Women hires and affirmative action

[lweinberg]

Dear Gregory,
        If women hires are overrepresented at the moment, very probably that is
because a pressure has arisen to compete in the game of catch-up.  One can
speculate that when the desirable thing to do was to wait it out and hire as
few of 'em as possible, a deficit was built up.  We had to wait till a few
little old men retired, but now we are all trying to make up that deficit.  At
any rate, that may be as good an explanation as any other.  It still lands you
on the "remedial" side of  explanation.  To go back to your point, though, I
wonder whether one should dismiss cumulative experience as "subjective."  Some
of the cases of the 19th century that now seem inexplicable to us are those in
which the Justices seem blind to what, after all, they ought to have seen
subjectively for themselves -- or, as we say, blind to what "everybody knew."
On the other hand, I would raise a question whether submitting the available
statistical evidence to minute scrutiny is equally unproductive.   The article
you rely on discuss is indeed a fine piece of work and very helpful.
Appreciation of the use of available statistics should also extend in the other
political direction, for example to the much-criticized Brown v. Bd of Ed.
Brown, the case we ought to be proudest of, has always been lambasted because
of a statistical argument which was not supported a few years later and then
got supported again a few years later, etc., etc.  The point the Court was
making was valid:  racial segregation was hurting people, however you measured
it.  It sometimes seems to me, on my impatient days, that all the hypercritical
reader of Brown hadto do was to open her eyes to what, in fact, everybody knew.
All best,
Louise

At 09:40 AM 3/2/01 , you wrote:
>
> The discussion about affirmative action is beginning to slide into
> subjectivity and including what I fear are claims that cannot be supported by
> solid evidence (such as the suggestion of a statistically significant
> negative correlation between minority student LSAT scores and success in law
> school; we can argue about whether LSAT scores are a sufficiently reliable
> positive indicator but I'd be stunned to see empirical evidence of a
> statistically significant negative correlation).  The empirical evidence
> cannot resolve the affirmative action debate, but surely that debate cannot
> proceed in blind ignorance about the actual, concrete, empirical reality.
>
> The best source of data and empirical analysis remains the detailed study by
> Professors Deborah Jones Merritt and Barbara F. Reskin, Sex, Race, and
> Credentials:  The Truth About Affirmative Action in Law Faculty Hiring, 97
> Colum. L. Rev. 199 (1997).  Professors Merritt and Reskin are both supporters
> of affirmative action as a remedy against what they perceive obstacles in the
> hiring market and unconscious race bias.  Nonetheless, their carefully
> collected statistics establish that, while white males continued during that
> time period to be a majority of new hires, minorities are hired at rates that
> substantially exceed their percentage of the available pool (that is, people
> with law degrees).
>
> Between 1986 and 1991, new law professor hires consisted of
>
> Women of Color - 7.6%
> Men of Color - 9.0%
> White Women - 30.3%
> White Men - 53.1%
>
> Professors Merritt and Reskin compare the percentage of law graduates who
> were women or minorities in certain graduating years with the percentage of
> new law professor five years later hires who were women or minorities (five
> years being the typical time period between graduation from law school and
> entry into a tenure track position).  They find that women tend to be hired
> onto law faculties at a percentage roughly comparable to their proportion of
> law school graduates, but that minorities are consistently hired onto law
> faculties at about twice the proportion of correlated graduating law school
> classes -- minorities making up between 8.4 and 9.2 percent of law graduates
> during the pertinent years (1981-1985) but then entering onto law school
> faculties in percentages between 12.9 and 21.2 percent of new hires (with
> 12.9 being an outlier, as the percent did not fall below 15.4 in any other
> examined year).
>
> Professors Merritt and Reskin explain:  "Minority professors were
> overrepresented in our population across all five graduating years.  Indeed,
> for the two most recent classes we analyzed, the percentage of minority
> professors in our population more than doubled their representation among law
> school graduates.  As noted above, however, there is substantial evidence
> that minority graduates pursue teaching jobs at higher rates than white
> graduates do.  The relatively high percentages of minority graduates among
> recent law school hires, therefore, may stem from minorities'
> disproportionate interest in teaching jobs."
>
> While it is impossible in this short space to do justice to their study,
> which includes multiple variables and thoughtful statistical analysis,
> Professors Merritt and Reskin offer these conclusions:  "When we analyzed
> institutional prestige as an ordinal variable, white women and men of color
> obtained jobs at significantly more prestigious institutions than did white
> men with comparable credentials.  This result suggests that law schools used
> affirmative action programs to grant modest hiring advantages to white women
> and men of color, preferring them over equally qualified white men.  On the
> other hand, women of color benefited from neither of these preferences; after
> controlling for credentials and other characteristics, minority women fared
> only as well as white men in securing appointments at more prestigious law
> schools.  We also found no evidence that sex or race preferences played a
> distinctive role at the top sixteen law schools; neither sex nor race
> enhanced the likelihood of appointment at one of these elite schools when
> compared with all other institutions.  Taken together, these results suggest
> that sex and race preferences have had relatively limited impact on law
> faculty hiring."
>
> To be sure, any study is subject to interpretation and critique.  I myself
> would suggest their argument that the disproportionate representation of
> minorities on law faculties is explained by a higher interest in law teaching
> may be circular, that is, minorities may have a greater likelihood to apply
> for law teaching positions precisely because they know they have about a 200
> percent greater chance of success due to affirmative action preferences.
> Likewise, one could quibble about the characterization of the affirmative
> action component as modest.
>
> But, however much one may quibble at the margins, or suggest different
> explanations for the numbers, the one conclusion that is foreclosed by the
> study is that minorities are excluded from law faculties or that the rates of
> minorities hires lags behind that for white males.  We can debate affirmative
> action as a policy, we can debate about whether the preferences that exist
> are indeed modest, we can debate about the justification for preferences, we
> can debate about the importance of diversity in faculty makeup.  (I myself
> support affirmative action preferences, on a moderate scale.)  But we cannot
> dispute that those preferences do exist in law faculty hiring without denying
> the truth.
> --
> Gregory Sisk
> Richard M. & Anita Calkins
>   Distinguished Professor
> Drake University Law School
> 2507 University Avenue
> Des Moines, Iowa  50311-4505
> 515-271-4184
> greg.sisk at drake.edu
> http://cartwright.drake.edu/gregory.sisk/sisk.html



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