Last week, Salon.com ran a story regarding the low number of persons of color and women hired by Harvard Law School during Elena Kagan's tenure as Dean. Despite a surge in new hiring by the law school, only a few women and one person of color were hired as full-time faculty during Kagan's deanship. This essay argues that liberals and progressives should consider these statistics relevant to their analysis of Kagan's nomination.
Liberals and Progressives Have Long Considered Racial Diversity Valuable to Higher Education
Liberals and progressives have a long history of advocating racial diversity as an essential dimension of higher education. The Supreme Court first recognized diversity in higher education as a "compelling" state interest in the 1978 ruling Regents of the University of California v. Bakke. 25 years later, it affirmed the importance of this interest in the ruling Grutter v. Bolinger, which involved a challenge to an affirmative action policy at the University of Michigan Law School. The Court embraced diversity as a necessary part of the educational process, and liberals offered tremendous praise for the ruling.
It is unclear whether the racial and sex statistics at Harvard Law School reflect a lack of commitment to diversity by Kagan. If they do, then this should absolutely concern liberals and progressives. Because Kagan has never written about affirmative action or racial diversity in an extended fashion, the only way that the public can evaluate her commitment to diversity is to place this issue on the agenda during her confirmation hearings.
Liberals and Progressives Are Suspicious of Hiring Practices That Have a Disparate Impact Against Women and Persons of Color
In addition to praising diversity, liberals and progressives are suspicious of hiring practices that disparately affect women and persons of color. In the 1971 decision Griggs v. Duke Power Co., the Supreme Court held that federal employment discrimination law prohibited not only explicit policies that discriminate on the basis of race or sex, but also facially neutral practices that have a clear discriminatory effect. Even if the policies pursue a legitimate business purpose, Court doctrine allows plaintiffs to demonstrate the availability of a less discriminatory method of achieving the valid goal.
Decisions by the Rehnquist Court effectively nullified the impact standard, but in 1991, Congress made that rule an explicit part of federal law by amending the civil rights legislation. Today, the impact doctrine remains a part of antidiscrimination law -- although it is often extremely difficult to satisfy.
Liberals and progressives have fought to retain the impact standard. In fact, they recently defended the standard during the confirmation hearings of Justice Sonia Sotomayor.
In Ricci v. DeStefano, Sotomayor was part of a 3-judge panel of the Second Circuit that upheld a decision by the New Haven fire department to withdraw a test used to allocate promotions. The test allocated all but one of the promotions to white employees. Experts testified that other testing methods could have produced a less discriminatory result.
The Second Circuit held that New Haven could withdraw the test because it was trying to avoid liability imposed by the disparate impact standard which liberals have fought to retain in federal antidiscrimination law. Conservatives made Ricci a centerpiece of Sotomayor's confirmation hearings, arguing that the ruling showed that she was biased against white plaintiffs. Although the Supreme Court reversed the Second Circuit ruling on predictable 5-4 ideological grounds, liberals and progressives defended the Second Circuit ruling as a reasonable interpretation of Court doctrine.
The same factors that caused liberals and progressives to defend Sotomayor's ruling in Ricci, should lead them to question Harvard's hiring statistics. Even if no particular plaintiff has a discrimination claim against Harvard Law School, statistical patterns of discrimination are meaningful to liberal and progressive politics. Accordingly, it is not unconscionable for liberals and progressives to ask Kagan about her commitment to diversity and to the enforcement of antidiscrimination law. In fact, such a line of inquiry is consistent with liberal and progressive politics and legal theory.
Well meaning liberals have attempted to dismiss Harvard's hiring statistics by arguing that other schools have similar numbers. This is a really bad argument. The fact that other schools have questionable records on race and sex does not excuse Harvard (or Kagan).
Others have pointed out that deans do not dictate hiring; thus, holding Kagan responsible is flawed. I agree that deans do not typically dictate hiring, but they influence the process. Indeed, many of Kagan's supporters praise her for helping to augment ideological diversity on the faculty by extending offers to conservative scholars. If Kagan can take credit for ideological diversity at Harvard, then she can also take blame for the lack of racial and sexual diversity.
Final Point: Consistency
CNN commentator Roland Martin argues that if liberals and progressives want to remain consistent, they should voice concerns regarding Harvard's hiring statistics. I agree.
During the confirmation process for Justice Samuel Alito, several Democrats questioned Alito about his membership in Concerned Alumni of Princeton, a group that opposed the school's efforts to increase enrollment of women and persons of color. Senator Edward Kennedy sought records of the organization, hoping to find information that would link Alito to race and sex discrimination. This effort proved fruitless.
If Democrats believed that Alito's membership in Concerned Alumni of Princeton could shed light on his view of race and sex discrimination, then hiring statistics during Kagan's tenure as Dean of Harvard are even more relevant. Kagan had much more influence on the hiring process at Harvard than Alito had on the admissions process at Princeton.