Law School Faculty Diversity
James R. Copland
Anyone who's been following the news cycle even casually has heard about Harvard Law professor and U.S. Senate candidate Elizabeth Warren's ill-documented claims of (trace) Native American ancestry. Harvard faculty, including Reagan solicitor general Charles Fried, have been quick to claim that Warren's appointment was based on her academic and teaching credentials, rather than to further faculty "diversity"--a claim that at least on the surface seems to undercut the legitimacy of diversity hirings in the first instance.
As someone who was a student and active campus participant at elite academic institutions in the 1990s, I saw first-hand the significant pressure placed on administrators by students eager to diversify faculties that were overwhelmingly white and male (a composition one would expect in that era for bodies of lifetime-appointed professors). At the University of North Carolina, a key rallying cry for campus activists in the early 90s--and a regular agenda item on the student advisory committee to the Dean of the College of Arts and Sciences, on which I served--was the call for a "Native American faculty member." Any member, in any discipline, with essentially any record. At Yale Law School, which sponsored a free-speech wall in which students could voice their signed opinions in the days before blogs, Internet message boards, and social media, certain students grabbed a significant portion of the available space by blowing up the profile pictures of the entire faculty to emphasize its whiteness and maleness. (My bold red counter-poster, "diversity is more than skin deep," asked how many of the faculty were registered Republicans, Evangelical Christians or Latin-Mass Catholics, or the like? It proved provocative, though it did highlight the "dirty little secret" of the true agenda of those calling for diversity.) As vigorous as the student protesters were at my own alma maters, they had nothing on the student protesters at Harvard Law School around the time Elizabeth Warren was offered tenure, who stormed the dean's office and won a seat at the table with the faculty appointments committee.
To discuss the issue of faculty diversity, particularly as it relates to law schools, we're thrilled to welcome back our founding editor, my friend and former colleague Walter K. Olson. Since leaving MI for the Cato Institute in 2010, Walter has released his fourth book, Schools for Misrule: Legal Academia and an Overlawyered America, which as its title suggests makes him eminently qualified to opine on this subject.
In addition to Olson, we are excited to welcome the Competitive Enterprise Institute's Hans Bader, where he serves as senior attorney and counsel for special projects. Hans was formerly a senior counsel with the Center for Individual Rights, which has led many of the legal challenges to government affirmative-action programs.
Opposite Olson and Bader, we are happy to welcome Texas Law professor Gerald Torres, a former president of the Association of American Law Schools and a leading proponent of Critical Race Theory. Among Professor Torres's many writings about race and diversity is his 2002 book, co-authored with Lani Guinier, The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy.
We hope you will visit back over the ensuing days to see what our distinguished participants have to say, in what promises to be a fascinating discussion.
Walter K. Olson
Little-known fact: Harvard lawprof Elizabeth Warren once gave a speech to a Manhattan Institute luncheon crowd on the topic of asbestos bankruptcy trusts. As I recall, she gave a deft account of this abstruse but important subject, and I much doubt it would have improved anything had the Institute asked her to address the topic from the special vantage point of a female scholar. Much less did anyone imagine that Warren might bring some special insight to bear from her family tradition of remote Cherokee lineage, which has lately furnished so much grist for critics.
For many readers, the Warren-as-Cherokee brouhaha has been their first close look at the matrix of identity politics in which law schools operate. When HLS administrators began to claim Warren as a minority hire, they were under intense pressure for not having any female minority professors. These days, the relevant pressure is likely to take the form not so much of student occupiers but of relentlessly screw-turning accreditation agencies, a process well described by Gail Heriot.
Is this a mere identity spoils system, or does it amount to something nobler and more high-minded? The strong claim I want to focus on here is that diversity hiring improves the quality of scholarship in the traditional law curriculum by bringing distinctive minority insights that straight white Anglo abled males would not or could not have contributed. (I will leave for another post the question of how it might influence scholarly development on topics that do relate to identity, such as discrimination law.)
There's no definitive way to resolve this claim, I suppose, without agreeing on how to evaluate the now-vast literature advancing (e.g.) feminist approaches to torts, the "queering" of intellectual property law, and so on. I can only say that I must not be reading the right papers in this genre, because the papers I've read haven't impressed me. Given that criticizing identity-studies literature seems to be a good way to get fired from one's writing gig, I'd better stop there.
To me, time has vindicated the basic position staked out by Stephen Carter of Yale in his Reflections of an Affirmative Action Baby. Carter writes of the "Dear Minority Colleague" letters presuming he holds correct views on various topics, and the resentment aimed at minority faculty like himself who choose to specialize in scholarly topics having little or nothing to do with identity. Twenty years later it remains true that many of the minority lawprofs to have made the biggest impact on the outside world have been those who've largely avoided identity themes in their intellectual work, such as Carter himself and Stanford's William Gould, to whose number might be added Elizabeth Warren (to the extent she counts as minority) and Chicago's Barack Obama.
As I put it in reviewing Carter's book: "It doesn't take a white or a black mind to explode a fallacy: it takes a mind."
Professor Gerald Torres
There are many claims in Walter Olson's brief post, some empirical, some not, most simply unexceptional. Let's agree that the dust up around Professor Warren has to be understood in the context of a partisan political contest for the US Senate and a bureaucratic choice by one law school or another. So, for purposes of the discussion about diversity in the workplace it is a non-issue.
Let's also agree that the faculty members of color in American law schools are scarcely of one mind on any subject except perhaps the idea that having a more diverse academy is good for the academy and the profession. Even on this one there is probably little agreement about what the exact contours of diversity entail. Nonetheless, the question of whether having a diverse faculty and a diverse student body is a net good might revolve around any number of poles really, but certainly at least two. Those two poles are central to the mission of law schools and they are whether such diversity is better for training lawyers and whether it improves the quality of legal scholarship. Again, the answers to these questions are empirical and I think it is clear that where the empirical investigation is undertaken (and unfortunately here the bulk of the evidence comes from the business school and business literature), it tends to point in the direction of supporting diverse learning environments. Why would this be true?
Scott E. Page, a professor of complex systems at the University of Michigan, suggests a number of compelling reasons for maintaining a diverse learning environment. When looking at the ways groups solve problems Professor Page noticed something we all intuitively understand: if you approach a problem with a wide variety of tools the chances of achieving an optimal solution are increased. When people with diverse perspectives work together and capitalize on their individual expertise, they are more likely to produce innovative solutions to complex problem than do lone thinkers.
The key to Professor Page's analysis is what he calls toolbox diversity. Without suggesting that race or ethnicity is a way to predict in advance how any particular person might think, it is not a stretch at all to think that how someone grows up might affect how he or she approaches problems. Thus taking those facts into account as you construct a group will help produce a richer problem solving, learning and teaching environment. For example, growing up Indian on a reservation might give you a different perspective on the meaning of sovereignty than growing up in Washington, D.C. or growing up in one of the fifty states or Puerto Rico.
Consider another example paraphrased from Scott Page: if you can only hire two people and three people apply and you give them all a test in which John gets seven of ten questions right, and Ryan gets six of the ten questions right and Jamal gets five of the ten questions right, you might not want merely to rely on the number of questions the applicants got right. If, for example, Jamal got the three questions right that John got wrong, it might make more sense to hire John and Jamal, even though Jamal got the fewest answers correct than it would be to hire John and Ryan if those two missed the same questions. By hiring John and Jamal you have increased the tool box diversity of your group. This improves the likelihood that your group will be able to solve the problem confronting them as well as to solve a greater range of problems.
Elizabeth Warren's campaign claimed she was 1/32 Cherokee, although the documentary evidence cited for this claim turned out to be non-existent. Ironically, Warren is descended from a militiaman who helped round up the Cherokee in the notorious trail of tears, in which perhaps 1/3 of the Cherokee died in one of the most infamous episodes of ethnic cleansing in American history. People on the law-school hiring committees that selected Warren unsurprisingly claim they didn't take her race into account, only her qualifications. But they would say that even if it weren't true.
Like the character in Casablanca who claimed to be shocked to find gambling in a casino, race-conscious hiring officials invariably claim they didn't consider race when they hired a particular colleague. It's legally risky to admit discriminating. It also devalues the credentials of the beneficiary of the discrimination. Admitting you hired a colleague based on her race would be viewed as rude, insulting, and stigmatizing. But for some reason, many journalists and bloggers are taking at face value claims by a couple members of law school hiring committees that law professor Elizabeth Warren's purported Native American ancestry played no role in their decision to hire her.
After earlier denying that she ever claimed to be Native American in professional circles, Warren has now admitted doing so, supposedly just to "make friends," a claim that a law professor at Cornell says doesn't "add up." Warren's only basis for claiming to be Native American was a great-great-great grandmother, which would have made her at most 1/32 Native American (assuming that ancestor had been a full-blooded Indian). Claiming Native American ancestry based on such a thin reed is absurd. I have reviewed thousands of college applications and admissions decisions, and never saw a candidate get a plus in admissions based on so little Native American ancestry, especially one with Warren's lack of cultural ties to any tribe (unless you count her bogus "Native-American" crab recipes that were apparently plagiarized from a French restaurant in Manhattan). Moreover, the press routinely characterizes people with far more non-white ancestry than Warren as white.
Warren did not "tell the truth," says the University of Virginia political analyst Larry Sabato "It's pretty obvious she was using (the minority listing) for career advancement." Paul Bedard of the Washington Examiner has argued that Warren's race was likely a factor in her hiring at Harvard, since no one with her non-prestigious alma mater in fact ended up at a place like Harvard. Harvard Law School was under heavy pressure to hire women and minorities at the time that Warren was hired, as I described earlier. As law professor Ann Althouse observes, "Harvard was under a lot of pressure at that time to do something about the lack of racial diversity on the faculty, and I'm skeptical of the claim that Warren's minority status never came up during the hiring process."
While a few members of these hiring committees may not have taken her purported race into account, most probably did, given the pervasive presence of affirmative action in law school hiring (as I noted earlier, one law school had large preferences for Native American applicants), and the demand by law school accreditors that law schools engage in affirmative action. But if they are smart, hiring committee members won't publicly admit it, because of the legally unsettled nature of how much you can use race in hiring to promote "diversity." Unlike using race in admissions (which the Supreme Court has blessed, to a certain extent, in its University of Michigan decisions, which upheld a law school's affirmative action policy, but struck down the undergraduate affirmative action policy at the very same university for using race too heavily), using race in hiring to promote diversity is still a legal gray area. Civil-rights agencies favor using race, and the American Bar Association pressures schools to use race, but two federal appeals courts have rejected it.
At the same time, however, if school officials publicly admit they used race in hiring, that could trigger a reverse discrimination lawsuit by whites. A school board that used race as a tie-breaker in layoffs, resulting in the layoff of a white teacher,was found guilty of racial discrimination in Taxman v. Board of Education of Piscataway Township, 91 F.3d 1547 (3d Cir. 1996). For people involved in law school hiring to admit Elizabeth Warren's race was a factor in her hiring could expose them to liability for reverse discrimination (including personal liability, under 42 U.S.C. 1981, which allows not just institutions, but individual college decision makers to be held liable for damages, and which my former employer, the Center for Individual Rights, once used to sue individual school officials for reverse discrimination.
Sad to say, the safest path for some college hiring committee members in liberal areas of the country is to consider race in hiring, but lie about it. Using race appeases liberal civil-rights bureaucrats and law-school accreditors, but not admitting it effectively prevents lawsuits by critics of affirmative action like the Center for Individual Rights (CIR), which lack the resources to sue over anything but the most blatant and obvious forms of reverse discrimination. Although there are many civil-rights agencies and liberal interest groups that favor affirmative action, there are only a small number of entities like CIR that sue over affirmative action
In our different ways, Prof. Torres and I both aim to advance diversity -- in my case, diversity between institutions. If universities were made genuinely autonomous tomorrow, I expect some would extend systematic preferences to minorities, others none at all. Some (as with Hastings in the old days) would develop a specialty in older faculty hires, others the young and inexpensive, and so forth. The resulting competitive institutional ecology might help test some of the business-school and HR theories about whether a specific kind of demographic diversity is uniquely suited to collegial achievement in scholarship (I suspect it isn't, since some great intellectual institutions over the centuries have been hyper-diverse, others hyper-un-diverse, and many in between.) At the same time, were competing approaches to diversity permitted, newcomers would be more likely to find an institution that suits their own desired experience: some would seek a pledge that advancement would be race- and sex-blind, others an assurance of encountering colleagues from backgrounds very different from their own.
Of course that's not the world we live in. In our actual world, all law schools must conform to a prescribed format. Accreditation officials will haul up any institution that tries to be race-blind, and HLS will scramble to claim hiring credit for Prof. Warren's vague family lore of Cherokee ancestry.
Should outsiders care? One reason to care might be if the prevalence of identity politics tends to reinforce the problem (assuming it is a problem) of ideological imbalance in the legal academy. In Schools for Misrule I conclude that it does, though only as one of many contributing factors.
One clue is that the ideological tilt varies so much from field to field. As Prof. Leiter's citation rankings confirm, there is much closer to a left-right balance (or, alternatively, a lack of strong political identification) in such fields as tax, business law, inheritance, and intellectual property. The closer one approaches to the identity-politics minefields, the stronger the liberal-to-Left dominance: in a field like employment discrimination law, setting aside one book by Richard Epstein, there is far less visible a bench of "defense-oriented" writers than there is in torts or antitrust. Are any rising academics doing work on disabled rights or Indian law that's systematically skeptical of expansive ADA interpretations or tribal powers? I hope Prof. Torres can name them, because I can't.
To be sure, a fair number of legal academics do write in opposition to the claims of feminism and gay rights. But since most of them are clustered at institutions like Brigham Young, Notre Dame, and Regent, I'd call that an exception that tends to confirm the pattern: religion has successfully managed to stake out its own identity-politics turf.
I'm not one to join the doomsayers. My book argues that identity politics in the law schools has tended to loosen its grip over the past decade or two, and that over the same period schools have opened themselves to more diversity of viewpoint. I hope that trend continues.
First, I would like to thank Mr. Olson for making my point. Without his response I would not have seen how he fundamentally misunderstood the point I was making. This is evident in his second paragraph where he responds to an argument I didn't make or assumes that I share views in common with people with whom he has disagreed in the past. Without this diversity of viewpoints I would not have understood this. Moreover, it suggests a line of conversation that might enlighten us both. Here I am imagining a discussion informed by the work of Professor Banaji on implicit bias, for example.
Second, as to the claims Mr. Olson makes in his first paragraph I can only conclude that he is unfamiliar with the experimental and cognitive psychology studies that would provide the data he is seeking. He needs but to look. I would recommend the work of Professor Sommers on juries, Professor Loyd and Phillips on the impacts of diversity on group process and information sharing, or the work of Professor Claude Steele as well as the previously referenced work by Professor Page. There is a great deal of research being done right now. It is useful and instructive even if not completely dispositive.
FEATURED DISCUSSION ARCHIVE:
Obamacare Decision: Reactions, July 2012
Law School Faculty Diversity, May-June 2012
Class Actions, May 2012
Constitutionality of Individual Mandate, March 2012
Human Rights and International Law, February-March 2012
The constitutionality of President Obama's recess appointments, January 2012
Do caps on medical malpractice damages hurt consumers?, December 2011
Trial Lawyers Inc.: State Attorneys General, October 2011
Wal-Mart v. Dukes, April 2011
Kagan Supreme Court nomination, May-June 2010
Election roundtable, November-December 2006
Who's the boss, September 2006
Medical judgement, July 2006
Lawyer Licensing, May 2006
Contingent claims, April 2006
Smoking guns, July 2004