Excerpt for Ken Oldfield's, "Structural Nepotism: On the
Reluctance of Law Schools to Include
Social Class Origins among their
Faculty Diversity Goals"
VII. Confess’n the Blues
Jeffrey Harrison was someone who saw beyond the cultural and social
boundaries of his time. In 1992, nineteen years before Mertz et al. conducted
their research, he published “Confess’n the Blues: Some Thoughts on Class
Bias in Law School Hiring.”88 Harrison was a professor of law at the University
of Florida College of Law when his paper appeared in a symposium issue of
86. Id.
87. Id. at 237, 238; see also Eric J. Segall & Adam Feldman, The Elite Teaching the Elite: Who Gets Hired
by the Top Law Schools, 68 J. Legal Educ. 614 (2019).
88. Jeffrey L. Harrison, Confess'n the Blues: Some Thoughts on Class Bias in Law School Hiring, 42 J. Legal
Educ. 119 (1992).
252 Journal of Legal Education
the Journal of Legal Education. The theme of the law review edition was diversity.89
Harrison’s informal writing style illustrates how sometimes a work such as his
can expose an issue or issues in a way data rarely can. Once these writings
gain a wider audience, they can prompt reformers and their allies to rectify
the problem that concerned the author or authors. Unfortunately, Harrison’s
folksy piece never found the reception it deserved, given the issue bothering
him. Perhaps there is good reason for this oversight. First, he directed a
sharp pen at those colleagues he held responsible for the problem he thought
deserving of a remedy. Second, he was contradicting the nation’s bootstraps
folklore, the idea that the United States is a land where those born of the
poorest of circumstances can be anything they choose if only they will work
hard enough.
Harrison began his piece by recounting a conversation he had had with a
colleague about faculty hiring. He wrote,
I telephoned an old friend the other day at another law
school.
“What’s up?” I asked.
“Faculty retreat,” he replied.
“Sorry to hear it. Any topic, or just a weekend of touchyfeely?”
“Serious business,” he said. “The theme is ‘Recruiting for
Diversity.’ One session on race, one on gender.”
“What about class—you know, poor and working-class
candidates?”
“Are you kidding?” he responded. “Too important.”90
Believing class origins should be weighed as a diversity criterion, Harrison
said when he interviewed someone applying for a position in his program,
he looked for signs the person likely grew up working class.91 (Apparently
he did not feel comfortable asking for this information directly.) Harrison
said he regarded a candidate’s class background as a worthwhile concern
because faculty of humble origins can bring novel perspectives to the study
and teaching of law.92 During his formal and informal interactions with every
applicant, he looked for social class markers. He listed a few examples, such as
89. Mertz et al., supra note 78 (did not cite Confess'n the Blues: Some Thoughts on Class Bias in Law School
Hiring in their study).
90. Harrison, supra note 88, at 119.
91. Id. at 120.
92. Id.
Structural Nepotism 253
whether the person had a crooked or discolored tooth,93 had been an assistant
manager at a fast-food restaurant,94 wondered out loud whether a relative
is entitled to food stamps95 and if a nephew might be paroled soon.96 If he
detected any signs the person had likely overcome long odds to earn a law
degree, he considered this evidence the applicant had the qualities necessary
to become a successful academic.97
Harrison saw his thinking as synonymous with that of his colleagues, only
upside down.98 He interpreted a candidate having grown up disadvantaged
as evincing merit, while the others were relying on traditional indicators,
such as a high GPA from a top law school or a clerkship.99 Drawing on his
then fourteen years of teaching law, he argued that his colleagues favored
the standard determinants of what it means to be qualified as nothing more
than an excuse for hiring the people Mertz et al. depicted as coming from
“educated and privileged backgrounds.”100 Harrison characterized the other
faculty’s reasoning as little more than an “instance of self-referential wishful
thinking,”101 or just another case of like hiring like.102 Harrison believed his
approach mirrored that of his colleagues in the sense he and the others were
playing the odds, only he was betting on a different set of odds. In his mind,
he was willing to wager that his approach would yield a hire who could bring
some long-underrepresented thinking to the profession. Harrison, like Bowen,
Kurzweil, and Tobin, preferred to put a thumb, or a thumb and a half, on the
scale in favor of what he called “blue-collar diversity.”103
Harrison was not done. He went on to suggest why law schools, and so
many people in the United States for that matter, are leery about questioning
the effects of social class inequalities on various aspects of life. This reticence
discourages most law school professors from weighing socioeconomic origins
in faculty hiring. Harrison said this same hesitancy helps explain why workingclass people generally fail to see “themselves as victims of any sort.”104 They
tend not to envision how “the opportunity deck” has been stacked against
93. Id. at 121.
94. Id.
95. Id. at 123.
96. Id.
97. Id. at 122.
98. Id.
99. Id.
100. Mertz et al., supra note 78, at 7.
101. Harrison, supra note 88, at 122 (citing Derrick Bell, Application of the "Tipping Point" Principle to Law
Faculty Hiring Policies, 10 Nova L.J. 319 (1986)).
102. Schmidt, supra note 8, at 64; Michels, supra note 2, at 245.
103. Harrison, supra note 88, at 122.
104. Id. at 124.
254 Journal of Legal Education
them.105 Instead, the American dream misleads them to believe they are fully
responsible for their station in life. They are never urged to examine critically
how structural classism, although he did not call it that, influences their
mobility chances, versus those who inherit considerable sums of Bourdieu’s
three elements of wealth. He reasoned that people born working class think
if they exert enough effort, they will make it to the top or, if nothing else, get
there by winning big money in the state lottery.106 Unlike other disadvantaged
groups, working-class people have not established “consciousness-raising
groups.”107 Failing to question the consequences of inherited advantages,
versus inherited disadvantages, working-class people assume, according
to Harrison, that without enough labor, they will not get a high-status job,
or maybe become a law professor (if they even know about this possibility
to begin with).108 Meanwhile, today’s law faculty “wallow in the benefits of
[these] . . . misconception[s] and most know that it is in their interest to leave
well enough alone.”109 This willingness to “leave well enough alone” is another
example of Bachrach and Baratz’s second face of power: preventing an item
from being considered.110
