Taking the Law School to Court

When law students announced last week that they were taking their own school to court, their spirited voices and bold signs projected a strong image of confidence in their cause.

By filing a suit charging that the Law School discriminates against women and minorities in its faculty hiring policies, 11 members of the school's Coalition for Civil Rights (CCR) became the first law students ever to sue their school. But while the students concede that they are treading in uncharted waters, they still insist that they expect to establish precedent rather than follow it.

"When change comes about in the legal system it comes about through aggressive litigation such as non-conventional law suits," said John Bonifaz, a second-year law student who signed the lawsuit.

But some legal experts across the nation are not so confident that this case will prove to be the landmark that the students hope it will be. They say that claims of discriminatory hiring levelled at universities are notoriously hard to win.

The students' lawsuit, filed in Middlesex Superior Court, specifically charge that the Law School uses subjective criteria in its faculty hiring policies that unfairly tip the scales against women and minorities. Such criteria, the students allege, includes picking scholars who have been law review editors and judicial clerks as well as those who have already published work in academic journals.

Moreover, the students charge that their education has suffered by a lack of diversity on Harvard's law faculty. Currently, the Law School has three Blacks and five women in tenured or tenure-track positions, although about 45 percent of offers for such positions within the past decade have gone to women or minorities.

Some legal scholars point to a recent reversal in civil rights legislation, which puts the burden of proof in discrimination suits on the plaintiff, as a major reason that the students will face an uphill battle.

A 1989 Supreme Court decision now mandates that plaintiffs charging discrimination demonstrate that there are no legitimate business reasons for an institution's hiring practices. In addition, filers of such suits must substantiate their claims with statistical evidence.

"The burden thrust on an employer for the use of subjective criteria are light," said William Gould, Beardsley professor of law at Stanford University. "It's very hard for plaintiffs to win these cases."

Allan Ryan, an attorney in the General Counsel's office who is coordinating Harvard's defense in this suit, says the University should have no trouble justifying the subjectivity used in the Law School's hiring policies.

"The criteria obviously are subjective to a very large extent," Ryan says. "It's one thing to say we will hire only typists who type 60 words per minute. You can't hire law professors or any other professors for that matter by such a mechanical process."

"You have to look at qualities that are more difficult to quantify, such as potential, teaching ability, experience, and so on," Ryan adds.

Bonifaz says that precedent favoring employers should not hinder the students excessively, because the CCR members purposely filed suit under state law to avoid the federal precedent.

"While the state court may look to the Supreme Court for analogous rulings, the Mass. court has its own precedent," Bonifaz says.

Harvard may have a further advantage in this case, Gould says, because courts have traditionally accepted universities' arguments that they are the best judges of academic talent.

"Universities have been able to promote the idea that they are self-governing institutions who possess an expertise in the selection of academics which the courts' don't have," Gould says. "The courts have been intimidated by this line of argument."

Before the students' suit is even heard by a judge and jury, the court must recognize that the students have been harmed by the alleged discriminatory hiring practices. It is possible that Harvard will file for a motion to dismiss the case, although both Gould and Bonifaz agree that precedent does exist for hearing similar suits.

But even if the suit is unsuccessful within the courtroom, students believe it will at least complement other longstanding efforts to increase pressure on the Law School administration to diversify its faculty. Thus far, such initiatives have included holding numerous rallies on campus, as well as staging two sit-ins last spring outside the office of Dean Robert C. Clark.

"This is not an issue that popped up this year. This has been going on for 10 to 20 years," said Inger Tudor '87, one of the lawsuit's signees. "Part of the point is to let them know we are tired."