Measuring diversity: law faculties in 1997 and 2013.

• Author: Lindgren, James
• Position: Introduction through IV. Race, Gender, Religion, and Party A. Underrepresented Groups Compared to the U.S. Full-Time Working Population and the General Population, p. 89-116 - Thirty-Fourth Annual Federalist Society National Student Symposium

"Equality can be measured. It can be put into numbers." (1) --Jesse Jackson

Introduction I. So What: Which Groups Think Differently? II. What is Diversity? III. Data Sources IV. Race, Gender, Religion, and Party A. Underrepresented Groups Compared to the U.S. Full-Time Working Population and the General Population B. Overrepresented Groups Compared to the U.S. Full-Time Working Population and the General Population C. The Underrepresented and Overrepresented Groups Compared to Lawyers D. The Core Diversity Groups and the Core Overrepresented Groups V. Discussion and Possible Normative Implications Conclusion VI. Afterword: Law Faculties in 2013 A. Ethnicity and Gender in 2013 B. Politics and Religion in 2013 C. Closing Remarks Introduction

When the white male Protestants who ran American law schools thought that women and minorities were better suited for sweeping the classrooms than for teaching in them, one did not need statistics to know which groups were underrepresented. Women and minorities were locked out, and Jews were subject to quotas in many law schools and locked out of others.

By the late 1990s, which groups were the most under-represented in legal academia? (2) After twenty-five years of increasingly vigorous affirmative action hiring, there had been a few pockets of success--enough to merit the first careful comparison of the racial, gender, religious, and political makeup of law faculties with the populations from which professors are drawn. It is time to take a close look at how far we have come and how far we have left to go to reach parity with the general population--or at least with the lawyer population. (3) Additionally, it would help to know which subgroups within the broad traditional diversity categories are the most underrepresented and thus most in need of redoubled efforts on their behalf.

While just about everything about law faculty hiring is contested, nothing is more contested than what is today called "diversity." (4) In some sense, this is strange, because law schools have had a much stronger commitment to hiring women and ethnic minorities than almost any other elite professional schools. (5) Diversity has replaced affirmative action as the model for broadening the makeup of law faculties. Superficially, diversity is a more attractive idea than affirmative action, because diversity appears to be a more neutral principle that applies to all groups equally, while affirmative action is a paternalistic policy that involves those who control the law schools preferring particular groups for admission or hiring because those groups have been subject to past discrimination. Diversity, however, is a substitute for affirmative action only if the groups benefitted by affirmative action are in fact the most underrepresented groups at law schools.

This Article does a radical thing: it takes the rhetoric of diversity seriously and tests it. (6) My approach is simple: Let's measure proportional representation. When we know what it would look like, then we know better whether that is what we want our law schools to look like. Perhaps if proportional representation is unattractive in its implications, then some other policy may look better. My personal preference is for affirmative action for traditionally discriminated-against groups who are also still grossly underrepresented.

When one looks at the major cleavages in society and compares law faculties to American society generally, some odd conclusions arise. Measured by the number of positions needed to reach parity with the general population, one of the most underrepresented ethnic groups is non-Hispanic white Protestants (more pejoratively known as WASPs), a group that might be thought to be the most powerful ethnic group in the legal academy. Further, the group that accounts for most of the diversity hiring that actually takes place--white female Democrats--is, as of the 1990s, significantly overrepresented compared to that group's proportion of lawyers, workers, and the general population. Indeed, compared with the full-time working population, white female Democrats are more overrepresented in law teaching than white males (when measured by ratios of percentages). Some people that are traditionally thought of as adding diversity to faculties--for example, white Jewish females--are represented in legal academia at seven times their percentages in the general population.

To reach parity with the general population, the average law faculty of 42 members would have to hire only two new African-American faculty members. Yet to reach parity with the general population, every law faculty would have to hire 146 Christians tomorrow (bringing the average faculty size to 188 members).

Three groups account for most (or all) of the overrepresentation among racial, gender, religious, and ideological groups in law teaching:

(1) White Democratic professors (both male and female);

(2) Jewish professors; and

(3) Nonreligious professors.

Three groups account for most of the underrepresentation among racial, gender, religious, and ideological groups in law teaching:

(1) Republicans (both male and female);

(2) Protestants; and

(3) Catholics.

Indeed, these three underrepresented groups (Republicans, Protestants, and Catholics) make up 91% of the U.S. population ages 30-75, but only about half of the law professor population. Put another way, people who are neither Christian nor Republican make up only 9% of the U.S. population, but account for about half of law professors (51%).

To obtain the estimates for this study, I analyzed the 1994 Current Population Survey Annual Demographic File, (7) the General Social Survey (GSS) 1972-94, the 1996-97 Association of American Law Schools database of law teachers, and my own sample of 710 law teachers at the top 100 law schools. Combining these statistics, I estimate which racial, gender, religious, and political groups are the most under- and overrepresented in law teaching compared to the U.S. populations of full-time workers, non-institutionalized persons, and lawyers of approximately the same age.

The first three of these cleavages (race, gender, and religion) are protected by the 1964 Civil Rights Act, (8) and the last--party identification--is one of the chief indicators of political and ideological diversity. Indeed, the relevance of the other demographic factors for faculty hiring is often urged because the law schools are political institutions and different racial and gender groups think differently on political issues. Duncan Kennedy elegantly presents one standard rationale for diversity in law faculty hiring. Referring to his article, Kennedy states:

It argues for a large expansion of our current commitment to cultural diversity on the ground that law schools are political institutions. For that reason, they should abide by the general democratic principle that people should be represented in institutions that have power over their lives. (9) Of the myriad of demographic cleavages that might be...