a few lawyerly thoughts to add to KC Johnson’s excellent post yesterday on Columbia University setting aside
$30 million to hire female and minority faculty.
It was clear enough all along that Columbia’s
hiring would be racially discriminatory, if not racially exclusive; and, as
Professor Johnson points out, even the pretext that sometimes a (politically
correct) white male might be eligible for hiring has apparently now been
abandoned. And of course this is an unfair, divisive, and corrupt policy. But it should also be pointed out that it is
ILLEGAL to weigh race, ethnicity, and
sex in hiring.
shouldn’t have to be a math whiz to understand that Title VI does not equal
Title VII. President Bollinger of course
knows that, in its 2003 Grutter v.
Bollinger (“That’s me!”) decision, the Supreme Court said that
universities could discriminate – to a limited degree – on the basis of race
and ethnicity in student admissions under, among other federal laws, Title
VI. And so it is commonly assumed that
it must also be okay for universities to weigh race and ethnicity (and sex) in
the same “diversity”-driven 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 federal courts have never
recognized a “diversity” exception to Title VII, and are unlikely to. In fact,
when that issue was about to be decided by the Supreme Court in the late 1990s,
the civil-rights establishment hastily raised enough money to settle the case. More
on the problems with faculty hiring discrimination here.
don’t even think about making the “role model” argument in lieu of
the “diversity” argument. 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-five years
N.B. The Supreme Court has, alas, also
(mis)interpreted Title VII to be a less-than-categorical ban on discrimination,
but the politically correct exceptions it has carved out (for “manifest
imbalances” in “traditionally
segregated job categories”) do not apply, and are not cited by Columbia,