A Half-Dozen Push-Backs | Center for Equal Opportunity

One of my articles that I link to most is “A Half-Dozen Push-Backs for Faculty Hiring Committee Meetings,” which the National Association of Scholars kindly published on its website eight years ago. It’s useful whenever I’m responding to a suggestion that this or that faculty should increase its “diversity” — and those suggestions appear practically every day on higher-education websites. Many of the points it makes, alas, apply as well to Corporate America these days and its “celebration of diversity” (I testified specifically against those practices before the U.S. Equal Employment Opportunity Commission, which you can read here and here). Anyway, since I don’t believe I ever shared this piece on this email, and since it remains salient — indeed, is increasingly salient, and one hopes that the Justice Department and the EEOC might do something about it in this administration, by the way — here it is:

You’re in a faculty hiring committee meeting, and the talk turns to “diversity.” And, inevitably, that means someone is suggesting that the race, ethnicity, or sex of applicants or potential applicants be considered in the hiring process.

What do you do?

Well, if you think that such discrimination — because, of course, that’s what it is — is a bad idea, then in my humble opinion you should push back. Whether the push-back should be simply an eye-roll or an argument followed by a dramatic threat to resign, I leave to you and your circumstances. I’ll say only that, if you speak up, you may well find that you are not alone — surveys have shown that most faculty members don’t like this nonsense — and that, in any event, the law is on your side.

What I would like to outline here are a few ideas or talking points that you should keep in mind if and when you do speak up. If you’re interested, by the way, I’ve written some other, sometimes more elaborate discussions over the years, and you can check out the links to them here:

http://chronicle.com/article/Faculty-Hiring-Preferences-/26171/

http://www.popecenter.org/clarion_call/article.html?id=2209

https://www.mindingthecampus.org/2010/01/07/another_bad_idea_diversifying/

https://www.mindingthecampus.org/2009/12/17/allegations_of_tenure_discrimi/

The first item in the list, from The Chronicle of Higher Education, is the most comprehensive, and might even be distributed at the meeting. It’s from the CHE, for Pete’s sake.

Also, I’m happy to discuss (confidentially and without charge) specific situations, so feel free to call me at 703/442-0066 or email me at rclegg@ceousa.org.

1. I think we need to check with the university counsel on this. This one should go first or last, since in many situations I suspect it will be the most effective. Let’s face it: You are not going to persuade the Vice Provost for Diversity that his job is immoral and largely premised on illegal discrimination. The general counsel, on the other hand, while she may be just as immoral and diversiphilic, has the job of keeping the university out of legal trouble. And, as discussed below, the law is pretty favorable to you. Since no one can deny that there are legal issues involved, who can object to getting a legal opinion so that nobody breaks the law and the university doesn’t get hauled into court? (And if anyone suggests that the lack of faculty diversity makes the university legally vulnerable and justifies the use of hiring preferences — this is basically the argument the Supreme Court rejected [in 2009] in the New Haven firefighters case — call their bluff and ask for a legal opinion.)

2. The Supreme Court has rejected the role model justification. When you read about a university’s efforts to diversify its faculty, a school official will frequently assert that these efforts are important because minority or female students need “role models” (relatedly, it is often suggested that the faculty should reflect the student body or even the community’s general population). This is a dubious argument as a policy matter, but what is amazing is that the argument continues to be made even though the Supreme Court rejected it, as legal matter, over twenty years ago. Read all about it here: http://www.insidehighered.com/views/2006/01/19/clegg.

3. Title VI is not the same as Title VII. Everyone remembers that in its 2003 Grutter v. Bollinger decision [and more recent Fisher v. University of Texas decisions], the Supreme Court said that universities could discriminate — to a limited degree — on the basis of race and ethnicity in student admissions. And so many people assume that it must also be okay for universities to weigh race and ethnicity in the same way when they hire faculty. Wrong. The Grutter decision said nothing about Title VII of the 1964 Civil Rights Act, which covers employment and which has different language and jurisprudence than Title VI (the part of the Act applicable to student admissions). The federal courts have never recognized a “diversity” exception to Title VII, and are unlikely to; if you are fortunate enough to live in Delaware, Pennsylvania, or New Jersey, then you have on your side a federal court of appeals decision expressly rejecting the diversity rationale under Title VII (this is arguably also true in Texas, Louisiana, and Mississippi). But even in the other states, it is clear that just because something is allowed under Title VI doesn’t mean it is allowed under Title VII.

4. Put the shoe on the other foot. I suggest this as a legal point, although it can frequently be used as a moral argument, too. If someone asserts, “Look, this isn’t discrimination, because all we are doing is X,” then ask, “Suppose we were doing X in order to increase the number of white males — would you say that wasn’t discrimination?” So, for example, if the school is insisting that at least one of the people interviewed be a woman, and it is asserted that this isn’t discrimination because she will not necessarily get the job, then ask, “If the shoe were on the other foot, and the university insisted that at least one man be interviewed for any opening, would you say that wasn’t discrimination?” Again, even if there is no moral equivalence, the point can be made that, as a legal matter, the civil rights laws are going to be implicated.

5. Why are we using race or sex as a proxy for something else? The reason given for affording a hiring preference to minorities or women is frequently not ethnicity or sex per se, but some quality that (it is believed) will naturally correlate with ethnicity or sex. Examples: “We should give special consideration to people who have overcome personal obstacles,” or “We should be willing to hire people who have been published mostly in non-peer-reviewed periodicals,” or “We should be looking for people who bring a different set of life experiences and perspectives to the campus.” Now, whether you agree with any of this or not, it makes perfect sense to say: “Well, if that’s what we’re going to do, so be it, but we should be willing to consider folks of any color and either sex who meet these new standards — and we should not assume that just because someone is black or female that she meets them.” Feel free to add, “You know, in any other context what you’re doing would be called stereotyping.” And, if it is insisted that, no, there really is something uniquely to be gained through ethnic background, ask, “So, what is the Latina perspective on quantum mechanics?”

6. You know, we’re discriminating against some minorities in favor of other minorities. The phrase “underrepresented minorities” was coined in recognition of the fact that it is not just whites who need to be discriminated against, but “overrepresented minorities” as well (typically Asians, including Arab Americans). And, of course, frequently women of various colors can find themselves being discriminated against, too. Many feel a visceral sympathy for giving a boost to African Americans over those arrogant and overrated white males; for some reason, I don’t, but even those who do may find themselves balking at a process that will prefer a rich, tenth-generation American man who happens to have a Latino last name over a first-generation and not very rich Asian American woman. And, with respect to black-on-white discrimination, you might observe, “Let’s see, this person was born not in 1619, not in 1865, not in 1964, but in … gee, 1985.” For those faculty members of a certain age, that will seem pretty recent.

Happy pushing back!

* * *

Last month I appeared on a Federalist Society national panel that discussed the “disparate impact” approach to civil-rights enforcement — which I hate. This is the notion that someone can be held liable for discrimination if she has a policy that results in statistical disproportions, even if the policy is nondiscriminatory on its face, is nondiscriminatory applied, and was adopted without any discriminatory intent. Here’s the link to the panel discussion.

* * *

My email to you of a couple of weeks ago included a number of responses we had recently sent to various newspapers on a variety of topics. Here’s another, to the Philadelphia Inquirer:

Your [recent] editorial re school discipline policy assumes that, if different racial and ethnic groups have statistical differences in how frequently they are disciplined, this must be “bias.” But that is true only if all racial and ethnic groups commit disciplinary infractions at the same rate — and this is contrary to all evidence.

Indeed, to insist on identical discipline numbers among groups when infraction numbers are different is to insist on racial quotas — which courts have rightly declared are unconstitutional.

The Trump administration should withdraw the Obama administration letter that coerced just such quotas. The people hurt by this policy are those in classrooms that have become harder to learn in and more dangerous because students who should be disciplined aren’t. Those victims are teachers and other students — who, by the way, are themselves more likely to be poor and African American.

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