Politically Correct Discrimination in Silicon Valley and in the Groves of Academe

There was an article in the Washington Post a few days ago about Silicon Valley’s “diversity problem.” The problem is that there aren’t enough minority workers there, if you define “minority” to exclude Asians of course. But, have no fear, companies are trying hard to remedy this deficiency by hiring more African Americans and Latinos, under pressure from the likes of Jesse Jackson and his Rainbow PUSH Coalition.

Well, actually there is something to fear here. It is illegal to sort, hire, and promote people based on race, color, or national origin, as I testified to the U.S. Equal Employment Opportunity Commission here. So one wonders how the companies’ efforts are consistent with the law — let alone with the moral principle that it is wrong to favor some and disfavor others on the basis of these characteristics. No surprise, then, that the article is a little vague on exactly how race and ethnicity get weighed in actual hiring decisions.

There are two exceptions there, though. The article says that Facebook has a couple of internship programs that are for “minority” individuals only. If those internship positions are paid, then making them available on a racially exclusive basis is a clear violation of Title VII of the 1964 Civil Rights Act.

The other exception is Intel’s “$300 million venture fund designated for minority-led start-ups.” Assuming that at some point a contract is entered into between Intel and the start-up, this violates 42 U.S.C. section 1981, which makes it illegal to discriminate on the basis of race in contracting.

Maybe, in addition to hiring more “minorities,” these Silicon Valley companies should also hire some more lawyers.

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James Taranto of the Wall Street Journal has a recurrent joke in his column where he asks, “Fox Butterfield, Is That You?” The reference is to a New York Times reporter who wrote about how crime was going down, yet the number of people in prison had increased. That is, the clueless journalist saw a contradiction in two things that were not contradictory at all — in fact, conservatives might have predicted one to follow from the other.

Mr. Butterfield came to mind this week as I read an article in the Chronicle of Higher Education, headlined, “Colleges Seek Diversity, but ‘Admissions Calculus’ Hasn’t Changed.” The first paragraph of the article notes that a report released this week by the American Council on Education found that “Few selective colleges have changed their admissions practices since the U.S. Supreme Court’s ruling in Fisher v. University of Texas at Austin two years ago,” and “Yet many institutions … have since embraced various strategies” for increasing racial “diversity” among their students.

The article, in other words, suggests that there is something inconsistent between schools ignoring the Supreme Court’s decision of two years ago — which said that schools had to be more careful about engaging in racial admissions discrimination — and schools continuing to engage in such discrimination. There is, of course, no inconsistency at all between the two: Schools are adamant about wanting to discriminate, and so they ignore a Supreme Court ruling that would get in their way.

Let me note another curiosity from the executive summary of the report itself. That summary concludes:

Institutions across the selectivity spectrum are hungry for research and guidance in the Fisher context. When presented with four areas for additional research or guidance that could be the most helpful post- Fisher, participants prioritized them this way:

Research on the educational impact of campus diversity (58 percent overall; 74 percent of more selective private institutions)
Research and guidance on what constitutes a “critical mass” of diverse students within their institutional context and how to achieve it (54 percent overall; 82 percent of more selective public institutions)
Research on the diversity effects of admissions strategies where race-conscious admissions practices are prohibited (42 percent overall; 64 percent of more selective public institutions)
Methodological research and guidance on assessing the diversity effects of alternatives to race-conscious admissions (38 percent; 69 percent of more selective private institutions)

Do you get the idea from this that schools have already decided that they are going to achieve “diversity,” by hook or by crook, and that they are looking for an after-the-fact justification for this decision? In other words, they have not reached a good-faith, objective conclusion that diversity improves educational outcomes; rather, they have decided that they want to have diversity, and they want someone else to document the existence of those improved outcomes. Trouble is, the Supreme Court’s decision in Grutter v. Bollinger is premised on the former being true, not that someone might be able to come up with the documentation desired in the latter.

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Speaking of affirmative action, it was part of my talk to the Cleveland lawyers chapter of the Federalist Society last week. I imagine that, with the Supreme Court’s decision to grant review again in the Fisher case — at the urging of an amicus brief that the Center for Equal Opportunity joined and helped write, by the way — I’ll be talking a lot about this topic over the next few months. I’m looking forward to it.

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