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Excerpted From: Meera E. Deo, Pandemic Pressures on Faculty, 170 University of Pennsylvania Law Review Online 127 (2022) (50 Footnotes) (Full Document)


MeeraEDeoAcademics are incredibly privileged. They are paid relatively well to read, think, write, teach, learn, and provide service to their institutions and communities. Yet law professors, like every other segment of society, have struggled during the pandemic. The negative effects of COVID, which go far beyond health consequences, are not distributed equally either within or outside of legal education. Those faculty who were in vulnerable positions before March 2020 have borne the brunt of these difficulties during the pandemic. In the hierarchical structure of legal academia--one that prioritizes scholarship over service, the Socratic method above skills-based learning, and normative doctrinal scholarship more than identity-based research-- underrepresented and marginalized populations have faced heightened challenges due to COVID.

This Essay shares preliminary findings from the Pandemic Effects on Legal Academia (PELA) study, the first national empirical study to document challenges facing law professors with varying personal and professional responsibilities during COVID. The data reveal disturbing findings of worsening inequities, a lack of structural support, and negative health effects, especially for caregivers, women of color, white women, and untenured faculty. Although the research subjects included in this empirical project are law professors, the findings and implications are relevant for marginalized populations in myriad employment contexts, including graduate students who are mothers, junior associates in law firms, and women working outside the home in virtually any field. More specifically, the findings that vulnerable populations have been performing extra service at work and at home during COVID, leaving little time for labor that is more valued (in terms of recognition or compensation), reflect workplace contexts far beyond academia; similarly, the proposed solutions--including directives to be flexible and to implement creative support mechanisms--should be applied to elevate precarious workers in every sphere.

Certainly, inequities existed before COVID. In academia, women, and especially women of color, have always provided more service on campus, including prioritizing student needs; untenured faculty, many of whom are parents to young children, face added workplace pressures, given extra caregiving duties at home and a lack of job security. However, the pandemic has intensified inequities for vulnerable populations. Left unchecked, these deepening disparities will further divide and entrench hierarchies in legal academia, resulting in a loss of the very diversity institutions now tout. Instead of ignoring these challenges or assuming they will fade as the pandemic subsides, administrators and policymakers should recognize the need to intervene. We must act now, and we must act fast, or academia may lose a disproportionate share of scholars from diverse backgrounds. If we do nothing, we risk losing their perspectives in the classroom, their voices at faculty meetings, and their scholarship from the law review canon.

[. . .]

In a traditional law review piece, the author would now share clear-cut solutions--a normative proposal or suggestions for improvement. This Essay advocates for going beyond the basics.

Tenure and promotion delay is one common faculty-support strategy that many institutions implemented soon after COVID upheavals began in spring 2020. As we enter the third year of COVID restrictions, stress, and limitations, it is obvious that a one-year optional tenure delay is insufficient. Renee recognized this in the first year of the pandemic, noting, “I was offered to put my [upcoming promotion] review off to the next year and I chose not to. My publication record wasn't going to get better if I waited for a year, rather than doing it now. We're still in COVID, COVID is now.” This remains true even today.

Renee also considered others in her tenure cohort, wondering, “What if I'm up against men who took an additional year, and they have more pieces and then I'll be compared to them?” Renee's concerns are warranted. Participants in the PELA study who had little to no caregiving responsibilities have been publishing more. For instance, an untenured Asian American professor named Neel published over half a dozen pieces during academic year 2020-2021 alone; he recognizes that having “no caregiving responsibilities obviously [is] a huge reason why I've been able to be productive.”

A tenure delay does not take disparate resources or responsibilities into account. Nor does it acknowledge the gender imbalance in service, where women have been overburdened by an explosion of student needs, institutional priorities, and campus-wide initiatives.

Tenure delay similarly ignores the innovative pedagogical approaches to online learning that have been the hallmark of many contract-based professors, those teaching skills-heavy courses, and tenured and tenure-track women teaching doctrinal courses. Furthermore, tenure deferral offers nothing whatsoever to the many contract-based faculty who have been carrying significant burdens long before as well as throughout the pandemic, since they are not eligible for tenure now or later. Similarly, those who are already full professors derive no support or benefit when institutions respond to pandemic pressures on faculty simply by providing opportunities to delay tenure or promotion.

Administrators must also address many additional negative financial consequences of the pandemic for vulnerable populations that are less likely to receive merit increases, cost of living adjustments, or bonuses for scholarly productivity if they are overburdened with personal and academic caretaking. Delaying promotion also delays financial benefits that often accompany tenure, with lasting effects throughout the faculty trajectory. Additionally, the barriers are not time-limited as opportunities to make a lateral move to a new institution, secure a coveted chaired faculty position, or procure research or grant funding are also implicated, with effects reaching far into the future. Tenure delays cannot be the only option.

How can we think bigger? One suggestion comes from a white professor named Amy, who has no caregiving responsibilities herself and enjoys the security of tenure but recognizes how the pandemic has exacerbated ongoing inequities in legal academia. She says:

What I think we should do is reduce the scholarship requirement by 50%. If someone wrote one article and the normal expectation is two, look at that one article and give them tenure based on what they actually were able to produce instead of just moving the date. I mean, when is anyone going to have more time to write that second article? Just evaluate people based on what they were able to do. In a sense, give an accommodation, the way you might with respect to disability. Just prorate what people have done. We know how to do that. We're lawyers.

We should also consider other out-of-the box strategies for addressing the changing needs of vulnerable faculty. Because many of these challenges existed for decades before being exacerbated during COVID, solutions have been available for years. For instance, women of color faculty who carry a disproportionate share of the student service burden--hosting individual meetings, providing emotional labor, and centering student needs--could be released from one or two formal service committees in order to preserve more of their time for research and make service loads more equitable. Other barriers that are unique to COVID will need novel and innovative solutions. For example, administrators might offer teaching relief, extend contracts until the pandemic is over, or fund more research assistants to serve the needs of students and faculty alike.

These academic-specific solutions are useful considerations to mitigate ongoing pandemic effects not only for law professors, but also for graduate students and academics in other disciplines. Many American workers are in much more precarious positions, both personally and professionally. Single parents, parents of children with disabilities, and those with disabilities themselves are navigating even more challenging situations, often with less structural support. Furthermore, front-line workers and others with less flexible and more physically or mentally taxing jobs also face stressors far beyond what many professors are managing. Whether working more demanding jobs or caretaking in more demanding circumstances, many individuals face additional and unique barriers due to COVID. The PELA findings and solutions should be applied to their circumstances too.

If we think broadly about the findings documented in the PELA data--the expectation that people from marginalized populations serve those in need, leaving less time for work that is more valued, which adds to negative mental health effects--it becomes clear that the implications of this research extend to virtually all women in the workforce, caregivers juggling extra responsibilities at work and at home, and those working in positions with little pay, security, or opportunity for advancement. Similarly, if we consider the primary solution as “thinking creatively to support those in need,” improvements in other arenas must go far beyond immediate fixes to reimagine the structure of the workplace and strike at the heart of existing inequities before we lose these workers to ongoing pandemic pressures. For some institutions, that may mean giving workers the option to continue working from home; others could offer flex time, or job-shares, or assess advancement based on different (and more equitable) metrics than they have used in the past.

While the pandemic has been awful in myriad respects, it also has provided an opportunity to make meaningful change. We can choose to work together to eliminate barriers in order to not just maintain but increase diversity, equity, and inclusion. At a time when so many law schools have pledged to support antiracism and social justice, promoting greater equity in legal academia through innovative measures and novel policies would prove their commitment. Not doing so means we run the risk of losing the gains we have made over the past two decades--as well as the very people who represent that progress. PELA data has documented that large percentages of law faculty from marginalized populations, like professors in other disciplines, are considering leaving academia. Some have left already, including two participants from the PELA study.

This Essay begins the conversation about addressing challenges facing vulnerable populations during COVID. As initial PELA findings show, the stakes are high. Without these professors, institutions will have fewer individuals invested in service, classrooms will be less innovative, and students will lack opportunities for meaningful mentorship. We must make necessary structural improvements to the foundations of legal education and work towards a more equity-focused future, or risk losing the intellectual contributions of a generation of law teachers from diverse backgrounds to the lingering effects of the pandemic.

JD, PhD. The Honorable Vaino Spencer Professor of Law, Southwestern Law School; Director, Law School Survey of Student Engagement (LSSSE); Affiliated Scholar, American Bar Foundation (ABF).

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