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Saturday, January 23, 2016

Little Minorities/Little Staff Attorneys

Several of the same old structures continue to defy meaningful and lasting progress and continue with inequities. I'm talking about "little minorities" and "little staff attorneys," and the variety of or dearth of responses to an outcry against discriminatory practices.

As everyone is no doubt aware, the Academy of Motion Picture Arts and Sciences this week announced its nominees for the 88th Annual Academy Awards. Variety reports that the nominees:

"listed 23 total producers for the eight movies picked in the best-pic race; seven were women. For the two screenplay races, 17 individuals are nominated, with four women and no racial minorities. The sole nom for 'Straight Outta Compton' went to a self-described 'white Jewish gay guy from Connecticut' and his white writing partners, Jonathan Herman and Andrea Berloff."

Although the nominees were not diverse, responses to the announcement were, see, e.g.:

Lupita Nyongo'o, Best Supporting Actress, Twelve Years a Slave, 2013:

“I am disappointed by the lack of inclusion in this year’s Academy Awards nominations. It has me thinking about unconscious prejudice and what merits prestige in our culture. The Awards should not dictate the terms of art in our modern society, but rather be a diverse reflection of the best of what our art has to offer today. I stand with my peers who are calling for change in expanding the stories that are told and recognition of the people who tell them.”

George Clooney, Best Supporting Actor, Syriana, 2005; Best Picture, Argo, 2013:

“I think that African Americans have a real fair point that the industry isn’t representing them well enough. …  There were four films this year: Creed could have gotten nominations; Concussion could have gotten Will Smith a nomination; Idris Elba could have been nominated for Beasts of No Nation; and Straight Outta Compton could have been nominated. And certainly last year, with Selma director Ava DuVernay — I think that it’s just ridiculous not to nominate her. But honestly, there should be more opportunity than that. There should be 20 or 30 or 40 films of the quality that people would consider for the Oscars.”

Spike Lee, Honorary Award, 2015: 

"….As I See It, The Academy Awards Is Not Where The 'Real' Battle Is. It’s In The Executive Office Of The Hollywood Studios And TV And Cable Networks. This Is Where The Gate Keepers Decide What Gets Made And What Gets Jettisoned To “Turnaround” Or Scrap Heap. This Is What’s Important. The Gate Keepers. Those With “The Green Light” Vote. As The Great Actor Leslie Odom Jr. Sings And Dances In The Game Changing Broadway Musical HAMILTON, 'I WANNA BE IN THE ROOM WHERE IT HAPPENS.' People, The Truth Is We Ain’t In Those Rooms And Until Minorities Are, The Oscar Nominees Will Remain Lilly White.“

And there's more here.

    But c.f.:

Charlotte Rampling, Nomination, Best Actress, 45 Years, 2015:

"No, I find to the contrary, that it's racist toward whites . . . one can never really know . . perhaps sometimes black actors have not earned a place in the final running. . . .There will always be problems with people saying this one is too handsome, this guy is too black, this guy is too white, there will always be someone of whom people say, ‘You are too …And so we’re going to classify everything to make thousands of little minorities everywhere?"

Stacey Dash, actress and FOX News Contributor:

"We have to make up our minds. Either we want to have segregation or integration. If we don't want segregation, then we need to get rid of channels like BET and the BET Awards and the [NAACP] Image Awards, where you are only awarded if you are black. If it were the other way around we would be up in arms. It's a double standard. Just like there shouldn't be a Black History Month. You know, we're Americans, period. That's it."

Inside of a week, and as a result of the public outcry by celebrities and others, the president of the Academy stated that she is “heartbroken and frustrated” by the lack of diversity among this year’s nominees, and announced “dramatic steps to alter the makeup of our membership.”

Over here in the other Academy we have a similar disregard that provokes a quieter outrage and no immediate declaration of a fix. On Thursday's Law School Cafe a colleague in my field wrote:

    "At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people.

Professors who teach legal writing and clinics are, indeed, 'little people' in most of our law schools. They earn less than tenured faculty, have less job security than tenured faculty, and share fewer governance rights. Yet these professors teach students the heart of lawyering. They teach students how to write like lawyers, how to speak with and write to a wide range of audiences, and how to solve lawyering problems.

After thirty years teaching all types of courses (doctrinal law, interdisciplinary subjects, legal writing classes, and clinics) I’m convinced that clinical and writing professors have the greatest impact in teaching students to think like lawyers. Tenured faculty prompt that work in the doctrinal law classroom, but first-year students learn how to do it in their legal writing classes. That’s where they “think” in writing and without leading questions. They also receive personalized, formative feedback that improves their thinking.

Similarly, clinics challenge students to think and strategize, not just within the narrow confines of a classroom question or appellate argument, but within the context of negotiating with an adversary or performing other multi-dimensional tasks. Analyzing an appellate opinion within the four walls of a classroom is much easier than using that opinion (along with a few other opinions, statutes, and uncertain facts) to frame a negotiating strategy for a client who depends upon you.

Why do doctrinal law faculty persist in thinking that legal writing and clinical professors do work that is less intellectually challenging or valuable than the work they do? It’s partly self interest; everyone likes to think that their own work is most important–and to protect their higher salary and governance privileges.

It’s also partly ignorance. Many tenured faculty know little about what happens in law practice, law school clinics, or legal writing classes. Some are not particularly good legal writers, despite their focus on scholarship. Even if they are good writers, they might not know how to teach someone else how to write.  Ignorance can make us defensive; we diminish the importance of the things we don’t know.

I’ve also come to think that tenured law faculty constitute a type of cult. We have very specific criteria for admission to this cult, we engage in a narrow range of permitted behaviors, and we celebrate common rituals–one of the most valued of which is deciding who will be allowed to join our cult.

We need to escape this behavior and recognize the challenging, important, and time-consuming work that clinical and legal writing professors perform. We already recognize how much work they do. It’s time to acknowledge–and reward–the importance of that work."

In comments following the post, Professor Merritt notes that professors in the area of Academic Support are similarly situated. I would add to the similarly situated the odd-man-and-woman out in the role of the non-contract and contract-with no-permanancy-but-not-exactly-an-adjunct professor.

And here I add my own AALS anecdote, a toss-away comment that "writing professors are the most disgruntled law professors." Disgruntled. As if inequities should be dutifully taken without question like Tylenol for a headache.

Professor Merritt asks and answers her own "why" question above. But I'm not convinced we need to continue to ask why. What is necessary is for the leaders in this Academy to take "dramatic steps to alter the makeup" not only of our hierarchical structure but of perception. Perhaps we need George, Spike, and Lupita to step into discussion of fairness and equity in this Academy.


Posted by DBorman on January 23, 2016 at 04:27 PM | Permalink


Charlotte and Stacey might have the better argument. At least you don't explain why they don't, or why you think that what "George, Spike and Lupita" said shows that they have an inkling of what fairness and equity means. Besides in context it appears that the "little minorities" Charlotte talks about refers to arbitrarily small subgroups.

The connection you draw between the Academy Award controversy and the point Prof. Merritt makes is strained. She might have a valid point, but it doesn't have anything to do with allocations of awards by race.

Posted by: AYY | Jan 26, 2016 1:48:58 AM

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