I’ve written extensively about the need for diversity in the legal profession, and for legal education to be more innovative and accessible. I haven’t touched on as much on one of the key missing pieces in legal education, which is the diversity of those providing the education to begin with.
Of course diversity in academia should be promoted for all the reasons we advocate for it to occur in the private sector – better creativity, more productivity, improved returns, and of course, the moral imperative to do so.
Part of this moral imperative includes the recognition that law school faculty guide, mentor and assist their students enormously as they enter the profession, especially if they are the first in their families to do so. A new study by Katherine L. Milkman, Modupe Akinola and Dolly Chugh suggests that not all students are treated the same way.
The researchers contacted over 6,500 tenure-track professors across 259 schools and 89 different fields of study, using pseudonyms that were pre-assigned to certain ethnic groups and genders. The letter they sent was as follows:
Subject Line: Prospective Doctoral Student (On Campus Today/[Next Monday])
Dear Professor [Surname of Professor Inserted Here],
I am writing you because I am a prospective doctoral student with considerable interest in your research. My plan is to apply to doctoral programs this coming fall, and I am eager to learn as much as I can about research opportunities in the meantime.
I will be on campus today/[next Monday], and although I know it is short notice, I was wondering if you might have 10 minutes when you would be willing to meet with me to briefly talk about your work and any possible opportunities for me to get involved in your research. Any time that would be convenient for you would be fine with me, as meeting with you is my first priority during this campus visit.
Thank you in advance for your consideration.
[Student’s Full Name Inserted Here]
They chose to focus on academia to explore existing discrimination because this is the entry point for nearly every profession, including law. Academia is also uniquely transparently, with almost all faculty members listed online, allowing the researchers to easily populate their audit study. Heterogeneity within academia across different disciplines available also allows for robust comparisons between fields.
The study found there was a significant discriminatory gap in all of the disciplines studied except for health sciences and humanities in the response rates from the faculty members contacted. Social sciences, which included pre-law legal studies, fared better than what was termed “human services,” which included the legal profession. These findings are important in light of countless arguments made over recent years that discrimination no longer exists in post-secondary education.
The most recent high profile polemic against racial and gender privilege is by Tal Fortgang of Princeton University, who states,
There is a phrase that floats around college campuses, Princeton being no exception, that threatens to strike down opinions without regard for their merits, but rather solely on the basis of the person that voiced them. “Check your privilege,” the saying goes, and I have been reprimanded by it several times this year. The phrase, handed down by my moral superiors, descends recklessly, like an Obama-sanctioned drone, and aims laser-like at my pinkish-peach complexion, my maleness, and the nerve I displayed in offering an opinion rooted in a personal Weltanschauung. “Check your privilege,” they tell me in a command that teeters between an imposition to actually explore how I got where I am, and a reminder that I ought to feel personally apologetic because white males seem to pull most of the strings in the world.
I do not accuse those who “check” me and my perspective of overt racism, although the phrase, which assumes that simply because I belong to a certain ethnic group I should be judged collectively with it, toes that line. But I do condemn them for diminishing everything I have personally accomplished, all the hard work I have done in my life, and for ascribing all the fruit I reap not to the seeds I sow but to some invisible patron saint of white maleness who places it out for me before I even arrive. Furthermore, I condemn them for casting the equal protection clause, indeed the very idea of a meritocracy, as a myth, and for declaring that we are all governed by invisible forces (some would call them “stigmas” or “societal norms”), that our nation runs on racist and sexist conspiracies. Forget “you didn’t build that;” check your privilege and realize that nothing you have accomplished is real.
Fortgang relates the difficulties his immigrant grandparents faced in coming to America, the struggles his family endured, and how he managed to overcome all of these challenges to make it into an Ivy League school. He fails to realize his personal success is actually a testament of how some groups can achieve things that others cannot due to systematic and institutional barriers that are far more subtle than any student in an Ivy League school would realize. His grandparents did not face the same obstacles that others in American did, and in the modern context he would still be considered part of the “in-group” for the purposes of discrimination and exclusion.
In light of the Milkman study, we can even assume that he receives far more support from his faculty at Princeton than his female or minority peers. Although the name Tal Fortang doesn’t immediately identify him as a white male, his personal interactions with these faculty would remove any possible doubt.
The Milkman study does provide a few surprising results though as well. First, they discovered that some minorities are discriminated against more than others. Despite Asian groups being often typified as “model minorities,” the inquiries with Chinese or Indian names received even less responses than those with Hispanic or Black names, which is quite interesting given the established civil rights groups advancing the interests of the latter groups, but a scarcity of the same types of activity exploring discrimination against the former. This delineation may also reflect differently in Canada given our own unique cultural make ups and historical immigration patterns.
Second, the Milkman study explored whether the diversity of faculty would help improve the response rate for women and minorities, and they concluded,
…we find essentially no evidence that discrimination against women and minorities is lower in disciplines with higher female and minority representation. Similarly, only Chinese students experience significant benefits from contacting same-race faculty (the effect is marginally significant for Indian students contacting Indian faculty, and other groups do not benefit at all…
Increasing the diversity of law school faculty would therefore not necessarily reduce discrimination against women and minority students in law schools, which raises they question over the utility of doing so. The benefits of increasing academic diversity still exists irrespective of a reduced discrimination effect for the reasons identified above. Female and racial minority faculty members appear to discriminate against women and racial minority students as much as their colleagues do. A more interesting question is why this affect is not observed with women or minorities who are in teaching.
In part, this may be explainable by an increased scrutiny on tenure track faculty, and the reality that they frequently attempt to dispel notions that they are advocates for any particular interests. Law school faculty who are minorities should be valued for their professional backgrounds, and not just their token minority status. But these faculty members may also be signalling discriminatory trends which already occur in the private sector profession, or continuing their own discriminatory experiences by projecting it on others.
One area where the researchers did find a strong reduction in discriminatory effect is with faculty compensation, with those paid more responding less to female and racial minority inquiries. Faculty in law schools generally get paid far more than faculty in other disciplines, a pattern reflected in Canada as well, meaning we can probably conclude that our law schools are as susceptible to this effect as any other school. We can also probably infer that there are classist effects operating in law schools, which gives rise to inquiries into the structures of academic faculty themselves.
Although the Milkman study focused on tenure-track faculty, the trend in Canada as well in the U.S. is that there is more and more sessional and adjunct faculty used then tenure professors, often becoming the majority of instructors at the undergraduate level.
An April 2014 American Association of University Professors report suggests that 76.4% of all faculty in the U.S. are adjuncts. The House Committee on Education and the Workforce Democratic Staff revealed this past January that many of these adjuncts struggle financially,
Respondents reported annual salaries that ranged from $5,000 to $55,000. A large number of respondents reported making between $15,000 and $20,000 per year, at or mostly below the federal poverty line for a family of three ($19,530) or well below the poverty line for a family of four ($23,550). For many, a career in higher education has meant relying on help from family members and the government to make ends meet. Indeed, many respondents explained that, without a spouse’s income, they would not be able to continue teaching.
In other words, adjunct and contract faculty are part of the more vulnerable class of academics who are more likely to reduce the discriminatory effect in post-secondary education than their well-paid tenure track counterparts. The tenure faculty may be applying a personal microeconomic analysis on their career path, recognizing the poor dividends obtained from assisting female and racial minorities, and instead channeling their energies elsewhere. But the alternative focus towards publications or other activities beneficial for obtaining tenure means there is less of an emphasis on the students. Elizabeth Segran describes in The Atlantic the effect of what is being termed “the adjunct crisis,”
“Students aren’t getting what they pay for or, if they are, it is because adjuncts themselves are subsidizing their education,” Maria Maisto, president of the adjunct activist group New Faculty Majority, told me. “Adjuncts are donating their time; they are providing it out of pocket.”
Noam Chomsky has described how this has affected decision making within educational institutions,
…faculty are increasingly reduced to a category of temporary workers who are assured a precarious existence with no path to the tenure track… it’s been institutionalized: they’re not permitted to be a part of the decision-making apparatus, and they’re excluded from job security, which merely amplifies the problem. I think staff ought to also be integrated into decision-making, since they’re also a part of the university.
Segran has also noted how this has affected the way that these adjuncts teach,
The presence of adjuncts also affects the quality of education in subtler ways. The tenure system was originally designed to foster academic freedom by allowing professors to voice unpopular opinions without the fear of being fired: in contrast, adjuncts can have their contracts terminated without a grievance process. Maisto told me that many adjuncts are afraid to challenge their students in class because poor student evaluations could cost them their jobs. “College is no longer creating a critically-thinking citizenry who can participate actively in a democracy,” she said.
You would think that critical thinking is something we would want to foster in post-secondary education, especially in law schools. Chomsky also highlights this ideal,
In a reasonable graduate seminar, you don’t expect students to copy it down and repeat whatever you say; you expect them to tell you when you’re wrong or to come up with new ideas, to challenge, to pursue some direction that hadn’t been thought of before. That’s what real education is at every level, and that’s what ought to be encouraged. That ought to be the purpose of education. It’s not to pour information into somebody’s head which will then leak out but to enable them to become creative, independent people who can find excitement in discovery and creation and creativity at whatever level or in whatever domain their interests carry them.
What the Milkman study may ultimately reveal, aside from the fact that some students are better positioned than others, is that tenure track faculty do not have students and their needs prioritized as part of their responsibilities, or as a sufficient enough consideration for obtaining tenure. They are more interested in their research than they are prospective students who are interested in their research.
If legal education shifts towards more practically-oriented legal skills, as recommended in the Carnegie Report, the outputs of legal academics may be more than just publications in journals and instead focus on the student, the future member of the legal profession. Practically-oriented legal education would presumably rely heavily on those with those practical skills, including those still in practice. Law schools may be able to achieve this by included mentoring and student satisfaction as a greater component of a balanced scorecard, but they may also want to ensure that critical discourse is occurring between faculty and students, and not just between academics at different educational institutions.
These adjunct faculty should be valued as much as the traditional tenure track faculty members, and there may need to be a reorganization in how tenure is provided in order to retain adjuncts who are highly valued. Mentorship of these students, irrespective of their backgrounds, would become the key focus of the role of these faculty members.
Hopefully this new brand of legal education is also oblivious to gender and race distinctions, but it also probably requires the reconfiguration of the ivory tower into a training academy (not a trade school) which is better oriented to the needs of its customers.