Age Discrimination in Law School Hiring

[Sisk, Gregory C.]

At the University of St. Thomas School of Law, our entry-level, tenure-track
faculty have been quite diverse in terms of age upon entry into teaching.
Of our four most recent entry-level, tenure-track faculty members, one was
age 57 and another was age 44 when they joined our faculty - and we're
delighted to have them both (as well of course as those who have joined us
in their 30's).

 

Knowing as I do of several other folks teaching in law schools around the
country who didn't fit the classic mold of a clerkship and just a couple of
years of practice before going right into teaching, I wouldn't be surprised
to learn that the comparison with the actual pool of faculty candidates (the
overwhelming majority of whom are under age 40) with hiring results is not
significantly disparate.  But then I too am speculating here.  If there is
any disparity, one would have to further investigate the nature of the pool
and control for individual qualifications as well as figure out how to
factor in a measurement of a candidate's prospects for serious scholarly
productivity, as anyone who has served on a faculty hiring committee knows
that any advertisement for an open faculty position will elicit a slew of
applications by older practicing lawyers in the immediate geographic area
who often quite candidly state that they'd like to "retire into
teaching"-which of course is not the attitude for which any school searches
to fill an open position.  Of course, as confirmed by our hiring, and not
merely considering, serious and qualified faculty candidates of
non-traditional age, there are many excellent candidates above the age of
40.  But every candidate has to be evaluated on individual characteristics,
which makes gathering relevant statistics that describe the whole here a
difficult empirical exercise.

 

Of course, beyond our own situation here at St. Thomas, of which I obviously
have personal knowledge and which cuts against any suggestion of age
discrimination, I admit again that I am simply speculating just like the
other posters.  I certainly leave open the possibility that a true problem
of unfair discounting of older candidates does exist in some quarters.  Even
so, attacking that problem through litigation would be very difficult, it
seems to me.  The typical age discrimination case, indeed the typical
employment discrimination case of any kind, involves a setting in which a
small number of candidates-more often current employees seeking promotion or
being considered for downsizing than a pool of applicants seeking to be
hired-are competing for a particular position.  Moreover, in the context of
age discrimination, successful cases usually involve such factors as
statements by employers indicating preference for younger employees,
evidence that pension or medical expenses for older employees was a factor
in the decision, or at least a pattern of disparity by the particular
employer in selecting specific younger over specific old candidates, or
other indicia that age is involved (such as indications that pension
expenses were considered).  The strongest age discrimination cases are those
in which an older employee is displaced by a younger employee, which bears
no analogy to the faculty hiring situation.  By contrast, the law school
hiring process involves literally thousands of candidates for hundreds of
positions each year, each position which in turn is defined by multiple
factors of curricular need, demonstrated scholarly potential, etc., as well
as desires to advance reputation by hiring well-credentialed faculty.  The
AALS itself would not be an appropriate defendant in a lawsuit, as it is not
an employer in this context but merely creates the venue for others to seek
candidates.  Nor would a suit against law schools collectively make any
sense, not only because there is no such collective entity that can sue and
be sued, but also because the proof of discrimination must be established
individually.  After all, some institutions-mine, for instance, based on the
information I set out in the first paragraph-obviously have embraced the
hiring of older persons into faculty positions.  Thus, the case would have
to be made on the basis of alleged discrimination by an individual, named
law school for a particular position.  Not an impossible burden, but
certainly a difficult one.

 

Gregory Sisk

Professor of Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcsisk at stthomas.edu

http://personal2.stthomas.edu/GCSISK/sisk.html
<http://personal2.stthomas.edu/GCSISK/sisk.html> 

  _____  

From: Margo Schlanger [mailto:mschlanger at wulaw.wustl.edu] 
Sent: Sunday, October 15, 2006 10:24 AM
To: XGreencard at aol.com; conlawprof at lists.ucla.edu
Subject: RE: Age Discrimination in Law School Hiring

 

I have no idea of the answer to this question, generally, but I don't think
it's unheard of.  For example, Stephen Schwarcz, at Duke, started teaching
there in 1996, after practicing law for 22 years.  Jeff Lipshaw did a visit
last year at Wake Forest, having gotten his JD in 1979; I think he's working
at Tulane on a regular appointment, now.  I've come across other examples,
though none is leaping to mind this instant.  Which is not to say that it's
common.  

 

________________________

Margo Schlanger

Professor of Law

Washington University in St. Louis, School of Law

One Brookings Drive, CB 1120

St. Louis, MO  63130

(314) 935-8242

mschlanger at wulaw.wustl.edu

webpage: http://schlanger.wustl.edu

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of XGreencard at aol.com
Sent: Sunday, October 15, 2006 7:52 AM
To: stevenjamar at gmail.com; conlawprof at lists.ucla.edu
Subject: Re: Age Discrimination in Law School Hiring

 

I think the issue is when one looks at the hiring statistics, how many law
schools can show they have ANY entry level hires for persons over 40? Would
be interested in hearing from anybody out there if their school has hired
such a person in the last 5 years?

 

Potential Plaintiff

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