Asians, Law Professors, Law School Deans, Law Schools, Minority Issues, Racism, Vicious Infighting

Controversy Continues at a Leading Law School Over Allegations of Racial Bias

I must confess to having a tin ear when it comes to issues of race. My view on racial issues is like my view on sports: What’s the big deal? Why does everyone care so much?

Perhaps it’s because I’m Asian; we tend to be bystanders as African-Americans and whites yell at each other. Perhaps it’s because I’m Filipino-American; we are total mutts a very hybrid people. Not to go all Fauxcahontas on you, but according to my (not genealogically verified) family lore, I have Malay, Chinese, Spanish, British, and Czech ancestry.

And thanks to the rise of intermarriage in the United States, my kind of ethnic hybridity is the wave of the future. In fifty or 100 or 150 years, more people will have my blasé attitude about race because “race” as a concept will be so much less salient. To tweak the famous words of Chief Justice John Roberts, “The way to stop discrimination on the basis of race is to intermarry so much so that nobody knows what race anybody else is.”

In the meantime, though, there’s plenty of racial tension to go around. Today we bring you allegations of racism at a law school, countered by allegations of playing the race card (i.e., crying racism in bad faith or without sufficient proof).

Let’s take a look at the latest heated controversy, taking place at a top law school….

Here at Above the Law, since we moved to the Disqus 2.0 commenting system, comment counts have declined significantly (which we are aware of, and which we might do something about later; for now, though, we’re enjoying great traffic and less agita). But Elie Mystal’s post from last Friday, about allegations of racial bias in selecting an interim dean at George Washington University Law School, has drawn almost 200 comments (and counting). I don’t get that excited about race issues — my views on race can be summarized by this song — but clearly I’m in the minority. People seem to care deeply about both claims of racism and claims of playing the race card.

Let’s start at the beginning of this saga, for those of you just tuning in. Last month, Paul Schiff Berman announced his departure as dean of GW Law School, effective January 2013. The news of his stepping down came amid reports of faculty discontent with his leadership (although the exact causes of the discontent have not yet revealed themselves).

Professor Gregory E. Maggs

Last week, the GW administration — specifically, President Steven Knapp and Provost Steven Lerman — announced the appointment of Professor Gregory Maggs to serve as interim dean. Maggs will discharge the duties of dean until a permanent successor for outgoing Dean Berman is hired. We have reprinted Dr. Lerman’s email announcing the appointment, as well as all the other emails referenced herein, on the final page of this post.

Professor W. Burlette Carter responded to the announcement by expressing the view “that any faculty opposition to Sr. Associate Dean Bracey moving into the interim deanship was racially based. This is the first time in my memory that we have ever overlooked a Sr. Associate dean in choosing an interim dean…. This is not the law school’s finest hour.”

As you might have guessed, Professor Christopher Bracey, who currently serves as Senior Associate Dean for Academic Affairs, is African-American. Professor Maggs is not.

Not surprisingly, things got a bit tense after this. Professor Richard J. Pierce, in a “reply all” message, asked Professor Carter for evidence to support what he called “a very serious charge.” Professor Carter responded somewhat curtly: “You mistake me for someone who is actually intimidated by you Dick — and who jumps when you bark.” Woof!

Enter Above the Law. I had taken Friday afternoon off, but my colleague Elie Mystal was on the scene. While I was watching Skyfall — which I recommend, by the way — Elie published a story on the brouhaha, entitled Law Prof Alleges Racial Bias in Hiring of Interim Dean. In his post, which I didn’t read until hours later, Elie expressed — in his colorful, inimitable, somewhat hyberbolic style — significant support for the concerns raised by Professor Carter. He also printed additional comments that Professor Carter submitted about the appointment of Professor Maggs rather than Dean Bracey as interim dean (which, again, we’ve re-posted at the end of this story).

Over the past few days, we’ve heard from numerous GW Law students, alumni, faculty members, and staff. Many of them have complained that our original story did not provide possible race-neutral explanations for picking Professor Maggs over Dean Bracey as interim dean. In the interest of balance, we’d now like to provide some of the race-neutral reasons given for the Maggs appointment.

We’ll begin with official comment from the school. Candace Smith, Executive Director of Media Relations for George Washington University, sent us the email from Provost Steven Lerman announcing Professor Maggs’s appointment (and describing Maggs’s incredible credentials), along with this additional statement on behalf of the administration:

As the provost has stated, interim deans are selected by the provost after consultation with a variety of people including — faculty, administrators, the president of the university and others. There is not a preset formula.

Professor Gregory Maggs was selected as interim dean of the Law School because in the very recent past, he served in this exact role and did an outstanding job. He is an extraordinary scholar, teacher and administrator who is well respected by his colleagues and by the School’s alumni. He is very familiar with, and experienced in addressing, the needs of the School. The provost has expressed his gratitude that Professor Bracey will remain a leader of the School’s administration in his capacity as Senior Associate Dean.

This sounds perfectly reasonable. But one might respond, as both Professor Carter and Elie Mystal effectively have, “Professor Maggs is undoubtedly qualified to serve as interim dean. But why was he chosen instead of Dean Bracey? The general rule is that the senior associate dean takes over as interim dean.”

We’ve heard a number of race-neutral reasons as to why Professor Maggs got the nod over Dean Bracey. We’re going to go with this message from a GW source because it concisely summarizes the viewpoints we’ve heard from so many others:

[H]ere are five very good reasons why Dean Maggs was tapped over Senior Associate Dean Bracey to be Interim Dean at GW Law. Racism had nothing to do with it. And, by the way, I am a big fan of Chris Bracey’s.

1. Maggs has experience twice now running GW Law as Interim Dean and did a fantastic job during the year prior to Dean Berman becoming Dean; Bracey has no prior deanship experience and would have been an unproven commodity. If it ain’t broke, don’t fix it.

2. Maggs has been at the law school much longer than Bracey and knows the law school and the faculty much better.

3. Maggs’s credentials — having clerked for two Supremes — are much better than Bracey’s, in addition to his interim deanship qualifications.

4. Bracey was appointed as senior associate dean by Berman; thus, if he were to have gotten the nod, he would have been automatically suspect to the extent that Berman was forced out.

5. Maggs in the past has ruled himself out for the permanent deanship; Bracey may or may not want to be a candidate for the position. Maggs has been able to serve as an honest broker for all of the permanent deanship candidates. It’s not clear that Bracey would have been similarly impartial and objective.

These reasons sound generally legitimate to me. The first two seem reasonable. I’m less certain about the third (despite my obsessive interest in, and worship of, Supreme Court clerks). Just because you have stellar academic qualifications and elite clerkships doesn’t mean you’ll be a good administrator, a job that’s more about EQ than IQ.

Regarding the fourth reason, namely, Dean Bracey’s ties to the controversial Dean Berman, GW sources we heard from lent support to this claim. They noted that while passing over Dean Bracey had some drawbacks, such as a loss of continuity (Berman and Bracey worked closely on curricular matters), it also had some advantages, such as wiping the slate clean after Dean Berman’s tumultuous tenure.

Regarding the fifth reason, namely, that Professor Maggs has no interest in the permanent deanship, the professor confirmed this to us when we reached out to him for comment. Professor Maggs wrote, in pertinent part (again, full email reprinted on the final page):

University Provost Steve Lerman asked me if I would serve as the Interim Dean. After consulting with my friend and respected colleague, Senior Associate Dean Chris Bracey, I accepted this temporary position. I am always willing to work for the Law School if I can be helpful. I am not, however, a candidate for the real deanship.

Our GW sources provided some confirmation for this rationale. Word on the street was that President Knapp and Provost Lerman wanted the interim dean to not be a candidate for the permanent deanship. Having disclaimed any interest in the permanent deanship, Professor Maggs fit the bill. Tipsters added that Maggs is one of the most popular teachers in the school, noting that the graduating class has given him the “Distinguished Faculty Service Award” some five six times in the past 15 years, and that he would have excellent relations with both students and alumni as interim dean.

So, to make a long story short, here’s what we have:

1. In the past 15 to 20 years (at least), when an interim dean was needed at GW Law School, the senior associate dean received the appointment.

2. But this has been a practice, not a formal policy of any sort, and nothing that the university has bound itself to publicly. As the university’s statement explained, “There is not a preset formula.”

3. While the span of covered years for this practice might be long, perhaps 15 to 20 years (or more), the number of instances involved is not particularly high (perhaps five at most; Dean Berman aside, deans don’t turn over that quickly). How large a sample size is required before historical practice must be treated as binding policy?

4. In this case, there was a divergence from prior practice: the senior associate dean, who is African-American, was passed over in favor of another member of the faculty, who is white. (This, combined with point #1, is Professor Carter’s strongest argument; res ipsa loquitur.)

5. It’s hard to prove a negative, namely, that race did not play a role. But there were multiple, apparently legitimate, racially neutral reasons for why the senior associate dean might have been passed over here.

Dean Christopher Bracey

Dean Bracey himself, of course, has the power to clear up some of this. We reached out to him twice by email. First we asked him for general comment on the situation; we didn’t hear back. Then we emailed him again, after consulting with more GW sources, asking him (1) whether he has any interest in serving as permanent dean, which would make Professor Maggs a more conflict-free appointment, or (2) whether he declined the job of interim dean. Note how Professor Maggs stated that, prior to agreeing to Provost Lerman’s request that he serve, he “consult[ed]” with Dean Bracey; query whether such consultation involved asking Dean Bracey whether or not he wanted the interim deanship.

Alas, Dean Bracey declined comment. He simply referred us to Provost Lerman’s statement (mentioned and reprinted above, and again at the end of this post).

But Professor Carter, as well as the members of the GW Black Law Students Association, are not staying silent. To them we now turn….

(hidden for your protection)

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