Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything “extra mild.” Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It’s like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:

White elite eduated male

White elite ed. female

African American ed. elite male

African Americna ed. elite female

White non elite female

White non elite male

African American non elite female

African American non elite female

The ranking is, no surprise, consistent with social comfort and, let’s face it, given that there is no evidence that one group is better at law teaching than another and that law professors can “interpret” resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it’s the former and it’s not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother’s occupation?

2. How much school did your father and mother complete?

3. How much student debt have you accumulated?

4. How many people do you know at an Ivy League school?

5. Ever worked at McDonalds, washed cars, or bagged groceries?

6. Anyone in your family on welfare.

7. Has anyone in your family done time?

8. Ever been out of the US?

9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.

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25 Responses

  1. wc says:

    If you don’t recognize that law school hiring committees are typically under both internal and external (ABA, university administration) pressure to recruit women and black faculty, and thus your pecking order is backwards, it’s hard to take what you say on the matter seriously.

  2. jeff says:

    Thanks for your comment. You actually prove my point. You refer to the “pressure” as necessitating the search for diversity. The pressure would be irrelevant if the preferences of law professors were for actual as opposed to non diverse diverse. If I force my friend to order his Thai food hot, does that really mean he is committed to diversity?

    Second, are you actually saying that hiring committees are searching first for non elite educated african american males. You are joking, right?

    Thanks again.

  3. Phil says:

    The most frank and accurate blog I have read in some time. As and African American with a non elite background who actually knows people on welfare, thanks.

  4. wc says:

    No, law schools are not searching for the non-elite, but within each category (elite and non-elite) your order is reversed, with blacks (and to a lesser extent other minorities) most sought after, then women, then white males. Yes, I said there was external pressure. I also said there was internal pressure–in other words, members of the faculty themselves, some of whom are on the appointments committee, strongly prefer “diversity” or women hires Last time we had a recession and hiring was tight, it was not common for white male candidates to be told explicitly that only women and minorities were being hired.

    Anyway, your post didn’t say “here is what committees WOULD look for, in a theoretical, non-existent world where there is no pressure from their colleagues and outside forces like the ABA.” You claimed that you were listing the “peckikng order” “when hiring committees look for candidates.”

  5. jeff says:

    Ok. I see. So are only arguing about my version of the black/white pecking order among elites. In terms of actual recruiting I think you are right. On the other hand, I’ll stick to my social comfort tendencies idea that profs go against their natural inclinations even when recruiting elite minorities. Which goes back to my overall point that even when looking for diversity they want the least diverse diversity. Thanks for the discussion.

  6. mm says:

    As a non-elite graduate of an elite law school, my understanding is that the legal profession is run by and for elites. While the elites may empathize in the abstract with non-elites, they don’t want them “next door.” Or maybe only a very few, the best ones who fit in properly among the elites. To enter the law teaching profession while self-identifying as “non elite” is a difficult task indeed.

  7. Joseph Slater says:

    First, what do we mean by “elite”? Is it a notion of economic/social class? If so, I would buy that law schools are, as a generalization, more comfortable with folks from the upper middle class, and I would suggest that law faculties be aware of this type of prejudice and seek to overcome it.

    Or does “elite” here mean “elite training,” as in, did well at one of the highest-ranked law schools, then did a year or two in a prestigious clerkship and/or “elite” big law firm. There’s certainly an overlap of this kind of elite and the social/economic background elite, but it’s not a complete overlap and it’s not the same thing. Still, faculties may be more comfortable with people like this (because they are like themselves) also.

    There’s also an argument that folks from this second type of “elite” may be more likely to be productive scholars (a big part of the teaching job the original post didn’t mention). Don’t get me wrong — I don’t think the type of “elite” credentials listed in the second paragraph are the be-all, end-all of publishing potential, but it’s not indefensible to think it’s some evidence, all else being equal.

    Having said all that, if the main thrust of this post was that law schools should be aware of class background and related issues in hiring, including trying to overcome the “I’m more comfortable with them because their socio-economic background is more like mine,” then I agree.

  8. anon says:

    Do you have any data to back up these “personal observations?” Have you considered any alternative hypothesis and developed arguments as to why yours is more likely to be true?

    Anyone can sit at a computer and type their thoughts, but it doesn’t advance the ball or even create a productive forum for debate. Your future blog posts might be interesting if you backed up your musings with some actual evidence.

  9. jeff says:

    Thanks for the comments. Even yours, anon. I do tend to think of elite in terms of education. In theory even a working class person can get to Harvard and with a ton of student loans get through and even do well. That person will never have the sense of entitlement that the Ivy League grad has who has also grown up in an upper middle class or higher social context. Consequently a generalization about all those attending elite schools is a bit unfair. Far less unfair, however, than the assumption that if you did not attend an elite school you are less likely to be an effective law professor.My assessment of elite as opposed to non elite would depend on the answers to the questions I have listed.

    As for anons request for empirical evidence. If you look at the web sites run by Leiter you will find data regarding the schools law professors attended. You will find that those hiring tend to hire people who are similar to themselves. As for the productivity of law professors, I am not sure how to put a link in a comment but if you go over to moneylaw you will find a report on an empirical study indicating that there is no difference in terms of scholarly productivity between graduates of elite law schools now in legal education and those who did not graduate from elite schools.

  10. Joseph Slater says:


    Forgive me if I’m being dense — which is a distinct possibility — but I’m still a little confused. You write above “I do tend to think of elite in terms of education.” But my interpretation of your original list of questions (pasta expertise aside) is that they go to social/economic class. So does your point (with which I agree), that even if a working class person goes to Harvard, they might not feel (or, one might add, be perceived by a hiring committee) the same as someone from an upper middle class background.

  11. Jeff says:

    I have a hunch that we pretty much agree and that you are not being dense. Not that agreeing with me is the test of density. I am using elite education as a surrogate for class. It is unfair to some. Your last sentence does capture my sentiments. In a nutshell, when hiring, upper class always trumps lower class. And, hiring committees feel more comfortable with upper and middle class minorities than they do with any candidate, regardless of race, from lower socioeconomic classes. By acting on this preference they achieve the leas possible diverse diversity.

  12. mm says:

    I fall into the “what is she” category, being unquestionably working class in background but possessing (at the law school level only) an elite education.

    I suffer from precisely the phenomenon you describe: what is usually called a “lack of confidence” that feels to me like a realistic view of the world.

    My friends and colleagues–some of whom are elite professors urging me to enter the law teaching market–are baffled by this. Given my resume, they simply cannot fathom why I would hesitate to jump into law teaching. I have the big names ready and willing to support my application; I have the stats. Yet I am hung up on my uncertainty of being “qualified”, the idea that I need to know more, to learn more to make up for my background.

    This is not an argument about the practices of law school hiring, of course. I am hung up on my own doubts. But others have made the point that if hiring committees viewed positively “overcoming obstacles”–if my background counted for me, instead of against me–I would be more willing to take the chance.

  13. JP says:

    Is the implication that faculty hiring committee members A) are closet and/or subconscious racists, B) take affirmative action preferences into account when considering applicants’ backgrounds, or C) something else?

  14. Jeff says:

    This is in response to the two immediately preceeding comment, starting with the second one. A)I have never felt comfortable attempting to define racism other than in its most obvious manifestations. Is it racist to feel more comfortable socially with people who have something in common with. What ever that is is what I am saying about law school hiring B) Yes they do take affirmative action into account as part of an effort to increase divesity but their concepts of affirmative actions and diversity are limited.

    To mm. Yes, I completely understand. And people without that education do not have any of the other support you speak of. Here is one of the few times I can boast about my school — at least the central administration. Last year our hiring process was maybe a little, shall we say, sketchy. So this year representatives from the Univesity legal office came over to instruct us on what to do and not to do. Whether people will actually do it or not is yet to be seen but the stress by the central administration is to ask exactly the types of questions I listed in order to find people with truely diverse background and who have actually had to overcome barriers.

    Frankly, I think you are silly not to be in the market. If you get a job you will quickly find that the track is not all that fast.

  15. Bill says:

    Is there any particular reason why gay, Hispanic, Asian, Multiracial (and more) do not appear on your list? Is it only simplicity’s sake?

    Or does your faculty continue to exist in an “Old America” universe where America is straight, and either Black or White, privileging these categories by minimizing the existence of others?

  16. jeff says:

    Bill: I wish I could but I cannot say it was strickly for simplicity sake. It’s more complicated than old and new america. I’d say we are somewhere in between. We have successfully recruited several gay faculty through a “sexual orientation blind” process. So that group would not have come to mind off the top of my head. This is totally my opinion but I do sense we have focused on African Americans at the expense of other groups. Not that we have actually hired many. But the point of my blog was to say that whatever diversity a candidate may offer is always more attractive if he or she is from a higher socioeconomic class. I guess you could say that when it comes to class we are gender-race-socioeconomic class blind. Everyone is treated alike and, in my opinion, badly. And, I think this last factor is true of law school hiring generally. Thanks for the comment.

  17. …and the diversity being discussed here is strictly a skin-deep type, right? Because God help us if law schools ever started reflecting the political diversity of this country…

  18. jeff says:

    Absolutely, political diversity is rarely tolerated.

  19. jeff says:

    Of course. Shame on you for raising the issue of political diversity.

  20. Tim says:

    Jeff neglected to cite the seminal article on the topic, “Confessin’ The Blues: Thoughts on Bias in Law School Hiring” 42 J. Legal Ed 119. Written by one Jeffrey Harrison. Highly recommended by this son of a shipyard worker.

    I’ve actually given some thought to asking the kinds of questions that Jeff poses, though perhaps more subtly. A problem of course is to avoid conveying the message that an answer evidencing a working class background might be used against the candidate…

  21. Katie says:

    I actually just take objection to the idea that the complex flavors in Thai food can be reduced to “spicy = authentic” and “mild = non-authentic.”

  22. Katie says:

    (And I didn’t comment on the rest, because I basically agreed with you).

  23. Jeff says:

    Tim: You are absolutely right. A friend of mine on our faculty — yes I have a couple — mentioned the same problem. For example “McDonalds”, could be something to be ashamed of. Never having gone abroad something they would not want to admit.

  24. guest says:

    rigatoni is ribbed and ziti is smooth.

  25. Melissa says:

    Jeff, I noticed at this year’s FRC that most of the candidates were noticeably non-racially diverse. It was quite startling. Makes corporate america look like “we are the world,” which is not true at all.

    You academics have a long way to go to achieve diversity.