The document discusses diversity among law school faculties and examines how unconscious bias may negatively impact efforts to diversify. It notes that while some progress has been made in increasing the number of women in doctrinal faculty positions, people of color still have lower rates of promotion and tenure. Unconscious bias is identified as a key barrier, as empirical research shows people tend to associate positive traits with their own groups and negative traits with others. The document explores strategies to counteract unconscious bias in hiring, retention, and tenure decisions in order to further diversify law school faculties.

1. Have We Reached the Promised Land? Diversifying Law Faculties Debra L. Green Presented at University of Missouri-Columbia School of Law

2. Focus for Today’s Presentation Look at diversity in American law schools at all faculty levels Examine how unconscious bias—particularly in terms of race, gender and status—may negatively affect our ability to diversify Explore strategies that may help turn the tide and counteract the impact of unconscious bias on hiring, promotion, retention and tenure

3. Defining “Diversity” For purposes of today’s discussion: Focus will be primarily on women and racially identifiable groups that have historically been disadvantaged. The same principles should apply to other diverse groups, i.e., the disabled, older workers, gays and lesbians, recent immigrants, etc. Focus will also be on looking at diversity not only in terms of doctrinal faculty but also in terms of clinicians and legal writing faculty

4. What’s the Real World at Your School in Terms of Diversity? How many women and people of color are on your law school’s: Doctrinal faculty? Clinical faculty? LRW faculty? What’s the status for those in each group—who’s tenured, tenure-track, or on long-term contracts in terms of: Doctrinal faculty? Clinical faculty? LRW faculty?

5. Any Indicia of Progress with Diversity? Women in faculty positions Women teaching doctrinal courses : gaps with promotion and tenure for white women seem to be closing People of color in faculty positions African Americans, Latinos, and Asians teaching doctrinal courses : statistically significant lower rates with promotion and tenure compared to whites and a seeming downward trend in hiring by law schools Absolute numbers and the proportion of people of color decreased Proportion of people of color awarded tenure decreased

6. Faculty Outside the Doctrinal Arena Women and people of color teaching in legal writing and clinical positionsl Legal writing—65-70% female Significant number of positions have no job security comparable to tenure Significant pay differential Clinical faculty—has status similar to tenure with 405(c) but usually a significant pay differential

7. People of Color as Decision Makers in Clinics and Legal Writing Of those who filled out 2004 Association of Legal Writing Directors (ALWD) survey: 160 of those were white 3 African American 1 Latino, 1 Asian American, 1 other. The numbers appear to be tending downward: 4 African Americans in 2002, 5 in 2003, 3 in 2004, 2 Latinos in 2002, 1 in 2003 and 2004, 2 Asian Americans in 2001, then only 1 for 2002-2004. Clinicians have similar low numbers when it comes to those in decision-making positions “ [T]he vast majority of law schools have no clinicians of color, there are virtually no policy setting clinical directors of color outside of the historically Black or Puerto Rican law schools, and clinicians of color generally experience lesser job security, lower pay and lesser job perquisites than white clinical faculty.” (article by Jon Durbin)

8. Unconscious Bias as the Root Cause of Slow Progress? Psychologists once believed that only bigoted people used stereotypes. Now the study of unconscious bias is revealing the unsettling truth: We all use stereotypes, all the time, without knowing it. We have met the enemy of equality, and the enemy is us . article from Psychology Today

9. Cognitive Psychology, Affective Reactions and Unconscious Bias Empirical research done in the social sciences: Tests given to participants in various settings. Pervasive Implicit Bias: “Socially dominant groups have implicit bias against subordinate groups (White over non-White, for example). . . Almost a hundred studies have documented people’s tendency to automatically associate positive characteristics with their ingroups more easily than with outgroups. . . as well as their tendency to associate negative characteristics with outgroups more easily than ingroups.” (article by Jerry Kang) This implicit/unconscious preferencing occurred even when people consciously tried to limit group preferencing

10. Examples of Unconscious Bias Studies “ Group readings” study and results “ Immediate hostile reaction” study and results Implicit Association Test at Harvard ( https://implicit.harvard.edu/implicit ) Tests developed to identify hidden bias in terms of race, gender, age, sexual orientation

11. Critical Road Blocks to Diversifying Law Faculties at All Levels If we assume we all have varying degrees of unconscious bias, then bias likely affects law faculties and their decisions about hiring, promotion, retention and tenure, specifically with regard to: Race Gender Status

12. Focus with Unconscious Bias in Academia Current work mainly looks at doctrinal faculty and primarily addresses sex, race and gender issues (as opposed to the intersection of race, gender and status) What those works indicate: Unconscious bias and stereotyping are particularly problematic when it comes to three constituencies: Students Administration Other faculty

13. Displays of Unconscious Bias that Affect Doctrinal Faculty Students– Complaints to administration, excessively negative evaluations, challenges to authority and classroom management Stereotyping of women, people of color Challenges by majority students about credentials, appearance, authority, evaluative methods used with students Colleagues and administration– Overburdening faculty with “academic housekeeping” Stereotyping Undermining comments to students and other faculty Belief African Americans and other people of color are hypersensitive or have illegitimate concerns about stereotyping and bias Unconscious desire for assimilation in order to be retained and share the benefits of tenure

14. When Race, Gender and Status Intersect The impact of unconscious bias becomes more acute with women and people of color teaching LWR and other skills related courses because they’re typically the most vulnerable in terms of: Students Administration Academic housekeeping Doctrinal faculty

15. Does Diversity Matter Outside the Doctrinal Arena? Simple demographics Population shift and shift in the work force = more diversity with clients and future attorneys Certain areas of the country are already experiencing the change in demographics Skills courses like LRW and clinics: Are taught on a more intimate student-teacher basis Resemble the type of supervisory relationship that imitates the training and feedback a young lawyer would receive from a more senior attorney on his or her work Critical to have women and people of color acting in a mentoring/supervisory role for students in a world that’s becoming increasingly global and multicultural

16. Strategies for Counteracting Unconscious Bias The first step to recovery is acknowledgment. Alcoholics Anonymous

17. Hiring Strategies Hiring Commitment must come from the top and have sufficient faculty buy-in for the process to work. Rethink the traditional definition of “merit.” If hiring a lateral from another school, consider the weight student evaluations should play in the hiring process. Go outside the AALS pool for hiring. Cultivate potential candidates by targeting top students in law school “ Raid” LLM programs for graduate students Find associates of color at top firms in the area and cultivate them Think about diversifying when hiring for clinical and LRW positions Other strategies?

18. Strategies with Retention, Promotion and Tenure Expect acculturation, rather than assimilation. Behavior and appearance Types of scholarship produced Reevaluate the role of student evaluations for all faculty. Consider the impact of unconscious bias and stereotyping when hearing student complaints or complaints by other faculty. With academic housekeeping matters, be aware that “the few” may be overburdened with serving the needs of “the many,” and take steps to lessen the load. Diversification with legal writing and clinical faculty will require better parity in terms of pay and status. Other strategies?

19. The Power of One. . . .