Diversity in Law School Faculties

WHEN Prof. Derrick Bell announced his intention to resign from the Harvard Law School faculty until a black woman is offered a tenured position, his action came against the backdrop of a long history of a struggle for racial and gender diversification. Yet the public discussion has reframed the issue from one of Harvard's rejecting specific qualified candidates to one of Professor Bell's purportedly pursuing an abstract biological presence. I would like to couch the debate in the following terms: 1.Assuming that this is indeed only about ``black women'' in some universal sense, then Harvard has described their absence in extremely exclusionary terms. There are, according to Associate Dean Louis Kaplow, no qualified black female candidates to be found. I simply don't believe that. And if one believes that there are willing and qualified candidates - including scores of outstanding graduates of Harvard itself - the issue is reoriented from one of gender or racial qualification to one of institutional resistance.

2.Some in the debate have advanced the premise that blacks only want to learn from blacks. But the point is not that whites can't teach blacks, or that a black woman, for example, couldn't teach about the Holocaust sensitively - as I try to do in classes addressing the jurisprudence of apartheid. But it would suggest a certain institutional skewing if only black women controlled the major informational sources about the Holocaust. Similarly, if rape occurs mostly to women , it seems peculiar to reserve control over the standards for remediation exclusively in men.

This is not to say that all women, or blacks, or men see the world in the same way. But it would appear cooptive, even repressive, of the voices of those most intimately involved in a given discussion if the consistent arbiters were those whose interest in it was explicitly abstract - in fact, who vaunted the abstraction of their interest as a kind of ``objectivity.''

3.The sexism and racism that is endemic on college campuses these days is not limited to students; it comes from faculty too. Consider a law-exam question on the implications for Kunta Kinte's master when the slave-catchers cut off his foot? Is it really a ``failure of excellence'' when a black student can't concentrate on such an exam? What does it mean if we routinely conclude that the student who becomes disaffected by such learning conditions just ``can't think like a lawyer''? (This exam was actually given at a top American law school recently. I have found similarly racist and sexist hypotheticals given at most of the highest ranked schools in the US.)

The implications of this go well beyond whether black students have teachers who respect them. Legal education itself has become divorced from the realities of everyday life in a multicultural society. Constitutional law is frequently taught with no mention of slavery or of the civil rights movement. Corporations and corporate tax are usually required courses; yet courses on individual income tax, education law, environmental law, entitlement policies - law that affects not just minorities or the poor, but white middle-class citizens - are optional (and virtually sneered at). Consumer law is not taught at most American law schools, nor is immigration law. Law school curricula do not reflect the needs of the vast numbers of consumers of legal services - or even much of the law.

4.The quest for inclusion by minorities, women, gays and lesbians, the disabled and economically disadvantaged is not an attempt to exclude or deprive white males. The quotas that were used to exclude Jews and now Asians are not the same as those designed to include blacks, Hispanics, and certain other groups. In fact, it is precisely the same history of institutional resistance that led Jews to protest admission ceilings that leads most blacks to defend affirmative goals for their minimal inclusion. The redescription of affirmative action programs as ``quotas'' has had the disastrous consequence of confusing histories and of pitting against one another groups whose experiences should make them aligned.

The demand for a black woman professor at Harvard Law School is not an attempt to substitute an ideology controlled by ``white men'' with one controlled by ``black women'' - or whomever. The real issue is precisely the canonized stasis of any one group's control, particularly in a field like law which is nothing less than the science of social ordering. The law is no more neutral than it is blind. Justice is a continual balancing of competing visions, plural viewpoints, shifting histories, interests, and allegiances. To acknowledge that level of complexity is to require, to seek, and to value a multiplicity of knowledge systems, in pursuit of a more complete sense of the world in which we all live.