Kagan's Hiring Record At Harvard: Does She Believe In Diversity?

By Big Tent Democrat, Section Supreme Court
Posted on Mon May 03, 2010 at 09:19:00 AM EST
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The most troubling aspect of Elena Kagan's record, in my view, was her hiring record as Dean of Harvard Law School. Guy-Uriel Charles wrote:

One of Kagan's purported qualifications for the Supreme Court is that she is a consensus builder. The chief evidence for that contention is that she broke the hiring logjam at Harvard and made it possible for Harvard to hire conservatives. It might sound absurd to some, but I will accept the point that one of Kagan's chief selling points is that she assured that Harvard did not discriminate ideologically. I am personally gratified that Harvard Law School is not closed to conservative faculty members. I support ideological diversity and would not want to see qualified individuals discriminated against on the basis of ideology.

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 29 new hires, only six were women. So, she hired 23 white men, 5 white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That's a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan's tenure. To believe otherwise is to harbor troubling racist views.

Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I'd like to see the evidence.

(Emphasis supplied.) My thoughts on the flip.

Charles operates from three premises I share. First, affirmative action, even when done to promote the dissemination of views I strongly disagree with, is a good thing. Kagan's affirmative action policy at Harvard to promote the representation of conservatives into the Harvard Law faculty, was, in my view, admirable. Diversity is more than just a euphemism for addressing historic injustices that impact society today. It is a good on its own. The fact that conservatives were given a leg up in hiring practices at Harvard Law during Kagan's tenure is a plus in her resume in my view.

Second, Charles is right that affirmative action for conservatives should not have completely overthrown Harvard's commitment to a diverse faculty in terms of race and gender. Kagan's record on this is inexplicable. It is awful. It raises serious questions about Kagan's actual commitment to diversity.

Third, I completely agree with Charles that there is no "justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups."

Without adequate answers on this question, it will be very difficult for me to support the nomination of Elena Kagan to the SCOTUS.

Speaking for me only

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Kagan's Hiring Record At Harvard: Does She Believe In Diversity? | 17 comments (17 topical)

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A bit of confusion there (5.00 / 2) (#2)
by Cream City on Mon May 03, 2010 at 09:15:06 AM EST

He talks about hiring, and then he talks about tenure. All of almost 30 positions were senior spots, for the tenured level? Doubtful; at least some must have been tenure-track, junior level openings.

Too bad. It seems an open-shut argument -- but when I see opining without homework to understand the topic, I have to question whether the opiner has done the digging to be entirely trusted. This is not rocket science, as so many seem to think about the ways of academe; it's the difference between hiring at the entry level (to be given years to see if they can cut tenure) or upper management, that's all.

So let us hope that there is more info on this to weigh the record of Kagan's actions . . . which could be contrary to what she may or may not, of course, "believe."

Yes, I found Professor Charles (5.00 / 1) (#3)
by KeysDan on Mon May 03, 2010 at 10:54:58 AM EST

comments somewhat unclear as well. As a professor at Duke Law, and formerly, U of MN Law, I am assuming that by his statement "not qualify for tenure", he meant tenure or tenure eligible. I noted in a news release on the hiring of Michael Klarman to the faculty in Jan 2008, Harvard Law had a FT faculty of 94, and 22 tenured or tenure-track faculty were hired in the past five years (Ms. Kagan assumed the deanship in 2003). Mr. Charles wonderment on Ms.Kagan's rather thin scholarly record, having been a full professor at both University of Chicago Law and Harvard Law is one I share. Although, it does seem that as Dean, Ms. Kagan made a number of improvements, including reducing the enrollment, improving the student environment (free coffee), changing the first year curriculum, successful fund raising, and, of course, the great time and energy in recruiting for and securing such a large percentage increase in faculty in a relatively short time period. Now, if she just was more sensitive to diversity, other than the ideological variety.


: Yes, I had the charitable thought (5.00 / 1) (#13)
by Cream City on Mon May 03, 2010 at 10:30:54 PM EST

that he might have meant likely to get tenure.
But that still would be imprecise -- and when implying something so serious as this about a possibility for the high court, we ought to be able to expect precision. It would have taken only a few more words, and it's a blog, right? So it's not a case of costing more by the word or wasting trees.
I am glad that you agree that it was not well-put; I don't like to appear to be pedantic, but this is a very serious implication and a nomination so crucial to the future of this country.

CC (5.00 / 1) (#4)
by CoralGables on Mon May 03, 2010 at 11:03:15 AM EST

I have to say I'm impressed with your informed and open-minded approach even when the opinion piece is taking shots at someone for apparently not giving women equal footing in the application process. I too saw holes in the perceived facts in the original opinion piece.

Your statement, "but when I see opining without homework to understand the topic, I have to question whether the opiner has done the digging to be entirely trusted", is on target. To be more accurate, perhaps the author could have compared the hiring practices of those prior to and after Kagan to shed more light on her Harvard record.


Absolutely (5.00 / 1) (#5)
by gyrfalcon on Mon May 03, 2010 at 12:14:13 PM EST

I'd also like more background on the immediate history of Harvard Law faculty composition and internal tensions pre-Kagan.

And I'd also like to know who precisely does the hiring of faculty. I don't know how it works with the law school, but in the faculty of arts and sciences, the deans have little to nothing to do with it. They may advise and suggest, but usually don't unless the department asks for advice, which they rarely do. ("Every tub on its own bottom" is the saying there.) The president of the university gets to approve all new department hires, and only rarely (and with a huge attendant uproar) disapproves the department's choice.

Perhaps it is different at the law school and the dean makes all those decisions unilaterally, but I'd be surprised if that were the case.

I do know that the Harvard Law faculty has been split into very hostile opposing liberal and conservative camps for quite some time, and I'd like to know what led up to the decision, made by whom exactly, that they should go on a conservative hiring binge.

Lastly, one has to be careful about making assumptions about the way things are done at Harvard. There are many things that Harvard does or doesn't do that are quite different from other universities-- not requiring an extensive publication record, at least for FAS faculty, being one of them.


Good point (5.00 / 1) (#7)
by nyrias on Mon May 03, 2010 at 12:54:33 PM EST

In general, faculty hiring (or industrial research lab hiring) uses a team of recruiters. Essentially the candidate talks to many other faculty in the dept after giving a "job talk".

And usually decisions are made in a committee. I am sure the dean would have a lot of say/influence but i doubt he/she would have the sole say.


Yes, Harvard seems to do things (5.00 / 1) (#8)
by KeysDan on Mon May 03, 2010 at 01:23:53 PM EST

differently, things that would be considered curious, if it were not Harvard. The role of the University president during the tenure of Larry Summers comes to mind, especially in what became the "Cornell West" controversy. In this case, the president, himself, questioned the seriousness of West's scholarship and the role of African American studies. It would be unusual for most university presidents to enter into this type of discussion; more likely it would be a department/division chair (if the unit was organized into departments or divisions) or the dean The chief academic officer (e.g. provost/vp academic affairs) might be a possibility, but that too, would be rare. However, this is not to say that there would not be influence or even directives from the central administration. President Summers, when hiring Elena Kagan as dean of law, let his interest be known in further development of the school, and was thought by some faculty to have a hand in hiring as well as tenure decisions. During the Summers/faculty discord that resulted in Summers resignation, FAS and many of the law faculty were not in Summers fan club.


: It was extraordinarly (none / 0) (#15)
by gyrfalcon on Tue May 04, 2010 at 12:59:38 AM EST

unusual at Harvard for the president to do something like that. I think "unheard of" wouldn't be too strong. The way Harvard governance is set up, the FAS faculty effectively runs the place. OTOH, Cornel was, honestly, being a pain in the a**. Summers, unfortunately, doesn't come close to possessing the diplomacy and subtlety to deal with the kind of prima donna problem Cornel was presenting.
Which is actually kind of odd, since Summers came up through the Harvard faculty himself and would have been well aware of the sensitivities.

CG (none / 0) (#12)
by Cream City on Mon May 03, 2010 at 10:26:38 PM EST

-- thanks for that thoughtful response. Yes, I try not to be knee-jerk about hiring of women, as I certainly have seen enough bad hires of both genders, and what we don't need is hires who are bound to be failures.

Plus, I would fault no woman for not wanting to be on the Harvard faculty, ever since I read Death in a Tenured Position -- and since being told by those in the know that it wasn't that fictional!


It really varies a lot (none / 0) (#16)
by gyrfalcon on Tue May 04, 2010 at 01:06:24 AM EST

from dept. to dept. Some are incredibly hostile to women, many are not at all.

Here's where I come from on this. Many, many years ago, my late father, a dept. chairman at Harvard, personally recruited, then pushed for and got the hiring in his small dept. of the very first tenured woman professor who wasn't in the one endowed Harvard chair reserved for a woman. Good old Harvard prefers to forget that it took my dad's small, basically obscure department to achieve this milestone. But he/they did. I think he was prouder of that than almost anything he'd ever done. And she proved to be a dynamite scholar and professor, too.


Ah, then you know (none / 0) (#17)
by Cream City on Tue May 04, 2010 at 01:32:18 AM EST

the relief when we make a good hire -- and the grief when we do not, having to turn down someone for tenure. For every happy decision that your father could celebrate, he undoubtedly had those agonizing sleepless nights as well.

Bless him for both -- but even more so for the tougher ones, the tenure turndowns (as he would be one who would have done so for the right reasons; d*mn to h*ll all those who have done so for the wrong ones).

I'm heading to one of those most difficult meetings . . . but gosh, that's why we get the big bucks. Not. Not in the humanities!


: Liberal arts salaries (none / 0) (#18)
by Raskolnikov on Tue May 04, 2010 at 04:25:12 AM EST

I just looked up the stats for the University of Iowa...you aren't kidding! I was completely surprised to be honest, growing up I assumed that starting professors had 6-figure salaries and thats a pretty common misconception shared by a lot of people I know, except my post-grad friends of course!

SC Judge Sotomayer is a Progressive (5.00 / 2) (#10)
by squeaky on Mon May 03, 2010 at 01:54:15 PM EST

Kagan has not been nominated, nor is she necessarily a bad choice, despite this recent charge by Guy-Uriel Charles.

What is predictable, though, are your comments regarding anything Obama.

the bell curve (1.00 / 2) (#11)
by diogenes on Mon May 03, 2010 at 05:19:31 PM EST

How about releasing the LSAT scores of the Harvard class by race? I think that the Obamas' board scores are still unknown. Perhaps, on the outer edges of the bell curve where the elite tenured professors at the most elite law school in the nation is, the bell curve does matter. After all, no one thinks that the NBA all-star team deliberately discriminates against American-born whites, but the numbers looks as bad there as the Harvard numbers look.
By the way, are Cuban-Americans counted as Latinos for these purposes? Just wondering.

Of course she was practicing diversity (none / 0) (#1)
by scribe on Mon May 03, 2010 at 08:59:44 AM EST

Since only white males can truly be considered conservatives, to open Harvard to conservatives she was forced to pick white males over equally qualified people of other color, gender or ethnicity.

And don't go on about the Clarence Thomases and Ann Counters of the world not being white males; they're honorary white males b/c of their yeoman work in furthering conservatism. The folks who'd be selected for a faculty position are relatively junior and haven't yet made their bones to the degree the Clarences and Anns have, so the selection committee needs to save the honorary white male conservative places for someone else to fill, and just put young white men into the faculty slots at Harvard.

How does she .. (none / 0) (#6)
by nyrias on Mon May 03, 2010 at 12:52:27 PM EST

compared to the hiring records of OTHER law schools?

: A good question (none / 0) (#14)
by Cream City on Tue May 04, 2010 at 12:57:40 AM EST

but it's too late, I'm too tired, to wade through a statistical report on recent law school hiring that came right up when I googled. (I was hope for a quick stat but got a loooooong report instead.)
This also came up, a bibliography on the topic that suggests that hiring of women still may be a problem in law schools, despite their soaring numbers as students.
Btw, the larger question then would be how is the hiring of women in professional schools in general. Recent stats I've seen suggest that, were it not for liberal arts hiring, campuses still would look awful on this, overall -- and that the situation may be getting worse. But that would not surprise me a bit, after what I've seen in this country at large, all too recently.