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Sex, race, and credentials: The truth about affirmative action in law faculty hiring

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      Citation: 97 Colum. L. Rev. 199 1997 Content downloaded/printed from HeinOnline (http://heinonline.org)Mon Mar 7 14:19:29 2016-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated from uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0010-1958  COLUMBIA LAW REVIEW VOL. 97 March 1997 NO. 2 SEX, RACE, AND CREDENTIALS: THE TRUTH ABOUT AFFIRMATIVE ACTION IN LAW FACULTY HIRING Deborah Jones Merritt* Barbara F. Reskin**Affirmative action in law faculty hiring continues to provoke con- troversy. In this Article, Professors Merritt and Reskin seek to inform the ongoing debate y reporting esults rom the first comprehensive empiricalstudy of the effects of sex and race on tenure-track hiring at accredited law schools. Their analysis controls for educational credentials, work experience, job search strategies, and a number of personal characteris- tics. By using all of these actors, Professors Merritt and Reskin evaluate the independent effect of each factor on the prestige of the school where a tenure-track professor was hired, on the initial academic rank of the new professor, and on the courses the new professor taught. Their analysis indicates that white women and men of color, but surprisingly not women of color, began teaching at somewhat more pres- tigious schools than white men with comparable credentials. The advan- tage, however, was relatively modest. Educational credentials and work experience accounted for the bulk of explained variance in the prestige of schools where tenure-track professors were hired, and even job searchstrategies and personal characteristics uch as age or marital status ac- counted for three times more of the explained variance than did sex and race. Furthermore, the results suggest that sex bias affected other meas- ures ofjob status. Men were more likely than women to begin teaching ata higher professorial rank. In addition, men were more likely than women to teach constitutional law, a high-status course that can en- hance a professor s career prospects. On the other hand, women were * John Deaver Drinko/Baker & Hostetler Chair in Law, The Ohio State University. BA Harvard University, 1977; J.D. Columbia University, 1980. Over the years, many research assistants contributed to the database analyzed in this Article. We particularly thank Katherine Eubank, Michelle Fondell, Debra McBrier, Maret Olson, and Wayne Santoro for their outstanding work. The Center for Socio-Legal Studies at the College of Law provided computer assistance for our statistical analyses. I presented some of these findings at the 1997 annual conference of the Association of American Law Schools. I delivered an earlier version of this paper as the Diversity Lecture at Vanderbilt University's School of Law in October 1993 and at the annual meeting of the Society for the Advancement of Socio-Economics in March of that year. Faculty members at all three of those sessions contributed helpful insights. We also thank Ian Ayres, James Brudney, Lowell Hargens, Andrew Merritt, Peter Swire, and an anonymous reviewer for their very thoughtful comments on an earlier draft of this Article. We are indebted, finally, to our editor, Robin Goldfaden, and her colleagues on the Columbia Law Review for their excellent editorial suggestions.   Professor of Sociology, The Ohio State University. BA 1968, Ph.D. 1973, University of Washington.  200 COLUMBIA LAW REVIEW [Vol. 97:199 more likely than men to teach trusts and estates or skills courses, both lower status subjects that may diminish a professor s career prospects. Introduction .................................................... 200 I. M ethodology ............................................ 206 A. Population 207 B. Data Sources ......................................... 210 C. Dependent Variables ................................. 211 1. Institutional Prestige ............................. 211 2. Initial Tenure-Track Rank ........................ 2153. Courses Taught ................................... 216 D. Independent and Control Variables .................. 220 E. Omitted Variables .................................... 225 II. Results .................................................. 230 A. Institutional Prestige ................................. 236 1. The Top Sixteen Law Schools .................... 236 2. Institutional Prestige as an Ordinal Variable ...... 246 B. Rank of Initial Tenure-Track Position ................ 252 C. Course Assignments .................................. 258 1. Constitutional Law ............................... 259 2. Skills Courses .................................... 261 3. Trusts and Estates ................................ 263 4. Fam ily Law ....................................... 264 5. Corporations ..................................... 266 6. Taxation 266 7. Institutional Decision or Personal Choice? ........ 267 III. Discussion ............................................... 274 A. Overall Effects of Sex, Race, and Credentials ......... 274 1. Sex and Race .................................... 274 2. Credentials ...................................... 275 B. Lessons for the Affirmative Action Debate ............ 280 1. The Modest Size of Race and Sex Preferences .... 280 2. Fit Between Means and Ends ..................... 282 3. Ongoing Sex Discrimination ..................... 289 4. Intersection of Sex and Race ..................... 290 5. Affirmative Action Myths and Truths ............. 291 C. Beyond Credentials: Directions for Future Research.. 294 Conclusion ..................................................... 299 Appendix 1 301 Appendix 2 ..................................................... 303 INTRODUCrION Sex and race are hot topics in law faculty hiring. Some professorscharge that discrimination continues to shackle women of color, white women, and men of color, preventing them from securing tenure-trackpositions at top law schools. Derrick Bell provoked national headlines  SEX RACE AND CREDENTILS when he accused Harvard Law School of discriminating against women of color in hiring and took an unpaid leave of absence to register his discon-tent.' Judge A. Leon Higginbotham similarly protested the paucity of women and minorities at the University of Chicago School of Law by de-clining to judge a moot court competition at that institution. 2 Numerous legal scholars have echoed these challenges, claiming that sex and race biases still distort the hiring process in American law schools. 3 At the same time, an equally vociferous group of professors com- plains that law faculty hiring is biased unfairly in favor of women andminorities. Several white men recently voiced this perspective by publish-ing narratives intimating that law schools refused to consider them for 1. See Complaint on Harvard Law's Hiring, N.Y. Times, Mar. 4, 1992, at B6; Lisa Green Markoff, Action of Harvard's Prof. Bell Focuses Attention on Diversity, Nat'l L.J.,May 7, 1990, at 4. See generally Derrick Bell, Confronting Authority: Reflections of an Ardent Protester (1994) (discussing decision to protest Harvard's hiring practices). Twoyears after Bell began his unpaid leave, Harvard announced that he would have to resign his position, citing a university rule barring any tenured faculty member from remainingon leave for more than two years. See Harvard Law Notifies Bell of Dismissal for Absence, N.Y. Times, July 1, 1992, at A19. 2. See Marcia Chambers, Hiring Policy Stirs Judge's Quiet Protest, Nat'l L.J., July 30, 1990, at 13; Laura Duncan, Value of Diversity in Law School Faculties Debated, Chi. Daily L. Bull., Apr. 28, 1993, at 1. For other allegations of sex or race bias at the nation's law schools, see, e.g., Lan v. University of Hawai'i, 40 F.3d 1551 (9th Cir. 1994) (finding that Asian American woman presented sufficient evidence of discrimination in hiring by University of Hawaii Law School to withstand motion for summary judgment); Harvard Law Sch. Coalition for Civil Rights v. President and Fellows of Harvard College, 595 N.E.2d316 (Mass. 1992) (denying standing to Harvard law students alleging discrimination in faculty hiring). 3. See, e.g., Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism 127-46 (1992); Richard Delgado, The Rodrigo Chronicles: Conversations about America and Race (1995); Marina Angel, Women in Legal Education: What It's Like to Be Part of a Perpetual First Wave or the Case of the Disappearing Women, 61 Temple L. Rev. 799 (1988); Richard H. Chused, The Hiring and Retention of Minorities and Women on American Law School Faculties, 137 U. Pa. L. Rev. 537 (1988); Michael A. Olivas, The Education of Latino Lawyers: An Essay on Crop Cultivation, 14 Chicano-Latino L. Rev. 117 (1994); Norman Redlich, Law School Faculty Hiring Under Title VII: How ajudge Might Decide a Disparate Impact Case, 41 J. Legal Educ. 135 (1991); Carl Tobias, Engendering Law Faculties, 44 U. Miami L. Rev. 1143 (1990); Martha S. West, Gender Bias in Academic Robes: The Law's Failure to Protect Women Faculty, 67 Temple L. Rev. 67 (1994); Stephanie M. Wildman, Integration in the 1980s: The Dream of Diversity and the Cycle ofExclusion, 64 Tul. L. Rev. 1625 (1990). Throughout most of this article, we use the word "sex" rather than gender to refer to differences in the treatment of men and women. Social scientists employ the word "sex" to denote the biological categories of male and female, reserving the word gender to describe culturally ascribed characteristics for those sexes. See, e.g., Martha Foschi et al., Gender and Double Standards in the Assessment of Job Applicants, 57 Soc. Psychol. Q. 326, 327 n.1 (1994). In our analyses, we know only the biological sex of our population members. When law schools treated male and female faculty members differently, we do not know whether the schools were responding to culturally molded gender characteristics; nor do we know whether changes in those gender attributes would have produced different treatment. We know only that the sexes fared differently: this is a "sex" difference. 19971  COLUMBIA LAW REVIEW faculty appointments-or substantially discounted their credentials-because of their race and sex. 4 The Dean of Stanford's Law School jok- ingly evoked the same sentiment by declaring: '[I] t's not a good day forwhite males. I'm glad I have my job here. ' 5 And a respondent to one of our own surveys more caustically registered his concern by identifying his race as "white male and adding: That's why I don't have a better job. 6 This tension in faculty lounges mirrors a broader social debate over affirmative action, discrimination, and the current role of sex and race in the job market. 7 A rising chorus of scholars, politicians, and members of 4. See Ken Feagins, Wanted-Diversity: White Heterosexual Males Need Not Apply,"4 WidenerJ. Pub. L. 1 (1994); Michael Stokes Paulsen, Reverse Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 Tex. L. Rev. 993 (1993).5. Karen Skelton, Bay Area Law Schools Hiring More Women and Minorities, The Recorder, Mar. 7, 1991, at 1 (quoting Stanford Law School Dean Paul Brest). Dean Brest made this remark in jest; he has written numerous thoughtful analyses of affirmative action programs, supporting many aspects of those programs. See, e.g., Paul Brest, Affirmative Action and the Constitution: Three Theories, 72 Iowa L. Rev. 281 (1987); Paul Brest & Miranda Oshige, Race and Remedy in a Multicultural Society. Affirmative Action for Whom?, 47 Stan. L. Rev. 855 (1995). 6. Our survey requested identification only of "race," not sex (which we ascertained from other sources), making this response particularly noteworthy. For further description of our survey, provided in Appendix I, see infra notes 32-33 and accompanying text. For additional evidence of the wide ranging debate over affirmative action in law school hiring, see James Gordley, Mere Brilliance: The Recruitment of Law Professors in the United States, 41 Am. J. Comp. L. 367 (1993); Edmund D. Daniels & Michael David Weiss, Color-Conscious Scholarship: How One Law School Picks Students and Faculty by Race, LA. Daily J., July 22, 1991, at 6; Wallace D. Loh, Diversity, The Newsletter (Association of Am. Law Sch., Washington, D.C.), Apr. 1996, at 1, 1 ("This is thebest of times, the worst of times, and arguably the noisiest of times in the long journey toward diversity in higher education.... We're engaged in a national debate-at times a rancorous shouting match-that is testing our civic culture. ); Ruth Shalit, Fear and Loathing at Harvard, LA. Daily J., June 21, 1993, at 6; see also Julianne Malveaux, Foreword to Natalie J. Sokoloff, Black Women and White Women in the Professions: Occupational Segregation by Race and Gender, 1960-1980 at ix, ix (1992) ("I was recentlytalking to a white male student about his prospects for employment in the future. 'I think affirmative action is okay,' he told me, 'but is there any room in the labor market for me?' ). 7. We use the phrase "affirmative action to encompass any program in which decisionmakers take race or sex into account as a means of remedying historical forms of discrimination against women or minority members. Such programs include both soft forms of affirmative action (such as attempts to broaden a pool of job candidates by encouraging members of traditionally underrepresented groups to apply) and hard forms of affirmative action (such as explicit preferences or quotas based on sex or race). For a similar use of the phrase, see George Stephanopoulos & Christopher Edley, Jr., Affirmative Action Review: Report to the President 1 n.1 (July 19, 1995) ("For purposes of this review, 'affirmative action' is any effort taken to expand opportunity for women or racial, ethnic and national srcin minorities by using membership in those groups that have been subject to discrimination as a consideration. ); id. at 1 ("These programs rangefrom outreach efforts that encourage grantmakers to seek out members of disadvantaged groups, to procurement regulations that set aside particular contracts for competitive bidding limited largely to minority-owned, economically disadvantaged small businesses."). [Vol. 97:199
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