The Law School Hiring Market Undervalues Women, Minorities

The latest attack on efforts to support diversity comes in the form of a lawsuit targeting Northwestern University’s law school. The suit accuses the school’s faculty and administration of snubbing high-profile white male applicants. The 30-page complaint gets so many facts wrong that it is difficult to know where to begin.

Since the plaintiffs decided to make the “high-demand, low-supply field” of tax law an example, I’d like to acknowledge one undeniably true statement: there are very few minority tax law professors. That is particularly obvious at the sort of elite institutions the suit emphasizes. Neither Stanford nor the University of Chicago have any. Northwestern has one among its nine residential tax faculty.

Inevitably, the document pairs its lonely truth with an almost laughable falsehood, stating that tax law scholars who are female are “difficult or impossible to find.” There are, in fact, lots of women tax law professors. The complaint fails to mention that one of the targets of the lawsuit is a woman tax law professor.

The fact about the rarity of non-white tax law professors is offered as a smoking gun, proof of anti-white male bias in law school hiring. Precisely the opposite is true. That virtually every tax law professor (and tax lawyer) is white highlights a pervasive bias that continues to produce tax policies that harm Black taxpayers.

Steven DeanOur tax laws remain outliers on race in their insistence on near total color-blindness. Returns have never asked about race. Tax authorities have only just begun to consider how policies impact different racial and ethnic groups. It is probably a good idea that tax returns do not ask taxpayers to identify their race. But that hardly prevents algorithms and auditors from engaging in discrimination. Researchers have shown that employers use names to discriminate against Black applicants. IRS employees are human. It would be naïve to ignore the possibility that they do the same.

An explosive Dutch scandal involving an algorithm taught by tax authorities that being poor or having two nationalities made taxpayers more likely to engage in fraud highlights the risk of discrimination by humans and robots alike. A Dutch woman with “Surinamese roots” received a devastating $100,000 tax bill. Thousands of children ended up in foster care. Some victims committed suicide.

Is the same thing happening here in the United States? We honestly don’t know, in part, because tax is so overwhelmingly white, almost nobody has bothered to ask that question. The exception that proves the rule, Professor Jeremy Bearer-Friend has pointed out that unlike every other part of the federal government, the IRS makes virtually no effort to identify — much less to prevent — racial discrimination in its enforcement efforts.