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.

  

* University general counsel offices generally do not pay in-house attorneys as well as large corporations in many other industries.  The quality of legal decision making may suffer as a result.  For example, at the University of Southern California--one of the largest private universities in the United States--no one apparently considered options for partitioning student health services into a separate legal entity to limit the impact of future lawsuits on the rest of the university.  USC recently settled lawsuits related to problems at student health services for close to $1 billion, according to news reports.  Even for USC, this is a lot of money.  Moreover, some of the University's insurers have denied the university's claims for reimbursement.  Given the quality of legal offices at even the best funded universities, rolling the dice with litigation could be a costly decision.

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.

The discrimination claim is only as plausible as the non-discriminatory reasons for Campos's sub-standard compensation are weak:  if the latter reasons are, in fact, strong, then the former is doubtful.  (Put aside that Campos's current Dean is an African-American woman, and his prior Dean was a Native-American man:  perhaps they really just hate Latinos?) 

The complaint tries to suggest there can't be good non-discriminatory reasons, offering such "LOL" lines as, "Professor Campos has had an academic career most notable for impressive scholarly accomplishment" (paragraph 4), and "Professor Campos is a leader in his field of study" (par. 5).  One can debate how much of his writing in the last twenty years counts as "scholarship" and how much as "journalism," but however one carves it up, these latter claims could not be vindicated, even before getting to the question of the quality of the work.   The complaint also asserts that, "He is a prolific writer, with five published books, including his most recent book,which was published by the University of Chicago Press last fall" (par. 5).  The complaint does not mention that the most recent book is on being a sports fan, or that one of the other books is self-published, that another one is co-authored (and has had no impact), another has been mostly ignored, or that his most-cited book was on obesity from nearly twenty years ago.    

The complaint also notes that "the failure of CU Law to award Professor Campos an endowed professorship is particularly egregious in light of the fact that, between 2015 and 2021, Professor Campos was cited in academic literature more frequently than any of his colleagues, including any of his colleagues with endowed professorships."  According to Google Scholar, more than half his citations during this period derived from his 2004 book on obesity and a co-authored five-page article in an epidemiology journal from 2006, also on obesity (he was one of five authors of that brief essay).  (As an aside, anyone who studies citations knows that the health fields have promiscuous citation practices.)  Most of the rest of the citations were due to an essay pasting together stuff from his notorious scam blog, and a notoriously incompetent op-ed in the New York Times about the cost of higher education.   It is not hard to see why a committee evaluating faculty for their scholarly accomplishment might take a dim view of all of this.  More to the point, Google Scholar also reveals very few publications during the period 2015-2021, some of which were clearly journalistic exercises not contributions to scholarship (recall Alabama lawprof Paul Horwitz's quip that Campos is "essentially a journalist moonlighting as a law professor").  Surely that thin record of productivity would loom much larger than citations to older work in an evaluation of professional performance.

In addition, according to the Sisk data on citations, based on Westlaw searches for the period 2016-2020, 16 out of 33 tenured Colorado law faculty had more citations in law reviews than Campos, including almost all those with endowed professorships.

And then, of course, there is the question of Campos's teaching over this period of time, which would also factor into his compensation  The complaint makes no claims about the quality or success of his teaching, perhaps for a reason.

The bottom line is that the discrimination claims look weak at this stage, and the retaliation claim does not seem much stronger, but may be his better bet under the circumstances.

FEBRUARY 19, 2024 UPDATE:   The retaliation claim was, indeed, the stronger one, and he got a modest "nuisance" settlement from the University for it.  The settlement included no relief for any of the alleged discrimination.

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!