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Can Disparities in Gender and Ideology at Harvard Law School Be Compared?

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by Publius
Posted May 09, 2013, 4:01 PM

Nicholas Rosenkranz, professor at Georgetown Law School, comments at the Volokh Conspiracy:

The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report:

Since she took the helm of the school four years ago, [Dean] Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron.

At least as described, this sounds rather like a strict 50/50 gender quota, doesn’t it?

Reading this article, I couldn’t help but recall the recent conference on intellectual diversity at Harvard Law School. Readers may recall that Dean Minow issued an eloquent endorsement of intellectual diversity in conjunction with that conference:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. 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. 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, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

In light of Dean Minow’s statement, I wonder whether the goal of having more conservative/libertarian faculty members is now also “very much part of the consciousness” at Harvard. (For what it’s worth, women are far better represented than conservatives/libertarians on almost all top law faculties, including Harvard’s.) Will Harvard Law School also be adopting a strict 50/50 quota for intellectual diversity? Is this sort of quota appropriate for gender? If so, would it not also be appropriate for ideology?

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