True Affirmative Action Tale–Not an Onion Satire

Sometimes it is hard to take affirmative action seriously, or to distinguish it from parody (or often, tragedy). A case in point is a recent decision by a three judge panel of the U.S. Court of Appeals for the Sixth Circuit upholding the dismissal of a discrimination complaint by Dr. Marvin Thrash, a former faculty member at Miami University of Ohio. Inside Higher Ed has a long article on the case that is informative but oblivious to the humor (or pathos) so obvious that the case could be an Onion satire or an April’s Fool Joke.

Former Prof. Thrash was an affirmative action “opportunity” hire in 2004. He had first applied for and been rejected for a tenure track position but was then hired under a special program. According to the Dean of Miami’s School of Engineering and Applied Sciences, quoted by the Sixth Circuit, “an ‘opportunity hire’ was a hire made pursuant to an ‘informal policy’ at the University of obtaining funding to hire candidates who were under-represented minorities even if the University did not have a position open.” Over his several years at Miami Prof. Thrash was regarded as an effective teacher, but beginning in his first year and in subsequent years his evaluations noted that his research was deficient. He was denied tenure and filed a lawsuit charging racial discrimination.

Specifically, Thrash’s charges included the following:  

  • That his department chairman, Prof. Shashi Lalvani, viewed him “as an affirmative action hire who had received the job based not on his qualifications, but on his race.”
  • That “Dr. Lalvani’s categorical rejection of external reviewers from HBCUs is evidence of Dr. Lalvani’s racial bias against African-American scholarship.”
  • That another professor “had a reviewer from an HBCU, Norfolk State University, struck from her final list by Dr. Lalvani. Dr. Thrash argues that this is further evidence that Dr. Lalvani had a bias against HBCUs and African- American scholarship.” (Sixth Circuit opinion, 11-12)

The first charge may not be quite as brazen as the famous if apocryphal defendant who murdered his parents and then pled for mercy as an orphan, but it comes close. It suggests that anyone who makes an affirmative action hire — that is, who hires someone who would not have been hired but for his or her race or ethnicity — and who says or even believes that person would not have been hired but for his or her race or ethnicity risks a discrimination lawsuit if the affirmative action hire is not subsequently promoted.

The other two charges are equally striking, even aside from their  implication that there is something unique about “African American scholarship” in the fields of chemical, paper, and biomedical engineering against which it is possible to be biased. They suggest that candidates for tenure (and perhaps authors submitting articles to peer-reviewed journals) are victims of discrimination if members of the candidate’s race or ethnicity are excluded from their panel of outside reviewers.

A 2-1 majority of the Sixth Circuit panel rejected Thrash’s charges and upheld the district court’s granting of summary judgment to Miami, but some of its reasoning was almost as troubling as the dubious charges themselves.

First the majority decided that it “cannot conclude, merely from the fact that Dr. Thrash was hired as an ‘opportunity hire,’ that Dr. Lalvani harbored a negative view of either African-American scholarship or Dr. Thrash.” This seems counter-intuitive, since Dr. Lalvani clearly knew that Dr. Thrash had in fact not been hired based on his qualifications — his application for the regular tenure tract position was rejected — and would not have been hired but for his race. Affirmative action hiring or admission would be unnecessary and even nonsensical without the recognition that those who benefit from its lowered standards have lesser qualifications.

The majority then rejected the charge that Dr. Lalvani’s failure to select outside reviewers from HBCUs reflected racial bias, but it did so because “four of the six reviewers selected for the final list were African-American.” But what if they were not? What if the final list contained only whites or, perhaps worse from a pro-affirmative action perspective, only Asians, who after all are the primary victims of affirmative action preferences to blacks and Hispanics? The majority opinion seems to leave open — perhaps even to invite — future discrimination charges whenever peer review panels are insufficiently “diverse.”

Finally, and perhaps most humorously, the majority found the other charge  of Dr. Lalvani’s bias against blacks — that in another tenure application he had excluded a reviewer from an HBCU, Norfolk State, — unpersuasive because “Dr. Thrash ignores the fact that the recommender Dr. Lalvani struck was Chinese, not African-American.” (Perhaps that  candidate, Prof. Lei L. Kerr, could have complained of anti-Asian bias — or at least anti-Chinese bias, since Dr. Lalvani is himself Asian — except that she was successful.)

I have been complaining about aspects of the majority opinion (not its result), by Sixth Circuit Judge Richard Allen Griffin, a Bush appointee, and District Judge Edward R. Korman, who sat on that panel, a Reagan appointee. Let me hasten to add, however, that their opinion was far superior to that of the panel’s lone dissent, Sixth Circuit Judge Karen Nelson Moore, a Clinton appointee, who argued that the court should not have rejected Thrash’s argument that the stated reasons for denying his tenure were a pretext because, she noted, quoting an earlier opinion, “there is no ‘abundant and uncontroverted independent evidence that no discrimination occurred.'”

Judge Moore thought a jury could have reasonably concluded that the exclusion of reviewers from HBCUs reflected racial bias even though four of the six selected reviewers were black. She also thought that a jury should have been able to hear and evaluate Thrash’s charge “that Dr. Lalvani viewed him differently from the start because he was hired as part of an affirmative-action program at the University … ,”  that he “viewed Dr. Thrash as inferior to regular hires.”

Judge Moore was a lone dissenter here, but it is not unreasonable to predict that if more judges are appointed by a Democratic president her views might ultimately prevail. If so, will it then be irony or poetic justice when hiring “underrepresented minorities” with lesser qualifications can provide evidence for racial discrimination charges against employers who believed those hires had lesser qualifications?

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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