The Chronicle of Higher Education
The Chronicle Review
From the issue dated November 1, 2002


When Faculty Hiring Is Blatantly Illegal

This summer Denys S. Blell, a light-skinned African-Lebanese man, sued Loyola College in Maryland in federal court after he was turned down for a position in academic affairs at the institution. Blell contended that Loyola's vice president for academic affairs told him that black faculty members were pressuring him to hire an "African-American that was visibly black." Loyola has denied all of his allegations, but Blell asserts that an independent witness who sat in on the hiring meetings will back him up.

A recent article in The Chronicle about Virginia Tech's efforts to increase the "diversity" of its faculty ("Stacking the Deck for Minority Candidates?," July 12) raises similar questions: Several faculty members were quoted as saying that they believed that those efforts have resulted in racial and ethnic discrimination. And, indeed, it's hard to conclude otherwise, despite the protestations of other college officials.

While such examples may appear especially blatant, discrimination in faculty hiring, promotion, and pay is increasingly common. And, whether they want to acknowledge that discrimination or not, colleges that use such preferences are asking for big legal trouble.

That's not to say that all affirmative action in faculty hiring is necessarily illegal. But it depends on how you define "affirmative action," a term that often means different things to different people. Originally, it meant simply taking positive steps -- literally, affirmative action -- to ensure that discrimination didn't occur. Nothing is illegal about that -- or about colleges' casting the widest possible nets, recruiting extensively and eschewing old-boy networks and irrational qualifications. But, unfortunately, most colleges go beyond that. They seek candidates of a particular skin color and ancestry, pay them more, and give them greater -- not just equal -- consideration.

So when are colleges breaking the law? To mix a metaphor: A useful rule of thumb is to put the shoe on the other foot. Would it be OK to insist that a certain number of members on a search committee be white? Would it be permissible to start the process over if no white candidates were on the initial interview list? Is it appropriate to presume that every white applicant is entitled to an interview? Should the fact that a candidate is white be a plus factor? If the answer is "no" to these questions -- and it is -- then it is also "no" if the word "white" is changed to "minority." But many colleges are saying "yes" in the latter cases.

Colleges may assume that racial and ethnic preferences in faculty hiring will stand or fall with the legality of such preferences in student admissions, but that is not true. The legal justifications for faculty discrimination are much weaker. The primary reason is that the legality of racial and ethnic preferences in student admission decisions is mostly governed by Title VI of the Civil Rights Act of 1964, while faculty hiring decisions are limited by both Title VI and Title VII. The courts have interpreted the two titles quite differently, so that what is permissible under Title VI is not necessarily permissible under Title VII.

Title VI prohibits "discrimination" on the basis of "race, color, or national origin" in "any program or activity receiving Federal financial assistance." While the statute's text admits to no exceptions, the U.S. Supreme Court has interpreted it as going no further than the ban on discrimination under the less sharply worded Equal Protection Clause of the Constitution's 14th Amendment. Racial discrimination is constitutional, according to the court's jurisprudence, if it is "narrowly tailored" to a "compelling" government interest. That has allowed colleges to lean on the slim reed of Justice Lewis F. Powell Jr.'s 1978 opinion -- joined by no other justice -- in Regents of the University of California v. Bakke, when he said that "diversity" was such an interest.

Title VII also contains a categorical ban, forbidding any employer to "discriminate" on the basis of "race, color, religion, sex, or national origin" in hiring, firing, or "otherwise . . . with respect to" an employee's "compensation, terms, conditions, or privileges of employment." But the court has not conflated Title VII with the Equal Protection Clause, so Justice Powell's opinion that the latter permits discrimination in the name of "diversity" is inapplicable.

Will the courts nonetheless create a "diversity" exception to Title VII's prohibition of racial and ethnic discrimination? That is very unlikely. To be sure, the Supreme Court did allow racial preferences in United Steelworkers v. Weber, handed down in 1979, and preferences on the basis of sex in Johnson v. Santa Clara Transportation Agency, a 1987 decision. But the rationale the court approved in both cases was not based on "diversity" but narrowly on remedying or redressing the "vestiges" of discrimination. It is barely plausible to read an antidiscrimination statute as having an exception where new discrimination is aimed at remedying old discrimination -- but it is impossible to square an exception for anything else with the statutory text.

If a "diversity" exception were created, it is hard to see why other exceptions might not also be put forward. Yet Congress explicitly declined to create even a "bona fide occupational qualification" exception to the statute for race, even as it did so for religion, national origin, or sex. Furthermore, the diversity rationale could be -- and often is -- used to support discrimination against women and members of minority groups.

So it's not surprising that the two federal courts of appeals to hear the diversity rationale in Title VII cases have not accepted it. Both cases, interestingly enough, arose in the education context.

In Taxman v. Piscataway Township Board of Education, the U.S. Court of Appeals for the Third Circuit, which comprises Delaware, New Jersey, Pennsylvania, and the Virgin Islands, ruled in favor of a white teacher who was laid off because of her race and the desire of a high school to have a more "diverse" business-education department. In Messer v. Meno, the U.S. Court of Appeals for the Fifth Circuit ruled against the Texas Education Agency, which "aspired to balance its work force according to the gender and racial balance of the state." The court stated that diversity programs are not permissible "absent a specific showing of prior discrimination."

The Nevada state courts did, to be sure, endorse the diversity rationale invoked by the University of Nevada at Reno when it was sued by a white female applicant to the college's sociology faculty. But state-court decisions generally have much less precedential weight, and in that case, moreover, the defendant also asserted a remedial rationale.

The Supreme Court itself has not yet ruled on the issue, but it is unlikely to carve out a diversity exception to Title VII. A majority of that court takes statutory text very seriously; the same majority is especially unlikely to bend the words of a law in order to facilitate the use of racial and ethnic preferences. Conservative advocates are not alone in predicting that this is an improbable outcome. In 1997, when the court had granted review in the Piscataway case, the civil-rights establishment was so afraid of losing that it raised enough money to pay off the claims of the plaintiff and the fees of her lawyer.

Meanwhile, opposition to preferences on policy and legal grounds is gaining momentum. In March the University of Delaware said that it would withdraw support for a race-based hiring policy, which its Faculty Senate and president, David P. Roselle, had endorsed last year. A nonminority applicant for a faculty job had -- with the state affiliate of the National Association of Scholars -- threatened to sue the university.

That incident and others underscore another reason that hiring and promotion preferences are likely to get colleges into trouble: Such discrimination has many faculty enemies -- and not just conservative ones. A 1996 national study conducted by the Roper Center for Public Opinion Research found that 60 percent of professors surveyed felt their institutions "should not grant preference to one candidate over another in faculty employment decisions on the basis of race, sex, or ethnicity."

In 2000, the Connecticut Association of Scholars commissioned the Center for Survey Research and Analysis at the University of Connecticut to conduct a survey of the respective faculties at UConn, the Connecticut State University System, and the state's community-college system. Majorities at all three (52, 61, and 75 percent, respectively) said their institution "should not grant preference" on the basis of race, ethnicity, or sex in faculty employment decisions.

Thus, most faculties are likely to contain at least one whistle-blower against the institution's employment discrimination, and the use of racial and ethnic preferences is obviously hard to hide from professors, who are almost always involved in making the decisions. Professors at two California State University campuses, Hayward and Chico, recently brought to light faculty hiring discrimination. Organizations like the Center for Equal Opportunity, the American Civil Rights Institute, and the Center for Individual Rights frequently receive documented complaints from professors disgusted by discrimination against themselves or others. And the opposition often comes from underrepresented minority professors and candidates, who don't want a big affirmative-action asterisk next to their names and accomplishments.

Even apart from Title VII, institutions are legally vulnerable when they grant employment preferences based on race or ethnicity. Under Title VI, the weight of the case law opposes the stereotype-reliant diversity exception to the principle of nondiscrimination -- more so in employment than in student admissions. Additionally, the Supreme Court rejected the "role model" justification in an employment case in 1986. In that decision, 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."

Finally, institutions are likely to be sued under a third statute, as well: 42 U.S.C. section 1981, which forbids racial discrimination in "making" contracts, including "all benefits, privileges, terms, and conditions of the contractual relationship."

Oh, sorry, one last thing: Whether the law allows it or not, is it fair to refuse to hire or promote someone because she has the wrong skin color or because his ancestors came from the wrong part of the world?

Roger Clegg is general counsel of the Center for Equal Opportunity.

Copyright 2002 by The Chronicle of Higher Education
Section: The Chronicle Review
Volume 49, Issue 10, Page B20