New Article: Michael J. Higdon, A Place in the Academy: Law Faculty Hiring and Socioeconomic Bias, SSRN Feb. 2012. Abstract below:
In the movie Moneyball — based on the Nationally bestselling book of the same name — Jonah Hill’s character, Peter Brand remarks, “People are overlooked for a variety of biased reasons and perceived flaws.” Although his character was referring to baseball players, the same could be said of those who attempt to secure jobs as law professors. In fact, many law students are later surprised to learn that their ability to secure a job as a law professor has much less to do with what they have might have done during their legal careers, and more to do with simply the law school from which they graduated. As noted in the recent book Becoming a Law Professor: A Candidate’s Guide: “Like it or not, the data says that the most important aspect [of being a successful applicant] is having received a J.D. from an Ivy League or Ivy League equivalent law school.”
I have written this article to, first, voice my criticism of this narrow approach to faculty hiring and, second (and more importantly), to provide what I hope will be a more compelling justification for faculty appointment committees to ease up on the emphasis they place on academic pedigree. Namely, to the extent a law school values having a socioeconomically diverse faculty, hiring exclusively from elite law schools makes achieving that goal more unlikely. After all, numerous studies have revealed that those students who attend the elite law schools are overwhelming representative of the top level of the socioeconomic spectrum.
In fact, a recent study by Professor Richard Sander found that “roughly half the students at [the elite law] schools come from the top tenth of the [socioeconomic status spectrum], while only about one-tenth of the students come from the bottom half.” And it is no accident that such a disparity exists. As I explore in the article, it is not lack of intellect that keeps those from lower socio-economic backgrounds out of the elite law schools; instead, it is the lack of “economic inheritance.” As one scholar points out, “It is commonly acknowledged that if a child is born poor, she has less chance of getting ahead than a child born into the upper or upper-middle classes — even if the poor child is just as naturally talented or hard working as her more advantaged peer.” In fact, “statistically, the least academically qualified students from wealthy families have as much chance of going to college as the highest performing kids from low-income families.”
As such, hiring faculty members from primarily the elite law schools undermines a law school’s ability to achieve socioeconomic diversity on its faculty and instead helps perpetuate a class-based monopoly within the legal academy — to the detriment of all involved. Specifically, as Dean Kevin A. Johnson recently put it: “Although it is somewhat cliché to say it, law students want and need role models.” For instance, when talking about racial minorities, Dean Johnson states that “the presence of historically underrepresented minorities on law faculties sends a message to students of color — and most effectively ‘teaches’ them — that they in fact belong in law school and the legal profession, as well as that they have the ability to be top-flight lawyers, judges, and policy makers.” The same can be said of those students from lower socioeconomic backgrounds.
Second, if law schools are truly marketplaces of ideas, then faculty diversity enhances that environment by broadening the number of available perspectives. Justice O’Connor noted in Grutter v. Bollinger that diversity among law students seeks to “ensure their ability to make contributions to the character of the Law School.” Faculty diversity serves the same purpose. As one scholar notes: “might it not be possible — some would contend probable — that a woman teaching the law of rape, abortion, or employment discrimination might present the law to students in different ways, with different perspectives, experiences, and — at a most fundamental level — knowledge than her male counterparts.” Again, the same can be said for professors from lower socioeconomic backgrounds
Finally, the different perspective that these individuals bring to the classroom would also contribute to their scholarship, thus benefiting the entire academy. One need only look to the momentous contributions such movements as Critical Race Theory and Feminist Legal Theory have brought to the academy to see the potential benefit that other minority groups could bring to the table.
For these reasons, I conclude the article by proposing that when a law school engages in faculty hiring, it treat academic pedigree as merely one factor in the hiring determination – not the sole determinant as it is commonly used today. Although we are unlikely to ever eliminate all class-bias when it comes to faculty hiring, our inability to effectuate change on all fronts makes it all the more imperative that we absolutely change the things we can control. And what we are capable of doing, should we so choose, is to treat academic pedigree as merely one piece of the hiring puzzle that we then actively supplement with other information — information more relevant to the individual’s proven talents and less a reflection of the individual’s socioeconomic background.