Elizabeth Warren and Affirmative Action in Law School Hiring

Aside from Brian Leiter, whose contention that being Native American provides no affirmative action edge in law school hiring fails the straight-face test, it is obvious to everyone else why Elizabeth Warren self-identified as Native American all those years–which was to get an edge in hiring.  Even less plausible, of course, is her own explanation–that she was looking for people to have lunch with (once she got to Harvard was it that she no longer was interested in having lunch with other Native Americans or that the strategy was so successful that she had just had too many lunches through the years?).  Larry Sabato states the obvious:

“This takes her biography into a bizarre dimension,” said Larry Sabato, director of the University of Virginia Center for Politics. “It has derailed the effort to define Warren in a voter-friendly way.”

Sabato also said that Warren’s claim that she didn’t list herself as a minority to gain an employment advantage is not believable.

“This is what happens when candidates don’t tell the truth,” he said. “It’s pretty obvious she was using (the minority listing) for career advancement.”

So assume the only reasonable explanation–that contrary to Leiter’s statement she did this to get a leg up in hiring and contrary to her own statement she didn’t do it to find lunch partners.

But Warren’s campaign has produced statements, most notably from the very distinguished bankruptcy scholar Jay Westbrook at Texas, that her purported Native ethnicity was not taken into account, in his opinion and recollection, in her hiring at Texas.  Although I’ve heard otherwise, Jay’s comment certainly may be true and seems plausible–as I’ve acknowledged previously, I think very little of her work but I also recognize that on the merits she is a perfectly plausible hire at the schools she has taught at.  (Paul Bedard notes some curiosities about her hiring at Harvard that he thinks provides circumstantial evidence that racial preference played a role, but I’m not persuaded on that evidence alone.  Although it is ironic that a credentials snob like Leiter doesn’t raise an eyebrow at Harvard’s lone Rutgers grad–one wonders what he would think of Rutgers grads applying to teach at Chicago, for example.  One other observation about Bedard’s column though, is that as far as I can tell the Nebraska JD on the Yale faculty is an emeritus clinical professor not a senior chaired substantive professor as Warren is).

And let me also hasten to add, while I’ve obviously had my clashes with Elizabeth through the years, that in no way extends to Jay, for whom I have great respect and esteem who has invariably treated me with kindness and respect in my interactions with him.  So I am certainly not questioning his recollection.  But Jay is also a very longstanding friend and co-author of Elizabeth’s, so his belief of her quality may not be entirely representative of whether others on those faculties share his view that she has always been a no-brainer on the merits and might have considered racial preferences at the margin.  Given the norms of the academy, of course, even if there were those who may have seen the issue differently from Jay, there is very little incentive for those with differing recollections to come forward and provide a different story.  I also note that I don’t read Jay as saying that she never said during the hiring process that she was Native American, his defense is only that it didn’t turn out to be relevant to her being hired.

But, more importantly, I think all this vouching for her is largely beside the point with respect to the larger issue here which is not whether she did receive a racial preference from self-identifying as Native American but whether she thought that she would receive a preference for doing so (at the margin from at least some people).  The issue is the one of ethics–did she try to trade on Native American ethnicity for personal advantage, not whether she actually succeeded in doing so.  Would it matter, for example, if someone fabricated relevant credentials on his resume even if it turned out not to make a difference in hiring?  Of course it would.  Would it matter if someone plagiarized three articles in a tenure file if he also had several other articles that would have been sufficient to grant tenure?  Of course it would.  Similarly, if you think that Warren dishonestly (or at least recklessly, given that apparently she relied on nothing but “family lore” for all those years without any verification at all) represented herself as Native American in order to gain an advantage in hiring, then it seems utterly beside the point whether she would have been hired anyway.  Or, at least, if I were sitting on appointments committee I would find the repeated misrepresentation of minority status to be disqualifying for a candidate (and, frankly, I add as an aside that I’m surprised that Leiter is so cavalier about what seems like a pretty clear a credible case of credentials fraud and it seems pretty doubtful that he would be so tolerant of someone whose politics he finds less congenial).

Update: On reflection I changed “pretty clear” to “credible” to reflect that the record is not entirely clear as to how she represented herself in the hiring process.  But while there’s been discussion of whether her employers held her out as a minority I’ve not seen anyone question whether she had held herself out as a Native American at times in the law school hiring process even though it appears that she had no verifiable basis for doing so and almost certainly wouldn’t have been considered Native American by almost anyone’s reasonable understanding of what that category describes for diversity purposes.

Update: Hans Bader argues that another possible reason why even if Warren had claimed minority status for purposes of racial preferences some people might be unwilling to come forward to admit it–that doing so could expose them to personal liability.  My personal opinion is that this unlikely to be much of a factor–my sense is that a far more powerful reason is that the norms of the academy, especially with respect to someone as high-profile as Warren, provide few incentives to do so and strong incentives not to do so.