Blueprint For Racial Hiring

For a window into contemporary, post-Grutter strategies and strategems for dressing up racial hiring in attire that is sufficiently presentable (while camouflaging the true racial purpose) to pass Supreme Court muster, there is no better place to look than an article in today’s Chronicle of Higher Education, “When Seeking a Diverse Faculty, Watch Out for Legal Minefields,” by Pamela Bernard, Duke’s vice president and general counsel,

Lawyers and others attacking racial hiring and admissions would do well to study Ms. Bernard’s blueprint carefully to see what they’ll be up against. In fact, I encourage everyone to read her entire article, since I’ll be addressing only a few of its points here.

What I found at the same time the most striking and yet least surprising characteristic feature of Ms. Bernard’s directions for avoiding pot holes and road blocks on the road to racial hiring and admissions was her easy and apparently effortless conflation of true diversity (of opinions, values, interests, backgrounds, religion, culture, etc.) with “diversity,” which, when the rubber meets the road, as usual means nothing more than race plus a few favored ethnicities.

So far as I know, no one disagrees with the hymn to diversity Ms. Bernard sings in the first few paragraphs. Listen to some of the chorus, beginning with the opening stanza:

The rich learning environment so characteristic of American higher education has encouraged faculty members and students to probe the status quo, challenge facts, ponder theories, and debate controversial ideas. Not only does a diverse student body support such a learning environment — as the Supreme Court has recognized in its rulings — but faculty members with varying backgrounds and perspectives also play a key role.

If students are to become global citizens — thinkers who can comprehend and act on the myriad issues that our world faces — they must interact with people who challenge their views. It is crucial for colleges in their hiring practices, as well as in their admissions practices, to create an environment where professors and students can test convention by sharing different experiences and opinions.

Now, having revved the engine, Ms. Bernard gets down to business and puts this car into gear with her very next sentence, which reveals all she really cares about:

Yet colleges face legal risks when they deliberately seek to increase the racial and ethnic diversity of their faculties.

Well, yes. Those pesky civil rights laws barring racial discrimination do pose a threat, but Ms. Bernard proceeds to demostrate how good lawyering (at least with clients who will follow her advice) can get around them. Her method is to provide a piece of advice, in bold, followed by a brief discussion, followed by a paragraph or so on “legal minefield to avoid.” Let’s look at the first one:

Use targeted hiring programs carefully. The few legal cases in the employment context after Gratz and Grutter have cited the Michigan cases, but they have made it clear that such programs will be scrutinized as strictly as ever. That means the courts will continue to require that the interest an employer is asserting be “compelling,” and that the program be narrowly tailored, including evaluating the availability of race-neutral alternatives.

For example, in Petit v. City of Chicago (2003), a federal appeals court, referring to the Michigan cases, held that the Chicago police department’s affirmative-action promotion plan was legal because the department demonstrated a compelling need for diversity in a racially divided city, showing that a diverse work force enabled the department to generate trust with the communities it served and that diversity “set the proper tone” within the department itself.

That suggests that a college’s use of race and ethnicity as a factor, but not the sole factor, in a hiring decision will probably be sustained if the proper evidentiary foundation is in place. Yet the risks of having a hiring program declared invalid increases along a spectrum: from race-neutral hiring strategies, to race as one consideration, to race-targeting hiring programs. As an institution moves from programs where race or ethnicity is one of many factors to its being the sole factor in a hiring decision, it will have to work harder to develop with legal counsel the evidence that will support such highly scrutinized decisions.

Legal minefield to avoid: As the Supreme Court reiterated in Grutter, using quotas, which it defined as “a fixed number or percentage which must be obtained,” to create a diverse faculty is problematic because quotas are necessarily exclusive in nature — reserved only for candidates in a particular minority group or groups — and invite reverse-discrimination claims. In contrast, programs that permit all qualified candidates to be considered, but that mandate good-faith efforts within a goal, can include race and ethnicity as hiring considerations unless prohibited by state law. Also, any race-sensitive and ethnicity-sensitive programs will have a greater chance of survival upon legal challenge if institutions review them periodically.

Following items of advice — “Clearly articulate the mission,” “Tie the position announcement to the mission,” “Create a diverse pool of applicants,” etc. — follow this pattern and generally say different versions of the same thing. One repetitive note is the advice, offered several times, to make sure that race and ethnicity are presented

as only part of a range of qualities that the college will consider. Such an approach will better withstand legal challenge, as no person is automatically excluded because of race, ethnicity, or another factor.

The defense/camouflage that race and ethnicity are only “a factor, but not the sole factor” in admissions and faculty hiring is so common now that it merits a pause here to reflect on it. In real life, as everyone who has been a part of or watched the process knows, departments under pressure from their deans and provosts to hire more blacks or Hispanics or women know that that “one factor” is all that really matters. That fact can be disguised with “mission statements” and “position descriptions” and “diverse applicant pools” and proof, through interviews and campus visits, that “no person is automatically excluded because of race, ethnicity,” but most of the time these measure are nothing more than diversionary chaff to deflect and confuse the missile of a legal challenge.

Consider, for example, a not at all rare or unusual situation: a department trying to “diversify” goes through all the recommended motions outlined above. It finds several ideally qualified and appealing candidates, but, alas, not one of them is the right kind of Hispanic. Although the search committee was sorely tempted by a blond Argentinian, it feared, correctly, that the dean would not regard her as Hispanic enough, and thus the decision was made to give no one an offer and try again later.

In this example, race/ethnicity was indeed only “one of many factors” considered, and no one was excluded from consideration because of race/ethnicity. But for that blond Argentinian, or any other candidate who would in fact have been given an offer but for the department’s decision to hold out for a certain kind of Hispanic (or black or whatever), race/ethnicity was in fact the only reason for not being hired. In short, the candidates hired under these procedures no doubt have other qualifications besides their race, but often those who are not hired are rejected solely because of their race.

Any judge who can’t see that is the sort of judge who would, well, write an opinion like O’Connor’s in Grutter.

To her credit, Ms. Bernard recognizes that merely shouting “diversity!” is no longer sufficient.

A college will have to be prepared, as the University of Michigan was in its admissions decisions, to support its use of race or ethnicity as an element in the faculty-selection process by being able to provide evidence that the learning environment for faculty members and students is enhanced by diversity. The institution needs to say explicitly why attracting a diverse faculty is important to fulfilling its educational mission, and how an environment most conducive to learning and preparation can be achieved only when different perspectives abound.

Another minefield is relying on the mission statement without having the evidence to support it.

Ms. Bernard also advises institutions to be sure to articulate their “missions” in a manner that demonstrates how “developing multiple approaches to knowledge helps tie hiring decisions to the need for a diverse faculty.” Alas, she apparently has nothing to contribute to the biggest challenge facing institutions attempting to follow her advice: How should they go about demonstrating that blacks or Hispanics, because they are black or Hispanic, have different “approaches to knowledge” in engineering, math, chemistry, accounting, tax law, or anything else?

Nor does she have anything to say about how institutions who justify their racial/ethnic preferences on their need for “diversity” should go about justifying hiring yet another black or Hispanic when so many other “culturally different” groups (for lack of a better term) remain, in the jargon of the day, woefully “underrepresented.” One thinks of evangelical or fundamentalist Christians (where their religion, of course, would be only “one of many factors” considered and hence would not involve discriminating on the basis of religion), Arab-Americans, sons or daughters of coal miners, etc., etc.

Indeed, even with regard to Hispanics, shouldn’t an institution truly seeking diversity refrain from hiring another Mexican-American until the Cuban-Americans, Guatemalan-Americans, Chilean-Americans, etc., etc. are also sufficiently “represented” on campus?

Ms. Bernard has provided the beginning of a valuable service to college administrators beleaguered by the troubling necessity of complying with laws against racial or ethnic discrimination (what a shame Congress didn’t pay more heed to “academic freedom” when those laws were passed!), but she clearly has a long way to go.