INTRODUCTION: THE DILEMMAS OF DIVERSITY
Rachel F. Moran
University of California at Berkeley

The Special Commission on Meeting the Challenges of Diversity in an Academic Democracy was charged with the task of identifying and addressing "second-generation" diversity problems that arise in law schools after the arrival of significant numbers of members of previously underrepresented groups, including people of color, women, people with disabilities, gays, and lesbians. These problems of full inclusion follow the "first-generation" problems of access that arise when institutions of higher education, particularly law schools, open their doors to a wider array of constituencies than has traditionally been the case. The first generation of problems is not fully solved, particularly for people of color, people with disabilities, gays, and lesbians. Moreover, despite notable gains by women and people of color in participating in law school and the legal profession, these newcomers continue to confront second-generation role conflicts based on their gender, race, and ethnicity. The disparate outcomes for women and people of color as compared to White males who enter the law are systematic enough to suggest that the very structure of opportunity creates barriers to full participation.

The urgency of addressing these second-generation problems has grown in recent years. Failure to develop a compelling vision of a diverse legal academy and law practice has jeopardized the collective commitment to first-generation access. Without guideposts for the full incorporation of women and people of color, critics of affirmative action and diversity have been able to attack these programs as a form of illicit and irrational privilege. Absent a clear sense of how diversifying the ranks of law students, faculty, and lawyers can advance the common interest in building a better legal profession, these programs have been deemed little more than self-serving, self-interested political ploys, relics of an earlier era that have outlived any useful purpose.

As this Introduction will demonstrate, the contributions to this volume are designed to clarify the gains made in first-generation access, to provide a conceptual framework for understanding second-generation conflicts, and to offer some initial insights into how these conflicts might constructively be resolved. Given the magnitude of this undertaking, it should come as no surprise that these readings are suggestive and provocative, rather than comprehensive or definitive. For example, not all groups’ second-generation problems could be given equal attention because of the limited information available. The presence of gays, lesbians, and the disabled in the legal academy has only recently been acknowledged; their numbers remain small and uncertain, suggesting that they continue to face extensive first-generation barriers to access. Much work remains to be done in understanding the second-generation concerns that these groups will confront as they become a larger and more long-standing presence in the legal academy.

In addition, the changing membership of the Special Commission meant that when this volume was compiled, some of those best able to deal with issues confronting women, gays, and lesbians were no longer involved in the Commission’s work. As a result, some perspectives are not as fully represented as others in the volume. To facilitate discussion of concerns not addressed here, the Special Commission has compiled an extensive bibliography of work on diversity and legal education. The Commission hopes that as law school administrators, faculty, students, and alumni pursue these concerns, they will draw on these materials to supplement the readings offered here.

I. THE ARRIVAL OF NEWCOMERS TO THE ACADEMY: FIRST-GENERATION ACCESS AND THE RISE OF SECOND-GENERATION CONFLICTS

One of the most notable changes in the legal academy since the 1960s has been the dramatic influx of women and people of color. Dean Lee E. Teitelbaum’s contribution to this volume, "First-Generation Issues: Access to Law School," chronicles these demographic changes in the composition of law students and faculty. Perhaps most striking has been the growth in the enrollment of women. According to Dean Teitelbaum, women made up only 4.2% of entering law students in 1965-66; by 1993-94, they made up 43.1% of entering law students, over a tenfold increase in their representation in less than thirty years. The increase in women faculty has been more modest than that of women students but is nevertheless impressive. Partly in response to the growing number of women entering law study, organizations such as the American Bar Association and Association of American Law Schools became interested in the number of women in law teaching. In the mid-1970s, they found that women comprised 9% of law faculty; by 1993-94, this number had increased to 29%, a tripling of representation in approximately twenty years.

As Dean Teitelbaum’s paper explains, the gains made by students of color have been slow but steady. People of color made up 4.3% of law school enrollments in 1969, 8.7% of enrollments in 1978-79, and 18.1% of enrollments in 1993-94. Growth in representation has not been equivalent for all groups. For example, by the fall of 1993, Latinos of other than Puerto Rican or Mexican origin had achieved representation in law school student bodies that nearly equaled their proportion in the population, while Chicanos and Puerto Ricans remained seriously underrepresented by this measure. Using parity with the proportion of the general population as a rough guide, Chicanos were the most seriously underrepresented among law students, falling short of their population percentage by a larger margin than Blacks, Asian Americans, Native Americans, and other Latino groups. Growth in the representation of faculty of color also has been small but sustained: By 1993-94, faculty of color comprised 11.8% of law teachers. Again, not all groups enjoyed the same degree of success in gaining access to the ranks of law faculty; mirroring differential access at the student level, Chicanos and Native Americans had the smallest presence among law teachers.

Ironically, success in diversifying student bodies sometimes comes at a price: those schools that are most successful in enrolling women and people of color often have the largest ratios of these students to women and people of color on the faculty. These large student-faculty ratios can damage the educational process if students find that access to professors with whom they identify most closely is limited and if women and people of color on the faculty find that the demands on their time and energy are overwhelming. In short, as Dean Teitelbaum’s contribution demonstrates, improvements in first-generation access do not guarantee smooth resolution of second-generation problems of full participation.

Although the readings in this volume focus on legal and higher education, changes in the composition of law schools also have prompted significant shifts in the legal profession. According to a recent article by Professor Robert L. Nelson, the "most dramatic demographic change in the legal profession in the last two decades"¹ has been the explosive growth in women lawyers. He finds that women tend to choose different types of legal employment than do men: Women are more likely to work in government and legal aid jobs and less likely to work in private practice than their male counterparts. Women who work at law firms are overrepresented in the largest and smallest firms. There is some evidence that men continue to be promoted to partner at a higher rate than women, but women are gaining partnerships in substantial numbers².

Career choices also vary according to an attorney’s race or ethnicity. Blacks are less likely than White or Asian-American graduates to take law firm jobs; Blacks are more likely than other graduates to accept government positions. Nelson reports that in a 1991 survey of California attorneys, Blacks, Latinos, and Asian Americans all were twice as likely as Whites to work for the government. As for the public interest sector, Blacks, Latinos, and Native Americans are more apt to work in this field than either Whites or Asian Americans. In addition, lawyers of color who enter private practice are disproportionately likely to work in small firms or solo practice. The tendency to end up in a government job or solo practice is especially pronounced for Blacks. Professor Nelson reports that "while there has been some increase in the proportion of minorities in the upper precincts of the profession, it has come very slowly and blacks in particular have not gained substantially."³

Not surprisingly, given their distribution in the profession, women and lawyers of color are "far more likely to end up in less remunerative, if not lower, status positions" than White males. Despite their substantial presence in legal circles, women and people of color find that "gender and race continue to matter for patterns of stratification among lawyers."⁴ As Professor Nelson concludes, first-generation access to the legal profession has created second-generation problems of professional adjustment:

Qualitative studies reveal that women attorneys still experience complex and risky career choices as they attempt to juggle domestic responsibilities and professional work. Numerous studies report that female attorneys who are married and have children bear primary responsibility for childcare. Women in high pressure, corporate practices report being penalized for taking maternity leave. Many women have withdrawn from corporate firms to avoid such tensions. Others have foregone marriage and motherhood, in part because they saw the demands as irreconcilable. Minorities face different challenges in reconciling their identities (as members of historically disadvantaged communities) with their professional identities. This scholarship is only beginning to emerge. It too implies that minorities feel considerable strain in many traditionally high status segments of the legal profession. These conditions, as well as remnants of overt discrimination, steer women and minorities to pursue career paths in the more congenial professional environments of public interest or public sector law. The role that these groups play in these contexts is enormously valuable, but it is not highly valued in terms of income, status, or resources for effective practice.⁵

Professor Nelson’s study suggests that just as in the law schools, the arrival of substantial numbers of newcomers to the legal profession has not led automatically to full inclusion. Women and people of color often enter the profession with alternative values; if these values are not incorporated into legal education and law practice, inequities in recognition, compensation, and professional satisfaction persist.

II. CONCEPTUALIZING SECOND-GENERATION DIVERSITY ISSUES

In addressing problems of full inclusion when law schools are diversified, the Special Commission confronted the challenge of providing a clear and useful definition of what second-generation problems in law schools entail. In law schools, first-generation problems of access refer to the difficulties of "getting the numbers right" through programs of admissions and hiring that value diversity. Once significant numbers of previously underrepresented groups are included in the law school student body and faculty, institutions must define the terms and conditions of their participation. Second-generation problems in law schools stem from a fundamental dilemma: the failure to achieve a meaningful consensus on the purpose of and justification for diversity initiatives in legal education and in higher education more generally. Two key positions vie for legitimacy in explaining affirmative action and diversity programs: a compensatory rationale and an enrichment rationale. Under the compensatory view, affirmative action programs are temporary correctives for past injustice; in the long run, previously excluded groups should meet the standards for full participation without special intervention on their behalf. Under the enrichment approach, diversity programs are a way to awaken an insular academy to a range of perspectives, and a commitment to including people with diverse backgrounds, experiences, and perspectives is a permanent feature of a properly functioning system of legal education. These competing conceptions of affirmative action and diversity programs tend to delegitimate each other. For example, proponents of the compensatory perspective assert that diversity students may need special assistance to meet traditional standards; advocates of an enrichment approach question the very standards themselves. Because neither paradigm has achieved clear ascendancy in the realm of legal education, affirmative action and diversity programs have been plagued by perceptions of inequity, unfairness, and incoherence.

In his contribution to this volume entitled "What We Can Learn From Other Experiences in Higher Education," Professor Troy Duster draws on his background as a sociologist to remind law professors that changes in the representation of women and people of color have occurred throughout higher education, not just in the law schools. He shows that the influx of newcomers to the academy is neither a discrete nor an anomalous event; rather, it is a corollary of the historical trend to make colleges and universities accessible to a wide array of individuals. For example, Professor Duster notes that higher education ceased to be the almost exclusive purview of the upper class after World War II, when educational grants for veterans under the GI Bill greatly expanded opportunities for promising students of modest means to attend college and even law school. In his view, periodic efforts to democratize higher education are a healthy response to changing social conditions. Inevitably, the arrival of newcomers prompts conflict, for once a group like women achieves "critical mass" in higher education, it begins to demand attention to its particular needs, interests, and concerns. According to Professor Duster, the resulting debates over the value and meaning of traditional curricular offerings and scholarship are both natural and beneficial, an ongoing source of renewal in the academy.

III. CONTINUING LEGAL AND POLICY DEBATES OVER AFFIRMATIVE ACTION AND DIVERSITY

The philosophical and pedagogical uncertainty surrounding the role of diversity in higher education in turn has prompted ongoing legal controversy. In Regents of the University of California v. Bakke,⁶ Justice Powell appeared to embrace an enrichment approach by suggesting that whether or not an institution of higher education had engaged in past acts of intentional discrimination, it could favorably weigh race and ethnicity, along with an array of other characteristics, in admissions decisions because a broad range of perspectives would enrich the learning process. According to Justice Powell, a diverse student body could contribute to "an atmosphere of ‘speculation, experiment and creation,’"⁷ and he concluded that "it is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples."⁸ In describing how a diverse student body could encourage the robust ‘exchange of ideas, Justice Powell expressly noted the example of the law school. Citing Sweatt v. Painter,⁹ he agreed that:

The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.¹⁰

Justice Powell’s opinion rejected the use of racial quotas, as opposed to a plus for race, except when an institution had itself been found guilty of past discrimination and therefore had to undertake corrective remedies.

As this Special Commission was completing its work, the debate over the purpose and utility of affirmative action and diversity programs intensified. On July 20, 1995, the Regents of the University of California voted to eliminate preferences based on gender, race, and ethnicity in admissions, hiring, and contracting.¹¹ The Regents indicated that diversity was an asset and that their newly adopted policy was completely consistent with a commitment to it. As they explained: "Because individual members of all of California’s diverse races have the intelligence and capacity to succeed at the University of California, this policy will achieve a UC population that reflects this state’s diversity through the preparation and empowerment of all students in this state to succeed rather than through a system of artificial preferences."¹² The Regents thus made clear that diversity would be accomplished naturally when all groups satisfied traditional meritocratic criteria. California voters adopted a similar measure in November 1996. This initiative amends the state Constitution to eliminate preferences based on gender, race, and ethnicity in all programs and activities run by the California government to the extent permissible under federal law. Although the initiative currently is being challenged in federal court, its successful passage has prompted other states to consider similar action.¹³

Lawsuits in federal court also have questioned Bakke’s enrichment rationale as a justification for admissions programs that accord a plus to applicants based on their race or ethnicity. One prominent example is Hopwood v. Texas,¹⁴ a case in which four White applicants who were denied admission to the University of Texas Law School challenged the selection process as racially discriminatory. The law school relied in part on an index that reflected an applicant’s grade point average and Law School Admissions Test (LSAT) score to make admissions decisions. The admissions committee employed two cut-offs: one for students with high indices who were presumptively admitted and one for students with low indices who were presumptively denied admission. When an applicant’s score fell between the cut-offs, the committee made a discretionary decision based not only on the index scores but also on the candidate’s overall qualifications for law study.¹⁵

The plaintiffs established two key differences in the admissions process based on race. First, the law school had used higher cut-offs for Whites than for Chicanos and Blacks. In addition, when an applicant fell between the cut-off points, the admissions committee used different procedures to review minority and non-minority candidates in the discretionary zone. Non-minority candidates were reviewed and voted on by the committee; the number of non-minority applicants who could be admitted from a batch of discretionary files was capped. By contrast, minority files in the discretionary area were reviewed by a minority subcommittee, which was not subject to explicit limits on the number of candidates admitted.¹⁶ Based on this evidence, the plaintiffs argued that "the admissions program establishes the functional equivalent of an impermissible quota system in which the law school attempts to camouflage quotas through the use of the term ‘goals.’"¹⁷

After reviewing the evidence on the admissions process, Judge Sam Sparks found that the law school’s goal of improving the representation of minorities in law school was permissible under Bakke but that some aspects of its process were unconstitutional because they insulated minorities from competition on an individual basis with the entire pool of applicants. The judge held that "The constitutional infirmity of the 1992 law school admissions procedure, therefore, is not that it gives preferential treatment on the basis of race but that it fails to afford each individual applicant a comparison with the entire pool of applicants, not just those of the applicant’s own race."¹⁸ The district court further found that there were legitimate, nondiscriminatory grounds for denying the White plaintiffs admission, so the judge awarded them only nominal damages of one dollar each and an opportunity to reapply at no charge the following year.

Judge Sparks concluded his opinion by noting that "It is regrettable that affirmative action programs are still needed in our society."¹⁹ In contrast to the enrichment rationale that Justice Powell offered in Bakke, the trial court in Hopwood emphasized a compensatory model:

The Court realizes that some individuals will continue to complain that any admissions program employing preferences based on race, no matter how carefully designed and administered to provide individualized consideration, deprives nonminorities of their rights. However, when the program functions to overcome the effects of years of discrimination and to serve important societal goals, affirmative action ‘is consistent with equal protection principles as long as it does not impose undue burdens on nonminorities.’ The Court believes that the only way of assuring an undue burden is not placed on innocent parties in an admissions process is to treat all applicants as individuals and to consider all qualifications in selecting the best qualified candidates to comprise an entering class.²⁰

Although Justice Powell had envisioned a long-term commitment to diversity as a way of fostering the free exchange of ideas, Judge Sparks understood affirmative action as a temporary, remedial strategy to correct past injustices.

On appeal in Hopwood, the Fifth Circuit explicitly rejected Justice Powell’s opinion in Bakke as a largely discredited jurisprudence of equal protection. According to the court of appeals, in adopting a diversity rationale, Justice Powell wrote only for himself, and the United States Supreme Court had since repudiated diversity as a predicate for race-based preferences. In the Fifth Circuit’s view, "the Court appears to have decided that there is essentially only one compelling state interest to justify racial classifications: remedying past wrongs."²¹ The court of appeals in Hopwood found that a diversity rationale fostered stereotyping by assuming that people’s race or ethnicity can predict their points of view. The court expressed concern that racial classifications even in the name of diversifying the student body were stigmatizing and could aggravate racial tensions.²²

Having concluded that only a compensatory rationale could justify affirmative action in admissions, the Fifth Circuit went on to hold that the University of Texas Law School’s policy was not structured to remedy present effects of its own past discriminatory practices. Although the law school had engaged in de jure segregation in an earlier era, any discriminatory practices ended in the 1960s when it initiated efforts to recruit students of color. Moreover, negative perceptions of the law school as exclusionary were an insufficient basis for using racial classifications because these perceptions stemmed from mere awareness of earlier historical practices, acts already fully remedied by the law school. According to the court of appeals, contemporary racial tensions in the student body were the product of present societal discrimination, rather than any past discrimination by the law school. Finally, the law school could not use racial preferences in admissions to correct the underrepresentation of Blacks and Chicanos in the student body because their small proportions were not directly attributable to discriminatory practices by the law school itself.²³

The Fifth Circuit’s decision illustrates how failure to develop a coherent vision of diversity has undermined the legitimacy of affirmative action programs. The court of appeals simply dismissed Justice Powell’s view of diversity in Bakke as an idiosyncratic position, a doctrinal approach that had not been institutionalized in meaningful and important ways in university policies. Without a link between diversity and enrichment, the Fifth Circuit also made clear that institutions of higher education seldom could rely on a compensatory rationale to justify an affirmative action program. Although Hopwood left colleges and universities in a quandary over the future of affirmative action, the United States Supreme Court recently denied certiorari in the case.²⁴

IV. THE IMPACT ON LAW SCHOOL PEDAGOGY AND SCHOLARSHIP

Aware of the fundamental importance and extraordinary sensitivity of this pervasive debate over affirmative action and diversity, the Special Commission attempted to evaluate second-generation concerns in specific areas of law school life, particularly teaching and scholarship. An informal survey revealed that some schools primarily understand diversity in compensatory terms and focus on support programs to permit students of color to meet academic standards. Other institutions use an enrichment approach by holding diversity orientation sessions for all students as well as workshops on teaching about diversity and faculty retreats on diversity-related subjects. Still other schools have adopted programs that include a mix of compensatory and enrichment programs, such as an academic support program for at-risk students and a diversity teaching workshop to improve the classroom experience for all students.

Institutional differences in dealing with diversity undoubtedly shape the educational environment in ways that affect each member of the law school community, regardless of race, ethnicity, or gender. However, the burden of conflicts over the meaning of diversity fall disproportionately on those identified as beneficiaries of affirmative action. These individuals must struggle particularly hard to assert their place in the legal academy; those who fail find themselves alienated, marginalized, and disillusioned.²⁵ Some fall prey to acts of outright hostility that are universally condemned. For instance, a Black woman law professor²⁶ writes about the pain and humiliation she experienced when hate mail portraying her as a gorilla was placed in her faculty mailbox:

I harbored no doubt about the loud, unambiguous message conveyed: ‘Claim no membership to the human race. You are not even a sub-species. You are of a different species altogether. A brute. Animal, not human.’ It was a time-worn message communicated to persons who are not white. Similarly degrading messages have been sent to those who are not male. How ironic that it would be delivered to me at a time when I most needed all the complexities of my humanity embraced.

* * *

I was hurt and enraged by the gorilla message. But my token status as the first blackwoman law professor at the University counseled against any public expression of my pain and anger. I am to look on the bright side and accept the gorilla message as one more opportunity for character building and fortification (that never-ending task). Only through silent introspection am I to affirm my worth and self-esteem.

* * *

As if to substantiate the Academy’s misgivings about ‘diversity,’ out in the wilderness of the non-academic world roams a white male with all of his star qualities, but allegedly without his due. He is a caricature with whom many sympathize; he is accorded most favored person status. Deep in the wilderness of the Academy there is an exceptional blackwoman; however, her just deserts remain contested. She is constructed as a gorilla. Does anyone in the Academy care that she might be in harm’s way?²⁷

Overtly racist acts like this one grab people’s attention in part because they are perceived as serious violations of institutional norms of civility and tolerance. Yet, there are other insidious ways in which conflicts about diversity can impede participation in the everyday life of the law school. In the context of student admissions, for example, Professor Leslie Espinoza²⁸ calls law schools to task for failing to structure academic support programs in ways that affirm students of color and capitalize on their potential contributions:

Programs that create a visible, insular group of students, all or most of whom are easily identifiable inside and outside of class as minority students, send a message of incompetence, say to the community that the group will perform poorly, and undoubtedly impede integration of these students. Segregation affects motivation. Much of academic success stems from a sense of confidence. Without a sense of confidence a student will be afraid to venture, to become involved in the material being studied. This is particularly true in law school.

. . . Those opposed to affirmative action see every error as ammunition to be used against the ‘lowering of standards.’ To benefit from the law school experience students must be encouraged to articulate their thoughts. Participation is central to the learning process . . . . Law schools must not undermine the courage to make mistakes.

When affirmative action is seen as a gift to an ‘underqualified’ minority, little attention is given to stigma. It is the price of affirmative action. That price is paid by minority law students. The bargain is a good one for the law school. The school meets its social obligation by the affirmative action program and the existence of the support program. If the student fails, well, it was to be expected. The path of discouragement, isolation, alienation, and failure proves the assumption of incompetence underlying the whole of affirmative action.²⁹

According to Professor Espinoza, first-generation access has been achieved only at the cost of a second-generation system that creates two tiers of students: regular and diversity admittees. Perceived as unlikely to excel under traditional standards and incapable of fostering new visions of the legal process, diversity students are left dispirited and marginalized.

The classroom experience can reinforce this sense of alienation. For example, in their study of students at the University of California School of Law (Boalt Hall), Suzanne Homer and Lois Schwartz describe the systematic differences in classroom participation between White males on the one hand and women and people of color on the other.³⁰ To explain higher levels of participation among White men, Homer and Schwartz examine role conflicts that constrain newcomers to the legal academy:

We suggest that a counter-code of classroom ethics has evolved, one that affirmatively endorses the silence of female students and students of color. Reluctance to participate may have originated in an instinct for self-protection. However, this defense seems to have evolved into a positive decision by outsider students not to compromise the integrity of their beliefs by submitting them to the narrow analytical perspective of the law school classroom. As one of our respondents explained, ‘I have felt greatly disillusioned with my first-year experience in law school. I feel that the classroom situation desensitizes once concerned students. I often feel numb and lack the strength to open myself up for criticism to make political statements in class.’³¹

Two women faculty members at the law school, Angela Harris and Marjorie Shultz, echo these concerns in a recent article on legal education that criticizes traditional teaching methods that suppress the expression of personal feeling and experience. As they explain:

Personal alienation and poverty of thought are the twin results of this process. Many law students report feeling alienated and frustrated in the classroom. Alienation, experienced as withdrawal of the self from the educational process, leads to the diminishment or extinction of intellectual curiosity and a transfer of energy elsewhere, into extracurricular activities or into part-time jobs. This alienation also prepares students for the more significant withdrawal of their selves from their professional identity as lawyers. Rather than seeking jobs that express their personal interests and commitments, too many are prepared to follow the crowd into the highest-paying or most prestigious job available. Not surprisingly, they feel like mere ‘mouthpieces,’ or tools of the system.³²

These subtler costs of unresolved ambiguities surrounding diversity often go unnoticed and unremarked despite their pernicious consequences for the robust exchange of ideas that Justice Powell prized in Bakke. In Professor Charles R. Lawrence’s contribution to this volume entitled "Toward a Pedagogy of Diversity,"³³ he explores ways in which law faculty can capitalize on the benefits of diversity in both their teaching and scholarship. He describes the evolution of his thinking on how to "free [students and teachers] from their sense of powerlessness and frustration in the face of debilitating doctrine and ideology." His paper provides concrete suggestions for broadening the discussion of law and the lawyering process through simulations that force students to adopt the perspectives of non-lawyers in different settings, such as community meetings, legislative hearings, and high school classes. By comparing their performance in these distinct roles to that of an advocate preparing a brief or oral argument, students develop a sense of how they define "thinking like a lawyer." In addition to simulated exercises, Professor Lawrence draws out students’ gut reactions or feelings about a case by asking them to draft "reflection pieces" the day before a class meets. He insists that the pieces not include legal analysis, and he uses the students’ comments to enrich the classroom discussion. Professor Lawrence concludes that: "The power of these pieces is not just in their usefulness as a method for discovering new insights gained from a diversity of experience and perspectives, but in the authority they give to the voices of those who have come to experience themselves as lacking authority."

Concerns about diversity are not limited to student admissions and classroom pedagogy. Another highly contentious area is faculty hiring. In evaluating the costs and benefits of initiatives to diversify law faculties, Professor Richard Epstein³⁴ concludes that:

Th[e] first wave of changes to sweep over universities [to open the academy to women and minorities] resulted in change for the better. Any form of exclusion from the market- place of ideas is to be deplored, for the larger the potential pool of talent, the greater the strength and vitality of academic institutions. However, no stable competitive equilibrium occurred; the shift from open competition to new forms of preference and exclusion has proceeded apace. Today’s emphasis in appointments and promotions is largely on results. Although no one should be so rash as to claim that personnel issues are solely issues of race and sex, such considerations loom very large. Desperate rear guard maneuvers to insist upon merit independent of race or sex are too often regarded as quaint or evasive; lengthy explanations that extensive searches do not produce suitable candidates are greeted with suspicion in all cases, and derision in some. Scarcely a week goes by without a story in the New York Times addressing the glacial rate of advancement of women and minorities in universities, and always the numbers are said to tell much, if not all, of the story. Having more women and minorities in academia is ‘progress’ for the times, and those institutions lagging behind--usually the most distinguished ones--are condemned as inexcusable ‘backwaters.’³⁵

Professor Derrick Bell, who left the Harvard Law School faculty to protest its refusal to hire a woman of color, challenges assumptions made by critics like Professor Epstein who undermine the credibility of diversity candidates. He cites a letter signed by fifteen of his former colleagues questioning the law school’s hiring and promotion policies:

Harvard Law School has done far too little to address issues of sexism and misogyny. It has sustained an environment pervaded by these attitudes, while failing to take the actions required to transform that environment. A central factor in that hostile environment is a faculty whose composition, and whose processes of self-replication, profoundly undervalue the contributions that a more genuinely diverse group of teachers and scholars could make.

It is simply wrong to suppose that greater diversity among us--diversity in a sense deeper than is represented by a judicious ideological mix--could be purchased only by sacrificing intellectual and legal excellence. We are sometimes prone to foolishness, hypocrisy, and self-deception in our judgments of scholarly work, and our unthinking acceptance of what is more familiar to us.³⁶

These arguments over the evaluation of scholarship implicate the relationship between diversity and excellence, this time in the context of expanding the frontiers of legal knowledge. Unconventional work on race, gender, and sexual orientation tests the boundaries of legal scholarship: Is this body of research law? Is it a passing fad or a lasting contribution? These uncertainties are particularly difficult to discuss openly and candidly in academic settings polarized by race and gender politics.

Professor Alex M. Johnson, Jr. addresses these doubts both about the ability of diversity candidates to do high-quality traditional scholarship and about the legitimacy of alternative scholarship that draws on newcomers’ unique insights in his contribution to this volume on "Scholarship in a Diverse Legal Academy: Incorporating Outsiders’ Perspectives." Professor Johnson analyzes a series of double binds that newcomers to the academy face as they seek to participate in the scholarly exchange of ideas. Some of these dilemmas stem from the only partial realization of first-generation goals of access: In contrast to their White male colleagues, the small numbers of women and people of color in the academy encounter a range of demands on their time and energy that divert them from producing scholarship. These demands include mentoring students, serving on law school and university committees, and performing other types of community service. Even when women and people of color can set aside time to do scholarship, they confront contradictions that inhere in their very novelty as members of the academy: If they do traditional work that does not draw on their diverse backgrounds, they may be accused of having nothing special to offer; yet, if they experiment with alternative forms of scholarship that seek to capitalize on their diversity, the very legitimacy of their efforts may be called into question. Difference thus becomes a source of distinction but also of doubt, as Professor Johnson demonstrates by chronicling the experiences of those who have developed Critical Race Theory, a new school of thought emphasizing the special perspectives of people of color.

V. CONCLUSION

In many ways, this volume is a hopeful one. It assumes that American law schools will remain committed to first-generation access for previously underrepresented groups. Yet, as this Introduction makes clear, recent challenges to affirmative action and diversity programs pose a real threat that the gains made in the last three decades, particularly for people of color, will be reversed. In part, this retrenchment reflects the failure to deal coherently with second-generation questions, those that concern the full incorporation of newcomers into the legal profession. Precisely because these issues are highly complex and hotly contested, this volume is hesitant as well as hopeful. The contributions here do not profess to provide all the answers, but they do offer a framework for analyzing these concerns. Some of the papers also set forth concrete suggestions for building a pedagogy of diversity, replete with alternative teaching methods and new scholarly approaches. Every institution of legal education confronts distinct challenges in dealing with diversity: Some are mainly concerned about the student admissions process and threats to first-generation access; others face major challenges in ensuring that students feel free to exchange ideas in a diverse setting; and still others are primarily absorbed by debates about the merits of various teaching methods and scholarly approaches. Hopefully, the contributions to this volume will offer some helpful insights to all institutions as each hesitantly but insistently winds its way through the thicket of second-generation diversity.