Article by Stephanie M. Wildman
Judge John Minor Wisdom has been described as a champion of the “complete disestablishment of segregation.” As the author of many leading desegregation decisions in the 1960s, Judge Wisdom recognized the harm of segregation, which he described as “denial of access to the dominant culture, lack of opportunity in any meaningful way to participate in political and other public activities, and the stigma of apartheid condemned in the Thirteenth Amendment.” Another serious harm of segregation is the denial to the dominant culture of access to the insights of the segregated culture. Judge Wisdom's recognition of the harmful effects of segregation fueled his sense of justice in enforcing the constitutional mandate of desegregation.
Commentators have agreed that his role in the battle for integration in the ' 60s was of pivotal importance. And thus it is appropriate as a tribute to this influential desegregationist judge to look at integration in the '80s and the ways in which the problems of denial of access, lack of opportunity, and stigma have continued to surface as the struggle to achieve integration has continued on new battlefronts with a different vocabulary.
One place, close to home, in which the dream of integration has not been fulfilled is within the cloister of legal academia. This Article singles out legal education as an illustration of the dream of integration and the cycle of exclusion. A description of the issues, as they arise in legal academia, both provides an example that many lawyers, judges, and professors know well and portrays the complexity of the exclusionary dynamic. Judge Wisdom has recognized the importance of faculty integration to achieving student desegregation within formerly segregated Southern schools. The necessity for faculty integration at the law school level to assist in achieving integration of the legal profession is no less compelling.
Nondiscrimination is the law and a goal upon which all agree in theory. This Article examines some of the obstacles to achieving that goal of nondiscrimination, using the example of law faculty hiring. Antidiscrimination law requires “victims” who file charges against “perpetrators.” Yet the collegial etiquette of the academy (and of many other societal institutions) requires that accusations of discrimination not be made. Even if they are made, the deliberations leading to appointments and tenure decisions are cloaked in the secrecy of academic freedom and collegial communications.
While protecting academic freedom is important, the discrimination plaintiff, who is faced with law and cases that require her to articulate who said what, when, and for what purpose, must pierce the protective veil or lose her case. Even with access to otherwise confidential files, the discrimination plaintiff may not be able to document the group dynamics that resulted in the tenuring or hiring decision. Group dynamics, which are rarely articulated in written form, are hard to capture and to articulate at the conscious level required for litigation. Yet these group interrelations operate as a sub-text to any faculty hiring or tenure decision.
Integrating the academy by lawsuits may be not only difficult, but also not as effective as less litigious approaches through voluntary action. Association of American Law Schools (AALS) President Herma Hill Kay recently reminded law school professors that “[t]hree AALS Presidents—Susan Westerberg Prager, Victor G. Rosenblum, and Richard Huber—have stressed the importance and value to legal education of a commitment to achieving diversity among the faculty.” Kay's article sought to continue past efforts to legitimate faculty diversity, describing the faltering progress of legal academia to recruit and retain professors who are people of color, women, gay, or lesbian.
Noting that members of these groups have suffered from a long history of exclusion and are entering a profession that has been “traditionally dominated by white men,” Kay concluded that “those who have been the insiders must be sensitive to their unspoken assumptions about the newcomers. A commitment to diversity cannot succeed without the willingness to hear, understand, and accept their different voices.” Acknowledging that acceptance will not be easy, Kay reminded faculty that diversity will bring “intellectual richness” to legal education.
Kay's point that faculty diversity enhances the educational institution is important. Many view the goal of affirmative action, or of diversity, as it is now often called to avoid the stigma associated with the term affirmative action, as one of aesthetic balance—we all need a person of color, a woman, a gay, or lesbian colleague, lest we look bad. But much more is at stake here than appearances or even our view of ourselves as nonracist, nonsexist, and nonhomophobic.
Affirmative action is not now in vogue, if it ever was, even though without individuals and institutions acting affirmatively, the status quo of segregation will remain. Given the history of exclusion of women, people of color, gays, and lesbians to which Kay refers, affirmative action is required to overcome the effects of that exclusion. Proponents of equality must reclaim and relegitimate the notion of acting affirmatively to achieve “a society where no one's social fate is determined by race, sex, class, or other morally irrelevant factors.”
The reality of American democracy and the institutions within it is that social privileges are accorded based on race, sex, class, and sexual preference and will continue to be so allocated, unless members of society act affirmatively to change that status quo. Catharine MacKinnon has rather succinctly summarized the majoritarian status quo, in relation to sex discrimination:
In reality . . . virtually every quality that distinguishes men from women is already affirmatively compensated in this society. Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other—their wars and rulerships— defines history, their image defines god, and their genitals define sex. For each of their differences from women, what amounts to an affirmative action plan is in effect, otherwise known as the structure and values of American society.
Unless the legal academy acts affirmatively to ensure our integration with all members of society, the perpetuation of the predominantly white, male, and heterosexual status quo will be guaranteed.
Because hearing the different voices is a prerequisite to understanding or accepting them, this Article seeks to tell the stories about recruiting and retaining faculty members from nonmajority groups as they might really occur. While the incidents described are fictitious, any resemblance to real interaction on law school faculties is quite intentional. This Article uses narrative to illustrate the difficulty of ending the cycle of exclusion and describes the case law that is relevant to the achievement of that goal. The narrative illustrates how far removed the case law is from the daily reality in which the cycle of exclusion occurs.
The obstacles encountered in moving toward diversity on any faculty at any historic point cannot be underestimated. No body of case law on affirmative action can change the group dynamics, institutional and personal, that control these decisions. Nonetheless, law plays an important ideological role in our society, nurturing our aspirations toward justice. These group dynamics are played out in the shadow of the law and what it teaches society about affirmative action. Leadership and guidance from legal decisions could play an important role in emphasizing the importance of achieving diversity, much as Brown v. Board of Education and the John Minor Wisdom desegregation cases which followed it set a tone for working towards integration in the '50s and '60s. However, the Supreme Court affirmative action decisions have not provided that ideological support for affirmative action; rather, they have presented a conflicting message about supporting equal opportunity and ending the cycle of exclusion. The case law affirms the notion of nondiscrimination without providing any guidance about how to achieve that nondiscrimination by acting affirmatively.
About the Author
Stephanie M. Wildman. Professor of Law, University of San Francisco; Visiting Professor, 1989-1990, University of California, Hastings College of the Law. A.B. 1970, J.D. 1973, Stanford University.
Citation
64 Tul. L. Rev. 1625 (1990)