The Obama administration is beginning to push back against the accusation by four law professors that Elena Kagan had a discriminatory hiring record while Dean of Harvard Law School.
I highlighted these claims — and the paucity of logic behind them — in my prior post, So Why Am I Already Defending Elena Kagan?
Harvard Law School Professor Randall Kennedy correctly notes in a post today at HuffPo that hiring is not the exclusive province of a Dean, and that faculty politics and committees play a central role. It reminds me of the old quip that “academic politics is the most vicious and bitter form of politics, because the stakes are so low.”
The thrust of the claim is that Kagan did not hire any tenured or tenure-track minority law professors during the six years she was Dean.
In defense, the Obama administration notes that Kagan hired three minority clinical law professors during this time period (emphasis mine):
[The White House] emphasizes that Kagan did not have the final say in hiring at Harvard, where such decisions are made by committee. The memo also argues that Kagan made other appointments and promotions that enhanced diversity, including moving two minority professors to tenured positions. Three of the 12 clinical professors hired were minorities.
This raises a good point, which I thought about when the controversy first arose, but didn’t write about because it seemed too much like inside baseball.
For those of you who do not know (and I get a lot of e-mails asking me about this), the term “clinical law professor” signifies a professor who works with students on real client cases as part of the learning experience, usually in conjunction with classroom teaching. The hope is that by integrating client representation into the educational process, law schools will help students learn more about the practice of law, both from a skills and ethics standpoint.
Clinical law professors typically have spent many years or decades practicing law and often were leaders in their legal field before joining a law school.
Clinical legal education is a strong focus of the American Bar Association, which has promulgated standards which not only require law schools to provide clinical education, but also require law schools to provide protections for clinical law professors in terms of academic freedom and job security.
It is not simply a matter of tenure versus non-tenure. ABA rules require that law schools provide the functional equivalent of tenure, usually through long term presumptively renewable contracts, to clinical faculty. Many law schools also provide for tenure for clinical faculty.
The treatment of clinical faculty varies from law school to law school, and obviously from academic professor to academic professor.
But I am entirely comfortable with the generalization that legal academia looks down on clinical law professors. Twenty years of legal practice representing real clients counts for far less in academia than 20 publications.
So, it is not entirely surprising that the four law professors who have attacked Kagan’s hiring record chose not to count clinical law professors. Not even as 3/5ths of a law professor.
The fact that the four law professors consciously excluded the hiring of minority clinical law professors in their calculation of Kagan’s diversity record says a lot about the class snobbery masquerading as racial sensitivity which permeates so much of our political and academic landscape.