Image credit: Declaration of Independence by Dr. Fahamu Pecou (2021), Acrylic on Canvas.
When I began teaching in 1991 as an assistant professor of law at then George Mason University (now Antonin Scalia Law School), I had no idea what being a law professor meant.
I got my job rather easily, without ever giving a job talk. I would later find out the reason why it was so easy was that the law school was under pressure from the central administration to hire a Black faculty member and my competition was a senior Black faculty member who hadn’t published anything in 20 years. If I didn’t publish anything, my colleagues could simply not tenure me.
But I worked hard at being a good classroom instructor, helping our Black law students by running exam-taking sessions and being available whenever they needed extra attention. Naively, I thought institution-building would matter when I came up for tenure. I also learned the unsurprising lesson that when the central administration forces a unit to hire someone they wouldn’t otherwise hire, the faculty is not invested in the hire.
I learned these lessons, like so many others, the hard way. One example was when I was placed on the admissions and appointments committees—but didn’t find out until half the year was over (I was never supposed to find out by the way). Why? My colleagues didn’t want me to attend meetings or provide input—they just wanted to be able to show others that they had a Black professor on those committees.
Most importantly, I put my scholarship on the back burner. I was not on law review while a student and had never written a law review article before. Now that I have been awarded tenure at three different institutions, I know that this put me at a disadvantage. While teaching matters, scholarship matters more. Scholarship is the coin of the realm in the legal academy and ironically, the better you get at it, the less likely you are to invest in teaching.
Fast forward three years: I was floundering in the scholarship area and headed toward a tenure denial with only one book review accepted for publication. My relationship to the institution was also deteriorating: a colleague who taught Torts said the n-word (the entire word) on the first day of class and a Black law student told me about it. Several of my white colleagues went to complain to the dean, even though they knew it wasn’t going to make a difference. Instead, it was my understanding that the dean used the furor as a fundraising opportunity. The political correctness police were out of control—give to George Mason!
But God takes care of babies and fools, and I was no baby. First, I was introduced to an angel in the form of the late Dave McCarthy, who was on the faculty at Georgetown and was the dean when I graduated. He read an almost incoherent draft of my article. Kind and supportive, he gave me a roadmap to complete the piece that would be my first law review article. In 1994, the University of Cincinnati College of Law hired me, with my now much improved paper as my job talk.
Fool me once. I vowed never to make the “too much service” mistake again. Because of my still mediocre publication record, I negotiated for limited service and asked to be on the library committee, because those committees generally don’t meet and rarely deal with anything controversial. As a result of not having many service commitments, I made up for lost time and published two articles a year for the next three years.
But the year before I came up for tenure, the dean asked me to serve on the appointments committee because he knew I was interested in racial diversity issues (his words not mine). I replied that I was concerned the extra work would interfere with completing an upcoming book chapter, “The Marriage Bonus/Penalty in Black and White,” which had been accepted for publication in Karen B. Brown and Mary Louise Fellows (editors), Taxing America (New York University Press, 1996).
It was the last submission for my tenure file, and it needed to be finished. Without missing a beat, the white, male, dean said: “I’m not sympathetic to that claim.”
The little voice in my head that has always kept me out of trouble when I listened said: “See, he doesn’t care about you, so you better care about yourself.” Mind you, I had not said no. I just expressed concern. I’m reminded of Tressie McMillan Cottom’s comment: the institution cannot love you.
When the dean’s best friend, who was the chair of appointments came to talk to me the next day about what he had been told were my “concerns,” I told him I had no concerns and that I wasn’t serving on appointments because I had consulted my Title VII attorney who told me I could not be ordered on appointments because I was Black. He moonwalked out of my office and returned the next day to inform me that I was, indeed, not on appointments.
Just say no. However, I paid a price. While I did get tenure, I also received several no votes from white faculty members who did not like how I had called out their lack of commitment to racial diversity. I’m a tax law professor who can count: no votes don’t matter if you have more yes votes.
In other words, I got those yes votes because I said no first. And over my three decades of “teaching law while Black,” I have learned the importance of saying no.
When I decided to tell the dean no, it was because I had figured out the game. Tenure is really all about scholarship: it’s not about getting sucked into service work because you are a Black academic or because you are interested in supporting racial diversity. Because of that no, I did get tenure at Cincinnati. I also finished the book chapter, which was the first thing I ever wrote about race and tax policy. I didn’t know it at the time, but that chapter became the building block for a 20-year research agenda that focused on uncovering systemic racism in our federal income tax laws. That research became The Whiteness of Wealth: How The Tax System Impoverishes Black Americans – And How We Can Fix It (Crown 2021).
First, if you say yes to everything, the institution never needs to hire another Black person. You satisfy all of their diversity needs. They trot you out for every event, every brochure, every picture. And for some that feels good. Not for me. I once declined an invitation to attend an event for prospective students by saying that, unfortunately I was out of town and couldn’t attend, but that was good for the law school because we wouldn’t have to discuss my personal appearance fee.
Yes, I made a joke of it—but there’s no way my white, male colleague didn’t wonder if I wasn’t just a little serious.
Now, here’s the dirty little secret: some Black faculty like being the only one and their insecurity makes them not want to see other Black people hired. They like being asked to do everything and feel that if there is another Black colleague they won’t be as valued. They subtly oppose your candidacy when you are being hired, and every white colleague then cites said Black person’s opposition as proof that their opposition is not racist.
My advice? Do not assume because there is another Black faculty member in your school or department they will be happy that you have arrived.
Second, just saying no can mean that you will completely disengage from the institution, something I only advise doing after tenure so that your no doesn’t become too many no votes. But the act of disengaging is not necessarily alienating, it can also be an act of self-love. There is power in choosing to walk away when you know there is nothing that you can do to make things better. It can be truly liberating when you leave behind the frustration and the toxicity that will eventually lead to bitterness, when you know the situation is hopeless.
When you remove yourself from institutional processes you also leave your white colleagues exposed. “Why isn’t [insert name of Black faculty member] here?” Often, they do not want Black faculty there to hear our views; they want us there either to stay silent or validate theirs.
But they need our Black faces present in order to feel good about themselves. They are, after all, on a diverse faculty! They like sitting in diverse rooms because it supports the narrative that they are good on racial diversity even though their Black colleagues know that they are not. They need us there to validate whatever foolishness they are about to engage in.
Of course, not every white faculty member will notice your absence—but several will. They will even remark on it to you. That’s when you know it’s working. They get pissed—because they want you in the room, they need you in that room (I can’t say it like Jack Nicholson did, but you get the point).
Third, just saying no to an institution that all of my efforts will not improve has given me time to work on things that matter to me and are effective. Disengaging from the Emory Law administration’s lack of commitment to hiring a racially diverse faculty (unless I expended huge amounts of political capital to get the job done) allowed me to say yes to co-founding the Emerging Scholars Program with my friend and colleague Guy-Uriel E. Charles, then at Duke Law School, in 2011. The Emerging Scholars program was created when Guy and I had what seemed like our hundredth conversation on entry-level Black scholars who interviewed at our respective law schools and while we could see their potential, our white colleagues in many instances could not. We agreed that if the applicants had received mentoring earlier in the process, they would be able to excel.
I said to Guy: “This is the last time we are going to talk about this. Either we do something to fix it, or we never speak of this again.”
Guy got to work and secured funding from Duke University and Duke Law School, and I worked on the organizing. Early intervention was our driving principle. We created a two-day “boot camp” in May preceded by the one-day Culp Colloquium, named after our friend and mentor the late Duke Law professor Jerome Culp (whose work would be foundational to my own race and tax scholarship). The Culp Colloquium, a brilliant addition by Guy, was designed for pre-tenure faculty of color to have a safe space to present works-in-progress, paired with extremely accomplished scholars (which included white faculty) in their respective fields. Once our Emerging Scholars became tenure-track faculty they would come back to Culp each year, until they became tenured—then we would put them to work commenting on others’ scholarship.
The Emerging Scholars “boot camp” expanded to include observers: these were scholars planning to go on the law school entry-level market at some point in the future who would observe what the process looked like. The stars of the program, however, were those scheduled to go on the market that fall. We would have each emerging scholar present their work in process, do mock interviews, and critique their application materials.
And the process continued after the boot camp ended. It included Guy working very hard on their job talks (remember scholarship is everything—and never is that truer than when we talk about applicants of color). I worked hard on reaching out to schools that were hiring, following up and pitching our Emerging Scholars. I co-directed from 2011–2017 and during that time we placed 22 scholars of color in tenure-track positions across the country. We had a 100 percent placement rate: many of these scholars are now tenured and colleagues who I count as personal friends. It was hard, but exhilarating work. Watching our Emerging Scholars soar has made me quite proud.
Eventually I stepped down as co-director because I needed to say yes to something else—my book The Whiteness of Wealth. But I have never regretted a single no in my academic life, because saying no to the others allowed me to say yes to myself.
Dorothy A. Brown is an Asa Griggs Candler Professor of Law at Emory University and a nationally recognized scholar in the areas of race, class, and tax policy.