Leiter on Affirmative Action in Legal Academia

I think the most interesting commentary so far on the Elizabeth-Warren-Native-American kerfuffle has been Brian Leiter’s. After Brian’s usual potshot at this blog, he makes a rather intriguing argument for why Warren probably didn’t rely on her apparent Native American heritage in getting hired. In legal academia, he writes,

there is no pressure to hire Native Americans for affirmative action reasons, except, perhaps, at some law schools in states with large Native American presences (I have this only anecdotally about Arizona and New Mexico). For affirmative action purposes, all law schools care about are African-Americans and Latinos, and even in those two categories, law school commitment to affirmative action usually varies by region of the country.

Brian discounts the listing of Warren as a minority professor in the AALS book as indicating more about the AALS’s priorities than Warren’s:

[B]ecause the AALS aggressively polices the racial and ethnic diversity of law faculties, law schools are careful to make sure anyone who could count as an under-represented minority is so-listed (thus, I can recall a faculty member who was the proverbial “Jewish kid from New York” but with some South American ancestry being listed as “Hispanic,” though no one would have ever so identified him).

I don’t have an independent basis on which to assess either claim. Brian is very savvy about legal academia in general, however, so I’m inclined to credit his view. I should add that I share Brian’s skepticism that Warren relied on her ancestry to help get a job at Harvard. My sense is that Warren was indeed among the top bankruptcy scholars at the time Harvard was looking to hire her — and that she very likely was the top female bankruptcy scholar, a distinction that likely carries some significance to at least some faculty members. As Brian notes:

[Warren’s] record of scholarship in bankruptcy is clearly sufficient to get her appointed at Harvard. She is, after all, one of the three most-cited scholars in the bankruptcy/commercial law field, and she is the only woman in the top ten. (I could imagine being the top woman in the field might have played more of a role than her being Native American . . .