Have We Reached Have We Reached the Promised the Promised

Land? Diversifying Land? Diversifying Law FacultiesLaw Faculties

Debra L. GreenDebra L. GreenPresented at University of Missouri-Presented at University of Missouri-

Columbia School of LawColumbia School of Law

Focus for Today’s Focus for Today’s PresentationPresentation

Look at diversity in American law schools Look at diversity in American law schools at all faculty levels at all faculty levels

Examine how unconscious bias—Examine how unconscious bias—particularly in terms of race, gender and particularly in terms of race, gender and status—may negatively affect our ability status—may negatively affect our ability to diversify to diversify

Explore strategies that may help turn the Explore strategies that may help turn the tide and counteract the impact of tide and counteract the impact of unconscious bias on hiring, promotion, unconscious bias on hiring, promotion, retention and tenureretention and tenure

Defining “Diversity”Defining “Diversity” For purposes of today’s discussion:For purposes of today’s discussion:

Focus will be primarily on women and Focus will be primarily on women and racially identifiable groups that have racially identifiable groups that have historically been disadvantaged.historically been disadvantaged.

The same principles should apply to The same principles should apply to other diverse groups, i.e., the disabled, other diverse groups, i.e., the disabled, older workers, gays and lesbians, recent older workers, gays and lesbians, recent immigrants, etc.immigrants, etc.

Focus will also be on looking at diversity Focus will also be on looking at diversity not only in terms of doctrinal faculty but not only in terms of doctrinal faculty but also in terms of clinicians and legal also in terms of clinicians and legal writing facultywriting faculty

What’s the Real World at What’s the Real World at Your School in Terms of Your School in Terms of

Diversity?Diversity? How many women and How many women and

people of color are on your people of color are on your law school’s:law school’s: Doctrinal faculty?Doctrinal faculty? Clinical faculty?Clinical faculty? LRW faculty?LRW faculty?

What’s the status for those in What’s the status for those in each group—who’s tenured, each group—who’s tenured, tenure-track, or on long-term tenure-track, or on long-term contracts in terms of:contracts in terms of: Doctrinal faculty?Doctrinal faculty? Clinical faculty?Clinical faculty? LRW faculty?LRW faculty?

Any Indicia of Progress with Any Indicia of Progress with Diversity?Diversity?

Women in faculty positionsWomen in faculty positions Women teaching doctrinal coursesWomen teaching doctrinal courses: gaps with : gaps with

promotion and tenure for white women seem promotion and tenure for white women seem to be closingto be closing

People of color in faculty positionsPeople of color in faculty positions African Americans, Latinos, and Asians African Americans, Latinos, and Asians

teaching doctrinal coursesteaching doctrinal courses: : statistically statistically significant lower ratessignificant lower rates with promotion and with promotion and tenure compared to whites and a seeming tenure compared to whites and a seeming downward trend in hiring by law schoolsdownward trend in hiring by law schools

Absolute numbers and the proportion of people of Absolute numbers and the proportion of people of color decreasedcolor decreased

Proportion of people of color awarded tenure Proportion of people of color awarded tenure decreaseddecreased

Faculty Outside the Faculty Outside the Doctrinal ArenaDoctrinal Arena

Women and people of color teaching in Women and people of color teaching in legal writing and clinical positionsllegal writing and clinical positionsl Legal writing—65-70% femaleLegal writing—65-70% female

Significant number of positions have no job Significant number of positions have no job security comparable to tenuresecurity comparable to tenure

Significant pay differentialSignificant pay differential Clinical faculty—has status similar to tenure Clinical faculty—has status similar to tenure

with 405(c) but usually a significant pay with 405(c) but usually a significant pay differentialdifferential

People of Color as Decision People of Color as Decision Makers in Clinics and Legal Makers in Clinics and Legal

WritingWriting Of those who filled out 2004 Association of Legal

Writing Directors (ALWD) survey: 160 of those were white 3 African American 1 Latino, 1 Asian American, 1 other.

The numbers appear to be tending downward: 4 African Americans in 2002, 5 in 2003, 3 in 2004, 2 Latinos in 2002, 1 in 2003 and 2004, 2 Asian Americans in 2001, then only 1 for 2002-2004.

Clinicians have similar low numbers when it comes Clinicians have similar low numbers when it comes to those in decision-making positionsto those in decision-making positions ““[T]he vast majority of law schools have no clinicians of [T]he vast majority of law schools have no clinicians of

color, there are virtually no policy setting clinical color, there are virtually no policy setting clinical directors of color outside of the historically Black or directors of color outside of the historically Black or Puerto Rican law schools, and clinicians of color generally Puerto Rican law schools, and clinicians of color generally experience lesser job security, lower pay and lesser job experience lesser job security, lower pay and lesser job perquisites than white clinical faculty.” (article by Jon perquisites than white clinical faculty.” (article by Jon Durbin)Durbin)

Unconscious Bias as the Unconscious Bias as the Root Cause of Slow Root Cause of Slow

Progress?Progress?

Psychologists once believed that only bigoted people used stereotypes. Now the study of unconscious bias is revealing the unsettling truth: We all use stereotypes, all the time, without knowing it. We have met the enemy of equality, and the enemy is us.

article from Psychology Today

Cognitive Psychology, Cognitive Psychology, Affective Reactions and Affective Reactions and

Unconscious BiasUnconscious Bias Empirical research done in the social sciences:

Tests given to participants in various settings. Pervasive Implicit Bias: “Socially dominant groups

have implicit bias against subordinate groups (White over non-White, for example). . . Almost a hundred studies have documented people’s tendency to automatically associate positive characteristics with their ingroups more easily than with outgroups. . . as well as their tendency to associate negative characteristics with outgroups more easily than ingroups.” (article by Jerry Kang)

This implicit/unconscious preferencing occurred even when people consciously tried to limit group preferencing

Examples of Unconscious Examples of Unconscious Bias StudiesBias Studies

““Group readings” study and resultsGroup readings” study and results ““Immediate hostile reaction” study Immediate hostile reaction” study

and resultsand results Implicit Association Test at Harvard Implicit Association Test at Harvard

((https://implicit.harvard.edu/implicit)) Tests developed to identify hidden bias Tests developed to identify hidden bias

in terms of race, gender, age, sexual in terms of race, gender, age, sexual orientationorientation

Critical Road Blocks to Critical Road Blocks to Diversifying Law Faculties Diversifying Law Faculties

at All Levelsat All Levels If we assume we all have varying If we assume we all have varying

degrees of unconscious bias, then degrees of unconscious bias, then bias likely affects law faculties and bias likely affects law faculties and their decisions about hiring, their decisions about hiring, promotion, retention and tenure, promotion, retention and tenure, specifically with regard to: specifically with regard to: RaceRace GenderGender StatusStatus

Focus with Unconscious Focus with Unconscious Bias in AcademiaBias in Academia

Current work mainly looks at doctrinal faculty and primarily addresses sex, race and gender issues (as opposed to the intersection of race, gender and status)

What those works indicate: Unconscious bias and stereotyping are

particularly problematic when it comes to three constituencies:

Students Administration Other faculty

Displays of Unconscious Displays of Unconscious Bias that Affect Doctrinal Bias that Affect Doctrinal

FacultyFaculty Students–

Complaints to administration, excessively negative evaluations, challenges to authority and classroom management

Stereotyping of women, people of color

Challenges by majority students about credentials, appearance, authority, evaluative methods used with students

Colleagues and administration– Overburdening faculty

with “academic housekeeping”

Stereotyping Undermining comments to

students and other faculty Belief African Americans

and other people of color are hypersensitive or have illegitimate concerns about stereotyping and bias

Unconscious desire for assimilation in order to be retained and share the benefits of tenure

When Race, Gender and When Race, Gender and Status IntersectStatus Intersect

The impact of unconscious bias The impact of unconscious bias becomes more acute with women becomes more acute with women and people of color teaching LWR and people of color teaching LWR and other skills related courses and other skills related courses because they’re typically the most because they’re typically the most vulnerable in terms of:vulnerable in terms of: StudentsStudents AdministrationAdministration

Academic housekeepingAcademic housekeeping Doctrinal facultyDoctrinal faculty

Does Diversity Matter Does Diversity Matter Outside the Doctrinal Outside the Doctrinal

Arena?Arena? Simple demographics

Population shift and shift in the work force = more diversity with clients and future attorneys

Certain areas of the country are already experiencing the change in demographics

Skills courses like LRW and clinics: Are taught on a more intimate student-teacher basis Resemble the type of supervisory relationship that

imitates the training and feedback a young lawyer would receive from a more senior attorney on his or her work

Critical to have women and people of color acting in a mentoring/supervisory role for students in a world that’s becoming increasingly global and multicultural

Strategies for Strategies for Counteracting Unconscious Counteracting Unconscious

BiasBias

The first step to recovery is acknowledgment.

Alcoholics Anonymous

Hiring StrategiesHiring Strategies HiringHiring

Commitment must come from the top and have Commitment must come from the top and have sufficient faculty buy-in for the process to work.sufficient faculty buy-in for the process to work.

Rethink the traditional definition of “merit.”Rethink the traditional definition of “merit.” If hiring a lateral from another school, consider the If hiring a lateral from another school, consider the

weight student evaluations should play in the weight student evaluations should play in the hiring process.hiring process.

Go outside the AALS pool for hiring.Go outside the AALS pool for hiring. Cultivate potential candidates by targeting top students in Cultivate potential candidates by targeting top students in

law school law school ““Raid” LLM programs for graduate studentsRaid” LLM programs for graduate students Find associates of color at top firms in the area and Find associates of color at top firms in the area and

cultivate themcultivate them

Think about diversifying when hiring for Think about diversifying when hiring for clinical and LRW positions clinical and LRW positions

Other strategies?Other strategies?

Strategies with Retention, Strategies with Retention, Promotion and TenurePromotion and Tenure

Expect acculturation, rather than assimilation.Expect acculturation, rather than assimilation. Behavior and appearanceBehavior and appearance Types of scholarship producedTypes of scholarship produced

Reevaluate the role of student evaluations for all Reevaluate the role of student evaluations for all faculty.faculty.

Consider the impact of unconscious bias and Consider the impact of unconscious bias and stereotyping when hearing student complaints or stereotyping when hearing student complaints or complaints by other faculty.complaints by other faculty.

With academic housekeeping matters, be aware that With academic housekeeping matters, be aware that “the few” may be overburdened with serving the “the few” may be overburdened with serving the needs of “the many,” and take steps to lessen the needs of “the many,” and take steps to lessen the load. load.

Diversification with legal writing and clinical faculty Diversification with legal writing and clinical faculty will require better parity in terms of pay and status.will require better parity in terms of pay and status.

Other strategies?Other strategies?

The Power of One. . . .The Power of One. . . .