How do you add diversity?

[saskganesh]

Malthus, no one is forced to hire an affirmative-actioned trained lawyer. People will hire the best lawyer they can afford.

[Malthus]

Malthus, no one is forced to hire an affirmative-actioned trained lawyer. People will hire the best lawyer they can afford.

The issue, as is usually the case with these things, is dilution of the school brand.

The reason people wish to get into a particular school or law review within a school is that it is perceived to be an honour. That honour has practical implications: it advantages the person receiving it.

The next step is that people, seeing this bright shiny brass ring, declare it is a pity that everyone earning it is lilly-white heteronorms or whatever. They agitate for it to me made "more inclusive" - meaning that those with lesser qualifications and abilities be allowed to grasp that shiny brass ring and obtain its benefits, because those who already grasp it are only in a position to do so because of privileges they haven't earned.

Thing is, the more you allow people of lesser qualifications to grasp the brass ring, the less that ring is worth; it only has "worth' in the first place because people allowed to grasp it have proven, in objective manner, to have a greater potential to be good lawyers (or docs or whatever). The brass ring is tarnished and something else becomes the new "brass ring", only to face the same pressures to be "inclusive" as before.

[Caliga]

And so forth...boy did she love to say the word 'Centre'.  And she wasn't even on the bench cheerleading...she was actually playing on the court while she was doing this.

It's got a rep as a bit of a snob school, but I've been there and it has a beautiful campus (reminds me of Harvard Yard actually).

[Oexmelin]

people allowed to grasp it have proven, in objective manner, to have a greater potential to be good lawyers (or docs or whatever).

That is one of the usual contentious issue. When do objective manners and conformism merge ? Boards who select have a tendency to pick their own, or to pick, what, in their minds, constitute the best answer. Boards without diversity will have a harder time being confronted with differing viewpoints.

The other is on what grounds any sort of selection is made, and if these grounds actually produce what their aim is. In other words, many people can get into med school without any sort of social skill because they were good at high school physics. Does that make a better doctor than one who did slightly less because of all sorts of real life commitments ?

A last one would be about chance to shine, i.e.: a student without any real-life commitment can spend hours polishing a bland assignment whereas a student who needs to work / raise a kid / etc. can have a much more complex worldview - or ultimately be a best whatever - without the time to produce a neat paper. This is especially relevant in the case of scholarships.

Tests and selections are tools to help us cut through entanglements, but they are only tools, not ends.

[Valmy]

It's got a rep as a bit of a snob school, but I've been there and it has a beautiful campus (reminds me of Harvard Yard actually).

Well we were the conference of snobby southern schools.

Oglethorpe
DePauw
Centre
Rhodes
Sewanee
Trinity
Hendrix
Millsaps
Southwestern

[Malthus]

people allowed to grasp it have proven, in objective manner, to have a greater potential to be good lawyers (or docs or whatever).

That is one of the usual contentious issue. When do objective manners and conformism merge ? Boards who select have a tendency to pick their own, or to pick, what, in their minds, constitute the best answer. Boards without diversity will have a harder time being confronted with differing viewpoints.

The other is on what grounds any sort of selection is made, and if these grounds actually produce what their aim is. In other words, many people can get into med school without any sort of social skill because they were good at high school physics. Does that make a better doctor than one who did slightly less because of all sorts of real life commitments ?

A last one would be about chance to shine, i.e.: a student without any real-life commitment can spend hours polishing a bland assignment whereas a student who needs to work / raise a kid / etc. can have a much more complex worldview - or ultimately be a best whatever - without the time to produce a neat paper. This is especially relevant in the case of scholarships.

Tests and selections are tools to help us cut through entanglements, but they are only tools, not ends.

Then reverse the issue and see what happens when one deliberately discriminates *against* a minority group, by making the "brass ring" of school admission harder for them to grasp because they need higher marks and better qualifications.

I don't have to run this particular experiment - it was already done, here in Ontario. Prior to the late '50s, if you were a Jew in Ontario you needed "straight firsts" - basically, all A's - to get into med school, whereas a non-Jew needed far lesser qualifications. Why? Because the assumption was that there were "too many Jew doctors".

The result? Everyone, Jew and non-Jew alike, found that Jewish doctors were in point of fact better than non-Jewish doctors. If you were really sick, you sought out a Jewish doc., because on average it was in your interests to do so - they had been carefully selected for being the most brilliant, and real-world test (i.e. whose patients had a tendancy to survive) confirmed this judgment.

Maybe those straight-A students were all kinds of unbalanced compared to some student who was more brilliant and had a better world-view because of their real-life experience or whatever. Fact is, there is no way of telling about such stuff, and on average those with better marks etc. are more likely to be better even if marking is all bunk. At least it shows that the person can achieve results within some arbitratry system.

When selecting a doc or a lawyer, you really don't care why they get results, you just care about the results. Maybe a lawyer wins cases because he or she is better able to "conform" to the judges or at least to the sometimes arbitrary rules of the court-room. Doesn't matter to the client.

[Oexmelin]

I would still guess that there were much more Jewish doctors coming from upper-middle-class Jewish families than Jewish doctors coming from working-class Jewish families.

As for the rest of your argument, you do not see it as an apology of conservatism ? Faelin's question is then left thus answered: «you do not need diversity because a selection process will always chose the best. If our boards are made up of people with exactly the same background, it is because that background produces the best. ». You think it is a fair assessment of reality ?

It might be all fine and dandy if University and Law, and Medecine were actually *only* about pleasing the courts and the powerful and clients. But it is not only about that - or at least I contend it shouldn't. University, and Law, and Medecine, and sales and whatnot are enriched by people of varying backgrounds, because I don't want universities to produce only people who will squeeze out money for themselves, but who can also be well-rounded individuals and who might, perhaps, out of unconventionnal thinking, bring unexpected but otherwise excellent solutions to problems.

[Malthus]

I would still guess that there were much more Jewish doctors coming from upper-middle-class Jewish families than Jewish doctors coming from working-class Jewish families.

What has that to do with the argument?

As for the rest of your argument, you do not see it as an apology of conservatism ? Faelin's question is then left thus answered: «you do not need diversity because a selection process will always chose the best. If our boards are made up of people with exactly the same background, it is because that background produces the best. ». You think it is a fair assessment of reality ?

I think it is a loaded way of posing the question. The way I see the question is 'an objective system of choosing 'the best' based on marks and tests may be imperfect, but on average it gets results - it produces an outcome in which people, set to a particular task, tend to complete it with distinction. If this is so, is it right to move the goal-posts for members of certain historically disadvantaged groups? Or will this, on the contrary, mean that members of that profession who happen to be from those groups will now face further discrimination out in the workforce in the justified fear that they are not, in fact, equal in quality in completing tasks on average?'

It might be all fine and dandy if University and Law, and Medecine were actually *only* about pleasing the courts and the powerful and clients. But it is not only about that - or at least I contend it shouldn't. University, and Law, and Medecine, and sales and whatnot are enriched by people of varying backgrounds, because I don't want universities to produce only people who will squeeze out money for themselves, but who can also be well-rounded individuals and who might, perhaps, out of unconventionnal thinking, bring unexpected but otherwise excellent solutions to problems.

The law and medicine aren't about "pleasing" anyone, but in general are about getting results. The law in particular is ruthelessly Manichean in this respect - you either win a court case or you do not. 

If being "enriched" by alternative viewpoints and "well-rounded" helps to win cases (and I think it does), people will in self-interest choose such individuals; merely having the best marks isn't enough. Point is, ideally one would want someone who has the best marks and thus attended the best institutions and also is well-rounded etc.   

Certainly lawyers and doctors make contributions beyond the merely professional - contributing pro bono to important constitutional cases, research into new medical techniques, or te like. But very often that is something that the best professionals do; it is not something that one chooses to do rather than sully one's hands with professional work.

The professions are simply different from academia. It may well be the case that in academia actual results are rather subjective and thus it doesn't really matter much how "the best" is defined. In the professions, reality itself winnows "the best" from the rest rather ruthlessly - the surgeon whose patients tend to die, the lawyer who loses all their cases, etc.

[Oexmelin]

What has that to do with the argument?

It is a way of reiterating the fact that not all discrimination - positive or negative - is racially based. Jewish people had all sorts of circumstances (in the 50s...) that other groups might not have had at other times: models, community support, value given to learning, etc.

I think it is a loaded way of posing the question.

Yet I still think it is a legitimate way of adressing the issue. In your world of test-makes-the-best, how do you introduce change ? How do you ensure that people who come from different backgrounds are judged according to their merits, or even that the definition of merit actually changes, rather than being continously reinforced by peers who have little incentive themselves to change the standards that allowed them to succeed in ?

The law and medicine aren't about "pleasing" anyone, but in general are about getting results. The law in particular is ruthelessly Manichean in this respect - you either win a court case or you do not.   

But that's not the only goal of anyone who wants to study at Law (not to mention that I do not suscribe to that über-utilitarian view). That's why I don't get your division between profession and academia. If Law Firms want to discriminate and only hire rich white kids, let them then devise their own «objective» tests. But the University, where those people are trained, should make a point at getting a wider variety of people to tackle on the subject. In any case, this is a continuous process, which you seem to forget. The aim is getting people into a topic, not simply give a single exam out of which people will receive a license to treat or practice. Some people with excellent grades will drop out. Some who did reasonably good during a BA or high school might shine. In any case, these things are never about the stellar student, who will shine regardless. It is - or should be - about either stellar students which can be undervalued due to circumstances or about the solid upper medium.

Anyway, I think you end up caricaturing the choices: in many cases, the differences at the time of admission are never as great between the bottom candidates as to make it an issue of blatant mediocrity, between lawyers who are incompetent fools and doctors who kill off their patients.

Point is, ideally one would want someone who has the best marks and thus attended the best institutions and also is well-rounded etc. 

You do not have a problem that this usually selects strongly people from the upper-middle-class and up?

[Malthus]

It is a way of reiterating the fact that not all discrimination - positive or negative - is racially based. Jewish people had all sorts of circumstances (in the 50s...) that other groups might not have had at other times: models, community support, value given to learning, etc.

Of course not all discrimination is racially biased. Certainly, there is loads of 'unearned privilege' in simply belonging to a community that values education etc.

The point is that there is no particular reason to attempt to balance against "unearned privilege" at the adult level. The 'damage' has already been done - some kids have already grown up with a superior education and better work ethic. Who doesn't want to hire people with a superior education abd a better work ethic?

If you wish to correct for this problem, you must concentrate your efforts at children, not adults; find ways of balancing out the 'unearned privilege' through boosting education, don't attempt to pretend that those who aren't hard workers are, if they are not. Even though it isn't necessarily their fault that they are not.

Yet I still think it is a legitimate way of adressing the issue. In your world of test-makes-the-best, how do you introduce change ? How do you ensure that people who come from different backgrounds are judged according to their merits, or even that the definition of merit actually changes, rather than being continously reinforced by peers who have little incentive themselves to change the standards that allowed them to succeed in ?

The definition of merit will change when people become dissatisfied with the results that they are obtaining. You underestimate the willingness of the professions to embrace change when it is in their own interests. Example: law is now gender-balanced, in spite of the fact that it is the ultimate "good old boys" network. How do you explain that?

But that's not the only goal of anyone who wants to study at Law (not to mention that I do not suscribe to that über-utilitarian view). That's why I don't get your division between profession and academia. If Law Firms want to discriminate and only hire rich white kids, let them then devise their own «objective» tests. But the University, where those people are trained, should make a point at getting a wider variety of people to tackle on the subject. In any case, this is a continuous process, which you seem to forget. The aim is getting people into a topic, not simply give a single exam out of which people will receive a license to treat or practice. Some people with excellent grades will drop out. Some who did reasonably good during a BA or high school might shine. In any case, these things are never about the stellar student, who will shine regardless. It is - or should be - about either stellar students which can be undervalued due to circumstances or about the solid upper medium.

Law firms do not want to "discriminate and hire only rich white kids". Law firms want to discriminate in such a way as to hire hard and flexible workers. But that is beside the point: the fact is that a professional must, above all else, know how to use his or her tools; there are real results at stake no matter what they want to do.

Want to pursue civil rights? Want to save the whales? Want to make a difference, hate the corporate rat race? That's fine: but you won't get anywhere if you aren't any good at using the tools that lawyers must have - the ability to work hard, stay focussed, persuade, reason.

That is exactly the difference between a profession and a purely academic pursuit in the humanities. In the humanities, success is the result of persuading one's peers as to one's value in various ways - publishing, lecturing, research. There is a higher element of the purely subjective. At its worst, academia can be an echo chamber, where success is decided by appropriating the positions of one's established mentors. No wonder that, in academia, "new voices" are such an important consideration.

In law, you are not dealing necessarily with one's peers alone, but with a host of other interests which have real force and power. "Having alternative voices" isn't nearly as significant an issue, because you will get those voices sounding loud and clear whether you like it or not - from you clients, from those whose causes you are esposing, and most of all from those whom you oppose. 

There should be no compromise in determining 'the best' because life will not compromise and resources are limited. If you really care about saving the whales etc. you want the best student to devote themselves to it, not someone allowed in because they got the correct 'idenity marks' for representing the currently fashionable mix of disadvantaged backgrounds.

Moreover, that latter choice is of necessity arbitrary and partial. Who is to say that being born Black is a "worse" obsticle or represents some sort of "missing" perspective, rather than (say) being born to an alcoholic?

Anyway, I think you end up caricaturing the choices: in many cases, the differences at the time of admission are never as great between the bottom candidates as to make it an issue of blatant mediocrity, between lawyers who are incompetent fools and doctors who kill off their patients.

The problem with adding marks (or other forms of making allowances for 'missing' backgrounds or perspectives) is that it characturizes people in exactly the same way as every form of ethnic or class discrimination: it assumes that if someone is Black or whatever that they are lesser, because the average for the category is lesser (the difference is that the racist views this as because of some sort of inherent inferiority and the non-racist because of systemic discrimination or cultural factors). The man beneficiaries are, of course, not those most impacted by real racial or ethnic discrimination (or victims of a culture which de-emphasizes education and hard work), because such people are only rarely in a position to apply to an elite law school. It of necessity benefits most those who have not suffered from such discrimination, but rather are from solid middle-class backgrounds. 

You do not have a problem that this usually selects strongly people from the upper-middle-class and up?

Not really; all proposals for 'benefiting' those from 'disadvantaged backgrounds' tend, in the natural order of things, to benefit those from such backgrounds anyway.

If one really wants to help people who are disadvantaged, the best way is to boost early childhood education.

[Faeelin]

Incidentally, the Review is having a meeting on the following tomorrow:

Also, importantly, the editorial board is voting for a 'blind review' policy on Friday.  This is a really controversial proposal that the law review has been struggling with for a couple of years. On the one hand, it seems to make sense that we not favor famous individuals ala Posner (sr.) and Epstein. On the other hand, the articles department (in particular, this thing I just found out existed called the Articles Diversity Working Group) has been trying to address something that they realized, which is that the books before theirs featured surprisingly few authors who were women or people of color.  To the extent that the LR bylaws commit us to having a diverse staff, is there some level on which we are committed to publishing a diversity of scholarship? Though, anticipating counterargument, perhaps we should just focus on diversity of SCHOLARSHIP, and focus on making sure we publish articles in non-traditional fields, which is perfectly possible with a blind review policy. Anyway, this is clearly a complex issue - but it's something we should acknowledge is happening and perhaps participate in.

I've been told by a 3L not to go, as there will be enormous drama, but I kind of want to go. Can I steal your argument Malthus?

[Malthus]

Incidentally, the Review is having a meeting on the following tomorrow:

Also, importantly, the editorial board is voting for a 'blind review' policy on Friday.  This is a really controversial proposal that the law review has been struggling with for a couple of years. On the one hand, it seems to make sense that we not favor famous individuals ala Posner (sr.) and Epstein. On the other hand, the articles department (in particular, this thing I just found out existed called the Articles Diversity Working Group) has been trying to address something that they realized, which is that the books before theirs featured surprisingly few authors who were women or people of color.  To the extent that the LR bylaws commit us to having a diverse staff, is there some level on which we are committed to publishing a diversity of scholarship? Though, anticipating counterargument, perhaps we should just focus on diversity of SCHOLARSHIP, and focus on making sure we publish articles in non-traditional fields, which is perfectly possible with a blind review policy. Anyway, this is clearly a complex issue - but it's something we should acknowledge is happening and perhaps participate in.

I've been told by a 3L not to go, as there will be enormous drama, but I kind of want to go. Can I steal your argument Malthus?

You can - just be prepared to get slapped around a lot. 

Of course, that's good prep for being a lawyer.

By "blind review", do they mean that the reviewers do not know the identity of the authors of the articles, and the "problem' being that when the authours' identities are hidden most articles chosen for review are by white men? I got that impression but I may be totally wrong.

[Faeelin]

Yes, that is the concern. My problem is that I don't see the concern; law review articles are written by professors, so why should we be patronizing black professors over their colleagues? Rewarding diverse scholarship is one thing, and IMO that's hindered by not having blind review.

[Slargos]

Beautifully done, as usual, Malty. 

"Positive" discrimination is a fallacy from beginning to end.

[Malthus]

Yes, that is the concern. My problem is that I don't see the concern; law review articles are written by professors, so why should we be patronizing black professors over their colleagues? Rewarding diverse scholarship is one thing, and IMO that's hindered by not having blind review.

Obviously, Black Law School Professors are severely disadvantaged folks. 

Seriously though - this is a perfect example of the issue. The real issue (if there is one) is that there are (possibly) fewer Black Professors than statistically warranted (if that's the case). The "solution" to the shortage of great papers written by Black Professors, ones that would be chosen in a blind review process, isn't to break the blind review process or even to choose "unconventional' scholarship (often a code-word for fields of legal scholarship dominated by minorities but of scant interest to anyone else), but to hire more Black Professors.

Which of course only defers the problem to a new level, as the solution to the lack of Black candidates for professorship is not to break 'colourblind' hiring policies, but to have more Black law students ... and so on, until we get to the root of the actual problem: lack of a good basic education for large sections of the Black population.