Bean-Counting and Bias | Center for Equal Opportunity

An AP story this week laments: “U.S. teachers are nowhere near as diverse as their students,” and says liberal groups “want more to be done to help teachers mirror more accurately the students in their classrooms.” Those groups say that minority students do better if they have a teacher “who looks just like them” and — rather contradictorily — that white students benefit by “engaging with people who think, talk, and act differently than them” (uh, stereotype much?). But, the article concludes, it “will take political will” and better “programs and policies” designed “to increase the number of minority teachers.”

But recruiting and hiring with an eye on race and ethnicity is not only bad policy: It breaks the law. Title VII of the 1964 Civil Rights Act makes it illegal to weigh race in employment decisions, and this includes hiring teachers. What’s more, for public employment, the U.S. Constitution likewise makes it presumptively illegal to make decisions on the basis of race.

The federal courts have never recognized a “diversity” exception for Title VII. And in a 1986 constitutional case (Wygant v. Jackson Board of Education), the U.S. Supreme Court explicitly rejected the “role model” justification in the employment context for teachers. A decade before that, in Hazelwood School District v. United States, the court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty.

This is not only the law. It also makes perfect sense. As Justice Lewis Powell wrote in Wygant, “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.” There is no reason why students cannot have as role models people who do not share their skin color.

Schools should, in any event, reject bean-counting and just hire the best-qualified individuals, regardless of race or ethnicity. Anything less is a disservice to the students and the community, besides being unfair to the applicants.

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Here’s some more news on the bean-counting front: The Wall Street Journal had an article last week titled, “Can This Algorithm Find Hires of a Certain Race?” It’s about how Entelo Inc. has created an algorithm that, for a fee, other companies can use to “help[] recruiters identify candidates who are women” and/or “of particular races or ethnicities.” All in the name of increasing “diversity,” of course.

Entelo’s head acknowledges that “the product will raise eyebrows among legal and HR teams” who think this “may cross legal lines or represents reverse discrimination.” But, he cheerfully concludes, this kind of thing is already being done and, who knows, this might even result in there being less discrimination.

He also suggests that, since this is done only to assemble a politically correct mix of applications, and not to make a final hiring decision, there’s no problem. And the article notes that, besides, it can only be used against whites and males, and not against racial minorities or women.

Well, it’s just not true that the law has been successfully circumvented because the discrimination occurs only in the earlier stages of the hiring process, or because only whites or only men are discriminated against. Title VII of the 1964 Civil Rights Act prohibits employment discrimination and provides (emphasis added): “It shall be an unlawful employment practice for an employer . . . to limit, segregate, or classify his . . . applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”

So white and male applicants are protected from this sort of discriminatory classification. It’s always useful to put the shoe on the other foot in these instances (see my 2007 testimony before the EEOC on these “diversity” issues): Any doubt that employers using an algorithm that was designed to help them sift out women and minorities would violate Title VII?

Entelo is, however, unfortunately right about one thing: This kind of discrimination is already widespread, algorithm or no algorithm. But this provokes the question: Why do so many companies think that the law allows them to engage in politically correct hiring discrimination, so long as it is in the name of “diversity”? It doesn’t.

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Still haven’t had enough from the bean-counters? Well, U.S. Attorney General Eric Holder has announced that the Justice Department will start collecting racial data on police stops and arrests, with the clear implication that he thinks the lack of racial proportionality in these numbers must mean that there are a lot of racist cops out there.

But any credible charge of widespread racial bias these days must be limited to drug-law enforcement, since even extremists like Michelle Alexander acknowledge that “black men do have much higher rates of violent crime [than whites].” Now, I’m not persuaded that there is widespread discrimination in drug-law enforcement either, but let’s assume that there is. What should be done about it?

Well, one approach is to conduct the massive program that Mr. Holder is undertaking, collect a lot of data, re-educate all the policemen in the country, bring plenty of Justice Department investigations, and perhaps even follow the suggestion of people like Professor Alexander and radically change our entire criminal justice and political system.

This will certainly keep the bien-pensants busy! While the rest of us wait for all this to shake out, however, here is another approach, and one that can be implemented immediately and at no cost:

Step 1: Do not use, buy, or sell illegal drugs.

Step 2: If you belong to a racial or ethnic group that you think is targeted by the police, then especially do not use, buy, or sell illegal drugs.

Now, it may be objected that it is unfair if the police let white kids buy, use, and sell illegal drugs more than black and Latino kids. True, but when you think about it, it’s really not a good idea to buy, use, or sell illegal drugs anyway. It’s not as if the police were keeping you from doing something that would be beneficial or even harmless to you and your community if you did it. Indeed, if the police were more tolerant of blacks and Latinos buying, using, and selling illegal drugs than white kids, probably the Left would complain about that. So my suggestion really does not involve any sacrifice.

At no extra charge, I will also provide another suggestion, for members of all racial and ethnic groups:

Step 3: Instead of using, buying, and selling illegal drugs, spend that time doing homework or something else that will improve your mind and character rather than destroy them.

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The Washington Post, which once in a while has a decent editorial on racial issues, didn’t in one recent one. Instead its editors — along with some other liberals out there over the last week or two — try to use the recent statements of Cliven Bundy and Donald Sterling to justify racial preferences in university admissions.

This is absurd. We can all stipulate that there will always be racists (of all colors), but that is no justification for race-based decisionmaking by others; there are other and better ways to fight racism. Indeed, announcing that blacks and Latinos will be held to lower admission standards than whites and Asians is more likely to reinforce than undermine racial stereotypes. And so, likewise, is the creation of a campus environment where the blacks and Latinos are on average significantly less academically qualified than the whites and Asians.

Insisting that all people, regardless of race, can and should and will be judged by the same standard is the best way to fight racism.

To the Post’s credit, though, it did publish my response to its editorial, and you can read that response here.

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