First, it must identify the past or present discrimination 'with some specificity.' Second, it must also demonstrate that a 'strong basis in evidence' supports its conclusion that remedial action is necessary.After compelling government interest is proved, the program must meet another requirement. It has to be "narrowly tailored" to meet the government interest specified in meeting the first requirement. In other words, it has to focus on the areas in which the government has a compelling interest, and on the specific groups that are subject to discrimination in those areas, along with the ways in which they are discriminated against. These two requirements, which are the requirements that all programs must meet if they are to stand up to scrutiny by the courts, make proving discrimination exists, and that we should act on it, very difficult.
Given all this, it surprises me that there has been so much loose talk of "discrimination" against conservatives in academia, based, almost exclusively, on studies showing a disparity exists in the number of "liberals" (operationally defined, almost laughably, as those who vote for or donate to Democratic candidates) and "conservatives" (those who vote for or donate to Republicans). I am perfectly willing to accept that universities are, by and large, populated by liberal professors. My own experience in universities, spanning now more than a decade, is consistent with this. Yet, does this disparity amount to evidence of discrimination, as so many conservatives allege? And furthermore, does it amount to discrimination that is accompanied by a compelling (governmental, or university) interest to use affirmative action-like programs, like the ones proposed and lobbied by David Horowitz and his epigones? As far as I can tell, no one has actually attempted to produce the sort of evidence for discrimination against conservatives in academia, along with compelling interest, to justify the claims of discrimination of Horowitz call for affirmative action programs to aid conservatives and "promote diversity" in universities*. So, I want to propose a study to do so.
Let's consider compelling interest. What, exactly, is the interest of the government and universities in alleviating discrimination of conservative intellectuals in terms of hiring, firing, and promotion, on university faculties? The answer that is always given is to "promote diversity." Yet, as Aaron Swartz (link via Preposterous Universe), an undergraduate at Stanford, so aptly (though sarcastically) notes in response to claims of discrimination at his university, "diversity," at least in the realm of ideas, is not an inherent goal of universities. Universities are in the business of educating and scholarship, both of which require that ideas be held to some standard, of truth for instance. Swartz writes:
I have found that only 1% of Stanford professors believe in telepathy (defined as "communication between minds without using the traditional five senses"), compared with 36% of the general population. And less than half a percent believe "people on this earth are sometimes possessed by the devil", compared with 49% of those outside the ivory tower. And while 25% of Americans believe in astrology ("the position of the stars and planets can affect people's lives"), I could only find one Stanford professor who would agree. (All numbers are from mainstream polls, as reported by Sokal.)It would be reasonable to say that universities like Stanford discriminate, albeit indirectly, against believers in astrology and telepathy, as promoters of these ideas will have a very hard time meeting the standards of scholarship that such universities demand. Few of us would argue that universities have a compelling interest to remedy the effects of such discrimination. While it may not be fair to compare political conservativism to astronomy and telepathy, Swartz is making a point that supporters of programs designed to increase the representation of conservatives in academia must address, namely, if there is in fact discrimination against conservative intellectuals in American universities, are there explanations for this discrimination that effectively eliminate the universities' compelling interest in remedying such discrimination?
Yet, even to answer that question, we must first ask, is the disparity between liberals and conservatives in academia evidence of discrimination? The answer to this question isn't obvious, either. As affirmative action cases have shown, when attempting to justify remedial action, it is not sufficient to merely show a disparity. We must also show that this disparity cannot be attribute to factors other than race, or in this case, political ideology. Since, to date, there is no study showing anything more than a disparity, I propose that we actually conduct a new study. In this study, we will do more than simply collect voting and political donation records, or hiring, firing, and promotion decisions. This information alone can only provide evidence of disparity, not discrimination. To do this, we need to rule out alternative explanations for the disparity. Thus, we will need to collect information about job applicants and faculty that is relevant to hiring and promotion. Thus, we should collect information related to publication, citation, teaching evaluations, ongoing research, etc., that hiring and promotion committees consider when making their decisions. Using this information, along with the relative number of liberal and conservative applicants, we can apply fairly simple statistical tools (e.g., regression analysis) to determine whether the ideological disparity that exists in American universities is a result of discrimination.
So here is my challenge to anyone who supports programs like the Academic Bill of Rights that are designed to get more conservatives onto university faculties through legislative action: get me this data, and let me analyze it. We can discuss exactly what data we will need. Publication data, for instance, may be problematic, because I can imagine that some conservative intellectuals believe that they are discriminated against by journal editors and reviewers as well. We should probably get the data from a large public university system, with enough departments to give us a big enough sample size. We can also discuss other forms of evidence (e.g., anecdotal evidence), though I'm not sure exactly how you would collect that.
Until we have this data, and can answer both questions related to the "compelling interest" requirement, we will have no legally-sufficient evidence for discrimination or justification for remedial programs. After we have such evidence, if it exists, we can then go about producing narrowly tailored programs designed to remedy the discrimination that we ourselves have demonstrated empirically. These programs will, of course, have to be different for every university, as the "narrowly tailored" requirement demands that they be specific to the area in which the programs are enacted. In fact, they may need to be tailored to specific departments. It is reasonable to believe, until it has been demonstrated otherwise, that discrimination based on political ideology is less prevalent in most physics departments than in most cultural studies departments. If this is the case, then "narrow tailoring" requires that we develop programs aimed only at those departments in which discrimination exists.
One more thing. If our study shows that factors other than discrimination explain the disparities, then I reserve the right to use it to counter any attempts to enact legislative or university programs designed to get more conservatives onto university faculty.
* Note also that Horowitz' "Academic Bill of Rights" could hardly be considered narrowly tailored, but he does try to get around that by giving it the appearance of being ideologically-neutral).
UPDATE: Apparently unfamiliar with the last 16 years of judicial decisions on discrimination and affirmative action, the legal scholars at The Volokh Conspiracy claim that disparity alone constitutes prima facie evidence of discrimination. Shame on them, for making claims that anyone who's read any court case on the topic would know are false. Maybe they'll be willing to get me the data.