Since the U.S. Supreme Court’s rulings on affirmative action in 2003, colleges have begun to reconsider how they give preference to students according to race, ethnicity, and sex — not only in admissions, but in financial aid, internships, and various other programs. They need to do the same thing now for employment preferences. It is an open and ugly secret that many colleges still weigh such factors in faculty hiring decisions. That practice is flatly at odds with, among other laws, Title VII of the 1964 Civil Rights Act, which bans employers from such discrimination. In fact, legal challenges concerning faculty hiring are mounting, and it is emerging as the next big front in the battle against racial preferences.
Consider the collision between law and common practice in higher education at every stage of the employment process:
Posting job notices. Advertisements for job applicants commonly single out minority and female candidates as especially welcome. But Title VII specifically makes it generally illegal “to print or publish or cause to be printed or published any notice or advertisement relating to employment ... indicating any preference ... based on race, color, religion, sex, or national origin.” My organization, the Center for Equal Opportunity, has recently suggested that the U.S. Equal Employment Opportunity Commission spell out what that means for academic institutions, whose refusal to follow the law makes them virtually unique among employers. We are also challenging ads that seem to suggest not just preference but racial exclusivity.
Offering graduate fellowships. Another track to a faculty position is through a graduate fellowship. In early February, the U.S. Department of Justice forced the Southern Illinois University system to end its policy of giving preferential treatment to minority groups and women in its awarding of such fellowships. The department had argued that, because such positions are typically paid, discrimination in selection for them would violate Title VII. The university denied that it had done anything illegal, but said it would open its paid fellowships to all applicants.
My organization had brought that matter to the Justice Department’s attention after students and faculty members unhappy with the university’s approach contacted us. That illuminates an important point: Surveys, like a 1996 study by the Roper Center for Public Opinion Research and a 2000 study in Connecticut by the Center for Survey Research and Analysis, show that most professors are opposed to preferences. Many are happy to bring such discrimination to the attention of federal agencies or private antidiscrimination organizations.
Defining the applicant pool. Once applications have been received, some colleges deliberately halt the process if they don’t think the pool is “diverse” enough. They will then insist on adding candidates — so long, of course, as those candidates are members of a minority group or female.
But a panel for the U.S. Court of Appeals for the Seventh Circuit ruled last August in Rudin v. Lincoln Land Community College that such a practice constitutes evidence of illegal discrimination. And rightly so. It is fair to assume that the practice is going to result in some instances where a non-"diversity” candidate, who would have been hired absent the practice, won’t get hired. Further, there will be situations in which the pool does not contain a diversity candidate, and so the college will add such a candidate, but in doing so will not add a nondiversity candidate with the same or better qualifications. In those instances, too, a nondiversity candidate is denied an employment opportunity.
Setting aside special funds for “targets of opportunity.” Colleges sometimes establish special pools of money from which a department can draw to hire underrepresented minority scholars whenever there is an opportunity to do so; those minority scholars are called “targets of opportunity.” But such pools are indistinguishable from the racially exclusive scholarships for students that colleges have, quite rightly, been abandoning — and that the federal government has, quite rightly, been successfully challenging. Indeed, the Justice Department challenged an “opportunity hire” program as illegally discriminatory against white males in a June 17, 2005, letter to a university.
Jonathan Bean, a professor of history at Southern Illinois University at Carbondale, and an expert on and critic of racial preferences, has observed that those pools of money have been “like the weather — many people complained about them, but nobody did anything about them.” “But,” he predicts, “that is about to change, as more professors and universities conclude that the racially exclusive approach is legally untenable.”
Making hiring decisions. Colleges, when they hire, often grant preferences to women or “underrepresented minorities” (“underrepresented” being a clever way to avoid having to give a preference to some minority groups, like Asians or Arab Americans). The bias is supposedly justified by one of three rationales, but none has any legal merit.
The first and oldest justification is that discrimination in favor of a minority person is somehow fair because members of that racial group have historically been discriminated against. That is illogical, inasmuch as the individual beneficiary is not claimed to have been an actual victim. The courts have in all events rejected that “societal discrimination” rationale — for instance, Justice Sandra Day O’Connor’s 1989 opinion in City of Richmond v. J.A. Croson Company, citing Justice Lewis F. Powell Jr.'s opinions in Wygant v. Jackson Board of Education and University of California Regents v. Bakke. Hiring preferences, then, can be justified only when evidence exists that the particular employer was at some point discriminating.
The Supreme Court’s Title VII decisions — like Steelworkers v. Weber and Johnson v. Transportation Agency — likewise require showing a “manifest imbalance” in a “traditionally segregated” position. In 2006 it seems unlikely that many faculties will be able to point to any recent discrimination against “underrepresented minorities,” when colleges have been cheerfully discriminating in their favor for years, if not decades.
The second excuse is a desire for greater faculty diversity. But that justification has fared no better in the courts. While discrimination in the name of student-body diversity has been narrowly upheld in the Supreme Court’s latest decisions on affirmative action, Title VII — the law that applies specifically to hiring — explicitly declines to carve out a “bona fide occupational qualification” for race. So it is unlikely that a court, particularly the current Supreme Court, would make one up.
Nor has any federal court. In the leading case on the matter, Taxman v. Board of Education of the Township of Piscataway (1996), the U.S. Court of Appeals for the Third Circuit refused to carve out a diversity exception for faculty-employment discrimination under Title VII. The Fifth Circuit has ruled the same way, and there is no federal decision to the contrary.
In addition, it is important to note that the Justice Department rejected the “diversity” rationale when it moved against Southern Illinois University a few months ago. The rationale proves too much: It could be used to discriminate against women and members of minority groups if they become “overrepresented.”
The third excuse is a desire to provide more “role models” for underrepresented minority students. But the Supreme Court rejected the role-model justification for employment discrimination with respect to teachers 20 years ago in Wygant v. Jackson Board of Education. Justice Powell wrote, “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.” Besides, are we to believe that white students cannot be inspired by black teachers, or black students by white teachers, or either by Asian or Latino teachers?
Setting pay differences. Colleges sometimes offer pay bonuses to faculty hires of the right color. That is flatly prohibited by Title VII for all colleges, and by the Constitution for all state colleges (and by the Equal Pay Act with respect to sex discrimination). Here again, the Justice Department has recently fired a warning shot, successfully confronting Langston University this year on behalf of a white female professor who was paid less than her African and African-American counterparts.
Retaliating against complainants. Title VII is explicit that colleges may not retaliate against faculty members or applicants who challenge illegal discrimination. The EEOC recently brought a successful lawsuit — which was settled this year for $125,000 — against Macalester College for retaliating against a white male professor who complained to the provost that he had been discriminated against.
Sometimes the pressure to engage in hiring discrimination is brought to bear on colleges from the outside — specifically, from accreditation authorities. The Center for Equal Opportunity, the Center for Individual Rights, the National Association of Scholars, and five of the seven members of the U.S. Commission on Civil Rights have asked that the Education Department not renew the accreditation authority of the American Bar Association’s Council of the Section of Legal Education and Admissions to the Bar because the ABA is attempting to use that authority to coerce law schools into using illegal preferences in student admissions and faculty hiring. My organization has also asked the Education Department and Justice Department to jointly investigate past abuses of this sort by the ABA.
Colleges that refuse to conform their hiring practices to the law risk hefty legal judgments — and they will have to pay not only their own lawyers but also the opposing side’s. Unlike most cases, in which you pay only your own lawyers, win or lose, the civil-rights laws provide for such lawyer “fee shifting.” Bean points out that his (state) university ultimately concluded that it should not “spend taxpayer dollars defending the indefensible”; presumably, private colleges would be even more reluctant to waste their own money. Bean also notes that, “after years of brazen racial discrimination on all fronts, colleges have left a trail of evidence that could be used against them in court.” He’s right.
The law aside, neither the interests of students nor the research mission of a college are furthered by hiring less than the best-qualified faculty members. Nor does a double standard in hiring and promotion encourage faculty collegiality.
Universities are free — indeed, they are obliged — to make sure that women and minority groups — underrepresented and otherwise — are not discriminated against. They are free to make sure that their hiring committees “cast a wide net,” not relying on old-boy networks but instead trying to ensure the best possible applicant pool from which to draw. That sort of affirmative action is fine. Affirmative discrimination is not.
Roger Clegg is president and general counsel of the Center for Equal Opportunity, in Sterling, Va.
http://chronicle.com Section: The Chronicle Review Volume 52, Issue 37, Page B13