Jon Mills

Obtaining diversity in law faculties and in law school admissions has become something of a holy grail for legal education. Deans and faculties must navigate not only legal minefields but also, the cultural quicksand of race in America.

The University of Florida Levin College of Law has a special place in the history of integration and higher education. The case involving Virgil Hawkins’ admission to our college of law was a corner stone of integration in schools of higher education in the south. Interestingly, Hawkins was decided the same day as the much better known case of Brown vs. Board of Education. In1949, Virgil Hawkins was denied entrance to the law school, solely based on his race and in fact, Hawkins never realized his dream of attending the University of Florida College of Law. Although the United States Supreme Court ruled in Hawkins favor, the state of Florida continued to resist implementing the order for his admission. Ultimately, to resolve the impasse Hawkins made an agreement with University officials that in exchange for ceasing his quest to enroll, the university would allow other minorities to attend. The case spanned over nine years and evidenced a resistance to racial integration in higher education in Florida. Ultimately, Hawkins’ sacrifice played a historic role in the 1950's and it played a healing role in 2001.

Our college had the opportunity to confront heightened scrutiny in both the area of faculty hiring and in admissions this past school year. Last fall, our Associate Dean for Law Center Affairs, Kenneth Nunn resigned his administrative office based on his concerns about the retention of African American faculty. Moreover, in July 2000 a new admissions policy for professional schools in Florida was put in place. The program, called "One Florida", precludes consideration of race in the admissions process.

This essay’s goals are fairly simple and specific. It is not a "how to" article that will suggest how to construct a perfect and diverse community in a college of law. Our college of law’s experience suggests there is no absolute answer. Colleges of law are much like the rest of American society - - racial issues are uniquely difficult to handle. This piece will first describe our law school community’s response to the challenges presented when striving to realize a diverse faculty and second, it will comment on issues concerning diversity in our law school admissions process.

We chose to deal with these two diversity issues directly. The faculty defined a new policy in admissions and the faculty reaffirmed its belief about the importance of diversity in faculty hiring. I am proud of the leadership demonstrated within the faculty and student body in directly, candidly and innovatively addressing these tough issues.

As a matter of context it is important to note that the college has been comparatively successful in the last decade concerning both appointments and admissions issues. Between twenty –five and thirty percent of our student body consists of members of minority groups, and in the mid 1990’s about 12% of our faculty were minority group members. In fact, Hispanic Business Magazine found our college to be one of the top 10 law schools for Latino students in the country. Nevertheless we have had a problem with the retention of minority professors, which was and is critical to address.

While we had historically recruited a large number of minority candidates to campus, because of the departures of our minority faculty, we needed to evaluate both our ability to recruit and our ability to retain minority faculty.

Discriminatory hiring based on race is forbidden by law. The University of Florida is an equal opportunity employer. As a practical and legal matter, and in contrast to our current student admissions policy, we can consider race in employment decisions only to remedy past discrimination and only if narrowly tailored to serve a compelling state interest.

First, it is important to understand the central role of diversity for our particular institution. The University of Florida is a state institution located in a state that is racially and ethnically diverse. Our state, by 2050, will have a population where the majority of our citizens will be persons of color. Second, the University and our college of law are keenly focused on the importance of our being global institutions. We are increasingly aware of the importance of preparing our students for the globalization of the practice of law. A diverse student body and faculty is a representation of the diverse professional world our students will join. Therefore, part of our mission supports the desirability of a diverse faculty and student body. In fact, diversity is and will always be a core asset for our college of law.

In pursuit of this overall goal, our college of law undertook specific measures relating to addressing the issue of hiring and retaining minority faculty.

1. Communicate the Importance of Diversity to the Mission of the College and describe measures to be taken –

Initially, the administration communicated our commitment to diversity and the importance of the challenge of pursuing that commitment. Internal and external communications were important. The press focused attention on both admissions and hiring, but it focused significantly more attention upon the issue of faculty hiring and retention. While many press reports provided accurate commentary on our efforts, some of the reports proved divisive, as some reporters sought to play up conflict. The topic of race is sensitive enough without outside commentary fanning the flames of controversy. However, our free press cannot be expected to write only complimentary articles and, while much of the coverage was very helpful in explaining our initiatives to the public, some fostered conflict.

Our law school’s public information office worked diligently with our administration and was successful in providing the public with accurate information on the situation and our efforts to address each issue. Not only was public information important, communication within the law school community was critical. We provided constant communication on the measures being taken and frequent forums for faculty and students. We used emails, memos and the law school newspaper to communicate with the community and with alumni.

2. Focus the Appointments Committee and faculty on an improved recruiting process –

First, as mentioned above, the faculty passed a policy recognizing the importance of a diverse faculty. The Committee was chaired by Professor Chris Slobogin and Professor Berta Hernandez-Truyol. Professor Hernandez-Truyol was also Chair of the Section on Minorities of the AALS. The committee devised a plan to enhance the recruiting of all candidates. For example, we sponsored receptions at the homes of faculty for each recruit. Recruits had a "shepherd" to show them around our community and introduce them to the members of our law faculty. The University and the surrounding local community joined in our recruiting efforts. All law faculty recruits take into account their personal needs, such as the location and personality of the community surrounding the school, when making the important decision of moving to take new job. Our new recruiting efforts reflected this common sense truism. Our "shepherds" guided our recruits with a tour of Gainesville’s school system, our places of worship, bike paths, greenways and other essential community attributes.

                3. Provide a clear and focused path for promotion and tenure -

Another aspect of the recruiting process essential to the long-term retention of our recruits of color is providing a clear, understandable and helpful path from hiring to tenure. First, we clearly reemphasized the importance and existence of our faculty mentoring process. We also described our commitment to providing time for research, support for research assistants, and professional activities. Moreover, we added a specific task to our Associate Dean for Faculty Development Chris Slobogin's job description - advising untenured faculty on scholarship, promotion and tenure. Effectively communicating these criteria is an important step since some of our former faculty of color questioned the clarity of previous standards. Those standards are now not only clearly defined but clearly communicated.

                4. Conduct an Outside Review of Diversity Issues-

To further promote our ability to mediate and resolve our diversity concerns, the college of law sought an outside review by a person experienced with conflict and with experience in the legal academy. We selected John Sands, an experienced mediator and arbitrator who also had experience as a law professor to help us with this endeavor. This process allowed some outside assessment of the various expressed viewpoints. Ultimately, his report and observations helped place on the table the causes of friction and the issues facing us. While the report’s observations were not universally accepted, the review allowed our faculty, staff and students to express their views to a person outside of our college. The catharsis was sometimes painful but positive. Actively seeking an outside review showed our college of law was quite serious about addressing the situation and implementing methods of resolution. What we learned from the report has been and will be helpful in our continued efforts in recruiting and retaining minority faculty.

                5. Foster Community Forums-

An important part of recruiting and retaining minority faculty is an understanding of the overall climate at the college. Students organized forums on racial issues at the college. Our college’s Black Law Student Association and the Task Force on Diversity were particularly helpful in bringing together students and faculty for a candid discussion of race and diversity at our college of law. Understandably, these discussions did not result in universal agreement. Some students and faculty expressed sharp disagreements concerning the value of affirmative action and race based preferences. Moreover, there were disagreements on the basic meaning of terms like "racism" and "diversity." These sessions were sometimes painful but we all learned more from them than we would have by reading thick statistical studies on race. Students and faculty recounted painful stories of experiencing racism on the personal and professional levels. We will never be able to move towards true racial justice and harmony unless we can confront structural obstacles that are reinforced by personal and institutional custom. Discussing these issues in an open and safe environment has helped many students and faculty understand more about the issue of racial fairness. Further, students became interested and involved in the process of faculty recruitment and were very helpful during that process.

                6.Establish an Alumni Committee to advise on Diversity Issues-

I asked one of our distinguished alumni, George Allen, who also is our first African-American graduate, to convene a group to advise us based on their experience and insights. This group brings a credibility that is very much respected by students and faculty alike. The group recounted their own experiences at our college of law and that testimony has helped sensitize us and help us better understand the historical context of the racial issues in our college specifically, and in higher education, generally. This committee will continue to advise us as we continue to address our diversity challenges.

                7. Enhance our Center on Race and Race Relations-

Our college of law houses a Center on Race Relations with campus wide relationships to study the intersection of race, law, and society. The Center was a major asset in the conversation on diversity and helped organize forums and engage speakers for events. Our center is being enhanced as a campus wide asset bringing together scholars from diverse disciplines and backgrounds to further the study of race. The University itself has realized that while the law school received most of the publicity about racial issues, the issue of faculty diversity and retention is a campus wide concern.

               8. Establish a Faculty Committee on Community-

At the end of the year, after the outside review, and after the hiring process was complete, we created an ongoing committee on community at the college. The committee was created with the understanding that race and diversity are part of, but not the entire, issue in establishing a better community. The continued recruitment, retention and success of minority faculty will be enhanced by the improvement of the overall community climate. Maintaining a productive and diverse community is the next challenge.

The impact of these measures, taken collectively, showed a focused commitment to recruiting and maintaining a dynamic and diverse faculty. In our recruiting process, we emphasized that our college of law was directly addressing issues of diversity on our campus and that we firmly believed that we would be a better place for it. In fact, our college of law represented that we are and will be an excellent home for minority faculty in the future partly because actively we have addressed our diversity issue. If educational leadership means anything, it means honestly addressing a problem and taking those steps that are necessary to positive resolution and progress. Our college of law will become a leader concerning diversity in legal education because of our intensive experience. Our experience is now an asset.

We had a successful hiring year. Now we will begin to face the challenge of sustaining our efforts and maintaining a community in which faculty of color can flourish. All of the steps described above helped us as a community and to make the college a desirable place to work. Upon reflection, there are two issues that are more important than I had previously expected: first the Appointments Committee membership and the dean’s communication with the Appointments Committee, and second, the importance to candidates of considerations beyond direct job issues.

The Appointments Committee should comprise a fair representation of the faculty so that the committee members can be successful advocates for good candidates with the entire faculty. Moreover, the committee should reflect the diversity of the faculty to facilitate our successful recruiting of minority candidates. Finally, the members must be committed to the time and hard work associated with this demanding task. The membership of this year’s committee met and exceeded all of these expectations.

Effective recruiting requires moving rapidly and decisively at times. Timely offers and decisions are critical. Hence, cooperation between the administration and the appointments committee is essential. Communication was excellent and that communication helped in facilitating a hiring year in which we hired four new and superb faculty members.

The concerns beyond direct job issues are critical to final decisions by candidates. Moving to a new place and a new job is a major life decision, and we must understand the critical importance of those issues. For example, in recruiting today’s professional, we find that two-career families are increasingly commonplace. Effectively communicating our total commitment to identify viable employment options for a partner is an asset in our recruiting. We received excellent cooperation from the central university administration and from members of the local community. The work climate beyond salary and benefits is critical. Ensuring a climate that supports professional growth and development is key. As noted earlier, in order to ensure the desired environment for new faculty, we assigned an associate dean to monitor this issue specifically. Candidates are shown the supportive nature of the climate during the process of recruiting. Moreover, once on board, support from other faculty with similar professional interests is essential. Networking with faculty with common interests, both professional and personal, early in the recruiting process is helpful in attracting qualified candidates.

Finally, candidates and their families are intensely interested in the place they live. We strongly encourage partners to see the community and make an effort to understand their interests as well. Providing insight on the community beyond the law school is very important especially when recruits are unfamiliar with a particular area. In our case, we utilized prominent members of the community, including the minority community (e.g. judges and lawyers) and alumni to recruit actively. Of course, as with all communities, the strengths of our particular community will be distinct from others. Individuals who want to live in a large urban environment may not be drawn to Gainesville, Florida. However, if an individual is interested in a vibrant cultural and intellectual community, in a college town setting, with a beautiful environment, then Gainesville may be perfect.

Having addressed faculty hiring, I will now discuss admissions. In evaluating our policy options in admissions, the threshold issue is what is legally permitted? Since the 1950's, from the Hawkins case, through affirmative action, to the decline of affirmative action, multiple efforts to diversify student bodies have been implemented. Race as an admission consideration is limited in the Fifth Circuit under Hopwood and in California under proposition 209.

Ironically, there is substantial diversity of interpretation of legal precedent in considering racial diversity. The interpretations of Baake have ranged from Hopwood to the recent Smith v. University of Washington Law School, 233 F 3d. 1188 (9^th Cir 2000) where educational diversity was considered a compelling governmental interest and the court followed Baake. With certiorari denied in both Smith (on May 29, 2001) and Hopwood we are left to puzzle over the future. Further, the two district courts in Michigan dealing with diversity in higher education have gone in different directions. In Gratz v. Bollinger, 122 F Supp 2d 811 (ED Mich. 2000) the court found educational diversity in admissions can be a compelling state interest while in Grutter v. Bollinger, 137 F. Supp 2d 821 (ED Mich. 2001) that court found that diversity did not constitute a compelling interest to allow race as a consideration and further that Michigan’s law school admissions policies were not narrowly tailored. Regardless of all these cases, we will not be considering race in admissions based on the policy of "One Florida". We may be part of the future or part of the past depending on the ultimate outcome of the above cases.

In response to the new policies of "One Florida," we convened a committee chaired by Professor George Dawson, a national expert on law school admissions. Professor Dawson's committee redrafted our college’s admissions standards to exclude race as a consideration as is now required. The new standards were approved by the faculty and immediately implemented.

It is a matter of considerable pride for us that the University of Florida Levin College of Law by and through the mid-1990's had established a rather diverse student body. The percentage of minority students has ranged from 25%-30% over the decade of the 1990's. Our admissions policies evolved in the same manner as many other institutions. Affirmative Action was part of the policy of the college including a 10% guideline in the early 1970's. Following the Baake decision, racial quotas were removed but race continued as a consideration for admissions. That policy continued until the year 2000, when race was dropped as a consideration in compliance with "One Florida." While race cannot be considered, the admissions committee could consider other factors and could read individual files and personal statements. In fact, the policy statements behind "One Florida" expressed explicitly that diverse admissions and diverse classes were beneficial. One of the suggestions by admissions personnel is to review files individually rather than admitting only on grades and test scores.

In this system, which involves the detailed review of files, we have something of an advantage since our admissions committee has read individual files for years. Our policy for students has generally been that one-half (1/2) of our applicants are admitted by numbers and the other half (1/2) by the evaluation of the admissions committee. Our admissions office actively recruits minority students to apply. Also, once accepted under the race blind process our admissions office can recruit applicants and minority scholarships are available. However, some questions remain as to the future of these scholarships.

The goal of obtaining diversity in admissions is based on several legal and policy arguments. They are that a diverse law school student body is necessary for the following reasons:

As a matter of law, we know that items 1 and 2 are no longer convincing justifications for considering race in admissions. The litigation concerning the University of Michigan’s undergraduate and law school admissions may tell us whether educational diversity can be considered a compelling state interest. Moreover, there is a dispute even among supporters of diverse student bodies as to the tangible benefits of diversity for education. Thus some advocates argue that diversity in colleges is good but not based on improved educational environment. However, there is recent scholarship that argues strongly for the educational importance of a diverse environment.

This year our college has been able to achieve a reasonable amount of racial diversity in admissions. There is no guarantee that this result will be sustained in the future. It will be a sad day for our college of law if the same fate that has befallen the colleges of law at Texas and California engulfs us – the number of minority law students dramatically decreases, even as the states’ minority population increases. There is still a critical mass of students of color in our law school to afford a comfort level for minority students. But, we are concerned by the recent drop in some minority populations in our undergraduate school at the University of Florida. Further, the opening of two new law schools, one of which is associated with historically black college, Florida A&M University, may well attract African American students because of its history and association.

The controversy on race relations at the college concerning faculty hiring and retention was in some ways more intense than I might have expected. But, people were bringing a lifetime of views and experiences to a conversation on race. Perspective makes a difference. Whether you grew up white or as an African-American, a Latino-American, or as an Asian American in this society matters. While we could agree on the overall principles that diversity of views is a positive asset, beyond that point - we diverged.

For example, the very definition of "diversity" became an issue for discussion. What is diversity? Racial diversity is not the only kind of diversity that our law school community discussed. Many thought we needed more diversity of thought. Interestingly, I was in a discussion where several students voiced the opinion that they thought the faculty was conservative. In the same meeting, some students said that thought the faculty was liberal. This clearly demonstrates the relevance of perspective in conversations of this sort.

We also discussed the definition or concept of racism. What is racism? Some of us older white males viewed racism as intentional discrimination or abhorrent treatment, which might be legally actionable. We learned, however, that many faculty and students are also concerned with unintentional acts of racism. Some unintentional acts can hurt as much as intentional actions. In this conversation, we faced the question whether some of us were insensitive and others were oversensitive. It was clear that while the discussions were not alleging legally actionable racial discrimination against faculty or students, seeking minimal legal compliance was certainly an insufficient goal. The term "racist", with all the baggage and volatility it carries, was understood differently by different people. Many students and faculty felt that unconscious racism and inadvertent racism could still define a person as a racist. This was a most uncomfortable concept for many others to accept. With regard to inadvertent actions, we even had statements that must be considered humorous in perspective. For example, our conversation yielded the discussion a hypothetical professor whose conduct was argued not to be racist because he was just as mean and insensitive to everyone.

Some white students felt they were being charged with racism for opposing affirmative action. Those debates cooled in face- to-face forums Despite concern that we might be reduced to name-calling and finger pointing, conversation did not sink to that level although it did contain strong statements, in the long term, name-calling did not take over the debate.

There was anxiety that over-concern with sensitivity to race would result in a politically correct and stultifying atmosphere and that free speech, academic freedom and open expression would suffer. I credit student/faculty forums that openly discussed these issues with largely diffusing this concern. Free speech and expression are critical to individuals on all sides of the issue. It is clearly possible to have a community with a positive racial climate that is also open to diverse thought.

This year provided a graduate level course in racial issues for our entire community. The year was difficult and at times painful but we are a better and more aware community today. We learned a great deal about race and race relations and about each other. But each of us has more to learn.

We learned that efforts at our college to establish a diverse faculty and student body were not new. The college has worked hard in the past to achieve diversity and those efforts deserve our respect. However, we have lost a number of minority faculty and we can and will do better at retention.

As the community discussed the issue, proponents and opponents of Affirmative Action made themselves heard. We as law schools must be protectors of the First Amendment Rights of those who wish to speak against affirmative action as well as those who may wish to argue for it. Over-sensitivity cannot be a barrier to freedom of speech or academic freedom. However, fighting words and racial slurs do not help our community even if they may be protected in some context. Just because abrasiveness and racial insensitivity is protected does not mean that it is not boorish. To paraphrase Mark Twain, the best thing about freedom of speech is the prudence not to take advantage of it. There were charges of insensitivity, there were charges of over-sensitivity, there were charges of hostile environments, and there were reactions to those charges. We discovered significant misunderstandings and a need to communicate more. We proceeded to confront the issues of racism and diversity on several bases, all with the intent of enhancing communication and awareness. In the future we must continue communications to avoid other misunderstandings. We have learned how to talk about racial issues and we need to keep talking.

One of my personal discoveries is the distinction between tolerance and acceptance. I was exposed to this distinction as I chaired a discussion on the use of the rebel battle flag at the Southeastern Conference of the Association of American Law Schools in July. That discussion did not result in a consensus of all the parties in the room. Acceptance may be too high an expectation for our state or nation; tolerance may be the most we realistically can hope for. Nevertheless law schools should strive for more than tolerance. The more understanding we achieve, the more acceptance becomes possible.

We certainly do not claim to have found a solution to diversity issues in higher education. While we have raised awareness, we have also uncovered issues we must continue to address. I believe we are a stronger institution than we were before our discussions and in a better position then most colleges to continue to engage these issues simply because we have a broader awareness. While leadership can and should be exercised by the Dean, a major obligation for sustaining a diverse community falls on the community at large and the mainstream of the faculty and students. The task is to create a new culture of community.

What could we conclude about our hiring process? In the hiring process, our faculty was not constrained by the inability at least to consider the race of our candidates. Through the focused hard work of the committee and the faculty, we attracted a highly qualified and diverse set of candidates. Credit goes also to students, members of the University and local community and alumni. It is worth noting that the central university administration was extremely supportive throughout our conversation and our hiring efforts in direct and tangible ways. I am very optimistic about future ability to hire and retain a diverse faculty.

What did we learn about this year about admissions? When we directed our committee to consider factors that did not include race, we still yielded a reasonable number of admitted persons of color - this time. The committee looked hard at individual essays and life experiences and could consider diverse backgrounds without considering race. Our admissions process has looked at individual files for years and has not limited admissions to a myopic "numbers only" evaluation.

My conclusion is that even when race was a factor it must not have been an overwhelming consideration to previous committees since the numbers are relatively similar. Our Admissions Committee Chair Professor David Smith has substantial experience in the admissions process. Also, the presence of good recruiting and the continuation of minority scholarships were crucial. If the scholarships are not available in the future, we will have much to be concerned about. I am optimistic, but very concerned about the future.

In both admissions and hiring, the primary needs are commitment and persistence. The faculty and administration must work together since this issue requires long-term institutional commitment to allow even short-term gains.

Our year ended on a very positive note with a graduation ceremony at which the University of Florida conferred an honorary Juris Doctor degree on Virgil Hawkins. It was the first such degree awarded posthumously by the university. This acknowledgement of an old wrong provides an opportunity to understand our past and commit to a better future. Mr. Hawkins’s niece spoke emotionally at the graduation and her words are very important. She said "Therefore the family of Virgil Darnell Hawkins says justice delayed, is still justice." She eloquently communicated to all of us that we should focus on the future. The conferral of that posthumous degree was a healing milestone for our college and University. It seemed so timely that at the end of a year where we reexamined those principles of racial justice set in motion fifty years ago by the Hawkins case, we could recognize injustice and sometimes take steps to make it right. We have an obligation to the future to create and maintain colleges of law that are not a throwback to the "separate but equal" educational apartheid that existed before Virgil Hawkins successfully changed the law.