lware at UDEL.EDU
Thu Mar 8 10:19:12 PST 2001
The problem with law school hiring is that most hiring committees continue to
apply the "traditional" selection criteria to applicants. These
qualifications exclude a disproportionate percentage of minority applicants and
they are not absolute predictors of success of law school teaching. Hiring
committees that rigidly apply these criteria are not only excluding minority
applicants who might become outstanding scholars and teachers; they are
exposing thier institutions to liability under the federal anti- discrimination
laws. In the case of faculty hiring, much of the bias against people of color
operates at an unconscious level. It is hidden by "objective" standards that
are used to denote merit and academic accomplishment. But, these "standards"
are not objective. They are often as much a reflection of an individual's
background and economic status as they are an accurate measure of potential.
Hiring committees may not be awareof the subconscious forces that affect thier
decision-making but these influences are evident in the results of their
Richard Ausness wrote:
> It seems to me that the term "affirmative action" can be used to describe a
> number of different types of race-based or gender-based decisions. Over
> the years, I have seen examples of each type either in the hiring area or
> with respect to student admissions.
> The most controversial form of affirmative action involves the decision to
> hire or admit an explicit number or percentage of the favored group, such
> as women or racial minorities. The decision-makers then select the
> requisite number of candidates from the applicable pool. This is usually
> accompanied by such self-serving expressions as "We need to have another
> African-American [or woman] on the faculty." or "Do you want a lily white
> student body?" The idea is to pick the "most qualified" candidates in the
> pool, but there is no minimum threshold that must be met to get into the
> candidate pool.
> A second type of affirmative action involves applying criteria that are
> lower or different to the favored group of candidates. For example, in the
> case of student admissions, it is not uncommon to accept a lower minimum
> LSAT score for minority applicants than for others. In the case of faculty
> hires, a school may broaden the candidate pool for the favored group by
> considering applicants from less prestigious schools or by ignoring class
> rank, Law Review service, judicial clerkships or some other indicator
> academic or professional accomplishment.
> A third type of affirmative action applies the same criteria to all
> candidates, but involves efforts to affirmatively seek out members of the
> favored group in order to induce them to join the applicant group. Those
> of us who have served on Dean search committees know how necessary it is
> to ensure that women and minorities are represented in the applicant pool
> even though this may require telephone calls or other special efforts that
> are not made in the case of other potential candidates.
> Finally, affirmative action may simply mean taking race, gender or some
> other characteristic into account, along with other factors, when choosing
> from a candidate pool that is solely based on merit.
> People will disagree about the legitimacy of some, or perhaps all, of these
> affirmative action measures, but it would seem that only the first two
> types described above would cause candidates with lower
> objectively-determined qualifications from being preferred over candidates
> with higher qualifications.
> Richard C. Ausness
> Professor of Law
> University of Kentucky
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