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Why Law Schools Can't Tell the Truth About Diversity-Based Hiring

June 1, 2012 3:21 PM

Hans Bader

Elizabeth Warren's campaign claimed she was 1/32 Cherokee, although the documentary evidence cited for this claim turned out to be non-existent. Ironically, Warren is descended from a militiaman who helped round up the Cherokee in the notorious trail of tears, in which perhaps 1/3 of the Cherokee died in one of the most infamous episodes of ethnic cleansing in American history. People on the law-school hiring committees that selected Warren unsurprisingly claim they didn't take her race into account, only her qualifications. But they would say that even if it weren't true.

Like the character in Casablanca who claimed to be shocked to find gambling in a casino, race-conscious hiring officials invariably claim they didn't consider race when they hired a particular colleague. It's legally risky to admit discriminating. It also devalues the credentials of the beneficiary of the discrimination. Admitting you hired a colleague based on her race would be viewed as rude, insulting, and stigmatizing. But for some reason, many journalists and bloggers are taking at face value claims by a couple members of law school hiring committees that law professor Elizabeth Warren's purported Native American ancestry played no role in their decision to hire her.

After earlier denying that she ever claimed to be Native American in professional circles, Warren has now admitted doing so, supposedly just to "make friends," a claim that a law professor at Cornell says doesn't "add up." Warren's only basis for claiming to be Native American was a great-great-great grandmother, which would have made her at most 1/32 Native American (assuming that ancestor had been a full-blooded Indian). Claiming Native American ancestry based on such a thin reed is absurd. I have reviewed thousands of college applications and admissions decisions, and never saw a candidate get a plus in admissions based on so little Native American ancestry, especially one with Warren's lack of cultural ties to any tribe (unless you count her bogus "Native-American" crab recipes that were apparently plagiarized from a French restaurant in Manhattan). Moreover, the press routinely characterizes people with far more non-white ancestry than Warren as white.

Warren did not "tell the truth," says the University of Virginia political analyst Larry Sabato "It's pretty obvious she was using (the minority listing) for career advancement." Paul Bedard of the Washington Examiner has argued that Warren's race was likely a factor in her hiring at Harvard, since no one with her non-prestigious alma mater in fact ended up at a place like Harvard. Harvard Law School was under heavy pressure to hire women and minorities at the time that Warren was hired, as I described earlier. As law professor Ann Althouse observes, "Harvard was under a lot of pressure at that time to do something about the lack of racial diversity on the faculty, and I'm skeptical of the claim that Warren's minority status never came up during the hiring process."

While a few members of these hiring committees may not have taken her purported race into account, most probably did, given the pervasive presence of affirmative action in law school hiring (as I noted earlier, one law school had large preferences for Native American applicants), and the demand by law school accreditors that law schools engage in affirmative action. But if they are smart, hiring committee members won't publicly admit it, because of the legally unsettled nature of how much you can use race in hiring to promote "diversity." Unlike using race in admissions (which the Supreme Court has blessed, to a certain extent, in its University of Michigan decisions, which upheld a law school's affirmative action policy, but struck down the undergraduate affirmative action policy at the very same university for using race too heavily), using race in hiring to promote diversity is still a legal gray area. Civil-rights agencies favor using race, and the American Bar Association pressures schools to use race, but two federal appeals courts have rejected it.

At the same time, however, if school officials publicly admit they used race in hiring, that could trigger a reverse discrimination lawsuit by whites. A school board that used race as a tie-breaker in layoffs, resulting in the layoff of a white teacher,was found guilty of racial discrimination in Taxman v. Board of Education of Piscataway Township, 91 F.3d 1547 (3d Cir. 1996). For people involved in law school hiring to admit Elizabeth Warren's race was a factor in her hiring could expose them to liability for reverse discrimination (including personal liability, under 42 U.S.C. 1981, which allows not just institutions, but individual college decision makers to be held liable for damages, and which my former employer, the Center for Individual Rights, once used to sue individual school officials for reverse discrimination.

Sad to say, the safest path for some college hiring committee members in liberal areas of the country is to consider race in hiring, but lie about it. Using race appeases liberal civil-rights bureaucrats and law-school accreditors, but not admitting it effectively prevents lawsuits by critics of affirmative action like the Center for Individual Rights (CIR), which lack the resources to sue over anything but the most blatant and obvious forms of reverse discrimination. Although there are many civil-rights agencies and liberal interest groups that favor affirmative action, there are only a small number of entities like CIR that sue over affirmative action

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.