You Cannot Have Your Cake and Eat It, Too

Although I am still cautious, I have been encouraged somewhat by comments from other progressives who know Solicitor General Kagan personally. Most importantly, I was thrilled to hear Kagan emphasize, rather than shy away, from her connection to the late Justice Thurgood Marshall. It made me hopeful that she would follow in Justice Marshall’s footsteps, bringing his same strong sense of justice for the disadvantaged to the bench.

BUT . . .
I do have one comment for many of the supporters of Kagan: “You cannot have your cake, and eat it, too.” In response to the serious concerns that we (Guy, Anupam, Luis, and I) have raised about the lack of racial and gender diversity in Kagan’s faculty hiring record as Dean of Harvard Law School and what that record might reflect about her commitment to equal opportunity, supporters of Kagan have responded in a number of ways that I view to be contradictory.

First, they contend that it is unfair to criticize the actual numbers of women and minority faculty hired during Kagan’s tenure as Dean because faculties, not Deans, vote offers to new faculty members. Yet, in the same breath, Kagan’s supporters also point to the ideological diversity that Kagan brought to the faculty by bringing in a number of prominent conservative scholars. Well, to put it bluntly, you can’t have your cake and eat it, too. If Dean Kagan cannot be criticized for the lack of racial and gender diversity in faculty hiring because those votes were out of her hands, she also cannot be praised for increasing ideological diversity among the faculty. That, too, must have been out of her hands.

It may very well be that it was much harder for Dean Kagan to move Harvard Law School in the direction of increasing racial and gender diversity on the faculty. But if that’s the case, why won’t her supporters simply admit it? Why won’t they admit what we already know about implicit bias and how such bias can affect evaluations of women and minority candidates, even by progressives who may write about or support racial and gender equality in their own scholarship? Such acknowledgment—the explicit recognition of the problem of implicit bias in faculty hiring—would at least bring us one step closer to resolving the problem. Furthermore, while it is true that Deans do not actually “hire” faculty members, it is also true that Deans set the tone and the vision for how they would like their faculties to be built and developed. It is certainly fair for us to ask whether racial and gender diversity was part of that vision for Dean Kagan, just as ideological diversity was clearly a part of her vision. If we look at the numbers, the answer to our question seems to be no.

Kagan’s supporters also try to have their cake and eat it, too, through discussions of student diversity at Harvard Law School. They highlight the increase in the number of students who were racial minorities at Harvard Law School during Dean Kagan’s tenure, all the while stating that Kagan’s less impressive, racial diversity faculty hiring record was because she did not engage in aggressive affirmative action practices. Yes, pause, breathe. First of all, Kagan should be applauded for increases in racial diversity in the student population. In fact, according to the White House, Harvard Law is second only to Howard Law in producing black law graduates. As Justice O’Connor wrote in Grutter v. Bollinger, diversity among a student body has many benefits, including the benefits of cross-racial understanding and exchange in the classroom, preparation for work in an increasingly diverse workforce, and enhanced learning through an exposure to a wide variety of viewpoints.

But, again, just as Deans do not really “hire” faculty, they are not the ones who vote on or decide to admit each individual student into entering law school classes. They have an Admissions Dean and Staff, who perform these functions. Technically, Kagan cannot take credit for the student numbers either, but as her supporters understand and as we indicate with our comments about faculty diversity, she can because she set the tone and vision that enabled the Admissions Dean and Staff to succeed in these efforts.

Furthermore, everyone, including Kagan’s supporters, should stop and think for just one moment about what it means to praise racial diversity in students and yet discount the lack of racial diversity in new faculty hires. Is this to mean that racial minorities are good enough to be students at Harvard Law School, but not good enough to be law faculty? Also, what about all those minority students whom the supporters brag about? Do they not deserve role models who look like them and who, as Dean Kevin Johnson and Associate Dean Vik Amar of the University of California, Davis School of Law (a wonderfully diverse faculty) explained in a recent FindLaw article, would signal to such students that they, too, belong; they, too, can become professors; and they, too, can achieve at the highest levels of law? Ask those students if they would like to see more faculty of color among the new hires.

Last, but very far from least, think about the signal that it sends to majority students (as well as minority students) when new faculty hires are repeatedly brought in but very few of them are actually women or people of color. Such low numbers reinforce the notion that real law professors are not women or racial minorities, rather than defeat stereotypes about the intellectual capabilities of women and racial minorities. In Grutter, the Supreme Court, though speaking of students and not faculty, acknowledged that a significant percentage of the country’s leaders come from “highly selective schools” and further explained that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” That very same rationale applies to faculty hiring at Harvard Law School, home of the intellectual leaders to whom the media, politicians, and in some cases, ordinary citizens turn for moral, legal, and intellectual guidance. In order to create a set of academic leaders within a school (and within legal academia in general) with legitimacy in the eyes of students, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

The issue of gender and racial diversity among faculty is not one to be taken lightly. During Kagan’s confirmation hearings, I hope that our Senators will focus some of their questions on these very important issues. Most importantly, I hope that we in legal academia carefully examine our own institutions and begin to create the change that can allow for the benefits that Justice O’Connor described in Grutter to occur not just within the student body, but also within the tenured and tenure-track faculty.