Still using the wrong yardstick: measuring quality by the proxies of bias, conformity, and rumor.

• Author: Dyson, Maurice R.
• Position: The More Things Change ... Exploring Solutions to Persisting Discrimination in Legal Academia

It is well overdue to confront the three main ill-advised measurements that perpetuate persistent discrimination in legal academia: bias, conformity, and rumor. When proxies for quality are measured by benchmarks of innuendo, it does a disservice to the legal academy, the individual faculty, the student body, and the legal profession that is shaped by that culture and set of practices. Furthermore, what is valued as noteworthy contributions to service, teaching, and scholarship remains a rigged and biased system of evaluation that is detrimental to the educational process. Finally, conformity to the majority may also operate as a disservice by marginalizing divergent voices in a way that is harmful to academic freedom and the intellectual robustness of the academy. When non-conformity is admirable in raising student awareness or introducing alternative effective models of pedagogy or perspective, it should be rewarded rather than penalized. Yet penalization is too often precisely what happens, and many in legal academia are caught in a perfect storm trifecta of bias, rumor, and the sanctions imposed for non-conformity. The machinery of maligning rumor, once initiated, is difficult to cease or reverse course. How much of one's reputation lies in the hands of close friends in a close-knit, so-called "old buddy" network, in the criticism of avowed colleagues or students with an axe to grind, or in institutional affiliation is quite disturbing, and even more so when it indelibly shapes decisions of appointment, tenure, promotion, retention, recognition, and pedagogy. Rumor is processed as truth--spread, repeated, perpetuated, and never questioned.

We may often overlook that the solution to systemic bias lies not merely in policy reform or awareness of subconscious bias, which though important, amounts to nothing without the courage to see it brought to full fruition. Courage in oneself, but more often in our colleagues, is essential to bring vigorous scrutiny to the biases, both conscious and subconscious, that permeate the personnel and governance decisions upon which influence and access necessarily rest. Consider the role that courage could play in each of the following scenarios, which are often part and parcel of professional life in legal academia.

An applicant for a dean appointment is unfairly maligned in the deliberation process due to the malicious rumor and speculation prompted by biased colleagues in faculty meetings which sway and distort informed discourse. The applicant is not given an adequate opportunity to respond to concerns, rumors, and innuendo that were never fully voiced at the job talk nor anytime afterward. The decanal candidacy is doomed before the applicant steps foot on the campus.

A tenure candidate is derailed in the faculty vote because of a few strident student evaluations that take on greater-than-advisable significance in the tenure decision. This occurs despite the fact that the evaluations reveal inappropriate comments complimenting her dress and youthful appearance while demeaning her professionalism, employing derogatory language and animus toward her through unsubstantiated assertions that appear calculated to be later used as leverage in grade disputes if needed. Compared to her more senior tenured Caucasian faculty, this young minority faculty member routinely faces utterly unacceptable discourtesy in the classroom from her students who take advantage of the fact that she is new, female, minority, and untenured and feel greater latitude to "get away" with such behavior all the while comparing her class approach unfavorably to her colleagues'.

A colleague chooses not to shy away from controversial social justice issues in the law when germane to the class lesson plan in order to raise student awareness. She remains an outlier among the faculty and therefore is easily singled out by students for criticism on student evaluations when they notice she is uniquely outspoken compared to her faculty colleagues. The non-conforming professor also employs unique but effective teaching techniques and assigns work that intellectually challenges her students and requires a strong work ethic, but which runs counter to the spoon feed pedagogy rampant in the institutional culture that makes her colleagues more popular with students than she.

A faculty member who stands up against the blatantly rude and discriminatory treatment by the student body of library staff and her untenured colleagues teaching legal writing faces ostracism by her colleagues. She is uniquely outspoken on the detrimental impact of pending discriminatory policies adopted by the admissions committee that threatens the overall racial diversity of the school. Consequently, in the economic downturn of the times, only her contract is selected for non-renewal.

A junior faculty member is told she is unable to apply for promotion because her family obligations have raised concerns about her commitment to the law school, even though the candidate has been proactive in a variety of service endeavors. She is advised that her publications in minority law reviews and interdisciplinary journals are not acceptable even though they break new ground in her field of scholarship, or notwithstanding the fact that other colleagues have...