opposed to Racial Preferences (FASORP). The group, which hosts a single web page without reference to administrators, leadership, or funding, begins its complaint thus: “Faculty hiring at American universities is a cesspool of corruption and lawlessness. For decades, left-wing faculty and administrators have been thumbing their noses at federal anti-discrimination statutes and openly discriminating on account of race and sex when appointing professors.”
Notwithstanding the pearl-clutching tone of the complaint, the factual allegations about hiring practices purport to show that the law school engaged in purely identity-based hiring decisions in violation of federal statutes. It also alleges identity-based decision making by “Jazmyne Denman, in her official capacity as senior equity and inclusion editor of the Northwestern University Law Review”—an especially harsh allegation against a student because being a named party to litigation can delay job opportunities for law school graduates. I predict the allegations against Denman and the law review will fail on First Amendment grounds, and I’ll confine remarks to allegations about identity-based hiring of professors.
On that matter, FASORP names several professors and cites various anecdotes, some of which could, upon discovery, support allegations of noncompliance, but not necessarily. For example, the complaint cites the hiring of Professor Paul Gowder thus:
Although Gowder had produced scholarship and obtained tenure from Iowa in 2017, he was hired by Northwestern because he is black, and it was made clear to the faculty throughout the hiring process that only a black person would be considered for the position that Gowder was chosen for. If Gowder had been white, he would not have been considered for any type of faculty appointment at Northwestern.
It's an interesting sleight of hand because that statement aims to prove a negative. It does not say that Gowder is unqualified—indeed the CV of this Harvard Law grad is impressive—but alleges instead that a professor with similar credentials would not have been considered if he were White. But again, this begs the question discussed above regarding admissions and the right of the school to consider the whole bio of the candidate and its right to foster viewpoint diversity among the faculty. Perhaps it stands to reason that a White legal scholar would not have either motive or insight to write a book titled, The Rule of Law in the United States: An Unfinished Project of Black Liberation, but isn’t that the point? Is FASORP alleging clear discrimination in violation of federal law, or is it attacking ideas it does not like?
What follows next in the complaint—a description of bargaining in hiring decisions among senior faculty—could perhaps implicate some evidence of noncompliance, but it reads to me like the typical politics of academia I have heard described by many academics I have known. While those politics inevitably cause frustration for one party or another at various times, the proposal to remove identity from the scrum is often impossible to distinguish from an effort to stifle the viewpoints of the individuals in question. Again, is Prof. Gowder unqualified? Are his viewpoints unfounded on merit? Or are his viewpoints merely distasteful to some parties?
To be clear, I and other liberal thinkers are well aware that initiatives like “affirmative action,” or the more contemporary DEI, can result in administrative laziness that meets quotas, bars opportunities for qualified candidates, or nurtures viewpoints that are “diverse” in appearance, but which foster mediocre scholarship. But these are not novel challenges in education recently introduced by the “left-wing,” and it is hard to believe that FASORP, let alone a professional whiner like Stephen Miller, is engaging with these nuances in good faith.
For example, as a lay expert in copyright law, I often see certain law school professors make public statements conflating their opinions about how copyright law should work with how copyright law does work—and I wonder how they can be allowed to teach future lawyers. While I would certainly describe those professors as the kind of left-wing thinkers with whom I quarrel on various subjects, are the White, heterosexual males excused in this context? Would FASORP or America First Legal overlook those men in a hunt for women, Black, and/or gay professors who espouse the same views?
Identity has nothing to do with the fact that those professors may be evangelizing opinions about IP law which are anathema to statute or case law. Alternatively, if those professors are honest about distinguishing their opinions from doctrine, why should law students not confront those opinions on the merits? Meanwhile, some of the most extraordinary people I have met in IP law are Black, female, gay, etc., and to the extent their personal experiences inform their thinking as attorneys and scholars, that is precisely the intent of DEI in principle.
Let’s be honest. It’s not as if merit-based, equal opportunity has been the rule since passage of the 14th Amendment. Prior to initiatives designed to foster diversity, the traditional White Men’s Club produced—and still produces—plenty of mediocrity in every field. In law, for instance, one need only look at high-ranking officials like Cruz, Hawley, DeSantis, Abbot, and Johnson—all graduates of elite law schools—and tally the number of self-serving constitutional misstatements they make that would justify directing the language of the FASORP complaint at them as “diversity hires.”
Genius has always been identity-blind, and conflict only arises from an unwillingness by one identity group to admit this truth rather than attempt to trap it Minotaur-like in a rigid labyrinth mislabeled “Merit.” It’s true that new ideas crowd out old ideas, that not all new ideas are sound, and not all old ideas are obsolete. But again, this is not a novel challenge in the competition of ideas, and rather than engage in that competition, it is telling that Trumpian “conservatives,” with their loose grip on reality, choose to attack law schools in this manner. The principled individual who sincerely believed that “affirmative action” was unconstitutional would take the 2023 SCOTUS ruling as a doctrinal win and leave the subject alone for now. Instead, Miller’s leaflet-drop warning of carpet-bomb litigation to follow reeks like the viewpoint-based agenda it surely is. Assuming the Northwestern suit proceeds, it may reveal the true nature of the fight to come.