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excerpted from: Meera E. Deo, Intersectional Barriers to Tenure, 51 University of California Davis Law Review 997 (February, 2018) (100 Footnotes)(Full Article)


MeeraEDeoWhile student diversity has been hotly debated for years in the courts and among the public, little attention has been given to the racial and gender identity of the person in the front of the law school classroom. Yet, faculty diversity may play a critical role in attaining the broad goals that courts, schools, and students believe result from classroom diversity. Courts expect that student diversity "promotes cross-racial understanding,' helps to break down racial stereotypes, and enables [students] to better understand persons of different races." Those goals will only be enhanced by having skilled facilitators of various backgrounds leading conversations throughout a student's law school career. Likewise, if " classroom discussion is livelier, more spirited, and simply more enlightening and interesting' when the students have the greatest possible variety of backgrounds,"' the professors' own backgrounds surely play a role as well.

Diversifying legal academia must begin with faculty recruitment and hiring. Currently, of the approximately 11,000 law faculty members teaching in the United States, only 7.0% are women of color--including Black, Latina, Asian American, Native American, Middle Eastern, and multiracial women. A paltry 7.8% are men of color. While white women are better represented (25% of all faculty), a full 5,090 (43%) of all full-time law faculty are white men. While diverse faculty are better represented now than decades ago, the rate of progress has been slow and barriers abound.

Ensuring that a broad population of scholars has access to the legal academy is only the first step in creating meaningful faculty diversity. To truly diversify the academy and maximize classroom diversity goals, schools must also improve faculty retention. Longevity in legal academia and meaningful success in the profession is often synonymous with tenure. Tenure, "that important gateway to professional success and stability" that leads to "virtually unrivalled job security," is also "the crucial institutional process through which the legal academy could block or open the doors to gender and racial integration." Currently, those doors remain partly obstructed, with women of color obtaining tenure at lower rates than white men and enduring intersectional challenges along the way. Yet, few scholars have investigated this disparity, and only one recent study has specifically considered intersectionality in the law school tenure context.

For an individual to achieve tenure, most law schools require demonstrated excellence in three areas: scholarship, service, and teaching. Each requirement of the trifecta brings unique barriers for women of color striving to climb the law faculty ranks. These barriers contribute to the lower rate of success for women of color seeking to attain tenure. Combined, they block meaningful diversification of legal academia.

This Article draws from the landmark Diversity in Legal Academia ("DLA") project to empirically investigate intersectional (raceXgender) experiences with promotion and tenure that contribute to a lack of diversity among law faculty. The data show that to truly diversify law teaching, we must remove barriers to tenure. The Article first introduces some guiding principles for considering the need for and current lack of diversity in legal academia. This research draws from rich scholarly sources rooted in Critical Race Theory, feminist theory, and contemporary legal realist approaches. This literary framework provides the structure for the Diversity in Legal Academia project, the empirical study at the heart of this Article.

Part II, the Article presents the analytical approach and methods employed in the DLA study as well as brief descriptive statistics of DLA participants.

Part III delivers empirical findings on intersectional (raceXgender) challenges for law faculty seeking to achieve the security and stability of tenure. Separate but interrelated barriers are associated with each of the three hurdles of tenure: teaching, service, and scholarship. A section comparing and contrasting the experiences of women of color faculty with those of white men, white women, and men of color faculty brings the intersectional challenges into focus.

The Conclusion discusses implications and proposals for improving legal education by streamlining and correcting the tenure process.