Harvard Law School’s chapter of the Federalist Society recently hosted a conference on the topic of intellectual diversity in law schools.
The first panel addressed the question of whether there is a lack of diversity. Professor Mark Tushnet of HLS was the only panelist at the conference who definitively denied that there is such problem. In a comment that was discussed throughout the rest of the day, he argued that a student so concerned about being around other conservatives could opt for Pepperdine over Harvard.
Professor Tushnet initially limited his argument to contending that such a student would be happy because he could be in the middle of the class at Harvard Law but at the top of the class at Pepperdine Law, but he later broadened the point, arguing that diversity within a given institution is less of a concern if there is diversity across institutions.
There are two responses to Professor Tushnet: First, it seems disingenuous just to assert that things would be fair because a conservative student or prospective faculty member can just go to Pepperdine. Pepperdine is a great school with excellent students and faculty, but it also doesn’t have six justices on the Supreme Court and it didn’t produce both candidates in the most recent presidential election.
Even if liberals and conservatives split up the schools evenly, such that, say, liberals had Harvard while conservatives had Yale and so on, a second problem would remain. Professor Robert George of Princeton and Harvard Law argued on a later panel that liberals can’t represent conservative views as well as conservatives can, and vice versa. With no internal diversity of intellectual views, students won’t really learn conservative arguments (and or liberal ones, at conservative institutions), which harms all students because their positions are never tested and sharpened. Diversity across institutions would thus only ensure that conservatives are just as oblivious to opposing arguments as liberals are.
There were countless other good exchanges during the conference, and I encourage anyone interested to check out the videos of the panels posted here.