On July 1, John F. Manning became the 13th dean of Harvard Law School. Dean Manning, who joined the faculty in 2004, is a graduate of Harvard College (’82) and Harvard Law School (’85). After graduating from law school, he clerked for Judge Robert Bork on the D.C. Court of Appeals and Justice Antonin Scalia on the Supreme Court. Afterwards, he worked for the U.S. Department of Justice in the Office of Legal Counsel (OLC) and the Office of the Solicitor General. Dean Manning is widely considered an expert in administrative law and constitutional law, and has argued nine cases before the Supreme Court.
In announcing Manning’s appointment, Harvard University President Drew Faust highlighted his “unusual capacity for creating conversations and connections across lines of difference, and [his] deep appreciation for a wide range of perspectives and methods.” Manning succeeded Dean Martha Minow, who will begin a fellowship next fall at the Radcliffe Institute for Advanced Study. By every available metric, Dean Manning is an accomplished scholar. Even more importantly, he has garnered the respect and admiration of students and faculty.
Nevertheless, Manning’s appointment as dean has not been without some controversy. One writer at Above the Law shared his disappointment that Harvard selected a white, conservative male as dean, expressing his frustration that “HLS followed two successive women deans … with a Bork/Scalia clerk.”
Like many of my classmates, I look forward to the prospect of seeing HLS appoint a black or Hispanic dean in the future. But it is also important to acknowledge that diversity is not limited to race or gender, but extends to the marketplace of ideas as well.
Harvard Law School skews mostly liberal. In this sense, we are hardly unique. Conservative students and faculty are minorities not just on most law school campuses, but at most universities.
At Harvard College, a survey of the incoming Class of 2019 found that liberal freshmen outnumbered conservatives by as much as five to one – 65.1% identified as somewhat liberal or very liberal, compared to just 12.2% who identified as somewhat conservative or very conservative. The Harvard Crimson found that 84% of campaign contributions from 614 University professors and researchers between 2011 and 2014 went to federal Democratic campaigns and political action committees. That disparity was even greater at HLS: nearly 98%. We see the same disparity nationally. Studies have found that only 6 to 11% of professors in the humanities identify as Republican, while in the social sciences that figure is only 7 to 9%.
Unfortunately, those professors who do identify as conservative often refrain from admitting it for fear of hurting their careers. The Harvard Law School’s Journal of Law and Public Policy found that conservative and libertarian law professors are, on average, “cited more and publish more than their peers … [and] tend to have more of the traditional qualifications required of law professors [e.g., clerked on the Supreme Court, made law review, graduated from higher-ranked law school, etc.] than their peers,” leading the author to conclude that they “are not few in number because of a lack of scholarly ability or professional qualifications.” The author also suggested that these findings “are consistent with … a story of discrimination.” Many aspiring professors recognize this systematic bias in academia and either decline to pursue academia entirely or keep their conservative views hidden.
Especially at a time of such tension within higher education, Harvard University’s appointment of a conservative to such a distinguished and influential chair should be lauded for its promotion of intellectual diversity. One of the chief aims of an institution of higher learning—and one of its highest virtues—is its role as the “marketplace of ideas.” And yet, at this critical juncture in our nation’s history, some would wish to stifle the opinions, scholarship, and influence of those whose ideas differ from their own.
Sadly, our tolerance often does not extend to those who think differently from us. This year alone, a number of campus protests turned violent as students increasingly gathered to oppose conservative speakers such as Heather Mac Donald and Charles Murray and to keep them from speaking at their campuses. Intellectual disagreement is healthy; however, when disagreement turns violent, it is clear that there is a growing problem on our campuses.
Less obvious is the effect that crowding out opposing viewpoints has on the intellectual rigor of a university. One pernicious phenomenon that may be both a cause and effect of the decreased tolerance that exists on both sides of the ideological spectrum today is that of “group polarization,” whereby people create their own “personal echo chamber” by discussing issues with people who agree with them. The consequence is that people tend to become more extreme in the positions they hold the more they talk with those with whom they share their opinions.
To study the effect of “group polarization,” Cass Sunstein and Reid Hastie, a professor of behavioral science at the University of Chicago, conducted an experiment in two different communities in Colorado: left-leaning Boulder and right-leaning Colorado Springs. In each city, residents were placed in small groups and instructed to discuss controversial topics such as same-sex marriage, climate change, and affirmative action. Each participant had been asked about their own views prior to discussing the topics in their groups; and afterwards, the results showed that after discussing the topics, the participants in each city became more entrenched and extreme in the opinions they already held. Sunstein and Hastie found that, unsurprisingly, the “division between liberals and conservatives became much more pronounced.” The two concluded that “[t]here is evidence that when people who are like-minded talk to each other, they tend to end up in a more extreme position in line with what they thought before they started to talk.”
This effect becomes magnified over time. Studies indicate that “social groups are strongly inclined to search for as well as draw new members that are similar to the groups’ existing members, filter out and deter those who are different, and shape those who are still malleable into their own likeness.” This trend is particularly concerning for its implications on education. From an institutional perspective, “the tradition of majoritarianism in hiring and tenure decisions leads, over time, to ideological homogeny.” Thus, this trend may become self-perpetuating, with the discrepancy between liberal and conservative faculty members becoming exacerbated over time.
Admirably, Harvard Law School has actually been somewhat of an exception to this troubling trend that has otherwise been ubiquitous amongst most college campuses around the country. While the “Kremlin on the Charles” does not have a reputation as a bastion of conservatism, HLS has been praised for its increased employment of conservative-leaning legal scholars. Much of the credit for this trend is publicly attributed to former dean and now Supreme Court Justice Elena Kagan. Before her tenure, critics routinely complained that there were very few conservatives on the faculty at HLS. Under Kagan’s tenure, the number of conservative or libertarian-leaning professors almost doubled, going from five to eight (although only 3 out of the 43 professors Kagan hired were conservative or libertarian-leaning). Even then, however, those appointments were not without their own share of controversy.
Kagan’s hiring blitz was notable not only for increasing the number of conservative-leaning faculty members, but also for bringing in “a new wave of young, high-profile public law scholars,” including Jack Goldsmith, Adrian Vermeule, and John Manning. HLS has long been criticized for its (well-earned) reputation as a pipeline for BigLaw and legal work for corporate America. Data collected by Law School Transparency and the American Bar Association showed that, from the Class of 2013, 52% of graduates went to BigLaw firms, whereas less than 11% went to work for government and less than 4% went to work for nonprofit or public interest employers. HLS’s faculty hiring had long reflected this focus on private law, particularly corporate law. Students may differ on the ethics, or at the very least the optics, of such an emphasis (one complaint I had heard before coming to HLS was the disparate funding and support provided to OCS and OPIA, respectively).
However, the choice of John Manning as dean reflects diversity in this respect as well. His work in government and his extensive scholarship in issues of public law differentiate him from the other candidates being considered for the position and signify (and hopefully portend) a meaningful emphasis on public law. And as we all know, there has not been a time when an emphasis on public law has been more appropriate or, indeed, more necessary.
A law school’s main responsibility is to prepare its students to enter the legal profession. A law school that gives short shrift to conservative scholarship and fails to expose its students to conservative professors will be derelict in its responsibility. Even should students come away still in disagreement with their conservative professors, they will be much better lawyers for having their views challenged and tested. After all, outside of academia, conservative-leaning practitioners are much more evenly represented.
For instance, Republican-appointed Justices outnumber Democrat-appointed justices 5-4 (Democrat-appointed justices have not comprised a majority of the Supreme Court since 1970). And while Democrat-appointed judges outnumber Republican-appointed judges at the Courts of Appeals, that lead is likely to shrink or vanish entirely in the future, with the confirmation of two of President Trump’s nominees, his seven pending nominations, and the twenty current vacancies (and possibly future, unforeseen vacancies).
Many of us will end up arguing before conservative-leaning judges (and perhaps Justices) at some point in our careers. Most of us will end up working with (or against) the 39% of attorneys who identify as right-of-center politically (compared to the 61% who identify as left-of-center). And all of us will come into regular contact with the 36% of Americans who identify as conservative (compared to the 25% who identify as liberal).
Even for those who earnestly and vehemently disagree with conservative-leaning legal scholarship — in whatever form it may exist (e.g., originalism, functionalism, textualism, realism, etc.) — exposure to that scholarship should be an integral part of a law student’s education.
We must guard against the temptation to promote intellectual homogeneity and ideological hegemony. As Nicholas Kristof wrote in a recent op-ed for the NYT, “Universities are the bedrock of progressive values, but the one kind of diversity that universities disregard is ideological and religious. We’re fine with people who don’t look like us, as long as they think like us.” We must not unnecessarily exclude or marginalize unpopular ideas, lest we run the risk of allowing our university to become an “echo chamber.” As one law professor noted, this lack of diversity of ideas is “in some sense … worse for liberals, who don’t have their ideas challenged.” Intellectual diversity is itself a virtue that must be pursued and protected, even as we, at the same time, continue to encourage racial, ethnic, cultural, and religious diversity.
Diversity is intensely valuable, and that is why the appointment of Dean Manning should be welcomed.