Race and Gender as Job Qualifications

Dan Subotnik

If the effects of patriarchy and racism on our social world are everywhere, though sometimes lurking beneath the surface, one would expect them to be pervasive in the microcosm that I inhabit: legal education. This is precisely what Professor Meera Deo argues in her new book, Unequal Profession: Race and Gender in Legal Academia (2019). Failing to embrace diversity, Deo argues, white male professors are holding back women of color by not hiring them; not welcoming them properly when they are hired; setting traps for them on the road to promotion and tenure; and tolerating an atmosphere of hostility toward them, even from students. Acts of kindness toward minority women, for Deo, are dwarfed by acts of ill will.

Disparaging law schools is sure to offend the sensibilities of faculty, particularly those who have given much of themselves to legal education. Presumably anticipating resistance, Deo charges law schools up front with “implicit bias” (5, 7, 9) and preempts rejoinders by labelling them “Mansplaining, Hepeating, and Whitesplaining.” (43) Just testing Deo’s views, it seems, bespeaks social injustice.

Fueling Deo’s attack on the academic legal establishment are the responses of ninety-seven law school academics to a questionnaire Deo herself devised for a 2013 Diversity in Legal Education Project. While the idea of such a project has some merit, it is Deo’s interpretation of her survey results, ironically, that is cause for concern. For the statistical evidence—which Deo presents to show that white male law professors have hampered the careers of non-white female law faculty and faculty candidates—actually works to undermine her narrative.

What if Deo is wrong about hiring? However bad the racial environment outside the academy, what if with our diversity deans, “targets of opportunity,” and job announcements specifically inviting “candidates who can help us achieve our diversity mission,” law schools have found the Golden Mean? That is, what if the pool of non-white female law faculty candidates has been sufficiently mined, leaving only the uncompetitive to shore up what Deo sees as lagging numbers? If the non-white female talent pool has been “Peter Principled” into a depleted state, would that not be cause for joy?1

Deo’s goal of “giving law students the best chance of success and improving legal education overall” (169) is laudable, but does Unequal Profession get us there?

“[T]he numerical lack of diversity in legal education” Deo announces, is “abysmal,” with non-white women making up only 9.6 percent of the full-time law professoriate. (4) This percentage would seem abysmal if one considers that non-white females make up roughly 40 percent of the total female population.2 But comparing the percentage of non-white females on law faculties with their percentage in the general population of women is not a particularly useful metric. A better one would take into account some measure of the population of non-white females who want to, and are qualified to, enter the profession. After all, to use a conspicuously self-evident trope, the zero percentage of females in the National Football League would suggest an apartheid level of discrimination if it were compared with the 50.6 percent of the total population that is female. Females simply seek out professional football careers in vanishingly small numbers.

As it turns out minority women make up only 5.4 percent of active lawyers, a detail that Deo doesn’t consider.3 Compared to the 9.6 percent of full-time law faculties, and assuming minority female teachers are no more competent than white male faculty, non-white females are, in fact, overrepresented at a rate 78 percent higher than a law practice standard would suggest.

Deo never considers this possibility. Instead, she blames the emphasis on credentials for suppressing the number of minority women, e.g., education in elite schools, excellent grades, law review service, and clerkship experience. But, Deo continues—undeterred by the inconvenience of providing evidence—“elite educational and professional credentials have never been shown to relate to success in legal academia.”(18)

The criteria Deo would apply instead are “scholarly execution, teaching effectiveness, or commitment to service,” the “actual criteria that most law schools use to determine tenure.” (14) No problem in principle; but if grades and other evidence of academic success are decoys, how to choose among candidates for a first job? First time job candidates have typically conducted little if any scholarship and have little, if any, teaching experience. Deo does not bother to tell us how new law faculty candidates are to be distinguished from one another. Are all majority and minority law graduates equally hire-worthy?

We come then to what Deo considers the crux of her argument. People of color in fact have a distinct advantage as faculty. When students “perceive that their law school encourages diversity and fosters diverse interactions, students generally report having a better understanding of people from other racial and ethnic backgrounds and better training in solving complex problems.” (6) In Deo’s iteration, race and gender are the only untainted measures of competence.

But the claim that minority teachers provide better training in solving complex problems is troubling. For one thing, if whites on average have superior grades, LSAT scores, and bar exam results, they can make the same claim for themselves. For whatever the doubts as to the validity of these metrics, they do measure the ability to solve problems. If there are more valid, objective tests, moreover, Deo fails to identify them.

Second, Deo’s statement may be based on what students say about their education. The acid test that she does not apply is whether students—of color or colorless—actually learn more with minority teachers than with others. Deo provides no other evidence for her startling conclusion.4

To the idea that all job applicants must be held to the same standards, Deo responds that women of color cannot compete because they lack stay-at-home spouses or otherwise have to work as they prepare for a teaching career. But this is an argument about income, or perhaps gender, but not race. Surely many white women and some white men are similarly situated, and one rarely, if ever, hears claims from them about a need for different standards. Is Deo comfortable making “non-white” synonymous with low income? In any event, are we prepared to shift from preparedness to low socioeconomic status as a principal criterion for hiring law professors?

As for minority women already on the faculty, Deo’s insistence that there is systemic discrimination relies mostly on anecdotes. At one point she complains of two white male colleagues discussing an Asian American woman who was coming up for a tenure vote. “Is she really a person of color” one asks, which Deo takes as a slur. (26) But the Asian American candidate almost surely could not have been literally taken for a white person, so the question the two white colleagues considered was most likely about whether she should be thought of as a diversity candidate. This question comes up repeatedly in diversity discussions because it reveals the true nature of racial preferences. High levels of Asian academic achievement make it difficult to argue that Asians are victims of white discrimination, and if they are not, the intersectional presumption of impenetrable white privilege becomes suspect. Deo never attempts to address this apparent conundrum.

Other anecdotes are equally troubling. In a chapter titled “Ugly Truths Behind the Mask of Collegiality,” we hear of a young woman of color lamenting that she is not taken seriously at faculty meetings, a claim that Deo attributes to “underlying hostility.” (36) Another young professor complains that her successes have been met with disbelief. Almost as an aside, and without further explanation, Deo identifies “Fermin,” a man, as someone who is treated especially badly. At one point in his early years, a white colleague told him that the only reason he was hired was “because he was Mexican.” (53)

Cruel, painful, and regrettable. But how often, one wonders, has this happened to Fermin and to the others? Deo does not say. Neither does she examine how much of the reported abuse could be perception shaped by insecurity stemming from race or gender-based hiring. How much of this perceived treatment is related to the targeted minority law professor’s lack of traditional credentials and how much to standard prejudice? Again, Deo does not say, and she may not even want to know.

One explanation, not pretty to be sure, might be that if a different portal into the profession is provided for women (or men) of color precisely because they do not meet longstanding criteria—as Deo in effect acknowledges (see above) perhaps there is a grain of truth to such crude and needlessly hurtful comments. Psychologist Shelby Steele has long recognized that racial preferences, or quotas—the hiring of blacks on the basis of separate and often lower standards of qualification—could make career paths more difficult due to what he termed the “stab of racial doubt.”5 Did the minority law professor make it on his own, or did he get by on a quota? This question arises logically from policies that count race and gender as qualifications, and preference proponents like Deo refuse to address it, preferring to see this natural response as one more piece of evidence of embedded white racism.

Most important, it would seem, is what happens to minority faculty after the first few years of teaching service. Are they increasingly valued? At least in the case of men, it would seem so; 91 percent of men of color in Deo’s survey “strongly agreed” or “agreed” that “most colleagues are open-minded and respect differing opinions.” (38, Table 6) To be sure, only 48 percent of African American women agreed with this statement, while 43 percent disagreed. For white women, only 54 percent agreed, while 100 percent of white men agreed. Of special note here, and worthy of follow-up, is that African American men lined up with white men while white women aligned more closely with African American women than with white men, thus suggesting that problems with intergroup comfort are mostly gender-based rather than racial. The scholar of intersectionality needs to grasp this.

Jumping on the gender gap, however, is not terribly productive. In an assessment of the quality of social relations among faculty, Deo reports that 86 percent of women of color and 91 percent of both men and women of color combined reported “very friendly” or “sociable” interactions with white faculty. (36, Table 4) A number of African American women who thought that they were not respected must also have felt that their interactions with white faculty were either very friendly or sociable. So how much disrespect is there?

Deo points readers to the disparities between the “very friendly” category and the merely “sociable” one with respect to relationships with white faculty; only 52 percent of African American women considered those relationships to be very friendly, (36, Table 4) thus suggesting a problem. And yet, tout court, it may not be so troubling or unexpected that people bond most closely with those who share their values, interests, and life experience, with those who in this politically tense environment do not see them as implicit racists and who might offer alliance when confronting “privileged” whites. Do we actually seek to balance our non-professional relationships in race and gender terms? And if we do not succeed, is that racism? Or do most of us allow them to develop naturally? It might be better if our relationships at work could be entirely independent of race; but surely we can be pleased that, except for one Native American woman, Deo's data shows no person of color found interpersonal relations with whites to be “hostile.”

Moving on, do the burdens on faculty of color—social distancing, harsher tenure decisions, and students acting up—make achieving tenure harder for them? Are minority professors equally successful scholars? Do minority professors publish as much as whites? Deo does not say or apparently think it relevant. She does say regarding tenure that minority women have “overwhelming service burdens,” but does not say if they are mandated or self-imposed. (80) The clincher regarding tenure is surely a 2018 study by Deo herself showing that 100 percent of white men and women faculty, 91 percent of both men of color and black women, 75 percent of Latinas and 87 percent of Asian American women report that “I am satisfied with the tenure process at my law school.6 (83)

It was an inflection point for Deo—and possibly the impetus for her book—when, early in her teaching career a student complained to the dean about her, causing her to be “shocked, dismayed and ashamed.” Student comments can be dangerous when evaluations of teachers pass through the dean’s office; they can subvert a career. One faculty woman was called a “disgrace.” (70) Another woman quotes a student evaluator: “I know we have to have affirmative action . . . but do we have to have this woman?” (70) Other student remarks include: “She is black, enough said.” “She is a terrible teacher” and “I didn’t learn anything.” (71)

We can sympathize with Deo—and with others similarly situated. Boorish, unnerving, and in some cases frightening student comments show that female teachers of color are sometimes subject to racial or gender prejudice. But here too we need context. For all of Deo’s efforts at making a quantitative case, we have no indication of how often comments like these arise. Nor do we learn how often minority men or whites are targets of vicious comments, essential information needed for an empirically satisfying conclusion about minority women.

We also don’t learn whether minority students overall evaluate faculty of color differently from the way they do white faculty. We know that according to Deo, all students perceive their education to be better when coming from minority faculty. But the student evaluations cited in her book contradict this assertion.

Happily, no inferences need be made about faculty-student relationships: 86 percent of African American women, 100 percent of Asian women, 92 percent of Latinas, and 82 percent of men of color deem their relationships with students to be either “very friendly” or “sociable.” (57, Table 7)

To puncture any resulting complacency, Deo urges readers to consider that only 28 percent of African American women, for example, deemed their relationships with white students to be “very friendly,” while for 57 percent relations were only “sociable.” But perhaps this cannot be explained racially since more men of color (73 percent) than African American women (28 percent) deemed those relationships to be “very friendly.” (57, Table 7) In downplaying the role of race as a factor, this intersectional message should allay considerable angst.

Women, of course, face other pressures: “how she looks, dresses, talks, and moves through the classroom.” (68) Among reported comments: “she flips her hair over her shoulder too much.” (68) Whether a black woman’s hair is natural, in locks, or in braids, Deo notes, it can draw commentary. One student tells her teacher that she “came to class [because] I wanted to see what you were going to wear.” (68) Here once more, Deo fails to show that white women are free from comments about their looks and dress. Until that happens, one cannot conclude that race is the issue. Commodifying comments about dress will be offputting in either event, but they will lose some of their racial sting. In any event, we should be able to see that this problem of commodification is a general one, not limited to the law school environment.

Perhaps most important in this case is that a female professor who plays with her hair in class is unlikely to trouble a dean any more than the comment that a professor I know “should wear tighter pants”? Law school, a dean will know, is not a bubble. It is life. Fantasy does not stop at the classroom door. Nor will a dean fail to understand that some young men are cruel. These uncivilized law school students can be expected to aim straight at a teacher’s insecurity about looks and competence.

There are easy solutions here. Student evaluations of teachers could require a student’s signature. Comments could be edited for offensiveness. Deo offers no help.

Here is what does. The best evidence for minority women’s well-being in law school, which Deo does not hide, is that 90 percent of black women, 87.5 percent of Asian American women, and 75 percent of Latinas “agree” or “strongly agree” that their “Overall Experience in Legal Academia is Positive.” (140, Table10)

Indeed, as professions go, law faculties look pretty good. Deo’s study indicates that proportionately more white women “strongly agree” that there should be greater diversity on law faculties than do African American women, (73 percent to 48 percent). White men also think this at higher rates than men of color (50 percent to 45 percent). (18, Table 6)

Also helping to undermine Deo’s grim conclusions are her small sample sizes. What can be learned about conditions for minority women from 21 African American women, 15 Asian American women, 13 Latinas, 5 Native American Women, and 2 Middle Eastern women, even if picked randomly? Deo’s data may be suggestive, but statistically the margins of error, if calculated (Deo does not) would be so high as to render them useless.

Abstracting ourselves from the data at this point, let’s consider why this need to trump up tensions and downplay majority-minority bonds. With no clear explanation presenting itself, the most plausible answer is that such a strategy works to enhance the power and status of those using the strategy (in this case, minority women). You don’t have to be white to see the power politics behind much cross-racial discourse.7 Indeed, Professor Henry Louis Gates understood the racial politics of faculty life over twenty-five years ago by proposing to recognize the minority faculty member who is “most oppressed; at the end of the year we could have the ‘Oppression Emmy’ Awards.”8

The message is reportedly still relevant. “[T]he quickest way to acquire and exercise power,” New York Times columnist Bret Stephens recently noted, “is to take offense.”9 On the strength of claimed powerlessness and an invocation of social justice, Deo is claiming compensatory benefits for herself and for her group: namely, watering down longstanding academic values like high grades, scholarship, and— most central to her cause—increasing the number of faculty who look like her. You don’t have to believe that all interest is self-interest to understand that some is.

So, how will readers respond to Deo? Many will not respond well, judging from today’s tense political climate in which a large fraction of the American public already feels aggrieved by blunderbuss claims of minority grievance. For no area of discussion today seems free of efforts to interject an overriding racial element; rarely in contemporary discourse are we just ordinary human beings experiencing trials and frustrations stemming from our condition. This being the case, Deo’s work will likely end up only intensifying feelings by whites who are not racists that they have been had.

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