Measuring Diversity: Law Faculties in 1997 and 2013

Abstract

B. Overrepresented Groups Compared to the U.S. Full-Time Working Population and the General Population Proportional representation is a zero-sum game. If someone is on the bottom, someone else must be on the top. Which groups are the most overrepresented in law teaching? Table 6 shows the forty significantly overrepresented groups in law teaching in absolute and relative terms. At the top of the list are white Democrats, the excess accounting for two-fifths of a faculty (40%). All of the thirty-four most overrepresented groups are white (or predominately white), most are Democratic, and most are either Jewish or nonreligious. If Table 6 were sorted according to a ratio of percentages, (69) all of the twenty-eight most overrepresented groups would be Jewish or nonreligious. Nearly half of these twenty-eight are also white and Democratic. The most overrepresented groups not defined by religion are white male Democrats, white Democrats, male Democrats, Democrats, and white female Democrats. By ratios, the most overrepresented group is white male Jewish Democrats. They are overrepresented by a ratio of nearly 28 to 1. Yet Jews were a traditionally locked-out group. In the 1930s, many law schools had no Jews or had a quota of one or two. (70) If one were serious about proportional representation, then one would wait to hire more white male Jewish Democratic law professors until 97% of them died out or resigned, perhaps taking as long as thirty years. Just to state this possibility shows that the proportional representation notion of diversity, taken seriously, is profoundly anti-Semitic in effect, if not in intent. Thus, the most overrepresented groups tend to be white or mostly white, just as the most underrepresented groups tend to be white or mostly white. The overrepresented groups tend to be Jewish or nonreligious; the underrepresented groups tend to be Republican, Independent, and Christian. One sees the same patterns of overrepresentation in Table 7, comparing law professors to the U.S. non-institutionalized general population ages 30-75. Ranked by percentage differences, the most overrepresented group is white Democrats, followed by Democrats. Ranked by ratios, all of the twenty-eight most overrepresented groups are Jewish or nonreligious. (71) C. The Underrepresented and Overrepresented Groups Compared to Lawyers Evaluations of employment discrimination usually use the pool of qualified eligible workers, not the general population, as the proper comparison group. (72) Although the best comparison might be the makeup of the pool of those lawyers with top credentials over the last 40 years, information about this elite group is unavailable. All we have is information about those minimally qualified--lawyers, judges, and law professors in private or government service. In Tables 8 and 9 I compare the law professor population to the population of private lawyers, public lawyers, judges, and law professors of age 30-75. Current Population Survey data were used for race and gender, but the sample size of lawyers was only 413. (73) Even worse, the 1972-94 General Social Survey had only 129 lawyers aged 30-75. Thus, the estimates for lawyers, particularly their religion and party identification, are limited by the small samples. For this reason, the conclusions that one may legitimately draw from these data are tentative. Yet even by this excessively broad construction of the pool, women and most minorities are either at parity or overrepresented in law teaching. Since on average African Americans receive lower grades in law school, (74) one would expect them to be underrepresented in law teaching compared to the lawyer population, even if there were no discrimination in hiring. Yet the data in Tables 8 and 9 show that most minorities and Democratic women are overrepresented in law teaching compared to lawyers more generally. The most obvious explanation--though not the only one--is that affirmative action is strong enough to overcome discrimination in the hiring decision itself. …