Last year around this time, I blogged a piece by a University of Queensland law professor noting that the University of San Diego Law School had been able to "punch well above its weight" because of the ideological diversity of its faculty. He estimated that a quarter of the were right-of-center, but worried that the pending retirements of Larry Alexander, Kevin Cole, Gail Heriot, and Steve Smith could cause USD to lose its distinctiveness. 

Following Eugene Volokh's announcement last month that he was retiring from UCLA at age 56 to join the Hoover Institution, Gail tweeted: "Conservatives are leaving law faculties. …  At U San Diego, five center-right law professors (including me) have had enough & are getting out."  The College Fix followed with Center-Right Law Professors ‘Have Had Enough,’ Leaving Academia for Other Opportunities. which included interviews of Gail and Eugene. Glenn Reynolds brought more attention to the issue with a post on his enormously popular Instapundit blog, Hostile Environment Yields Desired Results. 

On October 12, Francesca Block published a long piece in the Free Press, Exodus of the Wrongthinkers from American Universities. She identifies Tom Smith as the fifth right-leaning San Diego professor who will retire after the spring 2025 semester. Her article opens:  "One sentence in a blog post [in 2021] almost ruined Thomas Smith’s career," which I covered in:

• San Diego Law School Launches Investigation Of Tenured Professor's Blog Post; Student Petition Calls For Professor's Termination
• San Diego Provost Rejects Student Demand That Tenured Law Professor Be Fired Over Blog Post

Francesca concludes the piece:

Joshua Kleinfeld is an up-and-coming conservative legal scholar and philosopher at Northwestern University. The 45-year-old tenured professor told me navigating academic society today is like carefully avoiding a bomb on the battlefield.

In order to survive, he says, scholars like him need to build skills beyond research, writing, and teaching. They need to develop a special type of judgment—knowing when to pick their battles, when to self-censor, and when to steer clear of a trigger that could potentially explode their entire career.

“People who disagree with the prevailing orthodoxy have to make a very painful choice,” he said. “They can speak their mind and accept the fact that their professional life will be a war zone. Or they can hold their tongue and avoid that controversy, accusation, and battle, but at the cost of a part of their soul.” 

In light of all this, the announcement on October 16 of Yale Law School's hiring of Princeton's Keith Whittington is perhaps a hopeful sign. Keith notes:

I'm not unmindful of the significance of this move at the present moment. YLS has, of course, had its own recent controversies regarding free speech and ideological diversity. Yale has notoriously been lacking in right-of-center public law faculty for decades. Co-blogger Josh Blackman says YLS is a failed academic institution. I hope not! But the lack of political diversity on elite law school faculties is unhealthy, and I'm glad to be able to do my small part to mix things up. Law students and law schools need to be able to understand and engage productively with a conservative federal judiciary. With the very meaning of the conservatism in the United States up for grabs, I look forward to lending what perspective and expertise I can to public debates.

David Lat writes in Move of the Week: Yale Law School Hiring Professor Keith Whittington:

I don’t ordinarily feature professor poaching in this column, since it’s covered well by some excellent blogs written by legal academics. But this is no ordinary move: Yale Law School is hiring a conservative.

For decades, YLS has had no full-time faculty member with conservative or libertarian views and a focus on public law (e.g., constitutional law, as opposed to contracts or corporations). But that will change next fall with the arrival of Professor Keith Whittington, who will teach and write about American constitutional law, as well as launch a new center devoted to the study of free speech and academic freedom.

He joins Yale Law after more than 20 years at Princeton University, where he is currently the William Nelson Cromwell Professor of Politics. Despite the jokes, Princeton does not have a law school—or at least hasn’t had one in more than 150 years—and Whittington is not a lawyer by training (he holds a Ph.D. in political science from Yale). But he is well-known and respected in the legal academy, having written and taught about constitutional theory and law and politics for decades, and he has served as a visiting professor at Harvard Law and UT Law. As someone with right-of-center, libertarian leanings, he will greatly enhance intellectual diversity at YLS.

Based on his hire—plus Yale Law hosting visiting professors like Orin Kerr and Sai Prakash, whom it would be great to see return permanently, and the launch of the “Crossing Divides” speaker series—it seems that YLS and Dean Heather Gerken want to turn over a new leaf on free speech and viewpoint diversity. Time will tell whether this represents significant or lasting change, but it’s a big improvement over what we saw in the 2021-2022 academic year, and I’m cautiously optimistic.

Update: Tom Smith (San Diego), The Right Coast: "It is an encouraging sign. Keith is a brilliant scholar and courageous to boot. A lot will depend on how he is received at Yale. I'm not sure the new openness will trickle down to USD, but who knows. In ten years, things may be very different. I hope so."