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Law professors differ on affirmative action

STANFORD -- Two law professors wrestled with the issue of affirmative action in what they termed a “discussion” rather than a “debate” Thursday, Oct. 20 at Stanford Law School.

Taking a less-is-better position on affirmative action was Richard Epstein, John Olin Professor of Law at the University of Chicago. Opposing him and stressing the academic and societal benefits of affirmative action was Paul Brest, Richard E. Lang Professor of Law and dean of the Stanford Law School.

The event was sponsored by the Stanford chapter of the Federalist Society for Law and Public Policy Studies, which describes itself as “a group of conservatives and libertarians interested in the state of the legal order.” An overflow audience, made up primarily of law students, filled the Moot Courtroom, which seats 140.

The discussion focused on law schools, and Epstein said he takes “a very dim and hostile view of any effort by the American Association of Law Schools (AALS), or other accreditation institutions, to say that the only way you will be accredited is to have an affirmative action program which meets the requirements of the association.” Brest agreed that decisions regarding affirmative action should be made “at the local level, and not by courts or accrediting agencies.”

Epstein said he disagreed with doomsayers who believe that if accreditation standards imposed by the AALS were removed, or Title 7 of the Civil Rights Act were repealed, “institutions would go back to the admissions and hiring practices that existed in 1952 or earlier. I detect a strong sentiment in favor of some degree of affirmative action and predict that it will continue.”

But, Epstein said, “while I think there would still be affirmative action, perhaps more here [at Stanford] than at the University of Chicago, I think there would be somewhat less. But I think the question of more or less is not the right question. The right question is which of these two systems is going to yield more desirable results.”

Epstein said he thinks affirmative action is a matter of trade-offs. While he believes that traditional admissions criteria, such as grades and standardized test scores, are important, they may not be the only things that are important, he said. Institutions would be free to balance and weigh a variety of factors in admissions, he said.

“What I think is wrong about the affirmative action debate, as it sometimes takes place,” Epstein said, “is the argument that there are no trade-offs at all.”

Almost 15 years ago, Stanford Law School decided, Brest said, to stop using numbers as the exclusive factor in admissions, “not just with respect to so-called targeted racial minorities, but with respect to all students.”

“We're always making trade-offs,” Brest said, “but if we're talking about trade-offs in affirmative action, Professor Epstein has missed what I regard as a significant benefit of affirmative action.” Diversity, Brest said, expands the educational experience for everyone.

While there is no such thing, Brest emphasized, as an African American point of view or a Latino point of view, “people who have different backgrounds - race and ethnicity not being the only way in which our backgrounds differ - bring different experiences to the classroom.”

Since a great deal of what goes on in a law school class involves social policy that affects people from different groups in different ways, Brest said, diversity enriches the classroom discussion. “My sense is that discourse has been enriched enormously in the law reviews and in the classroom by virtue of people bringing points of view to bear that otherwise would not be there,” Brest said.

“We made a trade-off in the admission of every student and the hiring of every faculty member,” Brest added, “and it's a trade-off of 'What can you bring to this enterprise?' We live in a society in which not just work experience or test scores or the college you attended, but race and ethnicity are part of what you bring to this enterprise.”

The real question, Epstein responded, “is not whether we have trade-offs, but what is the level of the trade in question.” It is wrong, he said, “to treat the affirmative action preferences or corrections as though they were the same order of magnitude as geographical preferences or alumni preferences, because they're not. You're talking about a much bigger accommodation being made to race.”

On the question of diversity enhancing the classroom experience, Epstein said that he thinks that in many cases “intellectual diversity does not depend on the obvious kind of social indicators.” A homogenous community, such as the upper-middle- class predominantly Jewish high school he attended in Great Neck, N.Y., Epstein said, can produce people with very different points of view.

During the question period, Brest illustrated his point about the importance of diversity by citing Barbara Babcock, the first tenured woman on the Stanford Law School faculty. Brest, who had been at Stanford for three years before Babcock's arrival, said that with Babcock's presence, “the nature of the discourse in faculty meetings changed in a significant way. It's not that we had been telling locker room jokes, but people's consciousness of women students and women candidates for the faculty was changed merely by the presence of one woman on the faculty.”

Babcock, who was in the audience, said that she was on an all-male faculty for her first five years at Stanford, and she perceived that real changes in faculty conversation did not come until very recent years. (Stanford Law School now has 10 tenured or tenure-track women on its faculty.)

In turn, Babcock asked Epstein if “you feel a lack with no tenured African American [faculty] and for many years no women of any color.” (According to the University of Chicago News Office, its law school now has one tenured and one tenure-track African American on the faculty and four women, either tenured or tenure- track.)

Epstein responded that the female candidates for faculty positions are, on average, not equal to the male candidates. “How much of a compromise does one want to make?” he asked. “That's the issue that has divided people on the faculty, but if you were to check the things that count - the rates of publication that will be required to make it into certain levels - one would see that not only has there been no discrimination but some due allowances made.

“We want to get someone who is in the top one-tenth of one percent, in some sense, of academic power, and that's a very high standard to meet,” Epstein said.

Babcock asked Epstein if he felt a personal lack at not having women or minorities “in your councils or at your bag lunches.”

“I think a Chicago lunch is still the ultimate intellectual experience,” Epstein replied. “It's a roundtable where you put your head under a guillotine and wait for someone to drop the blade. I always want to find someone who's about to destroy me.”

Another questioner wanted to know if Epstein would accept the result if affirmative action were abolished and faculties went back to all-white, all-male.

“Sure, but I'd be utterly stunned because the only way it could happen is if large numbers of people presently in positions of power at these institutions decided to commit a form of institutional hari-kari,” Epstein said. “I know my views within the academy are, to put it mildly, in a fairly distinct minority, and I can't believe that, if you remove the pressures I'm talking about, that suddenly I would be transformed into a powerful majority. I don't think people who are in favor of affirmative action are doing it as a strategy. I think they believe it.”

Summing up his views, Epstein said, “Affirmative action has some opportunities and some costs. I certainly believe that the level of zero affirmative action is an institutional mistake of colossal proportions, but I'm basically in favor of the Mies van der Rohe position of 'Less is more.' But I realize that if I say that, I'm driven back to zero, so what I have to do is try to find some place in which I can put a handhold on the slippery slope.”

Brest concluded by saying, “I only wish we had Richard Epstein on the Stanford faculty to contribute to our intellectual diversity.”


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