The Lack of Intellectual Diversity at Law Schools

Michael Toscano

In On Liberty, John Stuart Mill famously declared that

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

For many proponents of intellectual diversity, John Stuart Mill provides keen insight into its value. Of course the academy is not all of mankind. It has its own rules for determining who is and who is not a member, e.g. the degree-granting process, academic appointments, and tenure decisions. If one were to adapt Mill’s concerns about liberal society to the concerns of higher education, we might phrase it a little differently: “If all of the academy minus one were of one intellectual tradition, and only one academic were of the contrary tradition, the academy would not be justified in silencing that one academic.”

Since its founding in 1987, the National Association of Scholars has claimed that legitimate academic work has been unjustly squeezed out of the academy and a stale ideological homogeneity has set in as a result. NAS is not the only one to have noticed.

On April 5, 2013, the Harvard Federalist Society held a symposium on Intellectual Diversity and the Legal Academy. The conference had three panels, featuring several faculty members from Harvard Law and other prestigious thinkers, such as Robert George, a member of NAS’s Board of Advisors, and George Dent, a member of NAS’s Board of Directors.

The symposium proceeded with a statement from Martha L. Minow, dean of the faculty of law at Harvard, read by Joel Alicea, Harvard Law student and president of the Federalist Society. Via Alicea, Dean Minow appropriately began with a quote from John Stuart Mill: “He who knows only his own side of the case, knows little of that.” Minow then summarized succinctly one of the key virtues of intellectual diversity—it honors the students:

We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints.

She added:

Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work.

She said boldly, “This is the path of truth-seeking; this is the method of iterative improvement.”

The Federalist Society has posted videos for all three panels which reveal a lively and thoughtful conference, with important legal scholars truly engaged in incisive discourse—with some disagreement—about intellectual diversity. They considered the goods attached to it and the difficulties an institution would face in implementing it. Respectively, the panels asked, is there a lack of intellectual diversity in law school faculties? Should law schools care about intellectual diversity? What can we do to promote intellectual diversity?

The keynote address given by Sherif Girgis, who is currently pursuing his Ph.D. in philosophy at Princeton University and his JD at Yale Law School—and is co-author with Ryan T. Anderson and Robert George of What Is Marriage? Man and Woman: A Defense—was especially insightful. It is unusual for a student to give the keynote address at a gathering in which the speakers who preceded him are far more accomplished members of prestigious faculties.

Girgis humbly offered this explanation of being chosen to be keynote speaker: as a defender of the traditional view of marriage, he has spent his two years in law school “pushing the most hated conservative position, on the most heated political issue, at the most socially liberal law schools in the country.” 

“So what my experience lacks in length,” he added, “it has made up for, I think, in intensity.”

Girgis made it clear that he has “loved” the education he has so far received at Yale. So, “I am speaking not as an alien or as an exile, with kind of idle grievances to air, but as a member of the minority, pushing for reform from within, with the…optimism and the hopefulness of a local who intends to stay.”

Girgis’s comments focused on what he believed to be three costs of a lack of intellectual diversity: costs to career development, costs to knowledge, and costs to friendship. Click on the video below to watch the recording of his comments.

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