The Legal Beat
Diversity In Law Schools: Some Initial Thoughts
Posted on Tuesday April 25, 2017
I’ve sat here for hours thinking about writing this column. I don’t want to write this column. But, the idea of this column has made it impossible for me to write anything else. Except tweets, of course.
Here’s my thought: There ought to be more diversity in terms of law professor hiring.
Here’s my initial reaction to my thought: Duh.
Above, I wrote the word “diversity.” That means someone out there is already picking up their social media and asking, “What about intellectual diversity?” I’ll get to that in a minute.
Let me start with what I think is the problem with respect to diversity in law schools.
Law professors generally come from the same schools. If you find a new law professor who isn’t from Harvard, Yale, Stanford, U. Chicago, or Columbia, I’m impressed, unless they have a Ph.D. from Cambridge, Harvard, Yale, or Stanford. This is a large part of the greater problem. It’s a problem because when groups of like-minded people get together, chances are they are going to come to a terrible conclusion. There is a whole literature out there about non-diverse groups being terrible at decision-making. It also explains a great many faculty meetings.
The diversity of faculty, therefore, is derived from the diversity inherent in those schools that supply professors to the job market. That means, to the extent a law school wants to make a serious commitment to assure that their faculty profile page does not look like the senior-most advisors to the Trump administration, they are vigorously competing for the same candidates. That’s another huge problem. I’m not sure how to solve it, given that most schools have completely ignored my calls to play moneyball. Regardless, merely saying the word “diversity” doesn’t make diversity happen. Merely searching for diverse candidates doesn’t make diversity happen. And hiring merely one or two diverse candidates doesn’t make diversity happen.
The standard reaction to any call regarding diversity is to decry the lack of ideological diversity at law schools. Whether one is a “conservative” at U. Chicago or a “liberal” at Yale will help determine how and where one lands in academia. Regardless, there is literature out there about where people fall on someone’s measure of “liberal” or “conservative.” Whether the measures are true or not isn’t this post. This post is about the fact that faculties seem to cluster into non-diverse groups.
To me, theses two different notions of diversity are one in the same problem. In a homogenous community, it is easy to be tolerant of viewpoints similar to your own and afford everyone semi-equal levels of respect. In diverse communities, it is much more difficult, and therefore all the more important.
A great friend of mine once wrote:
We each have friends and know many persons who have different intellectual orientations, different social experiences and values, different political preferences, a different sexual orientation, different physical abilities, different racial and national backgrounds, and different religious beliefs from one’s own. Some will hold opinions that diverge greatly from your own and most people - not just the obvious ones like those who believe in and support the New York Yankees or that professional basketball team in Chicago — but fundamental political and social views with which you do not agree. To be disrespectful of colleagues because of their difference from you is not only a badge of ignorance, it is both unjust and directly contrary to the principles which have led [the law school] and the legal profession to value the diversity you find in this community. For it is in the diversity of our community that understanding and the capacity to challenge and reconsider one’s own assumptions is developed.
So, if we’re serious about diversity, we need to hire people who are not like us. That means hiring in a different way, perhaps not looking at those same laden signals that have gotten us as a group to be fairly homogenous.
It also requires humility. To assume that a faculty candidate is awesome merely because they have the same credentials, teachers, or judges as we do is the ultimate act of hubris. It denies that there is a world outside of the one we have learned.
Diversity means something more than just stretching your tolerance of people who aren’t like you just once. A commitment to diversity doesn’t mean hiring a token, a person who eventually suffers in isolation. It means a commitment to the notion that the school is a better place because we all have different experiences, backgrounds, and ways of thinking.
As my friend wrote:
The root of bigotry is ignorance — something we all suffer from to a greater or lesser degree. Developing a capacity to listen and to understand different ideas, different cultures, different moral values and different experiences is surely the primary way to minimize one’s own ignorance and maximize your academic experience by learning from each other. Requiring each of us to confront our own assumptions, as well as the resource of different experiences, is a primary reason we prize diversity among our students and our faculty.
Easier said than done. For the longest time the legal academy has given lip service to diversity while secretly continuing to check out those U.S. News rankings. Institutions, as Thorstein Veblen once wrote, “are products of the past process, are adapted to past circumstances, and are therefore never in full accord with the requirements of the present.” And the institution known as “legal education” has hiring practices that are certainly not in step with the present.