SpearIt, Not for Free: Exploring the Collateral Costs of Diversity in Legal Education, 48 University of the Pacific Law Review 887 (2017) (165 Footnotes Omitted) (FULL ARTICLE)
This essay examines some of the institutional costs of achieving a more diverse law student body. In recent decades, there has been growing support for diversity initiatives in education, and the legal academy is no exception. Yet for most law schools, diversity remains an elusive goal, some of which is the result of problems with anticipating the needs of diverse students and being able to deliver. These are some of the unseen or hidden costs associated with achieving greater diversity. Both law schools and the legal profession remain relatively stratified by race, which is an ongoing legacy of legal education's origins as a project dominated by white male elites predominantly serving white male clients. Today's law schools still lack in diversity, but major developments are increasingly changing student demographics. Perhaps the first push toward diversification of law schools came after the 1920s, when women won suffrage and began to enroll in law school in increasing numbers. Advocacy efforts over the next century would produce many breakthroughs, including in the present, where an unprecedented three women sit on the Supreme Court. With the creation of The Historically Black College/University ("HBCU") law schools, which enrolled significant numbers of African American students, Civil Rights legislation and court cases in the 1950s and 1960s paved the way for a growing number of ethnic minorities to apply to law school and for a female explosion of matriculants. Today's diversity initiatives seek to create classrooms with profiles based on a range of intellect and experience as a means to enhance learning for all students. As such, diversity may be understood as supporting the marketplace of ideas concept by seeking to create an environment where study and problem solving draw from a broad range of knowledge and experience. Law schools are also enrolling individuals with lower credentials to assuage the sting of lower enrollment. Maintaining and servicing diverse student bodies inevitably incurs downstream costs. This essay attempts to offer a snapshot of some the administrative, pedagogical, and regulative costs involved, and provide commentary on how law schools might meet these challenges.
The basic argument is that law schools desiring to achieve greater diversity, or who are achieving greater diversity by default, must be prepared to meet the collateral costs involved. As used here, the term "cost" has both a literal and a non-literal meaning since monetary and other resources are required to address the multiple layers of complexity. The essay builds on the premise that diversity is not only a good in and of itself, but also a good in terms of advancing equal opportunity and social justice, which, arguably, may be critical for some law schools' survival. It begins with A Scarce Resource in Legal Education and Trending Views: Diversity Matters, which provides a historical backdrop of legal education and diversity initiatives in the law school setting. In Collateral Costs & Making Payment, this essay explores some of the institutional costs that are owed to increased diversity. The last section, Bottom Line: Support & Resources for Success, concludes that initiatives that seek diversity as a permanent fixture must be conscious of these costs, and more importantly, be committed to meeting them with resources and funding. As history tells, women did not become a critical mass on the highest court overnight--it took decades of support and pushing to shatter many ceilings. Genuine institutional support made these feats possible, and the same will be critical for future success. The work concludes with some recommendations aimed at maintaining the current level of diversity.
Finally, although for its purposes, this essay has primarily focused on pro-diversity arguments, it is worth considering whether the "costs" of diversity in society have the same outcomes in law schools. That is, do the same arguments against diversity in general apply for law schools too? Researchers have posited a number of social and political problems that arise from greater social diversity, including cultural issues, social conflicts, and dissent. What are problems for society at large, however, do not translate onto the law school setting. Indeed, these by-products of diversity, which work against social solidarity and cohesion, may not have much of an impact on law schools. In law school, conflicts are assumed in a zero-sum competition that is already in effect, with law school grading orthodoxy premised on stringent grading curves. Law schools are centers of highly individualistic competition that tend apriori to disincentivize solidarity and cohesion, and instead reward the fiercest competitors. With the rigors of law school being something legendary in American culture, whether diversity will alter this in any meaningful way seems doubtful. Law schools are alienating spaces, with some students existing in survival-mode to avoid curving out, while others are competing for merit scholarships and trying to land their dream job. Conflict is not only built into the system--it is also the subject of study, which may make law schools somewhat impervious to this critique, or as one philosopher put it "Justice is conflict." There is also little threat of cultural conflict in law schools. Whereas in society language has been a deeply divisive issue, it is non-starter for the average law student. Despite that in some places in the United States, it was illegal to speak Spanish and that "English Only" movements have surfaced in recent decades, the importance of language in the culture wars is non-existent in law school. This is likely because law students comprise of individuals who already have English competency and have been socialized to formal education. Law school is merely an extension of a system they already know and accept. Likewise for the use of English--a certain competency is first required even to take the LSAT and apply to a law school. Law students are thus already self-selected into a specialized group that is linguistically homogenous. That is not to say that the most diverse law schools are free of cultural conflict, but to stress that analysis of the source of the conflict is critical. For example, bigotry can stand on its own and is independent of diversity. There can be bigots in homogenous culture or diverse culture. The point is that conflicts created by bigotry in the presence of diversity should never mistaken diversity as the source of the problem. To assign causation to diversity misapprehends the source of conflict.
As this essay has argued, there are a variety of costs associated with achieving a more diverse law student body. For schools that seek successful outcomes in this area, it will be critical to anticipate these challenges and commit to making diversity an ongoing entry in the law school's strategic planning. More than anything, this essay hopes to temper over-optimistic views about diversity, and instead offer a reminder that diversity is not free. Like any other resource for students, a diverse student body must be assembled and maintained--it cannot happen alone. Any school seeking to achieve greater diversity owes their students the support, resources, and services necessary to succeed. It likewise owes itself a fair opportunity to determine just how much diversity it can afford.