Brian Leiter's Law School Reports

To circumvent Supreme Court affirmative action ban, Harvard will shift to diversity statements (Michael Simkovic)

The Supreme Court's recent ruling that Harvard and UNC's affirmative action programs violate the equal protection clause has been described by many as a blow to affirmative action.  Brian Leiter has a summary here.  Additional coverage is available here.

Harvard almost immediately issue a written statement and a video message to the effect that it intends to continue to use race and ethnicity as factors in admissions even after the Supreme Court's ruling.  Harvard pointed to language in the opinion that: "The Court also ruled that colleges and universities may consider in admissions decisions 'an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.'  We will certainly comply with the Court’s decision....We affirm that...diversity and difference are essential.... No part of what makes us who we are could ever be irrelevant... Harvard will continue to be a ...community whose members come from all walks of life...Nothing today has changed that.”

In other words, Harvard will replace check-the-box racial self-identification with a diversity statement.  This will drive up the cost to applicants--many of whom will hire consultants to help them draft these statements--and drive up the cost to Harvard of processing applications by forcing it to hire more staff to read, score, and consider these diversity statements.  From Harvard's perspective, other than this increase in cost, ideally little will change in terms of the weight Harvard accords to race and ethnicity in its admissions process. Harvard's entering classes will have the same pre-determined racial and ethnic demographics as they would have had without the Supreme Court's decision.  In other words, racial quotas will persist, but with greater investment of resources in making them subtle.

In taking this stance, Harvard is following in the footsteps of the University of California system.  When California--a majority minority state with an overwhelming Democratic majority--voted to ban racial preferences in public university admissions in a voter referendum, the UC system opted to continue racial preferences indirectly through mandatory diversity statements.  California recently reaffirmed its ban on racial preferences in public education in a voter referendum, during an election that again saw Democratic candidates win an overwhelming majority of seats.

Racial preferences in university admissions are intensely unpopular with the voting public when they are described in explicit language without any use of euphemism, even among Democratic voters and even among minorities such as Hispanics and Asians. (According to a Pew Survey from 2019, most Blacks were also against racial preferences in university admissions at the time; more recent surveys suggest this may have changed). Americans generally believe that disparities in financial resources are a much more important source of disadvantage than race or ethnicity.

The unpopularity of racial preference programs--and their association with the Democratic party--is probably why Republican Presidents, Republican Congresses, and a majority Republican-appointed Supreme Court have all repeatedly declined to effectively ban affirmative action when they've had the opportunity to do so.  

With a wink and a nod, the Supreme Court told universities they could continue racial preferences in admissions--as long as they are willing to thread the needle of its 230+ page decision and face lawsuits for inevitable missteps.*  Racial preferences lose elections for Democrats. Race wins elections for Republicans.  A Republican-appointed Supreme Court will never comprehensively or effectively ban affirmative action because doing so would be handing electoral victory to the Democrats for the foreseeable future.

When some universities take the bait and continue racial preferences, or react by mandating classes about race--as many will--they'll be showing that they are culturally out of touch with the American voting public.  Moreover, universities' reactions risk creating campaign issues that will help Republicans win their next electoral victory.  Judging from recent Republican legislative proposals, an ascendant Republicans party would slash food stamps and Pell Grants and other programs that help the poor and middle class and--unlike racial preferences--actually require budgetary outlays and therefore taxation.

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Paul Campos sues the University of Colorado at Boulder law school for discrimination and retaliation

I interrupt my blog hiatus to note this surprising development.  I have tried to avoid saying anything about Campos for many years now, but this seems worth remarking on, given how rare such suits are.  Campos's self-serving explanation for the lawsuit is here, and the complaint itself is here.  The two most important lines from the blog post, it seems to me, are these:

In May of last year, I received a very low annual evaluation grade – on that put me in the bottom 2% of the faculty historically – from a faculty peer evaluation committee, despite having had by all conventional metrics an outstanding year in terms of both publishing and service,

Was this evaluation anomalous?  It seems like it would take a lot to get into the bottom 2% "historically."  Discovery will no doubt uncover how long he has received sub-standard evaluations.  Also from the blog post:

Under federal law, whether the underlying discrimination claim is ultimately vindicated is irrelevant to the employer’s liability for retaliating against the complaining employee. Such illegal retaliation requires the defendant to pay the plaintiff’s costs.

My guess is Campos's attorneys are taking this case on contingency, hoping for a payout on the retaliation claim, given the weakness of the discrimination claim (more on that in a moment).  The evidence of retaliation, however, purports to be this email from law school Dean Inniss to Campos (paragraph 34):

Given your recent communications with me regarding your concerns with the law school evaluation process and your indication of possible litigation, I have removed you from the evaluations committee for the upcoming fiscal year.

As Berkeley's Professor Kerr observed on Twitter:  

I assume Colorado will respond that Campos wasn't taken off... the committee because of retaliation. Rather, Campos had said he anticipated suing the university because the evaluations committee had discriminated against him. That's the same committee he was set to join.... I wonder if Campos saying he planned to sue the university over the work of that committee provided the Dean with a non-retaliatory reason not to be on that committee.

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Lateral hires with tenure or on tenure-track, 2022-23

These are non-clinical appointments that will take effect in summer or fall 2023 (except where noted); (recent additions will be in bold.)  Last year's list is here.

 

*Zohra Ahmed (criminal law & procedure) from the University of Georgia to Boston University (untenured lateral).

 

*Ifeoma Ajunwa (law & technology, race & law, employment law) from the University of North Carolina, Chapel Hill to Emory University.

 

*Alena Allen (health law, torts, feminist legal theory) from University of Arkansas, Fayetteville to Louisiana State University (to become Dean).

 

*Vikram Amar (constitutional law, civil procedure, federal courts) from the University of Illinois, Urbana-Champaign (where he has been Dean since 2015) to the University of California, Davis (where he taught before moving to Illinois).

 

*Robert Anderson (corporate, admiralty) from Pepperdine University to the University of Arkansas, Fayetteville.

 

*Bernadette Atuahene (property, law & international development) from the University of Wisconsin, Madison to the University of Southern California.

 

*Kimberly Bailey (criminal law & procedure, evidence) from Chicago-Kent College of Law/Illinois Institute of Technology to the University of Cincinnati. 

 

*Derek Bambauer (intellectual property, law & technology) from the University of Arizona to the University of Florida, Gainesville.

 

*Jane Bambauer (First Amendment, law & technology, privacy) from University of Arizona to University of Florida, Gainesville.

 

*Nadia Banteka (criminal law & procedure, law & technology, international law) from McGeorge School of Law/University of the Pacific to Florida State University.

 

 

*Benjamin Barros (property) from the University of Toledo (where he is Dean) to Stetson University (to become Dean).

 

 

*Robert Bartlett III (corporate) from the University of California, Berkeley to Stanford University.

 

 

*Valena Beety (criminal law & procedure, gender & law) from Arizona State University to Indiana University, Bloomington.

 

*Noa Ben-Ashar (gender, sexuality & the law, family law) from Pace University to St. John's University.

 

*Bethany Berger (property, American Indian law, conflicts of law) from the University of Connecticut to the University of Iowa (effective August 2024).

 

*Anya Bernstein (administrative law, civil procedure, law & society) from the University at Buffalo, State University of New York to the University of Connecticut (effective January 2023).

 

*Johanna Bond (international human rights, gender & law) from Washington & Lee University to Rutgers University (to become Dean).

 

*Alexander A. Boni-Saenz (trusts & estates, property, age & the law, race & the law) from Illinois Institute of Technology/Chicago-Kent College of Law to the University of Minnesota.

 

*Stephanie Bornstein (administrative law, civil procedure, employment law) from the University of Florida, Gainesville to Loyola Law School, Los Angeles.

 

*Luke Boso (criminal law, constitutional law, education law) from the University of San Francisco to Southwestern Law School.

 

*Andrea Boyack (real estate, housing law & policy, consumer law) from Washburn University to the University of Missouri, Columbia.

 

*Christopher Bradley (bankruptcy, commercial law, law & technology) from the University of Kentucky to the University of Florida, Gainesville.

 

*Eleanor Brown (property, immigration and migration law, law & development) from Pennsylvania State University, University Park to Fordham University (effective January 2023).

 

*Yvette Butler (constitutional law, civil rights, criminal law & procedure, work law) from the University of Mississippi to Indiana University, Bloomington (untenured lateral).

 

*Jud Campbell (constitutional law, legal history) from the University of Richmond to Stanford University.

 

*Sergio Campos (civil procedure) from the University of Miami to Boston College.

 

*Eric Chaffee (securites regulation, corporate, tax) from the University of Toledo to Case Western Reserve University.

 

*Carliss Chatman (contracts, corporate, professional responsibility) from Washington & Lee University to Southern Methodist University.

 

*Colleen Chien (intellectual property, law & technology) from Santa Clara University to the University of California, Berkeley.

 

*Jeremiah Chin (constitutional law, race & law, Federal Indian Law) from St. Thomas University (Miami) to Seattle University (untenured lateral).

 

*Jonathan Choi (tax, statutory interpretation) from the University of Minnesota to the University of Southern California.

 

*Jessica Clarke (constitutional law, employment discrimination, sexual orientation/gender & the law) from Vanderbilt University to the University of Southern California.

 

*Harlan Cohen (international trade, international law) from the University of Georgia to Fordham University (effective January 2024).

 

*Kristin Collins (immigration law, family law, federal courts, legal history) from Boston University to the University of Michigan, Ann Arbor.

 

*Brendan Conner (torts, constitutional law, gender, sexuality & law) from St. Thomas University (Miami) to Widener Delaware Law School (untenured lateral).

 

*Julian Cook (criminal law & procedure, evidence) from University of Georgia to University of Florida, Gainesville.

 

*Colin Crawford (environmental law, property, land use) from Golden Gate University (where he is Dean) to the University of Arkansas, Little Rock (to become Dean).

 

*Jamein Cunningham (law & economics, race & the law, policing) from Cornell University (Public Policy) to the University of Texas, Austin (joint with Public Policy & Law) (untenured lateral).

 

*Hanoch Dagan (contracts, torts, private law theory) from Tel-Aviv University to the University of California, Berkeley.

 

*Deepa Das Acevedo (employment law, law & anthropology, law & politics of India) from the University of Alabama to Emory University.

 

*Steven Dean (tax) from Brooklyn Law School to Boston University.

 

*Dhammika Dharmapala (tax, corporate, law & economics, empirical legal studies) from the University of Chicago to the University of California, Berkeley (may start in 2024).

 

*Stephanie Holmes Didwania (empirical legal studies, law & economics, criminal law, intellectual property) from the University of Wisconsin, Madison to Northwestern University (untenured lateral).

 

*William Dodge (international business transactions, international litigation & arbitration, contracts) from the University of California, Davis to George Washington University (effective August 2024).

 

*Veena Dubal (employment law, Critical Race Theory) from the University of California College of Law, San Francisco to the University of California, Irvine.

 

*Melissa J. Durkee (international business transactions, international environmental law, corporate) from the University of Georgia to Washington University, St. Louis.

 

*Monika Ehrman (natural resources law, property, energy law, environmental law) from the University of North Texas at Dallas to Southern Methodist University.

 

*Avlana Eisenberg (criminal law & justice) from Florida State University to Boston College.

 

*Jacob Eisler  (constitutional law, election law) from the University of Southampton (UK) to Florida State University (untenured lateral).

 

*Nate Ela (constitutional law, land use, election law, state & local government law) from the University of Cincinnati to Temple University (untenured lateral).

 

*Ofer Eldar (corporate, corporate finance) from Duke University to the University of California, Berkeley.

 

*Sheldon Evans (criminal law, immigration law) from St. John's University to Washington University, St. Louis.

 

*Mailyn Fidler (criminal law & procedure, law & technology) from the University of Nebraska, Lincoln to the University of New Hampshire (untenured lateral).

 

*Shawn Fields (criminal law & procedure, constitutional law, immigration law) from Campbell University to California Western School of Law (untenured lateral).

 

*Victor Flatt (environmental law, energy law) from the University of Houston to Case Western Reserve University.

 

*Mary Anne Franks (civil rights, law & technology, constitutional law) from the University of Miami to George Washington University.

 

*Amy Gajda (First Amendment, privacy, media law) from Tulane University to Brooklyn Law School.

 

*Kristelia Garcia (intellectual property) from the University of Colorado, Boulder to Georgetown University.

 

*Pedro Gerson (immigration law, criminal law) from California Western School of Law to the Pozen Center for Human Rights, University of Chicago (untenured lateral).

 

*Jonathan Gingerich (law & philosophy, intellectual property, property) from King's College, London to Rutgers University (untenured lateral).

 

*Mark Glover (trusts & estate, contracts) from the University of Wyoming to the University of South Carolina.

 

*Michele Goodwin (health law, constitutional law) from the University of California, Irvine to Georgetown University.

 

*Tristin Green (employment law, race, gender, disability & the law) from the University of San Francisco to Loyola Law School, Los Angeles.

 

*Marsha Griggs (property, evidence) from Washburn University to Saint Louis University.

 

*Ariela Gross (legal history) from the University of Southern California to the University of California, Los Angeles.

 

*Pratheepan Gulasekaram (immigration law, constitutional law) from Santa Clara University to the University of Colorado, Boulder.

 

*Kelly (Dineen) Gillespie (health law, bioethics, torts) from Creighton University to Saint Louis University (effective January 2023).

 

*Aya Gruber (criminal law, feminist legal theory) from the University of Colorado, Boulder to the University of Southern California.

 

*Kevin Haeberle (securities regulation, corporate) from the College of William & Mary to the University of California, Irvine.

 

*Andrew Hammond (civil procedure, administrative law, poverty law) from the University of Florida, Gainesville to Indiana University, Bloomington (untenured lateral) (effective January 2023).

 

*Haider Ala Hamoudi (Islamic law, Middle East law) from the University of Pittsburgh (where he is Interim Dean) to the University of Cincinnati (to become Dean).

 

*Christoph Henkel (contracts, corporate, commercial law, bankruptcy, banking law)  from Mississippi College School of Law to Drake University.

 

*Kristin Hickman (tax, administrative law, legislation/statutory interpretation) from the University of Minnesota to the University of Texas, Austin (effective January 2024).

 

*Jeremiah Ho (contracts, legal pedagogy, race, gender, sexuality & the law) from the University of Massachusetts, Dartmouth to Saint Louis University.

 

*Timothy Holbrook (intellectual property, property) from Emory University to the University of Denver.

 

*Clare Huntington (family law, poverty law) from Fordham University to Columbia University.

 

*Gus Hurwitz (law & technology, administrative law, antitrust, law & economics) from the University of Nebraska Lincoln to the Center for Technology, Innovation, and Competition at the University of Pennsylvania (as Senior Fellow & Academic Director).

 

*Katherine Jackson (corporate, contracts, political & legal theory) from the University of Dayton to the University of Cincinnati (untenured lateral).

 

*Neha Jain (international law, human rights, comparative law) from the European University Institute & University of Minnesota to Northwestern University.

 

*Maryam Jamshidi (national security law, international law, torts) from the University of Florida, Gainesville to the University of Colorado, Boulder (untenured lateral).

 

*Garry Jenkins (law & philanthropy, corporate governance, leadership studies) from the University of Minnesota (where he is Dean) to Bates College (to become President).

 

*Andrew Jennings (securities regulation, corporate) from Brooklyn Law School to Emory University (untenured lateral).

 

*Ben Johnson (federal courts, judicial decision-making, empirical legal studies) from Pennsylvania State University, University Park to University of Florida, Gainesville (untenured lateral).

 

*Yuvraj Joshi (constitutional law, race & the law) from the University of British Columbia to Brooklyn Law School (untenured lateral).

 

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Congratulations to the University of Chicago Law School alumni who made lateral moves this year

They are:

 

*Valena Beety '06 (criminal law & procedure, gender & law) from Arizona State University to Indiana University, Bloomington.

 

*Deepa Das Acevedo '16 (employment law, law & anthropology, law & politics of India) from the University of Alabama to Emory University.

 

*Stephanie Holmes Didwania '09 (criminal law & procedure, intellectual property, empirical legal studies, law & economics) from the University of Wisconsin, Madison to Northwestern University (untenured lateral).

 

*Sheldon Evans '12 (criminal law, immigration law) from St. John's University to Washington University, St. Louis.

 

*Pedro Gerson '14 (immigration law, criminal law) from California Western School of Law to the Pozen Center for Human Rights, University of Chicago (untenured lateral).

 

*Gus Hurwitz '07 (law & technology, administrative law, antitrust, law & economics) from the University of Nebraska Lincoln to the Center for Technology, Innovation, and Competition at the University of Pennsylvania (as Senior Fellow & Academic Director).

 

*Sapna Kumar '03 (intellectual property) from the University of Houston to the University of Minnesota.

 

*Joshua Sellers '08 (election law, constitutional law, legislation, civil procedure) from Arizona State University to the University of Texas, Austin.

Summer blogging schedule

As usual, I'll be posting less over June, July and August, although things will pick up in August.  I will probably still put one or two things up each week that are newsworthy, and I will continue to update the lateral moves list as well.  Thanks, as always, for reading!

"Conversation and Democracy"

A nice graduation speech by my colleague Tom Ginsburg.

In Memoriam: Steven Shiffrin (1941-2023)

A leading scholar and theorist of the First Amendment, Professor Shiffrin taught for many years at Cornell, and, before that, at UCLA.  The Cornell memorial notice is here, which includes at the end a link to a very nice tribute by Professor Michael Dorf.

Congratulations to the University of Chicago Law School Class of 2023

It was a pleasure and privilege to teach such talented young men and women.  I join all my colleagues in wishing you much happiness and success in the years ahead!