Sunday, February 18, 2007

Ignorant Bliss in Hiring Legal Academics

Academics tend to favor the disclosure of all credible and interesting facts. Consider, for example, the post in which I recited figures, originally collected and published by the American Association of Law Schools (AALS), quantifying how various categories of candidates had done in landing legal academic jobs. Some readers evidently regretted that I had aired the data at all, apparently judging it as flawed beyond redemption and as dangerously likely to inflame animus against affirmative action. I found more convincing, however, arguments that the post should have analyzed the data and detailed its limitations. On that view, I erred by saying too little rather than too much.

Nonetheless, I am somewhat sympathetic to the notion that a little well-placed ignorance might improve the AALS's faculty recruitment services. As I mentioned in my prior post, the AALS collects information about candidates for legal academic jobs and uploads it into an electronic Faculty Appointment Registry (FAR). The form that the AALS gives to candidates invites them to classify themselves by sex and race. Employers can use a web-based interface to run a variety of searches on the FAR database. Notably, the AALS allows would-be employers to run searches for "female" or "minority" candidates. It does not, in contrast, allow a would-be employer to run a search for "male" or "non-minority" candidates. Why?

Having learned the hazards of skimping on caveats, let me emphasize that the curiously circumscribed search functions of the FAR database do not prove that the AALS encourages, or that any law school engages in, the preferential treatment of women or minority candidates. Perhaps the AALS selectively limits searches so as to protect it against baseless claims that it facilitates bias in favor of men or non-minority candidates, to the disfavor of women or minority ones. Or perhaps the AALS regards allocating scarce interview slots on the basis of race or sex as no more than affirmative action qua outreach. At this point, I honestly do not know.

Even if the AALS has selectively curtailed FAR database searches in order to facilitate the preferential treatment of women and minority candidates, moreover, it might not constitute a legal problem. I do not pretend to be an expert in employment or civil rights law and so cannot predict what a court would say about such a practice. With all those caveats granted, though, it surely does not strain credulity to imagine someone complaining that to choose interviewees on the basis of their sex or race fails to qualify as an equal opportunity, non-discriminatory hiring practice.

Perhaps, then, the AALS should consider some alternative ways of handling information about candidates in the FAR. It might, for instance, simply stop collecting data about the sex, race, or ethnicity of candidates for law teaching jobs. Or, perhaps better yet, it could collect that data but not allow schools to use it to run searches on the FAR database.

At the very least, AALS should consider making it easier for appointments committees using the FAR database to remain willfully blind to the sex, race, or ethnicity of candidates for law teaching jobs. That data now appears at the top of every FAR form. If you want to avoid learning it, you have to resort to strategically placing post-it notes on your computer screen. That hardly works perfectly, though. A better system would allow interviewers to automatically blank out information about the sex, minority status, and name of each candidate. Even if the AALS does not itself think that equal opportunity, non-discriminatory hiring practices demand such measures, it would be nice if it could accommodate interviewers who think otherwise.

[Crossposted to MoneyLaw.]


Anonymous said...

Congratulations. I haven't seen writing so droll since Jonathan Swift's "A Modest Proposal." It's terrifically amusing for you to pretend that the AALS has anything in mind other than preferential hiring. I'm afraid that in the real world, however, their intentions are all too clear.

The AALS seems to be paraphrasing George Wallace: preferential treatment today, preferential treatment tomorrow, preferential treatment forever. I expect the AALS will be more successful than Wallace, however. Law school faculties are going to get what they want, if not by overt means, then by subterfuge, and what they want is preferential treatment, at least until that far-off day when they get over their collective white liberal guilt.

Robert said...

In the law school's catalog, the affirmative action faculty hirees should be clearly identified as such. Or, just publish each faculty member's race, sex, IQ and other standardized test scores next to those of all the other candidates he competed against to get his job. Full disclosure.

Rich Rostrom said...

The system is of course vulnerable to people who lie about their race or background. What's needed is to bring South Africa's old racial experts out of retirement and have them classify all applicants. If we're to have institutionalized racism, we should have experienced professional racists in charge.