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Friday, March 21, 2014

Law Faculty Hiring and Socioeconomic Bias

Michael J. Higdon (Tennessee), A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias:

In the movie Moneyball — based on the Nationally bestselling book of the same name — Jonah Hill’s character, Peter Brand remarks, “People are overlooked for a variety of biased reasons and perceived flaws.” Although his character was referring to baseball players, the same could be said of those who attempt to secure jobs as law professors. In fact, many law students are later surprised to learn that their ability to secure a job as a law professor has much less to do with what they have might have done during their legal careers, and more to do with simply the law school from which they graduated. As noted in the recent book Becoming a Law Professor: A Candidate’s Guide: “Like it or not, the data says that the most important aspect [of being a successful applicant] is having received a J.D. from an Ivy League or Ivy League equivalent law school.”

I have written this article to, first, voice my criticism of this narrow approach to faculty hiring and, second (and more importantly), to provide what I hope will be a more compelling justification for faculty appointment committees to ease up on the emphasis they place on academic pedigree. Namely, to the extent a law school values having a socioeconomically diverse faculty, hiring exclusively from elite law schools makes achieving that goal more unlikely. After all, numerous studies have revealed that those students who attend the elite law schools are overwhelming representative of the top level of the socioeconomic spectrum.

In fact, a recent study by Professor Richard Sander found that “roughly half the students at [the elite law] schools come from the top tenth of the [socioeconomic status spectrum], while only about one-tenth of the students come from the bottom half.” And it is no accident that such a disparity exists. As I explore in the article, it is not lack of intellect that keeps those from lower socio-economic backgrounds out of the elite law schools; instead, it is the lack of “economic inheritance.” As one scholar points out, “It is commonly acknowledged that if a child is born poor, she has less chance of getting ahead than a child born into the upper or upper-middle classes — even if the poor child is just as naturally talented or hard working as her more advantaged peer.” In fact, “statistically, the least academically qualified students from wealthy families have as much chance of going to college as the highest performing kids from low-income families.”

As such, hiring faculty members from primarily the elite law schools undermines a law school’s ability to achieve socioeconomic diversity on its faculty and instead helps perpetuate a class-based monopoly within the legal academy — to the detriment of all involved. Specifically, as Dean Kevin A. Johnson recently put it: “Although it is somewhat cliché to say it, law students want and need role models.” For instance, when talking about racial minorities, Dean Johnson states that “the presence of historically underrepresented minorities on law faculties sends a message to students of color — and most effectively ‘teaches’ them — that they in fact belong in law school and the legal profession, as well as that they have the ability to be top-flight lawyers, judges, and policy makers.” The same can be said of those students from lower socioeconomic backgrounds.

Second, if law schools are truly marketplaces of ideas, then faculty diversity enhances that environment by broadening the number of available perspectives. Justice O’Connor noted in Grutter v. Bollinger that diversity among law students seeks to “ensure their ability to make contributions to the character of the Law School.” Faculty diversity serves the same purpose. As one scholar notes: “might it not be possible — some would contend probable — that a woman teaching the law of rape, abortion, or employment discrimination might present the law to students in different ways, with different perspectives, experiences, and — at a most fundamental level — knowledge than her male counterparts.” Again, the same can be said for professors from lower socioeconomic backgrounds

Finally, the different perspective that these individuals bring to the classroom would also contribute to their scholarship, thus benefiting the entire academy. One need only look to the momentous contributions such movements as Critical Race Theory and Feminist Legal Theory have brought to the academy to see the potential benefit that other minority groups could bring to the table.

For these reasons, I conclude the article by proposing that when a law school engages in faculty hiring, it treat academic pedigree as merely one factor in the hiring determination – not the sole determinant as it is commonly used today. Although we are unlikely to ever eliminate all class-bias when it comes to faculty hiring, our inability to effectuate change on all fronts makes it all the more imperative that we absolutely change the things we can control. And what we are capable of doing, should we so choose, is to treat academic pedigree as merely one piece of the hiring puzzle that we then actively supplement with other information — information more relevant to the individual’s proven talents and less a reflection of the individual’s socioeconomic background.

http://taxprof.typepad.com/taxprof_blog/2014/03/law-faculty-hiring.html

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Comments

So what else is new? Surely you did not fail to notice that the nine members of our current Supreme Court come from exactly three law schools. And when Justice Ginsburg retires, the number of law schools will be reduced to two. Doesn’t this bother anyone else? I suspect a survey of federal appellate judges would reveal a similar lack of educational diversity.

Posted by: Publlius Novus | Mar 21, 2014 6:10:45 AM

"Namely, to the extent a law school values having a socioeconomically diverse faculty, hiring exclusively from elite law schools makes achieving that goal more unlikely. After all, numerous studies have revealed that those students who attend the elite law schools are overwhelming representative of the top level of the socioeconomic spectrum."

And so it would appear Professor Higdon has learned that there is a difference between what law schools say they want, and what law schools actually want.

Posted by: Unemployed Northeastern | Mar 21, 2014 6:46:53 AM

That socioeconomic status correlates strongly with Ivy attendance should surprise no one and will only become exacerbated as the law school market contracts. While it is a sensible choice for a wealthy student to attend an Ivy at full price, in place of a lower ranked school at little to no cost, that is a much less justifiable choice for a student looking at 200k+ in loans.

Posted by: Third Tier | Mar 21, 2014 7:19:29 AM

There is so much wrong with this.

Hiring for tenure-tracked law faculty is basically at a standstill. I bet the average new hires across the country will number between 10-50 annually for the next decade. Hardly the greatest platform for reducing socioeconomic disparity in a country of 300 million people, if that’s an issue that you care about.

Meanwhile, almost all law schools continue to award all of their scholarship money based on merit rather than need. This policy actually exacerbates class differences because the less competitive candidates are probably from the lower socioeconomic backgrounds. I bet there is at least some correlation. By the way, this problem affects tens of thousands of students, compared to the 50 or so individuals affected by faculty hiring.

Now, if Prof. Higdon were really interested in class discrepancy, his focus would be on the cost of education and distribution of scholarship funds. But that doesn’t benefit him. So, his focus is on getting schools to hire more people like himself into tenure-track positions, and casting this as for the greater social good.

Just another great example of how immature and self-absorbed faculty members are. No wonder there is such a growing backlash.

Posted by: JM | Mar 21, 2014 7:58:31 AM

"Namely, to the extent a law school values having a socioeconomically diverse faculty..."

In what way is a law school faculty diverse on any measure? They are elite by being "selective" in almost every way.

Posted by: frump | Mar 21, 2014 8:02:28 AM

"Second, if law schools are truly marketplaces of ideas, then faculty diversity enhances that environment by broadening the number of available perspectives."

Law schools have to be the least "diverse" places on earth. True independent thought or criticism is not welcome, especially if it challenges the law school establishment. Real lawyers are not welcome, as they are practitioners not "scholars" or "thinkers" in some Orwellian sense of each term.


But let's not rock the boat too much. We wouldn't want Uncle Sam to turn off the spigot.

Posted by: Jojo | Mar 21, 2014 10:53:16 AM

Jojo: there is no spigot. The loans subsidize the government:

http://www.usatoday.com/story/news/nation/2013/11/25/federal-student-loan-profit/3696009/
http://www.usatoday.com/story/news/nation/2014/02/10/federal-student-loan-profits/5361955/

As for Higdon: talk about confusing a symptom for the ultimate problem. There are people from poor or lower middle class families who got to Ivy League schools. Look for people from poor or lower middle class families in hiring. That's the solution. Not casting aspersions at Ivies. Shallow, dull article.


Posted by: Genuinely Curious | Mar 21, 2014 6:33:13 PM