At Law School, Unstrict Scrutiny
An inside look at identity politics in our law schools.
WSJ.com
BY JOHN O. MCGINNIS
Saturday, July 30, 2005 12:01 a.m.
Dan Subotnik once went to his dean and asked to teach a course on race and the law, a subject to which he had devoted a great deal of his own scholarly effort. Teaching a course about something you know is a time-honored method of refining your ideas and, not least, of educating the young. But the dean turned him down. Why? He claimed that Mr. Subotnik's message would be unduly dismissive of racism, amounting to, as the dean put it, "get over it."
While the dean's decision may have been unfortunate for Touro Law School, where Mr. Subotnik is a professor, it was an excellent one for the rest of us because it prompted "Toxic Diversity" (New York University Press, 335 pages, $45), a thoughtful critique of identity politics in the nation's law schools. These days "critical race studies" and feminist jurisprudence are a routine part of law-school scholarship, and much of it is devoted to discovering in the law those white, male power structures that have become an obsession throughout our universities.
Mr. Subotnik argues that critical race theorists and feminists often publish dubious articles and books that ignore the relevant facts in an effort to deliver an unrelenting message of victimization. He wants to hold these scholars to the same standards by which other legal scholars are judged. That they are sometimes not speaks volumes about the double standards that plague all institutions--not only universities--when ethnic identity and gender become in themselves a criterion of judgment, even an axis upon which the institution turns.
Double standards are deeply embedded in the scholarship, too, according to Mr. Subotnik. Racist speech by whites, for instance, is treated as evidence of racism in whites, while racist speech by minorities is evidence of racism . . . in whites: It is either "justified" or part of the warped sensibility that the governing power structures have imposed on persons of color. Meanwhile, the facts that normally support arguments are treated loosely. One of the first African-American law professors recently lamented that his "colony" was at "risk" because law schools showed "little interest" in replacing black professors when they retired. But in the decade before he wrote those words African-Americans had risen to 7.8% of the legal professoriate, up from 4.8%, casting doubt on his central claim.
And then there is the neglect of social statistics. Many critical race theorists, for example, view efforts to discourage illegitimate children as an assault on the African-American community, where illegitimacy has recently run to more than 60% of newborns. But the theorists refuse even to acknowledge the data showing illegitimacy to be a major cause of crime, poverty and disorder there. By contrast, distinguished scholars outside the legal academy, like Harvard's Orlando Patterson, have written eloquently about the blighted lives that result from families without fathers. Mr. Subotnik sees such law-school myopia as typical of the way that critical race scholarship tends to celebrate any conduct that violates middle-class values, never mind the costs.
Mr. Subotnik's critique of feminist scholarship is less sweeping but no less shrewd. He focuses on claims that paradoxically impugn the fortitude and resilience of women. There are more than a few feminists who argue, for instance, that law schools need to change their ways because certain practices, such as the Socratic method of aggressive classroom interrogation, make female law students uncomfortable and cause them to lose their identity. Mr. Subotnik believes that feminists who make such arguments are reviving the stereotype by which the 19th-century Illinois Supreme Court dismissed women as unfit to engage in the "hot strifes of the bar."
Some of the same feminist scholars also call for the elimination of testing for admissions and hiring because tests do not take into account, among other things, "emotional intelligence." As Mr. Subotnik wryly wonders: Why should we pay attention to such soft academic speculations and not take seriously the comments of Bill Gates, who says that winning in business is all about I.Q.?
Mr. Subotnik's book is not without its debatable aspects. He believes that the Supreme Court's recent decision to uphold affirmative action may lead to less use of standardized tests in admissions. But actually the decision allows universities to keep using such tests--as a device to help pick the best students within each ethnic group while often ignoring the differences between students of different ethnic groups.
More generally, Mr. Subotnik's writing style is somewhat diffuse, full of jokes and asides, with the result that his line of analysis is sometimes opaque. And he would make his case more compelling were he to contrast the scholarship that he criticizes with the fine new empirical writing on race and sex, such as that of Rick Brooks of Yale about minority perceptions of the judicial system.
Most disappointing is Mr. Subotnik's decision to approve of the narrative as a sound form of scholarship and, in fact, to indulge in a few personal stories of his own--e.g., his bitter reaction to being mugged. The problem with narratives in scholarly writing--whatever their virtues elsewhere--is that they are difficult to verify, hard to place in context and generally impossible to evaluate. The big question always is: How representative are they?
It is a strength of the academy--in law and many other disciplines--that professors have diverse, sometimes even radical, views. But to advance our knowledge such views need to be supported by rigorous analytical reasoning and the dispassionate gathering of cases and data. It is the great merit of Mr. Subotnik's work that he moves us toward a single standard for judging scholarship and thus helps create the conditions for the common enterprise of explaining our social world--and even, if we are lucky, improving it.
Mr. McGinnis teaches at Northwestern University Law School. You can buy "Toxic Diversity" from the OpinionJournal bookstore.
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