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Does Racial Diversity “Yield Educational Benefits”?
August 16th, 2021 / By Deborah J. Merritt
The Supreme Court has upheld the constitutionality of race-conscious admissions programs in higher education–but only on the ground that racial diversity improves the quality of education. Supporters and opponents of affirmative action have both criticized this rationale. Opponents deride diversity as a euphemism that masks racial quotas. Supporters protest that the concept sidesteps the original rationale for affirmative action: to recognize and remediate the discrimination that people of color have suffered–and continue to suffer–in our society. As Melissa Murray has written, rosy hued images of “diversity” insist that “changes must benefit everyone–even as we compensate for past offenses that were strictly visited upon a few.”
I share this dissatisfaction with the diversity rationale. It seems like yet another attempt to ignore the racial discrimination of our past and present. Yet, since the courts seem wedded to this rationale, it is worth asking whether it holds water. Does racial diversity “yield educational benefits,” as Justice O’Connor maintained in Grutter? The question has taken on urgency as the Supreme Court ponders a petition for certiorari in a case challenging Harvard’s admissions processes.
Spurred by this context, Adam Chilton, Justin Driver, Jonathan Masur, and Kyle Rozema designed a test of the proposition that diversity programs yield educational benefits. They focused on top law reviews that have adopted diversity programs over the last 50 years and asked: Did law reviews that adopted these programs enjoy a rise in scholarly impact (as measured by citation counts) after they adopted these programs?
The short answer is “yes,” providing an important boost to claims that diversity enhances education–as well as to advocates of diversity programs on law reviews. Now let’s look at the study in more detail.
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Caste Revisited
August 13th, 2021 / By Deborah J. Merritt
I’ve written several times about the caste system in legal education: a hierarchy that favors professors who teach torts, contracts, and other legal “doctrine” over those who teach legal writing, clinics, and other legal “skills.” This favoritism includes higher pay, more job security, and greater respect. Many schools maintain third and fourth classes that rank even lower than the second class citizens of clinics and legal writing. Academic support professors, teaching fellows, contract faculty, adjuncts, librarians, and other staff members often occupy those lowest rungs of the academic hierarchy.
California Western Steps Up
I’m returning to this topic because several related items recently hit my inbox. First, I received a press release from the California Western School of Law announcing that it had adopted a unitary tenure track that “creates opportunities for its clinical, Legal Skills, and other skills professors who were hired as full-time faculty to achieve tenure, with the same faculty governance and voting rights that come with an existing tenure-stream faculty position.” Kudos!
The press release, however, leaves several open questions. Will pay be equalized for professors on this unitary tenure track? Or will some professors still be more equal than others? How much research will be required for professors to join this unitary tenure track? Will the currently tenured professors turn their noses up at the scholarly focus of their new colleagues? And what about professors who choose not to join the unitary tenure track? Will the school recognize their ongoing contributions through higher pay and respect?
I’m not trying to rain on California Western’s parade: they have taken a hard step that many other schools are still resisting. I hope they will also find answers to these remaining questions, which schools face whether or not they embrace a unitary tenure track. What type of distinctions are appropriate among employees in a single organization? How do we value different types of contributions to the overall enterprise? Are the answers different for an academic institution and a manufacturing plant?
(more…)Peter Lederer: A Modest Proposal
August 11th, 2021 / By Deborah J. Merritt
Peter Lederer brought unflagging inspiration and insight to the legal profession. On Sunday evening he sent me a copy of his latest essay, asking if I would like to publish it as a guest post here. I responded, of course, with enthusiasm–but I’m not sure that Peter saw my response. We all learned on Monday that Peter died Sunday night. With great sadness for his death, but immense gratitude for his words, I offer here Peter’s guest post:
A Modest Proposal, by Peter Lederer
From Chief Justice Bridget Mary McCormack of the Michigan Supreme Court comes a wise concept: using the “moment of disruption” where the door to fixing intractable problems has suddenly opened. Such moments come once in a century if that often.
Astute observers of the legal landscape hold that the present system is broken. Legal education, licensure, the inability to produce “practice-ready” lawyers after seven full years of prohibitively expensive training, are all under attack.
It is true that laudable efforts to bring about reform are underway. There are brilliant studies and recommendations; noble experiments have started in several states; a few dozen law schools have nurtured (or at least permitted) the pursuit of innovative programs. But unfortunately, all this has not moved the needle much. Moreover, many who are most deeply involved in the reform efforts believe that it will be, at best, a gradual process. Were this not enough, there is an overarching problem. Despite the hundreds of billions spent annually on legal services, the vast majority of the world’s people do not have access to legal services.
(more…)Reopening
August 8th, 2021 / By Deborah J. Merritt
I retired from full-time teaching at the end of July and have decided to reopen the Law School Cafe. No promises: retirement holds lots of tantalizing possibilities and I may not maintain posting. But for now, the cafe is open again. No masks or social distancing required. Make your own brew and pull up a chair.
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Deborah J. Merritt
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