Diversity Without Discrimination

In the comments to my earlier post about how the AALS allows law schools to search only for women or minority job candidates, the pseudonymous “Trumpit” asks, “Suppose I want to hire a female or minority law professor (I know I'm in the minority for wanting that!), then how do I go about it without stepping on any(white)bodies toes?” That excellent question deserves an answer, one different from this: “You go out looking for a female or minority law professor, anti-discrimination laws to the contrary notwithstanding, and feel pretty damned lucky if you manage to hire the one you want!”

Contrary to Trumpit’s assumption, women and minority law professors are very much in demand. Law schools want to hire them so much that they favor them over pale-skinned male candidates. Perhaps I'll follow up later with a post offering detailed proof of that claim. For now, though, I'll focus on Trumpit’s question.

In the first place, I would say that if you set out specifically intending to hire a woman or minority, you are engaging in sexual or racial discrmination. In that event, you could not honestly say that you are an equal opportunity employer. You would have already ruled out, or at least ruled against, certain employees because you are discriminating (i.e., "choosing") against them on the basis of sex or race.

In the second place, supposing that you set out intending only to diversify your faculty, I would say that: a) you can properly aim only to increase the diversity of viewpoints held by your faculty as a whole; and b) you cannot properly use sex, race, or ethnicity as a proxy for diversity of viewpoints. Only viewpoint diversity helps education. Building a superficially diverse faculty that, in fact, uniformly grew up in upper middle class U.S. households, attended top-notch educational institutions, and holds moderately left-wing political views does not add a whit to your students’ education. To assume that a faculty member will have interestingly different views solely because of his or her particular genes, moreover, demonstrates exactly the sort of prejudgement that anti-discrimination laws aim to correct.

What to do, then? First, engage in outreach, making sure that a variety of candidates learn about your job search. Next, search for viewpoint diversity, whether or not it lines up with sex or race. Lastly, work for educational reform to liberate those minority communities now held in the thrall of the teachers' unions, so that you might someday discover that paler folks are not overrepresented among those who boast the best credentials for going into law school teaching.