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Vikram David Amar

Why U.S. News and World Report Should Include a Faculty Diversity Index in its Ranking of Law Schools


Friday, April 9, 2010

About a month ago, we wrote a column for this site arguing that the influential U.S. News & World Reports law school rankings should consider the diversity of the student body in evaluating the quality of law schools. In essence, we contended that a diverse student body contributes to a better learning environment for students, and therefore should be used in measuring the quality of a law school.

In this column, we contend that the diversity of a law school faculty should also be factored into the U.S. News law school rankings methodology. Faculty diversity contributes measurably to the quality of legal education, as well as to the overall quality of the scholarship produced by a law faculty. It therefore warrants consideration in any legitimate law school ranking system.

The Modern Legal Profession: Dramatically Changed Demographics, Yet There Is Much Progress Still to Be Made

Women and racial minorities are much better represented in law schools today than they were just a generation ago. Specifically, women law students today comprise 47 percent of the total, and minorities account for about 20 percent of all law students.

As a result of the evolving law school demographics, the literal face of the legal profession is changing before our very eyes. Thankfully, long gone are the days when Justice Sandra Day O'Connor, one of the few women in her graduating class at Stanford Law School in 1952, had a difficult time finding a job as an attorney. In 1970, less than 3 percent of all lawyers were women, compared to about 34.5 percent in 2010. Although there certainly are questions about the so-called "glass ceiling" facing women attorneys, it is unquestionably the case that there are many more women in the legal profession today than a generation ago.

The increase has been less dramatic, but nonetheless steady, for most racial minorities. For African Americans, for example, the increase has been from 1.2 percent of all lawyers in 1970 to 4.6 percent in 2010.

As a result of the modern demographics of law student bodies, the iconic Professor Kingsfield of "The Paper Chase" no longer represents the typical law professor in the United States. However, law school faculties have been somewhat slower than the student bodies in increasing their percentages of women and minority faculty members.

Today, women comprise 37 percent and minorities constitute about 16 percent of full-time law teachers, numbers that lag behind the corresponding percentages in law school student bodies.

The underrepresentation of racial minorities on law school faculties is even greater if one looks at the general population. Latinos and African Americans each comprise roughly 13% of the overall population, and Asian Americans about 4%. These three groups together account for about 30 percent of the population, yet all minorities comprise only 16 percent of all law faculty members.

The representation of women is also deeply disappointing. When roughly half the students in law school are women, there is simply no excuse – unless one were to make the untenable argument that women on the whole are generally less qualified as men for the academy – for law schools not to aspire to have faculties that are not composed of roughly half women. This is especially true given that women are well-represented among the student bodies at the two law schools that send the most graduates into legal academia, Harvard (currently at approximately 47 percent) and Yale (49 percent). Although the numbers for racial minorities are smaller, there remains no reason for law schools not to strive to hire the same percentage as can be found in law student bodies.

This data begs the obvious question: Why is the gender and racial diversity of law faculties important to evaluating the quality of law schools? We believe that diverse law school faculties better prepare students to practice law in a world with diverse clients and lawyers, and we believe that diverse law school faculties are also more likely to produce cutting-edge scholarship. Let us explain why.

Law Faculty Members as Role Models

To begin, law students need role models while they are in law school. This is especially the case for women students and students who are members of racial minorities, as these groups historically were excluded from the legal profession. A full representation of women in law school faculties, for example, would confirm in the eyes of women law students that they can be effective lawyers and indeed can in fact succeed in the legal profession. In this vein, the appointments of Supreme Court Justices Sandra Day O'Connor, Ruth Bader Ginsburg, and Sonia Sotomayor sent powerful messages to women lawyers about the possibility for women to rise to the loftiest echelons of the legal profession.

The same holds true for law students who are members of racial minorities. African American, Latino, Asian American, and Native American students often clamor for minority role models on their law school faculties. Minority faculty members teach minority students by example – sending the strong message that these students in fact belong in law school and can be top-flight lawyers. In the same way, the appointment of Justices Thurgood Marshall, Clarence Thomas, and Sonia Sotomayor told African Americans and Latinos, respectively, something important about their ability to ascend to the very top echelons of the legal profession, and of the government.

For many years, law schools have recognized the need for minorities on law school faculties, and have undertaken focused efforts to hire more of them. Law schools aggressively recruit minorities, especially those with elite credentials. The claim that there is a "pool problem" due to a lack of minorities in the legal profession carries some weight but, as demonstrated above, its persuasiveness has markedly lessened over time. And, going forward, there simply will be no "pool problem" at all when it comes to women law school graduates.

The Diversity of Faculty Perspectives Clearly Matters When It Comes to Teaching and Scholarship

There are other benefits, as well, to having a diversity of backgrounds represented in law school classrooms. For example, might it not be possible – some would contend even probable – that a woman teaching legal concepts surrounding rape or abortion might present the law in different ways, with different perspectives on, these subjects than her male counterparts would? Recall, for instance, that Justice Ruth Bader Ginsburg reportedly helped change the minds of several of her male colleagues on the Supreme Court in the recent Fourth Amendment case (Safford Unified School District v. Redding) holding that a strip search of a young female teen at her middle school violated the Fourth Amendment.

Similarly, an African American man might understandably bring an entirely different set of perspectives to the discussion of racial profiling in law enforcement than the average white colleague might offer. Harvard Professor Charles Ogletree, who is African American (or, for that matter, Harvard's Henry Louis Gates, whose racially-charged run-in last summer with the Cambridge, Massachusetts police made the national news), in all likelihood might bring different perspectives to bear on criminal justice than, say, Wayne LaFave, who is white, even though few would question that LaFave is one of the leading criminal procedure scholars of his generation.

So too, Latino and Asian American law professors might bring entirely different perspectives on immigration law and enforcement than even a brilliant white colleague could offer. A Native American faculty member might have an entirely different perspective on Indian Law than other professors could provide. And, rather obviously, an Arab or Muslim professor might bring to bear wholly different perspectives on the various security measures taken by the U.S. government after September 11, 2001 than other faculty members. And these are only the most obvious examples: Importantly, this difference of perspective is not limited to particular subject matters that are directly related to race, ethnicity or gender, but also might be expected to apply across the board to various legal topics as well.

Nor is the classroom the only sphere where faculty diversity matters. Differences of perspective can affect scholarship just as they can affect teaching. Even if one does not believe that there is a "voice of color," it is an unquestionable truth that, in the aggregate, members of different minority groups will bring different experiences and perspectives to bear on the analysis of the law and legal doctrine. It would be startling, moreover, if one did not see these differences influence their scholarship to some degree.

Of course, we do not mean to say that all minorities or all women will add different perspectives to the mix. Rather, what we mean to say is that a diversity of faculty with various backgrounds and experiences can help enrich teaching and scholarship. And in other respects, our legal system embodies the belief that a diverse set of perspectives leads to improved decisionmaking. For instance, Supreme Courts in the federal and state systems are designed to have many (ranging from five to nine) Justices, rather than a single Justice, deciding cases. Similarly, we strive for the juries that decide civil and criminal cases to be comprised of many persons (usually twelve) pulled from a cross-section of the community. There also is good reason to consider the diversity of faculties in evaluating the quality of law schools. There, too, a multiplicity of perspectives will predictably improve the quality of debate and deliberation on vital issues.

Faculty Diversity is an Index of Law School Quality, Both Locally and Nationally

In our previous column for this site, we argued that, because the U.S. News rankings seek to employ a methodology that accurately evaluates the overall quality of law schools, it makes perfect sense to evaluate the diversity of the student bodies for all U.S. law schools and include that evaluation in the rankings. There can be no convincing justification for the special treatment of law schools in states that may not enjoy the same demographic diversity as, say, California and Florida. (Schools in Maine and Kansas were the examples used by U.S. News's law school rankings guru, Robert Morse). The diversity of faculty is as important to the quality of a legal education and of legal scholarship in Maine as it is in California.

As with student diversity, the concern that law schools in less diverse locales should be subject to different criteria carries no weight in evaluating the quality of the schools' faculty. Indeed, the market for law teachers is unquestionably national. Serious faculty candidates generally are willing to relocate to wherever they land the best job. Consequently, there is no reason why a law school in Maine or Kansas has any excuse for failing to have a gender- or racially-diverse faculty.

Currently, there are not as many women and racial minorities as might be desirable on many law faculties – and that fact is not lost on law schools. As a result, the competition for those much-coveted potential faculty members is often intense. Yet the intensity of that competition should not be an excuse for the lack of diversity in law school faculties. Importantly, there are law schools – and not only those that rank among the most top tier of schools – that are doing something right in recruiting and retaining diverse faculties. Those schools should be rewarded for their effective competition and for improving the quality of the education their schools provide.

This brings us to the question of how a law school might work to secure and maintain a diverse faculty. This is a topic that is well beyond the scope of this column. But, as with most things, it takes leadership, commitment, time, and effort. Law school Deans must be willing to instill the values of diversity and excellence in the hiring of faculty. Faculty appointments committees that include women and minorities are important, in order to increase the likelihood of diverse search outcomes. Appointments committees must, within legal limitations, be encouraged to bring a diverse group of candidates to campus for the full faculty to consider.

The Need for a Critical Mass of Minority Professors, If Legal Education Is to Improve

A faculty diversity index that values significant, as opposed to minimal, diversity is called for as a measure of faculty diversity. That is because a "critical mass" of minority faculty members – not just one or two – on a law school faculty is good for both the teaching and scholarly missions of the law school.

A critical mass of minority and female faculty will ensure that students are exposed to a diversity of law professors possessing different experiences and perspectives. This diversity will, in turn, provide students with a richer environment – one that more likely mirrors the diversity of lawyers and clients that the students will encounter as lawyers. A token minority professor teaching a class or two clearly will not have nearly as positive an impact on a student's educational experience as having a wide variety of minority and women teachers. Indeed, seeing the diversity of opinion within members of a minority group, and among women, teaches students much about diversity in and of itself.

Moreover, creating a critical mass will help to ensure that minority faculty members do not feel as if they are mere window dressing, or that they are being looked to by students and colleagues as being required to offer the "minority perspective." A lonely (minority) soul is more likely to leave a given law school for greener pastures elsewhere. Thus, the retention of minority faculty members, too, will depend in part on the ability of a law school to maintain a "critical mass" of diversity on its faculty.

Who Counts? Why the Representation of Asian American Faculty Should Matter, Too

In measuring the racial diversity of law faculties, it seems clear that we should consider Latinos, African Americans, and Native Americans. Some might question whether Asian Americans, who are so richly represented on many college and university campus, should be counted. We believe that they should.

As with student diversity, we are not making a remedial argument for faculty diversity here – that is, we are not calling for diversity to remedy historic wrongs, but rather to enhance today's teaching and scholarship and provide a superior experience for today's law students. Importantly, as with student body diversity, the benefits of the diversity of a law faculty accrue with or without the underrepresentation of a particular group, such as Asian Americans. In any event, Asian Americans historically have been underrepresented in law, often because of societal pressures that funneled them into math and the sciences. Some have also claimed that law faculties have relied on stereotypes of the "passive" Asian to argue that Asian American faculty candidates whose scholarship was strong nevertheless would not do well in the classroom, and thus to decline to hire them.

As this discussion suggests, the quality of law schools rests in part on the diversity of their law faculties as well as of their student bodies. The U.S. News rankings therefore should expressly consider both faculty and student diversity, rewarding the schools that encourage either or, ideally, both.

Finally, while we have focused in this column on gender and racial minorities, we acknowledge that other kinds of diversity among the members of law faculties may also make a positive difference in law teaching and scholarship. For example, socioeconomic diversity, ideological diversity, LGBT diversity, religious diversity, etc., among faculties also may be important. We are open to ideas on how to ensure these and other kinds of faculty diversity that might improve legal education and scholarship, and open to arguments that these kinds of diversity, too, should be taken account of by the U.S. News rankings.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Kevin R. Johnson is the Dean of the School of Law and the Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis.

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