Affirmative action began as a remedial program aimed at undoing the effects of racial discrimination on minority groups. The policy’s goals of establishing fundamental fairness in hiring certainly have not been achieved. Indeed, no ultimate goal like fairness can be fully achieved in this world, much as we may admire the desire to root out violations of basic human dignity. But we do not hear about affirmative action much any longer. Instead, debates in the media and lawsuits in the courts tend to focus on “diversity.”
The road to diversity has been somewhat twisted and confused. There were, for example, charges that employers were failing to abide by the spirit of equal opportunity when they followed hiring practices with a “disparate impact” on various groups. Only authorized by law in very narrow circumstances, disparate impact analysis holds that a neutral policy is discriminatory if its application burdens a minority group, for example resulting in fewer hires from that group. It became a kind of standard in civil rights oversight of hiring practices, enforced by consent decrees with government agencies and policies at various institutions, especially universities engaged in hiring and admissions. Thus, for example, employers had to stop requiring that potential employees have their high school diplomas before being hired because this policy was found to produce too few hires from among minority groups.
This concern led to charges of quotas as well as to numerous lawsuits narrowing questions of what specific kinds and how heavily weighted policies favoring one group or another in hiring and admissions could be without constituting unconstitutional “reverse discrimination.” Yet the goals already had solidified into a kind of national reflection of racial percentages. One can see the consequences, for example, in a piece posted on “The Volokh Conspiracy,” one of a stable of blogs under the umbrella of the Washington Post. The article, on “Law Faculty Diversity: Successes and Failures,” is a sliver of an academic paper by Jim Lindgren of the law school at Northwestern University. Mr. Lindgren points to what he terms the true “success” of affirmative action in law faculty hiring: “All large traditional affirmative-action groups in law teaching are now at or above parity with full-time lawyers, and such groups as women, minorities, and minority women are significantly overrepresented in law teaching compared to working lawyers.” So, success has been achieved because there are more members of various target groups on law faculties than in the profession itself. And how is this even possible? How was overrepresentation achieved? “The only ethnic and gender groups that are more than a half slot short of parity on a typical tenure-track faculty of about forty are non-Hispanic whites, males, and non-Hispanic white males, the groups typically thought of as over-represented.”
Mr. Lindgren discounts the notion that this particular form of underrepresentation is a problem because, of course, the whole point of affirmative action was to widen the representation of underrepresented groups. It would seem inevitable, then, that the multiplication of groups deemed both relevant and underrepresented would demand further inroads into “privileged” territory. Mr. Lindgren offers advice for further progress: “perhaps one should focus more on ethnic and gender equity within the leadership of law faculties and on diversifying the population of working lawyers to widen the pool from which professors are drawn.” There will, after all, be no attempt to “correct” the underrepresentation of disfavored groups, especially when that would mean, “if…a faculty were to do targeted hiring of only white males without firing any current faculty, they would need to hire seven white males on every faculty to reach parity. To reach parity for non-Hispanic whites overall, every law faculty of forty would have to hire nineteen whites.” We should not, of course, dare to reflect on what must have been going on in the hiring committees to produce a level of “success” that would take such extreme efforts to walk back to proportional representation.
Unlike affirmative action as originally presented, “diversity” seems to be a goal in and of itself. Mr. Lindgren notes that “one of the main purposes of diversity hiring is supposed to be that, on average, demographic groups have different views based on their differing experiences, which everyone should be exposed to.” But Mr. Lindgren notes a problem with the call for diversity. Here he mounts no sustained attack on claims of discrimination or on policies to combat it. Instead, he merely notes the obvious, namely that “political and religious differences in viewpoints are about as large as racial differences, and larger than gender differences.” The upshot: law school faculties actually are less diverse in terms of political and religious viewpoint than a quarter century ago. The piece ends with a call for “desegregation” of ideological groups on law school faculties. Mr. Lindgren picks up on this call in a succeeding post in which he shows the truly massive underrepresentation of Christians and members of the Republican Party among law faculty in relation to their representation in the general population and among working lawyers. Christians, who make up 78 percent of the English-fluent working population and 68 percent of lawyers, make up only 47 percent of law professors—a whopping 31 percent fewer than the working population. Republicans? They make up 38 percent of the English-fluent working population and 31 percent of lawyers, but only 11 percent of law professors. Of course, these political figures do not factor in what makes for an “independent” in the working population versus what makes an “independent” on a law school faculty, with the first generally between the two parties and the second generally residing well to the left of the Democratic Party on the political spectrum.
Mr. Lindgren calls, more than once, for a more even-handed approach from those doing law faculty hiring—they should look to “desegregate” political viewpoints and encourage greater diversity in this area in the interests of living up to the stated promises of the diversity regime. It seems fair to ask, however, in light of events over the last several decades, whether such even-handedness is possible in the name of diversity. More than one conservative candidate has been induced to waste his time talking to a faculty brick wall by the promise that some law school is “interested in more ideological diversity.” What this claim comes down to, of course, is that one or two faculty members have decided it would be cute to have an exotic plant in their garden, an example of the rare species “conservative academic.” What it overlooks is that such species have not merely died out from natural causes but have been dug up and doused with sufficient weed killer to see to it that there are no longer enough of them to intellectually procreate in their hostile environment.
Mr. Lindgren himself points out that the drive for more racial and gender “diversity” tends to produce more uniformity of viewpoint. Perhaps it is time we stop pretending that a social engineering plan to “make” faculties “look like” some statistical model of the profession as a whole will produce anything other than ideological conformity. Such plans ignore the variations in geographical distribution of various ethnic groups, the cultural traditions and customary career choices of various applicant pools as defined in gender, ethnic, and racial terms, and indeed the entire project of choosing faculty according to gender and skin color. They aim at national conformity that is intrinsically hostile to the fundamental standards of a free society, the provision of a quality education, and the human dignity of everyone involved in the hiring process. “Social engineering” always has been a codeword for the use of power in the name of some unrealistic blueprint for the Good Society.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.