Barriers for Women of Color in Law Schools

By Emily Houh

Unequal Profession: Race and Gender in Legal Academia by Meera E. Deo. Stanford, CA: Stanford University Press, 2019.

Unequal Profession: Race and Gender in Legal Academia was a long time in coming and, speaking candidly, a difficult read. Having been a woman of color law professor for the last twenty years, I had known and was excited about Meera Deo’s research for the book—which offers an empirical and qualitative analysis of the status and experiences of women of color in the legal academy—for many years before it was published in 2019. But even with the best of intentions, I put off reading Unequal Profession for as long as I could, not because of any doubts I had about the quality of Deo’s research and writing, but because I did not want to relive my own past experiences through its pages. Now, having finally read the book for this review, I wish I had done so sooner.

Unequal Profession is a carefully conceived and well-executed model of social science research. Developed by Deo in 2013, the Diversity in Legal Academia project (DLA)—which serves as the book’s empirical foundation—is, in the author’s words, “the first systematic multimethod analysis of the law faculty experience to utilize an intersectional lens in investigating the personal and professional lives of law faculty from assistant professor through dean emeritus.” That is to say, the DLA is the first study of the experiences of women of color law professors (which includes deans, lecturers, and instructors), a group that Deo reports makes up only 7 percent of the almost eleven thousand members of the legal professoriate. In absolute terms, based on existing statistics compiled by the Association of American Law Schools (AALS), there were 771 women of color teaching in US law schools when Deo concluded her study in 2013, compared with 5,080 white men (46 percent of all law faculty), 2,741 white women (25 percent), and 860 men of color (7.8 percent). Deo conducted surveys and in-depth interviews with a diverse group of law faculty participants comprising sixty-three women of color, eleven men of color, eleven white women, and eight white men.

The DLA forms an impressive data set, but it is focused exclusively on tenured and tenure-track law faculty, which means that Deo examines only a sliver of an already small and elite class. This caused me to raise an eyebrow because of the overrepresentation of women and people of color among non-tenure-track  and contingent law faculty and instructors—but Deo acknowledges the limited scope of her project throughout the book and consciously resists an essentialist conflation of its participants’ experiences with those of faculty members who enjoy even less career security and stability in the legal academy.

Unequal Profession presents and analyzes data from the DLA in stages that parallel those in the life of a tenure-track law professor, providing important details along the way about the legal academy’s idiosyncrasies, some of which might prove surprising or at least strange to other academics. In so doing, the book both draws from and adds to the pathbreaking work done in the 2012 essay collection Presumed Incompetent: The Intersections of Race and Class for Women in Academia, which includes more than forty narrative essays written by academic women of color spanning the gamut of disciplines. (It has since been followed by the 2020 Presumed Incompetent II: Race, Class, Power, and Resistance of Women in Academia, also reviewed in this issue of Academe).

Focusing on key points in the lives of tenure-track law professors—from entry into the law school teaching market to navigating local cultures of “collegiality” to classroom teaching to the promotion and tenure process itself—Deo catalogs the many barriers women of color face that white men, white women, and even men of color do not. Her intersectional approach to analyzing the DLA data demonstrates how the legal academy—for women of color particularly— remains plagued by both explicit and implicit race, gender, and sex bias and discrimination, in both obvious and less visible ways. For example, intersectional—or, as Deo terms it, raceXgender—biases reveal themselves when students presume the incompetence of women of color law professors and resist being taught by them and when faculty colleagues relentlessly “mansplain” or “whitesplain” what women of color already know or “he-peat” what they have already said, cast doubt on research areas and agendas focused on race or gender discrimination as being “tainted” by researchers’ race or gender identities, or alter (often opaque) standards when women of color come up for tenure.

Less visibly, however, intersectional biases and discrimination also cloak themselves in a type of “hypercompetency” that women of color law faculty are expected to instinctively possess in the realm of service and, more specifically, “caretaking”—being “other mothers” not only with regard to nonmajority students, but also to institutional diversity efforts and initiatives. While many women of color are in fact excellent at this extremely burdensome type of work, they are typically not compensated (through stipends, raises, or course relief) for it, though they might be given impressive sounding titles that carry no material weight. Moreover, women of color often actually pay for the work they do by sacrificing their ambitious research agendas as well as any possibility of a “work-life balance.” Because scholarly productivity still dictates which faculty are most valued within their institutions, women of color too often “achieve” themselves to the bottom of that hierarchy. And even when they perform like superheroes—excelling in the traditional sense while also doing the heavy lifting of institutional service and caretaking—their accomplishments are too often overlooked and taken for granted as simply being “who they are.”

For me, as a long-standing member of my home institution’s AAUP chapter (which, not incidentally, is a collective bargaining chapter) and a current member of the AAUP’s Committee A on Academic Freedom and Tenure, the data and stories in Unequal Profession raise serious questions about how the concepts of academic freedom and shared governance might be employed to better support women of color not only in the legal academy but in the academy as a whole. Moreover, Deo’s study compels me to ask why, to this point, those principles have not been so used in any meaningful way, at least in the legal academy. One answer is, of course, that law faculties are notoriously conservative and more securely positioned when compared, for example, with liberal arts faculties. Additionally, I have found that many law faculties eschew the AAUP as irrelevant to and unnecessary in a professional graduate setting. But as law schools continue to grapple with the consequences of their increasing vulnerability, as discussed very briefly below, many law professors are beginning to change their minds. The more important point, however, remains whether and how principles of academic freedom and shared governance can be more effectively used to help equalize the academic profession for women of color and other academic outsiders and “intruders.”

It’s hard to know for sure whether the demographic statistics presented in Unequal Profession have changed much in the six years between the conclusion of the DLA study and the book’s publication, but I’m willing to bet that if one were to show these statistics to any random law professor attending the upcoming annual AALS meeting, that professor would say that, based on informal observations, “no, things have not changed much.” It’s especially interesting to note, moreover, that in related articles about the DLA project that Deo published in academic law journals between 2013 and 2019, she pointed out the difficulties of obtaining more current demographic race and gender data relating to law faculties because the AALS stopped releasing such data in 2009. Additionally, by 2015, the full weight of the 2008 market collapse and subsequent economic depression had finally landed on American law schools, resulting in drastic declines in applications and admissions that led to massive tuition discounting as schools competed for students—and, ultimately, to the imposition of full-throttled austerity measures by corporatist administrations in return for their bailouts of law schools drowning in discount-related deficits. I point this out only to say that in the years since Deo concluded the DLA study (and considering the unavailability of more current data), it’s highly unlikely that the diversity situation on law school faculties has gotten better—and one can only hope that it has not gotten worse.

Against this backdrop, and in the wake of President Trump’s September 2020 executive order on “combating race and sex stereotyping” that prohibits workplace diversity training for federal employees (also known as the “equity gag order”), I expected that reviewing Unequal Profession would leave me feeling hopeless about my chosen profession. But while the statistics in Deo’s study painted a predictably bleak picture, the stories behind them reminded me of all the extraordinary and brilliant women of color I have met since I started teaching law in 2000. My mind flashed back to conferences where, in our pretenure days, small groups of us would huddle together to exchange stories that sounded just like the ones recounted in Unequal Profession. I was reminded of just how empowering it was to leave those conferences knowing that we were not crazy, despite being constantly dismissed or ignored by colleagues at our home institutions and criticized by students for not being detached enough from our nonwhite, nonmale race and gender identities. Indeed, I believe that these once- or twice-a-year huddles prevented many of us from giving up on our academic aspirations and inspired us to pay forward the support provided to us by “senior” women of color who had not just survived but thrived in the legal academy. Unequal Protection is that huddle in a tangible form and, as such, its value as a piece of scholarship and, perhaps more important, a potential lifesaver for women of color in the legal academy cannot be overstated.

Emily Houh is the Gustavus Henry Wald Professor of the Law and Contracts at the University of Cincinnati College of Law, where she is also cofounder and codirector of the Nathaniel R. Jones Center for Race, Gender, and Social Justice. She has been involved in academic unions ever since the mid-1990s when, during law school and as a graduate student instructor, she joined the Graduate Employees Organization at the University of Michigan. Her email address is [email protected].

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