When I got there, I learned that what you might describe as the conservative wing of the law school was now largely being kept off key law school committees, most importantly the hiring committee. For me, the 2019 sabbatical was as excellent as the one six years before. But I sensed this island of comparative tolerance for iconoclastic, nonconformist, dissident—save time and call it “conservative”—viewpoints had noticeably shrunk. And if future hires were to be judged through the prism of “diversity and inclusion” and not on straight-up merit, well, you could guess how many conservatives would be hired. The USD law school would slowly become like all the other 200-odd accredited US law schools where Democrat-donating and voting law profs outnumber Republicans by double figures to one. This little sanctuary of open-mindedness would wither and die.
A few weeks ago, I learned that some of the stalwarts of the USD law school, well-known and long-standing professors of law who certainly could not be described as “progressives,” had all put in their notice to take up the three-year retirement option. USD was losing Larry Alexander. Losing Steve Smith. Losing former dean Kevin Cole. Losing Gail Heriot. All of them had endured enough. Yes, there are some nonconformists still there who haven’t announced their take-up of the retirement pathway, and will battle on. But we can’t kid ourselves. As that unexpected sanctuary for dissident conservative outlooks, USD was in its death throes.
Hiring was now to be done explicitly with an eye to “diversity” (though of course, not the sort that has anything to do with outlook). In the not-too-distant future, this small private law school will be much of a muchness with other like law schools. Its market differentiation was occasionally to grab up people whose views made being employed harder than their qualifications would otherwise warrant. Taking advantage of this market failure, as it were, allowed USD to punch well above its weight. Alas, seemingly no more. The capture of law schools by one dominant outlook rolls on to the peripheral outliers, to that wonderful USD law school that gave me two magnificent sabbaticals. And I cannot tell readers how sad this all makes me. I thought of Shakespeare and Much Ado About Nothing.
That what we have we prize not to the worth
Whiles we enjoy it, but being lacked and lost,
Why, then we rack the value, then we find
The virtue that possession would not show us
While it was ours.