Juliet’s soliloquy notwithstanding, how naming happens and what you’re called matters in the legal academy. In Unentitled: The Power of Designation in the Legal Academy, Rachel López illuminates the ways in which faculty titles and their corresponding categories function as drivers of inequality – an inequality that is difficult to discern because it is presented as justifiable, enmeshed within a seemingly merit-based difference that in turn is framed by the regime of tenure. Titles reflect and create difference: they function as proxies for the hierarchy inherent in the world of legal academia, and at the same time structure expectations, interactions and opportunities while signaling status. Nevertheless, these same titles are at odds with the commonalities that increasingly cut across faculty categories, and they mask the impact of different policies and perceptions that fall particularly heavily on women of color, and women generally. (P. 924.) To address these effects, López offers several concrete suggestions for law schools pursuing an anti-racist agenda.
López’s positionality matters in making this case: she is a boundary crosser, having begun her career in a non-tenure clinical role and then purposefully moving into a tenure-line role, where, among other things, she has continued her involvement with clinical legal education through teaching and administration. This history of crossing categories enables her to perceive the “problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.” (P. 925.) The orientation in the legal academy towards preserving the power and centrality of tenure-line faculty, which extends from governance to resource allocation, can be blinding to those within the system who may not perceive inequalities embedded both in the functional differences attributed to particular faculty roles and in the notion of merit that is seen as the foundation of these categories.
Titles that convey functional differences also disguise the ways in which faculty respond to the same incentives and responsibilities while operating in vastly different circumstances. I offer five examples related to these dynamics. First, López highlights the ways in which teaching does not abide categories implicated in faculty titles. For example, she describes that more than half of clinical faculty surveyed by the Center for the Study of Applied Legal Education who were allowed to teach podium classes did so (and according to the same source, “more often than not without any additional compensation or teaching release.”) (P. 928.) The experience at Northwestern, where I am on the faculty, is similar with regard to teaching assignments (but not compensation): doctrinal courses, including first-year classes, routinely are taught by non-tenure-line faculty with titles of Lecturer, Senior Lecturer and Professor of Practice, and by Clinical Professors (which includes faculty teaching Communication and Legal Reasoning) as well as by tenure-line faculty.
Second, the importance of scholarship also crosses title lines at many law schools and is crucial to advancement or contract renewal for many nontenure-line faculty. (P. 927.) Despite this, the structures that support tenure-line faculty scholarship, including having stretches of time without teaching responsibility, are not necessarily available to all; for example, law schools may be slow to cover the costs associated with offering clinical faculty research leaves when their clients continue to require their service. Related to this, time for research may be more difficult for nontenure-line faculty because of differences in teaching loads: a full course-load for tenure-line faculty might be three or four courses a year, while clinical, legal writing and research, lecturers and professors of practice can be subject to a standard of five or more courses per year.
Third, compensation differs dramatically according to title, apart from workload expectations, qualifications and credentials. Even within the diverse group of non-tenure-line faculty, these differences can be substantial. Further variation is found in compensation differences around course overloads, research accounts and research or summer stipends – the latter may not even be on the radar screen of non-tenure-line faculty. And as non-tenure-line faculty increasingly engage in scholarship, the lack of resources to support research, including for research assistants and travel, for example, can make it more difficult for them to fully immerse themselves in the research activities.
Fourth, the consequences of title assignment are reflected in differences in hiring processes, which in turn set the stage for whether and how faculty get to know one another as well as develop expectations about the activities – including scholarship – in which others will legitimately engage. What occurs around tenure-line hiring – where the focus is on a candidate’s scholarship with the expectation that faculty at a school interviewing a prospective new hire will read the candidate’s publications – often is entirely different than what occurs around non-tenure-line hiring. At many law schools, there is no similar process for non-tenure-line faculty who have a record of publications, and expertise outside of scholarship also is not used as a basis for becoming acquainted with these candidates. As a result, faculty may be ignorant of the expertise and experiences of non-tenure-line faculty in their own law schools.
Last, governance power often remains out of reach for non-tenure-line faculty. Voting policies commonly divide along the same title differences, which work to silence and disenfranchise non-tenure-line faculty. (P. 926.) But the work of running the law school may not similarly exclude based on title, so non-tenure-line faculty may be asked to participate in law school committees (including appointments and curriculum, for example) despite not having a vote on committee-related decisions when brought before the faculty. Myriad other policies also distinguish based on title at some schools, such as for the assignment of office space, which further contributes to segregation, power inequity and perceptions about how different faculty contribute to the law school.
The system of law school academic titles and their categories perniciously promote the importance of particular speakers, discounting others: what is valued in terms of knowledge and knowers relegates non-tenure-line faculty to the periphery. These sorts of differences are consistent with the line of reasoning that increasingly has found the legal profession to be a site of “epistemic injustice:” certain people are seen as more valuable “knowers” and others as less valuable, and at the same time, particular kinds of knowledge are valued more than others.1 Swethaa Ballakrishnen and Sarah Lawsky draw on this theory to frame the ways that minorities are treated as unreliable witnesses even about their own experiences. In the context of law school titles, individuals identifying as other than White and male are overrepresented in faculty roles with these “other,” non-tenure-line titles and consequently more likely to experience the sorts of inequalities described by López.2
It is these very individuals, though, who are presented by law schools as evidence of a commitment to faculty diversity and agents of change. But they are stymied by their titles in challenging the power dynamics in their organizations. The “veil of objective neutrality” that spans this regime perpetuates a hierarchy that promotes and confirms those who have held and retain power in the legal academy at the expense of those on the periphery, including women of color. (P. 924.) And, as López describes, this marginality extends even outside of a particular law school to taint interactions with faculty across the legal academy. (P. 930.)
López makes a couple of recommendations for law schools to pursue an anti-racist agenda. First, the title Professor of Law should be applied to all full-time faculty.3 Second, a unitary track or a tenure option for all faculty positions should be adopted, making paths to the norm for law schools both transparent and attainable. Some may consider these suggestions extreme or naïve, or both. Titles reflect rewards recognized in rankings and other competitive measures as well as – and related to – financial models shaping resource allocation, and López’s suggestions would carry deep implications in this regard. But despite the potential disruption of these recommendations, by drawing attention to the ways in which titles embed inequality in the legal academy, López has offered law schools ways to think about taking first steps towards building a regime that internalizes the aims of anti-racism within the academy.
- Swethaa S. Ballakrishnen and Sarah B. Lawsky, Law, Legal Socializations, and Epistemic Injustice, Law & Soc. Inq. (2022), at Pp. 6, 8.
- Further, even within the ranks of non-tenure-line faculty, inequality lurks. Carole Silver & Atinuke Adediran, Between Recognized Categories: Gender and Status in the Legal Academy (working paper, on file with author).
- López has not included adjuncts and part-time faculty in this discussion, which could be addressed in future work.
