Racial Integration of Legal Education: Making Progress and Redoubling Efforts
(from the March 1996 AALS Newsletter)
Richard A. White's report on success rates of minority candidates in the AALS Faculty Appointments Register is encouraging, but its good tidings are tempered by the bad news of high attrition rates.
The good news is that many AALS schools are actively recruiting candidates of color, and the success rate of those candidates in the 1994-95 academic year returned to 1990-91 level after dropping precipitously in the intervening years. These encouraging statistics, however, must be placed in perspective. Although AALS schools are making progress toward racially integrating law school faculties, more than a few successful recruiting seasons are needed to adequately diversify our ranks. For the foreseeable future, only sustained, vigorous effort will help us reach the point where special efforts will no longer be necessary. Furthermore, although many AALS schools have contributed to the encouraging statistics, others have either declined to make special recruiting efforts or have enjoyed little success from their good-faith efforts to diversify their ranks. Finally, if minority faculty are hired but not retained and tenured, we will create a revolving door with little net gain.
To further the goal of meaningful racial integration of law school faculties, the AALS Committee on Recruitment and Retention of Minority Law Professors will present three essays in this newsletter in 1996. This opening essay explains why AALS schools should sustain, or in some cases redouble, their efforts to racially integrate their faculties, even in the face of recent challenges to affirmative action. The second essay will seek to spark a dialogue between schools about effective techniques for recruiting faculty candidates of color. The final essay will speak to the issue of retaining faculty once we have successfully recruited them.
In focusing on racial integration of law school faculties, the Committee is limited by its charge, but it recognizes the urgency of the need to diversify faculties in other ways as well. It hopes that the lessons to be learned from successful recruitment of candidates of color can be transferred to other recruiting needs.
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It is difficult to deny that members of our pluralistic society experience life differently partly on the basis of race, as well as other significant personal characteristics. As Stanford President Gerhard Casper recently stated in reaffirming Stanford's commitment t diversity in student admissions. "Alas, our society is quite color-conscious, and we therefore cannot yet afford to be colorblind."
This persisting color consciousness presents both a pitfall and an opportunity. The pitfall lies in the tendency of members of a relatively homogeneous faculty to clone itself when recruiting new members to the club. We think very highly of ourselves, so what safer way to maintain quality in our institutions than to hold up a mirror and place value on candidates who look, sound, and think like us and who have similar academic backgrounds and credentials? In applying a narrow conception of academic merit, we forget that ethnic minority candidates of great quality often traverse more difficult paths to the doors of the academies and may have left trails that require new insight to fully appreciate. To some extent, special efforts to diversify faculties may be necessary not simply to make up for past injustices, but also to guard against the current application of discriminatory stereotypes. We must guard against equating merit with "cloning." As Daniel A. Farber and Suzanna Sherry concede in their recent challenge to "the Radical Critique of Merit," "We need to be willing to expand [definitions of merit] to include the innovative and unfamiliar."
Some readers may wonder how the Committee can promote color-conscious recruiting at a time when the Supreme Court and state and federal legislators are giving voice to popular resentment toward programs that provide preferential treatment on the basis of race. The Committee's response is twofold.
First, most challenges to programs promoting racial diversity assume that traditional recruiting and evaluation processes effectively screen candidates for merit in a manner that is itself racially neutral and closely related to important educational objectives. As argued above, however, the tendency of a mainstream, homogeneous faculty to clone itself may lead it to employ a facially neutral policy that incorporates racially exclusionary factors that do not ensure the selection of the most talented, valuable candidates. A broader conception of merit and a bit of color consciousness may be necessary to compensate for a majoritarian bias buried in traditional process. What looks like "preferential treatment" may in fact broaden the inquiry in a way that promotes selection on the basis of true merit.
Second, although color consciousness in other contexts may be legally suspect, the Supreme Court has not yet overruled its suggestion in Bakke that institutions of higher education enjoy the academic freedom to view racial diversity in the academy as an important facet of their educational missions and to promote such diversity in reasonable, flexible ways short of quotas.
Indeed, this academic freedom, particularly to the extent that it is grounded in First Amendment principles, serves not only as justification for efforts to diversify faculties in the face of constitutional challenges, but also as a means of resisting attempts by state legislators or other officials to restrict the affirmative action policies of academic institutions. Institutions of higher learning that have identified increased racial diversity as an important facet of their educational missions should assert their academic freedom to pursue those missions free of undue interference from government officials who are more immediately subject to the pressures of majoritarian political winds.
It's not difficult to see why racial diversity ought to be a critical pillar in an academic institution's educational mission. As long as our society remains multi-ethnic and multicultural-more of a vibrant spring bouquet of flowers than a melting pot-racially integrated faculties can help ensure that our educational institutions remain relevant, that they are fully equipped to prepare their diverse student bodies for life and work in communities in which racial and other differences often permeate social, political, and legal questions. While it is going too far to suggest that all faculty of color will or should engage in critical race studies, an ethnically balanced faculty is more likely to provide effective role models for all students, to raise the full range of socially relevant questions in the classroom and in scholarship, and to test traditional assumptions with fresh perspectives.
The story of an untenured minority faculty member at an AALS institution serves to illustrate both the pitfall of narrow conceptions of merit and the opportunities to an educational institution offered by diversity. Although this candidate graduated with a respectable ranking from a very good law school and performed well in a judicial clerkship, her academic credentials were not as stellar as those of some white candidates. She did not graduate at the top of her class, she did not serve on law journal, and her state court clerkship was not one that would attract national attention. Nonetheless, the appointments committee gave her special attention because it believed that her ethnic background and experience would help her both to relate to a growing student population of the same ethnicity and to further a related ethnically-grounded program of curriculum and scholarship. By digging further, the committee discovered that the candidate's mentors believed that she was extraordinarily talented and that she probably could have served on law journal, graduated at the top of her class, and enjoyed the prestige of a nationally recognized judicial clerkship had she not been busy during law school raising children and helping her husband with the details of his efforts to establish his livelihood in the ethnic arts.
Of course, the school had the good sense to offer this candidate a position and the good fortune to successfully recruit her. In a few short years, she has won rave reviews from students and colleagues alike and established herself as a rising star in the classroom and in her scholarship on the basis of her intellectual talent, creativity, fresh perspectives, and seemingly unlimited capacity for hard work. In short, aside from the benefits of diversity that this candidate offered, she brought the highest possible academic quality to the school, as valuable as that offered by any candidate the school could have successfully recruited, even by other candidates whose paper credentials were more "stellar." But she wonders whether the school ordinarily would have recognized her potential during the appointments process, or whether it would have screened her out at an earlier stage without appreciating her unique path, had it not consciously exhibited an interest in her ethnicity. Her story serves to underscore the need to broaden our capacity to recognize merit and excellence. Many other minority faculty members have a similar profile.
The Committee welcomes your comments on this topic. In the next article, it discusses techniques for successfully recruiting a diverse faculty. If you have ideas or anecdotes on successful recruiting techniques, please send them to this Committee in care of the AALS so that we may share them.