Both Inside Higher Ed and the Chronicle of Higher Education have just reported on a new finger-wagging “report card” that scolds college athletic programs for “racial hiring practices” resulting in insufficiently “diverse” staffs. The card, issued by TIDES, the University of Central Florida’s Institute for Diversity and Ethics in Sport, is aghast that only 18.8 percent of Division I men’s basketball coaches are black, down a shocking 0.2 percent from last year, and only 8.3 percent of athletic directors are women.
Apparently TIDES, IHE, and CHE, like practically everyone else in higher education, have forgotten that “racial hiring practices” are illegal. As Roger Clegg recently pointed out here, quoting this excellent article by an employment law specialist, “the law simply abhors preferences, quotas and hiring less-qualified individuals. There is no real ‘affirmative action’ (as that term is commonly known) under the law for hiring, or promotions.”
“Diversity,” after all, has been held to justify discrimination only in college and university admissions, and even there only where it is “narrowly tailored” and demonstrated to be essential to education itself. A concern with numbers and proportions, the Supreme Court has repeatedly insisted emphatically but with no apparent effect, is “discrimination for its own sake” and is flatly prohibited:
- In his controlling opinion in Bakke Justice Powell wrote that preferential treatment “for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.”
- In her majority opinion in City of Richmond v. Croson, Justice O’Connor endorsed Justice Powell’s opinion in Bakke that “[t]he desire to have more black medical students or doctors, standing alone, was not merely insufficiently compelling to justify a racial classification, it was ‘discrimination for its own sake,’ forbidden by the Constitution
- In his majority opinion in Freeman v. Pitts, Justice Kennedy wrote that “[r]acial balance is not to be achieved for its own sake.”
- In her majority opinion in Grutter, Justice O’Connor wrote that attempting to assure the representation of a specified percentage of members of various groups based on race or ethnicity would amount to “outright racial balancing, which is patently unconstitutional.”
If Fisher forces institutions to prove that their educational mission will be thwarted if they are not allowed to place racial, gender, and ethnic thumbs on the scale in staffing their athletic programs (and others; why does it matter what color the provost or assistant dean of building and grounds is?), perhaps it will have done some good.