A better tenure battle: fighting bias in teaching evaluations.

• Author: Deo, Meera E.
• Position: The More Things Change ... Exploring Solutions to Persisting Discrimination in Legal Academia

As legal education undergoes significant changes with regard to both student enrollment and faculty hiring, the fight to keep law faculty tenure is at the forefront. But the focus on tenure should be about the standards themselves. A better approach would be to change tenure requirements to create a more just and inclusive set of standards and criteria for evaluation. This Article draws from the first systematic, comprehensive, mixed-method empirical law faculty diversity study to investigate how challenges in the classroom and bias in teaching evaluations affect female law faculty of color. The in-depth interviews of female law faculty of color are systematically analyzed using Atlas.ti software, finding that students directly challenge particular faculty in class, sometimes through verbal and even physical abuse, and write insensitive and irrelevant race- and gender-based comments on anonymous teaching evaluations. These encounters often have negative effects on the professional trajectory of women of color law professors, most notably when these individuals seek promotion and tenure. Instead of supporting these discriminatory barriers to advancement, legal institutions should do away with student evaluations altogether, modify them, or supplement them with more rigorous and less discriminatory forms of evaluation. This is the way to fight bias in teaching evaluations.

TABLE OF CONTENTS Introduction 1. The Lay of the Land A. Statistics on Law Faculty Members B. Law Faculty Experiences C. Biased Course Evaluations II. The Diversity in Legal Academia Project III. Challenging Confrontations and Biased Comments A. Classroom Confrontations 1. Disappointing Students' Expectations 2. Examples of Confrontations B. Biased Evaluations 1. Channeling Sofia Vergara 2. Microaggressions and Cruel Comments C. Contrasts 1. Other "Outsider" Experiences 2. White Male Experiences IV. Responses to Student Bias A. Individual Strategies 1. Avoidance 2. Commanding Authority B. Structural Solutions. Conclusion INTRODUCTION

Legal education is changing, shrinking, adapting, and evolving. The past few years have seen dramatic declines in the number of students taking the Law School Admissions Test (generally a requirement for law school admission), with rates of test-takers dropping forty-five percent since October 2009 and currently at the lowest rate since 1998. (1) One unsurprising result is that law school admissions and enrollment have dropped significantly as well. (2) With fewer students enrolling, law schools themselves are responding by shrinking their faculties, encouraging some to retire, and being less willing to hire new tenure-track candidates. (3)

In addition to these direct market-driven changes, regulations and standards for legal education are shifting. Many state standards are changing to reflect a desire from many prospective employers for new law graduates to be more highly trained and effective from the start of their careers, rather than relying on firms and organizations to train and nurture new lawyers into effective advocates. For instance, California has moved to require additional skills-based training in law school, including "15 units of practice-based, experiential course work or an apprenticeship equivalent" and "50 hours of legal services devoted to pro bono or modest means clients" within one year of graduation. (4)

The American Bar Association has also considered whether it should revise its longstanding requirement that member schools offer faculty tenure. (5) Perhaps unsurprisingly, this last provision has seen especially vocal and passionate opposition by law faculty. (6) The arguments that law schools should retain the requirement of tenure seem more focused on equal opportunity, academic freedom, and the fear that allowing schools to remove tenure will lead to less protection for the most marginalized individuals--especially those who voice politically-unpopular opinions. (7) There have also been a few academic proponents of the move to abolish tenure. (8)

The purpose of this Article is not to voice support for or opposition to efforts to abolish tenure; others have argued both positions eloquently and forcefully. Rather, it is to recognize that while changes in legal education may pose challenges for legal institutions, they also create an opening to make positive change. While tenure is being called into question, we can take this opportunity to evaluate whether the tenure standards currently in place are the most fair, objective, and worthwhile measures.

Law schools overwhelmingly evaluate tenure files based on the scholarship, teaching, and service of the applicants. (9) This Article focuses on the second prong and specifically on ways to improve how we evaluate effective teaching. Law schools should place less reliance on teaching evaluations, which prior studies show have the potential to be biased against those underrepresented in legal academia--particularly women of color--while ironically not being directly related to teaching efficacy. (10) In fact, my own mixed-method study of law faculty diversity, the Diversity in Legal Academia ("DLA") project, indicates that female law faculty and particularly female faculty of color are routinely challenged by students in the classroom and verbally attacked in (anonymous) course evaluations." The findings discussed in this Article show that when evaluating these particular law faculty members, student attention is often focused on the professor's personal style over the substance of her teaching, and on the race and gender of the professor rather than what or how she teaches. As a result, these underrepresented law faculty face unnecessary hurdles in the tenure process in spite of being effective teachers.

Instead of relying on flawed student evaluations, peer teaching evaluations--from faculty at the applicant's institution or even from outside local or national schools--can better determine whether faculty are prepared in the classroom and meeting the needs of the law school to prepare students for legal practice. Additionally, law schools should modify existing evaluations or eliminate them altogether, at least from the tenure process.

Part I of this Article provides background on legal education and legal academics. It also covers some existing scholarship on bias in teaching evaluations. In Part II, the Article introduces the Diversity in Legal Academia ("DLA") project, the first comprehensive, mixed-method empirical study of law faculty members from entry to the profession through retirement, including men and women from diverse racial/ethnic backgrounds, and with a focus on women of color law professors. Part III presents findings from DLA data showing how ongoing student confrontations of female faculty of color in the classroom set the stage for biased and irrelevant teaching evaluations. In Part IV, the Article draws from DLA data to suggest individual strategies and structural solutions for combatting the identified challenges. The Article concludes with three specific proposals for improving how schools measure excellence in teaching, in addition to suggesting recommendations for institutions committed to providing a fairer environment for all law professors.

1. The Lay of the Land

   Numerous articles have celebrated the increasing numbers of women in law, including those highlighting the fact that women have been in the majority of many entering law school classes in recent years. (12) However, women remain significantly underrepresented in legal academia, in spite of the burgeoning pool of potential female law faculty. (13) In addition, scholarship has documented ongoing challenges facing female law faculty members, ranging from confrontational interactions with colleagues and students to actual bias in teaching evaluations. (14)

   1. Statistics on Law Faculty Members

      Women are underrepresented in legal academia even today, with women of color represented at especially low rates. AALS statistics for 2008-2009, the most recent year for which statistics are available, indicate that women from all racial/ethnic backgrounds comprise just 37.3% of all legal academics. (See Table 1.) (15) White men are the numeric majority in legal academia; in fact, there are 1,000 more white men in legal academia than there are women from all race/ethnic backgrounds (5,090 white men as compared to 4,091 women total). Of the 4,091 women in legal academia, the overwhelming majority (at least 67%) are white. (16) When we consider the statistics for the 772 women of color law professors, African Americans make up the largest constituency (10%) while Native Americans are only .5% of all legal academics, with only 21 individuals in the legal academy.

   2. Law Faculty Experiences

      In spite of--or perhaps because of--their numeric minority, women of color law faculty are often the target of challenges to classroom authority and venomous student evaluations. Even thirty years ago, the first symposium gathering law faculty of color documented classroom "challenges from white students who have come '[f]ace to face for possibly the first time in their lives with a minority person in a position of authority."' (17) A few years later, law professors Derrick Bell and Richard Delgado conducted a non-representative survey of law faculty, published in 1989 in the Harvard Civil Rights-Civil Liberties Law Review, (18) The Bell-Delgado study found that the majority of law professors of color enjoyed at least "satisfactory" relationships with white students. (19) Yet a significant number reported direct challenges by white students specifically. (20) For instance, white students were comfortable complaining to their Black professors that they were disappointed in how the class was taught. (21) One group of students took it upon themselves to educate their Latino professor on how he should be teaching the course, offering contradictory advice at that. (22) One Black...