As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)
Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:
I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)
Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]
As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.
Before getting into my entirely nerdy parsing of AnonProf's blog comment, let me make clear the question I'm not addressing. I'm not especially interested in exploring any inconsistentcy between law prof views of L'Affaire Scholastica, on one hand, and the presumably friendly attitude of most law profs towards AA in undergraduate or law school admissions, or even in legal academic hiring. It seems to me that one can support AA in some contexts but also believe, without any inconcisitency, that, at some point — say, once one has obtained a tenure-track faculty position — the playing field has been as leveled through AA as it ever will be for the relevant cohort. Since symposia/conference invitees and law review article authors are generally speaking the same cohort, this explanation for distinguishing the two practices is inapposite.
Right then. AnonProf said, in part:
I think diversity is very important in symposia, and I agree that editors should seek a wide group of people taking of demographic facts there. The reality is that there are more men in some fields and more women in others, more minorities in some fields and less in others, more gays and lesbians in some and less and others, etc. So, there is an element of build-in inequity by virtue of the fact that some intellectual fields attract more of one group than another. But everyone deserves a change, irrespective of the fact that they are an outsider. In order to create opportunity and seek to achieve parity, symposia should be diverse.
I think a fair recreation of the logic of this argument is as follows:
(1) "there are more men in some fields and more women in others...etc.";
(2) "everyone deserves a chan[c]e, irrespective of the fact that they are an outsider";
(3) AA in this context would "create opportunity and... achieve parity"
Ergo, "diversity is very important in symposia" and "symposia should be diverse."
(*I should note, although I don't think it matters, that I hadn't intended to limit my original question to symposia. As I understand the norm in philosophy and elsewhere, the imperative to invite or otherwise include diverse speakers holds regardless of whether there is a guaranteed or even possible publication opportunity. That is, it applies not only to symposia but also to conferences where one presents work that one will publish, if at all, entirely separately from the speaking opportunity.)
It seems to me that each step in this argument applies just as strongly to article publication:
#1 is an empirical claim that seems true -- but equally applicable to talks and papers. That is, I entirely agree that certain fields attract or (so as not to assume self-selection and discount the possibility of exclusionary mechanisms causing this situation) include more of, say, one gender than the other (IP is male-dominated, for instance [update: no, apparently, it's not; please substitute your own example], while family law is female-dominated). But won't these disparities (if you will) manifest both at the stage of giving talks and at the stage of submitting papers for publication? In other words, I'm having trouble seeing how a male-heavy field that exists for purposes of symposia (or conferences) will suddenly be any less male-heavy for purposes of article selection.
#2 is a moral principle concerning equal opportunity for outsiders that presumably applies to both stages of the scholarly process as well. The only argument I can think of for differentiating between its applicability at the two stages would be if one thought that, having evened the playing field at the stage of oral presentation of work in progress at conferences and workshops through really useful feedback, all academics should then be able to compete fairly for article placement. This argument (which I don't think AnonProf had in mind, especially since his/her focus was on symposia, where one is simultaneously invited to speak and publish) assumes, among other things, a lot about the usefulness of conference/workshop feedback.
#3 is a descriptive claim about the effects of AA in symposia: namely, that reaching out to various underrepresented groups would "create opportunity" and "achieve parity." But isn't this equally true of reaching out to (or adding a thumb on the scale for) various underrepresented groups at the article selection stage? Indeed, if anything, inasmuch as normal law review publication is (far) more professionally important than presentations and invited symposia publications (in part because, as AnonProf notes, everyone knows that some people blow off their invited presentations/papers), the effects of AA on opportunity creation and parity in the article placement context would seem to be much larger and, hence, AA in the article selection context would seem to be *more* justified, according to AnonProf's logic.
So I'm finding it difficult to reach different conclusions about the appropriateness of AA in the two contexts based on the reasons (I perceive that) AnonProf gave. I can imagine a few additional reasons to distinguish the two contexts. First, some symposia, conferences or workshops might seek to generate a consensus statement, and for that statement to have perceived legitimacy, it might need to involve diverse signatories. That seems like a fair reason to accept AA in the symposia context without necessarily accepting it in the article selection context, but it seems that this would apply very rarely.
Second, most speaking opportunities (outside of student edited law review symposia) are granted by fellow faculty members. This introduces the possibility that people will select their friends, and inasmuch as people tend to be friends with similar people...AA might be a useful check on that bias. Assuming that's true (I'd think law prof types are mostly likely to hang out with other law prof types rather than law prof types of a particular gender, race, or sexual orientation, but I don't know), the question is whether things are much different in the article selection context. There, students rather than fellow faculty select articles (generally), and other than possibly being biased to accept (or reject!) articles from their own professors, the old boys' club concern probably isn't directly at issue. Is it indirectly at issue, inasmuch as student editors clearly exhibit very strong letterhead bias and perhaps higher-ranked law schools tend to be more dominated by straight white men (again, I actually have no idea whether that's true or not)?
The second half of AnonProf's post may suggest a different argument for differentiating between symposia and article selection. AnonProf wrote:
The submission of articles is different. It’s all about quality. We all know that not all symposia pieces are great. There are renowned scholars who sometimes put in too little effort into their symposia pieces, but others put in just as much as they do into their submitted articles. Symposia provide opportunity for capable people who are struggling to get into a field to get their foot in the door and write an excellent article for people to see what they can achieve when given the change. But journal submissions should be exclusively about quality. Undoubtedly, as I mentioned earlier, elitism comes into play, letterhead bias is disgusting, name recognition can get you in, and all those characteristics should be irrelevant. But using historical categories of discrimination to close spots to meritorious articles is just plain wrong.
I'm not sure I understand the relevance of the fact that some people blow off their symposia pieces. Again, in both contexts (symposia/conferences and article selection), selecting members of underrepresented groups can "provide opportunity for capable people who are struggling to get into a field to get their foot in the door and write an excellent article for people to see what they can achieve when given the chan[c]e." The only relevance of the fact that some blow off their symposia that I can see is that this makes symposia invites less of a benefit for everyone, but especially for "privileged" people who don't need to break into a field or make a name for themselves, whereas article placement remains (except for the true rock stars) extremely competitive for everyone.
In other words, AnonProf might be saying that AA in the symposia context is good because (1) it achieves equal opportunity/parity for non-privileged folks (however defined; this is shorthand) and (2) without taking away a very meaningful benefit from privileged folks (however defined). Whereas, although AA in the article placement context (1) also achieves equal opportunity/parity for non-privileged folks (and indeed, for reasons noted above, perhaps is even more effective in that context), it (2) does take away a meaningful benefit (an article placement spot) from privileged folk, and (3) especially meaningful benefits should be distributed according to merit, not demographics. The addition of (3) to the argument with which we began would seem to explain the extremely different reactions by many people to AA in these two contexts, but I think (3) requires defense (I’m not saying that it cannot be defended, just that its truth isn’t self-evident).
Absent such a defense, or an alternative explanation for why we should treat these two contexts differently, I return to my sense that these are essentially the same thing. How we resolve that inconsistency — by expanding AA from symposia/conferences to article selection, or by eliminating it from both contexts — is, of course, a separate question.