Law School Goes to Trial Over Hiring

To the Editors of The Crimson:

We would like to inform the Harvard community of a case that merits your attention. On March 3, the Supreme Judicial Court of Massachusetts (SJC) will hear an unprecedented discrimination case brought by Harvard Law students against their school. This case is of enormous concern to all members of the Harvard community as well as the national civil rights community and to all those seeking to eradicate discrimination in education in this country. This case is history in the making.

On November 20, 1990, the Harvard Law School Coalition for Civil Rights (a law student organization representing six minority student organization and the Women's Law Association) filed suit in Massachusetts state court charging that Harvard Law School has for years excluded women and minorities from its faculty in violation of Massachusetts anti-discrimination law. The case, in which the students are representing themselves, is believed to be the first of its kind in the country. A reversal of the lower court ruling in the students' case will open the door for students throughout the nation to seek redress in court when their schools discriminate in the hiring of their teachers.

Of the 66 tenured or tenure-track faculty members at Harvard Law School, only five are women--all of whom are white--and only six are African-American--all of whom are male. The rest are all white men. No women of color, no Latinos, no Asian-Americans, no Native-Americans, no openly lesbian, gay or bisexual persons and no persons with physical disabilities sit on the Harvard law faculty.

In its 175 year history, Harvard Law School has never hired a member of any of these groups. The proportion of Women law professors at HLS is one-third of that nationwide. While there are over 16,000 African-American law graduates since 1980, Harvard has only 3 tenured African-American professors and 3 tenure-track African-American professors. The racial minorities which are unrepresented on the HLS faculty--Native-American, Latinos, Asian Americans--comprise almost 5 percent of law professors nationwide. Qualified women and minority applicant--many of whom are graduates of HLS--are out there; Harvard has merely chosen to case a blind eye over them.

Harvard, like many law schools, argues that it is trying but that "things take time." It claims that the "pool" of qualified candidates of people of color, women,, lesbian, gay and bisexual people and persons with physical disabilities is small and that this has impeded the school's efforts to integrate its faculty. And somehow Stanford Law School has managed to hire a faculty of which 29 percent are women and minorities. The "pool" argument is really a smokescreen for attitudes which reflect the old boy network of legal academia.

Many educations institutions like Harvard Law School can avoid compliance with anti-discrimination law once they carry out their faculty hiring practices in secrecy. Harvard Law School does not accept nor solicit application for faculty positions. Instead, a faculty appointments committee, selected by the HLS dean, decides whom it wants to consider. Rejected candidates are most often unaware that they have been considered for and denied a faculty position. They, therefore, rarely know when they have a legal claim of discrimination against the school. Current faculty members, who are also harmed by HLS's discriminatory hiring practices, are similarly unlikely to challenge such practices in court for fear of reprisal.

If granted the right to bring this case to court, students who suffer direct harms as a result of discrimination in faculty hiring will be able to challenge their school's unlawful exclusion of women and minority teachers. The students argue that when their school discriminates in the hiring of their teachers, it deprives them of the educational benefits of association with an integrated faculty. In addition, it especially denies women and minority students full and equal educational opportunities because it creates an educational environment that is insensitive and intolerant of difference, that perpetuates badges of inferiority and that perpetuates badges of inferiority and that reduces the students' professional and business opportunities.

For more than 20 years, students at HLS have protested the school's discriminatory faculty hiring practices. They have received support from distinguished professors, such as Derrik Bell who, in April 1991, proclaimed he was taking an unpaid leave of absence until the school hired a woman of color for its tenured faculty. To date he has not returned. In addition, this case has drawn the attention of the national civil rights community. In January 1991, civil rights groups across the country from across the country, led by Boston Lawyers' Committee for Civil Rights Under Law, filed a friend-of-the-court brief in support of the students' right to bring this suit. Furthermore, the Society of American Law Teachers, representing hundreds of Law professors throughout the country, signed on in support.

In early January 1991, Harvard University filed a motion to dismiss the lawsuit in Massachusetts Superior Court. Harvard argued that the students did not have the legal right to bring the suit--or "standing"--and that the students had not made out a prima facie claim of discrimination. On February 22, 1991, the Superior Court granted Harvard's motion to dismiss on the grounds of standing. It refused, however, to dismiss the case on its merits, finding that the students had made out a prima facie claim of discrimination. The charges of discrimination, then, remain as the students appeal the standing ruling to a higher state court.

On January 22, 1992, the SJC, in a highly unusual move, granted the students' motion for direct appellate review (allowing the case to bypass the Mass. Court of Appeals). According to state court rules, the SJC only grants such motions in cases presenting "novel questions of law" or "issues in the public interest." The SJC will not consider whether the lower court ruling should be reversed. An SJC reversal of the lower court's ruling would lead to further court hearings in this case on the trial level with regards to the student's charges that Harvard has violated Massachusetts anti-discrimination law.

Nearly 40 years ago, the U.S. Supreme Court ruled that segregation in our nation's school is unconstitutional. Nearly 40 years later, a national school movement is seeking to integrate the faculties of our nation's law schools. Harvard Law School Coalition for Civil rights, et. al v. president and fellows of Harvard College is the first case of this movement. The SJC has set the date of March 3, 1992 for oral argument in this historic case. We urge the Harvard community to attend this hearing in the new courthouse near Government Center. John Banifaz, third-year law student   Samantha Graff '93   Harvard Law School Coalition for Civil Rights