Monday, December 16, 2019

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Abstract

Excerpted from: Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 Seton Hall Law Review 629 (2019) (314 Footnotes) (Full Document)

michele benedetto neitzLike judges, law school deans exercise an extraordinary amount of discretion and power. Deans, however, are more buffeted by the winds of the legal marketplace and the constantly shifting power dynamics of law schools and universities. Law school deans must serve as the public face of a law school for fundraising and marketing purposes, while simultaneously “managing up” with presidents and provosts and “managing down” to meet the needs of faculty, staff, and students.

Consequently, law schools generally search for a dean who will have the ability to serve multiple, and sometimes competing, constituencies within the law school while effectively managing the outside challenges that face their own institution and the legal education as a whole. This tall order is usually governed by a “dean search process.”

The dean search process can be viewed as a bellwether for the health of a law school. Within the microcosm of a civilized “dean search committee” can lie the tensions of rival factions, attempting to impose their respective visions for the next chapter of the law school enterprise. If law school revenue is down, the factions may be fighting for their own survival.

Not surprisingly, then, the dean search process becomes a lightning rod for the stresses facing law school faculty, staff, and university administrators. As a result, the implicit biases of individuals and institutions can play a major (and often obscured) role in the selection of a dean. Although the concept of implicit bias has been extensively studied in the context of judges, the criminal justice system, and other areas, no one to date has looked at the effects of implicit bias on law dean search processes.

This Article stems from the author's experience chairing multiple dean searches and research interest in the existence, genesis, and effects of implicit bias.

Part II of this Article will review the role of a law school dean, with special consideration of the ways the Great Recession and its outcomes transformed the role of the dean.

Part III will describe the typical dean search process and evaluate decanal diversity statistics to determine which candidates are selected for these powerful roles in today's law schools.

Part IV will introduce the concept of implicit bias, specifically focusing on in-group favoritism. This part will also analyze the ways implicit bias can manifest itself in the dean search process, focusing on racial, gender, socioeconomic, and sexual orientation biases.

Finally, Part V will suggest recommendations to minimize the operation and impact of implicit bias on the part of dean search committees, and will offer creative ways to improve the traditional dean search process.

[. . .]

The role of the law school dean requires greater flexibility and entrepreneurial thinking as the legal profession moves forward from the Great Recession. Moreover, the best fit for a deanship can only be found when all potential candidates are considered. Recognizing these challenges, dean search committees should seek to diversify the pool of dean candidates. As one recently hired dean explained, however, this will not happen without commitment on the part of search committee members and the larger school community. Indeed:

[A]t the end of the day, [what] will make for a more diverse dean pool is both an institutional and a personal commitment on the part of selection committee members to seek greater diversity. This must stem from a conviction that there is a value to legal education and the profession to have LGBTQ people as deans, or African-Americans as deans, or Latinos as deans - and so on.

One roadblock to a more diverse pool is the prevalence of implicit bias in the dean search process, especially based on race, gender, sexual orientation, and socioeconomic status. As committees become more cognizant of the ways bias and in-group favoritism can influence a selection process, law schools should take more creative steps to achieve diversity in leadership. The implementation of bias training for individuals and institutions would be an excellent start, but this could also include more radical changes to the search process, such as a dean search registry. Diversifying the dean candidate pool will ultimately create a more balanced and representative law school community, benefiting the legal profession as a whole.


Professor of Law, Golden Gate University School of Law. J.D., 2001, New York University School of Law; B.A., 1997, Santa Clara University.


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