We will not withhold forgiveness Even from those who do not ask. (1)
Women and other underrepresented groups have fought valiantly to render legal education inclusive regardless of one's race or gender. Clashing with a status quo denying access to individuals in underrepresented groups, they battled first just to gain admission to law schools as students and then to be admitted to the Bar. (2) The struggle continued as they also sought to be hired on the permanent faculty at various institutions. (3)
After securing faculty appointments, candidates from underrepresented groups have continued to wage tenure wars for decades, just for their survival in the academy. (4) They confront many obstacles, (5) including inconsistent application of rules and requirements, (6) micro-aggressions, (7) and overt hostilities (8) to their successes.
In other words, individuals from underrepresented groups appear to be in a war to obtain tenure and otherwise succeed at their institutions. (9) While it has been said that, "All is fair in love and war," even in war there are rules of engagement. (10) Therefore, in tenure wars, rules apply too. (11) Actually, the American Bar Association requires law schools to employ clear rules of engagement in tenure evaluations, (12) akin to how the United Nations collectively prescribes rules of war between nation states as well as punishes violations committed on the battlefield. (13) When innocent nations are attacked by illegal acts of aggression, a coalition of the willing allies within the United Nations defends against the aggression. (14) Unfortunately tenure candidates from underrepresented groups may find themselves at schools lacking such a coalition of willing allies to defend against aggression inflicted upon them. (15)
The war-like attacks during tenure bids appear to be part of a battle to maintain the racial and gender status quo of underrepresentation in the academy. (16) This resemblance to war-like assaults compelled Professor Kupenda to compare the tenure bid for women and other underrepresented groups as requiring war-like strategies in response. In Academic War Strategies for Nonviolent Armies of One, Professor Kupenda utilized lessons learned from unsuccessful military war efforts to explore how pre-tenured faculty, especially those from underrepresented groups, could improve their chances of success by seeing their preparation and application for tenure as a war-like effort. (17) Employing tactical strategies similar to those suggested by Kupenda (18) and others, (19) many have fought for tenure one decision at a time. Slowly, faculty tenure victories have increased the diversity of law faculty and brought more diverse voices into legal education. (20)
Through many tenure victories, faculty from underrepresented groups confronted various discriminatory violations (21) of the rules and surmounted struggles with gender and/or racial inequality. Just as the country adding a person of color to a high position does not make the country itself post-racial, similarly, the ivory tower is not automatically made post-racial with the addition of some faculty from underrepresented groups. While a given minority warrior may obtain tenure despite a bloody institutional war, obtaining tenure for this person does not mean that the academy, or her institution, is now welcoming. Actually, racial and gender tensions within the legal academy generally, and within legal educational institutions more specifically, continue to linger. (22)
Therefore, in this Article, the co-authors confront one of the next generation issues for underrepresented groups in legal education: what happens after tenure victories, especially for the victors in a war wrought with gender and racial inequities? Even if all is fair in love, war, and tenure battles, it remains most troubling when, even in this century, acts of racial and/or gender aggression are targeted at qualified tenure candidates. These violations of the "tenure rules of engagement" based on implicit or explicit racial or gender bias preserve discriminatory practices that impact underrepresented groups and maintain the status quo in the academy and in the country.
Racial and gender discrimination persists in legal academia in part because the dignity of individuals is undervalued, especially where the individuals are not male or where they are not white. This undervaluing of their dignity and humanity becomes so entrenched institutionally that violations of the rules in the tenure process against the underrepresented are simply ignored, or excused or subsumed as normal or ordinary scars of a bid for tenure. (23) Intersectional biases, such as those based on race and gender, exacerbate a tenure candidate's fight for dignity and the respect generally accorded others without question. Continued violations of the rules create institutional barriers for underrepresented groups. (24) The resulting assaults to the dignity of tenure-track faculty, based on obvious and inherent characteristics as gender and race, cause them significant harm and inhibit their academic contributions post-tenure.
Most recently, the highly acclaimed and groundbreaking book, Presumed Incompetent: The Intersections of Race and Class for Women in Academia, (25) captured voices of, and experiences of injury to the dignity of, women of color in the academy. This Article will build upon those collective and powerful narratives. Notably, many of the narratives reflected in Presumed Incompetent are "pre-tenure" experiences of women of color. (26) Therefore, drawing on Academic War Strategies for Nonviolent Armies of One, (27) which compares seeking tenure to waging a solo, non-violent battle wherein strategic alliances are an essential component of tenure success, this Article proposes a continuation of the war analogy.
This Article relies on theories of post-war strategies of truth and reconciliation as a means to change the culture in legal academia, even after atrocious tenure battles. An institution with truth and reconciliation processes has a chance to heal and enhance productivity. Thus, institutional measures to become more welcoming of all members of the faculty are also measures that favor institutional progress, which is critical in these troublesome times in legal education.
This Article, seeking to usher in institutional and individual healing, will be divided into five Parts. Given the institution has waged a war to maintain the status quo of exclusion, and the individuals from underrepresented groups have employed war-like strategies to be respected and embraced within the institution, it becomes time to bring closure to the war efforts and commence individual and institutional healing. Thus, Part I seeks this closure by first providing the metaphorical framing for the tenure wars, especially as to postwar strategies of truth-telling and reconciliation. Helena Cobban explains in her book, Amnesty after Atrocity?: Healing Nations after Genocide and War Crimes, (28) the critical necessity for social healing in the aftermath of war atrocities. One important component of all the approaches discussed by Cobban is truth-telling: the acknowledgment of the collective harm.
Part II will address the great value of telling the truth after the war has ceased. After an institutional war with assaults to the dignity of the underrepresented, truth and reconciliation is the first critical step for restoring dignity. Even if the underrepresented emerges with tenure, the warrior still emerges wounded. Furthermore, even if tenure is ultimately granted, the acts of aggression remain unaddressed. Both the individual and the institution are left without a therapeutic way to respond to the trauma experienced. Thus, the process of "truth and reconciliation" is needed to bring healing to the injuries and prevent future acts of aggression. Part III of this Article specifically is concerned with the importance of reconciliation after truth-telling.
Part IV of this Article will consider the barriers to the application of truth and reconciliation processes, specifically by discussing practical obstacles to such a healing process. Regardless of barriers, the necessity of telling the truth about violations of the tenure rules and the harm suffered is obvious. For the wounded victors, telling the truth, even if only to ourselves, and reconciling those injuries within the institutional framework of the law school structure are critical for personal and structural transformation, and for the elimination of persisting discrimination. Identifying the obstacles to this process is considered in this Part.
The Conclusion will offer introductory comments for future work. After the tenure war and after, or concurrent with, truth and reconciliation processes, "peacetime" strategies are essential to enhance one's academic life long-term. Future work includes the development of best practices to achieve reconciliation and best practices in formulating and implementing peacetime strategies.
While peacetime strategies benefit the formerly warring institution and faculty, the first and most critical step for institutional transformation is truth-telling about the atrocities. Hence, the goal of this paper is to facilitate the beginning process of truth-telling and reconciliation. The authors here conclude we must facilitate that step, even if we tell the truth only to ourselves, and even if we, as faculty from underrepresented groups, alone seek the reconciliation process. While truth-telling and reconciliation will certainly benefit the entire institution, the process is a healing step for individual faculty, especially for the one wronged. Hence, as stated in the Article's opening quote by Maya Angelou in celebrating the life and racial reconciliatory work of Nelson Mandela, "We [must] not withhold forgiveness/Even from those who do not ask." (29)
War, What is it Good For?--Framing
"WAR ... what is it good for,...