Structural Nepotism: On the Reluctance of Law Schools to Include Social Class Origins among their Faculty Diversity Goals

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