ACHIEVING A DIVERSE FACULTY: LAW AND POLICY. March 5 7, Ann Springer, Counsel American Association of University Professors 1

Transcription

1 ACHIEVING A DIVERSE FACULTY: LAW AND POLICY March 5 7, 2008 Ann Springer, Counsel American Association of University Professors 1 Charlotte Westerhaus Vice President of Diversity and Inclusion, National College Athletic Association The attention brought to diversity issues in June 2003 by the Supreme Court s decisions in the University of Michigan s Gratz v. Bollinger and Grutter v. Bollinger cases have led to many questions about affirmative action and its role in faculty employment. While the Michigan cases deal with admissions, and do not deal directly with the issue of diversity in hiring, they will clearly govern future court decisions regarding hiring diversity. Five years later, courts have yet to provide much legal guidance beyond the Michigan decisions on issues of diversity in faculty hiring, but the debate about diversity on campus in all forms is ongoing. This outline discusses both the legal parameters of current employment law and best legal and practical strategies for diversifying. Section I discusses the benefits of diversifying, lest we lose sight of the legal and policy benefits of doing so. Sections II and III are summaries of affirmative action law generally, and law post-michigan, respectively. Section IV gives best practices to recruit and retain a diverse faculty, from both a legal safety and policy standpoint. Section V discusses legal issues in specific targeted hiring programs and policies. Finally, Section VI provides additional resources. I. Benefits of Diversifying: It is important that we do not let the rhetoric obscure some important facts and considerations about why diversity in hiring is important. The following are key points about why such an effort makes legal and policy sense. A. A diverse faculty benefits students. Numerous studies and longstanding research show that a diverse faculty and student body lead to great benefits in education for all students. Not only does the law require that colleges and universities have no individual or systemic discrimination, but sound educational practice requires it. See, e.g., Does Diversity Make a Difference? Three Research Studies on Diversity in College Classrooms, American Council on Education & American Association of University Professors (2000) ( Survey Reinforces Value of Faculty Diversity in Classroom, Black Issues In Higher Education, 1 The original document Achieving a Diverse Faculty: Law and Policy was written by Ann Springer, Counsel, AAUP and co-presented by Charlotte Westerhaus, Vice President, Diversity and Inclusion, NCAA for a presentation at the NACUA Employment Law Workshop, March The present document was updated by Charlotte Westerhaus with the permission of Ann Springer for the NACUA Employment Law Workshop, March

2 August 14, 2003 (96% of minority and 83% of non-minority respondents say minority professors are having a positive impact on their education); Turner, C.S.V., Diversifying the Faculty: A Guidebook for Search Committees, (Association of American Colleges and Universities, 2002; Collins, C.J. and Kristsonis, W.A., National Viewpoint: The Importance of Hiring a Diverse Faculty, National Journal for Mentoring Doctoral Student Research, Vol. 3, Number 1, 2006; Antonio, A. Diverse Student Bodies, Diverse Faculties, Academe, 89 (6) (2003), retrieved December 10, 2007 from the Academic Search Premier database; Springer, A.D., Faculty Diversity in a Brave New World, Academe (July August 2004); retrieved December 12, 2007 from hhttp:// Despite these benefits, higher education faculty remains one of the least integrated professions; only about 5% of faculty are African American, and many of those are at Historically Black Colleges and Universities (HBCUs). B. Discrimination remains a concern. With the current press coverage and legal threats to racial preference programs, there is frequently a perception on campus that such reverse discrimination claims present the greatest legal risk. Yet the vast majority of claims filed are claims of discrimination against those in protected categories, and failure to diversify will leave an institution open to these claims. Reverse discrimination claims, while a concern, are still a small percentage of EEOC complaints. See, e.g., Pincus, Fred, Reverse Discrimination: Dismantling the Myth (Lynne Rienner Publishers 2003); Wilson, J.K., The Myth of Reverse Discrimination in Higher Education, The Journal of Blacks in Higher Education, No. 10, Winter, 1995). Often those outside the legal office forget that discrimination claims are a big deal. A homogenous faculty not only fails to represent the diversity of views and experiences crucial to a broad education, but it leaves an institution vulnerable to damaging discrimination lawsuits. Such lawsuits are both expensive for the institution and have big effects on faculty resources and morale. Having a diverse faculty limits such claims, both by students and faculty, and an easily observable commitment to diversity by the institution and the faculty in both policies and hires provides a strong defense to claims of discrimination. A diverse faculty, especially one supported by good diversity policies and commitments by the institution, is also less likely to engage in the kind of discrimination that creates legal liability for the institution. II. Law on Diversifying Faculty: An Accessible Summary Following is a summary of the laws involved in employment discrimination legal analysis. It is designed with both a legal and non-legal audience in mind. While the parameters of such an analysis may already be familiar to attorneys working in this area, having a straightforward explanation of the laws involved to make available to faculty can be useful in creating a sense of partnership and agency on the part of the faculty. A. Overview: Black and white rules on diversity hiring are hard to come by, as the law in this area is unsettled and basically circular. Factors like whether an institution is public or private, has a history of discrimination, and accepts federal funding can all play a role. To put it simply, the Constitution and federal statutes require that employers eliminate 2

3 discrimination on the basis of race or sex. Employers can be sued under these statutes both for individual discrimination ( disparate treatment of an individual) or for policies and practices that create widespread disparities in the number of women and minorities in the workplace (actions that have a disparate impact on minorities as a whole). In addition, some federal laws require employers to take explicit affirmative action to show how they will make their workplaces free from discrimination. Employers have thus adopted diversification plans (affirmative action plans) to create a more diverse workplace free from policies and practices that create a disparate impact, and to have tangible proof of their non-discrimination efforts. However, affirmative action plans and employment policies and decisions that explicitly take race into account in hiring can also implicate the constitutional requirement of equal treatment under the law, resulting in reverse discrimination claims. The courts have tried to deal with this conundrum by setting up restrictions and allowable justifications for such affirmative action (remedying past discrimination, societal benefits of diversity, narrowly tailoring efforts to make sure that they address only the particular problem and are short lived, etc.) but the result is a web of complex and interconnected laws and regulations that provide increasingly little clarity. B. The primary legal benchmarks in employment discrimination law are the standards under the Equal Protection Clause of the 14 th Amendment to the Constitution, Titles VI and VII of the Civil Rights Act of 1964, and case law interpreting them. C. Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et seq., makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. This federal statute applies to faculty members and other employees of colleges and universities, private and public. D. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, prohibits race and national origin discrimination by recipients of federal financial assistance. Because most colleges and universities accept federal financial aid and other federal money, this applies to most institutions. (For the regulations issued by the Department of Education implementing Title VI, see 34 C.F.R. Part Courts have found that the standards for analysis of Title VI are the same as those under the 14 th Amendment to the Constitution. See F below. 1. The federal regulations applying Title VI to race-based financial aid also recognize the need for faculty diversity. The Secretary believes that a college s academic freedom interest in the robust exchange of ideas also includes an interest in the existence of a diverse faculty and, more generally, in diversity of professors nationally, since scholars engage in the interchange of ideas with others in their field, and not merely with faculty at their particular school. Dept. of Education Final Policy Guidance on Title VI of the Civil Rights Act of 1964 and its implementing regulations, 59 Fed. Reg. 8756, February 23, These regulations allow federally funded colleges to use financial aid to promote diversity and access of 3

4 minority students. The regulations were implemented in 1994, and the Bush administration has not changed them. However, a spokesman for the Education Department has stated that Generally, programs that use race or national origin as sole eligibility criteria are extremely difficult to defend. ( Dozens of Colleges May Soon Face New Federal Inquiries Over Race-Specific Programs, CHE, February 27, 2003.) E. A presidential order known as Executive Order requires colleges and universities that receive federal contracts (a different, and higher, standard than federal aid ) to take affirmative action as to race and national origin, among other factors. 1. The Office of Federal Contract Compliance Programs in the U.S. Department of Labor has regulations governing affirmative action programs for government contractors. The regulations govern affirmative action plans and obligations for institutions contracting with the federal government for amounts equal to or greater than $50,000. (See 41 CFR Part 60-1, 60-2, Chapter_60.htm). While educational institutions are exempt from some of the requirements, the regulations still impose stringent tracking requirements mandating attention to affirmative action in hiring and promotion. 2. Affirmative Action: A good definition of affirmative action is included in the regulations implementing E.O They define an affirmative action plan as a set of specific and result-oriented procedures to which a contractor commits itself to apply every good faith effort. The objective of those procedures plus such efforts is equal employment opportunity. Procedures without effort to make them work are meaningless; and effort, undirected by specific and meaningful procedures, is inadequate CFR (This definition goes on to require specific workplace analyses and set goals and timetables, which are requirements specific to federal contractors). a. An affirmative action plan should be a narrowly tailored program that considers race, gender, etc. as a factor in recruitment, hiring and promotion policies and practices to remedy the present effects of past discrimination and to diversify the workforce. (See Affirmative Action in Higher Education: A Report by the Council Committee on Discrimination, AAUP Policy Documents & Reports 193, 194 (9 th ed. 2001); Affirmative Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women on College and University Faculties, AAUP Policy Documents & Reports 201 (9 th ed., 2001). ( See also Sample Affirmative Action Plan, a guide of the United States Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance, F. The 14 th Amendment to the Constitution provides that [n]o State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws. 4

5 1. This constitutional provision, and the standards the courts have developed to implement it, applies only to public institutions. However, the Supreme Court recognized in the Michigan cases that this standard is the same as the standard to be applied under Title VI. This means that this constitutional standard is applied to virtually all institutions, public and private. 2. Under the 14 th Amendment, consideration of race or national origin in hiring or promotion decisions is subject to strict scrutiny, which requires that policies be narrowly tailored to achieve a compelling government interest. a. One major area of debate is what constitutes a compelling interest. Compelling interests recognized under the law have included remedying the present effects of past discrimination and the attainment of a diverse student body to further the "robust exchange of ideas" on campus. (See Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003)). Remediation of past discrimination: i. Involves remediation of the present effects of past discrimination at that institution, thus it requires an admission of guilt specific to that institution. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S 469 (1989). ii. Remedial plans have been upheld in situations where a job category was traditionally segregated, and where there is a manifest racial imbalance. See, e.g., Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987); Steelworkers v. Weber, 443 U.S. 193 (1979). iii. However, the courts have concluded that remediation of general social discrimination (rather than the individual discrimination by the challenged employer) is not a sufficiently compelling interest to justify racial classification remedies. See, e.g., Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 274 (1986); City of Richmond v. J.A. Croson Co., 488 U.S 469 (1989). b. Diversity i. The diversity rationale is based on the argument that a diverse faculty is an important part of the robust exchange of ideas, and that an institution, and the faculty who help run it, must be able to decide for itself on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study. Regents of the University of California v. Bakke, 438 U.S. 265, (1978) (quoting Sweezy v. New Hampshire, 354 U. S. 234 (1957)); Grutter v. Bollinger, 539 U.S. 306 (2003). ii. Used more frequently by colleges and universities because it is premised on a positive need for the consideration of race and national origin that contributes to the educational mission of the institution, and because it does not require institutions to admit to past discrimination. In light of current legal challenges, however, the legal justifications for programs based on diversity 5

6 must be clearly articulated. An institution must be able to articulate how faculty diversity contributes to the learning environment and experience on campus. For more detailed discussion, see, e.g., Alger, Jonathan, The Educational Value of Diversity, 83 Academe 20 (Jan.-Feb. 1998). (a) Courts have generally frowned upon arguments relying upon race as a proxy for a particular point of view, because such arguments appear to be based on racial stereotypes and generalized assumptions. Courts have also failed to embrace the role model theory as a basis for faculty employment decisions, under which faculty of color in a variety of disciplines are seen as role models for underrepresented students of color. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S 469 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, (1986); Taxman v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996), cert. dismissed, 522 U.S (1997). (b) However, at least one state court has found faculty diversity to be a compelling interest. See University of Nevada v. Farmer, 930 P.2d 730 (1997), cert. denied, 523 U.S (1998). The U.S. Supreme Court declined to review a faculty employment case in which the Nevada Supreme Court upheld the University's right to consider race as a factor to diversify its faculty. The plaintiff (Farmer) had been a finalist for position in the sociology department in 1991 when the University instead hired an African-American and paid him more than the posted salary range. At that time, only 1% of the University's faculty members were black, and the University maintained a "minority bonus program" that allowed a department to hire an additional faculty member if it first hired a minority. One year later, the sociology department filled the additional slot created by the minority bonus program by hiring the plaintiff. She was offered $7,000 less per year than the black male when he was hired. It is unclear what the Supreme Court would do with such a situation now. However, the ability of the program to survive legal challenge would be likely be tied to how much or how little race, or racial incentives, actually played a part in the decision, how much of a part it played, and whether that part can be tied to a particular educationally justifiable rationale. 3. Even if a compelling interest is shown, to pass constitutional muster an affirmative action plan must be narrowly tailored. For an affirmative action program to be "narrowly tailored" under the law, the following factors must be considered: (1) the efficacy of alternative, "less intrusive" race-neutral approaches; (2) the extent, duration, and flexibility of race-conscious considerations; and (3) the burden on those who do not receive the benefit of any consideration of race. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S 469 (1989); Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 (1987); Wigand v. Jackson Bd. of Educ., 476 U.S. 267 (1986); Steelworkers v. Weber, 443 U.S. 193 (1979). See also Virdi v. Dekalb County Sch. Dist., 135 Fed. Appx. 262 (11 th Cir. 2005) (aspirational goals 6

7 for minority involvement in school district contracts not narrowly tailored because of failure to consider race-neutral alternatives and unlimited deviation of goals even though actual selection process was race neutral and goals were not mandatory). III. Law on Diversifying Faculty: Grutter and Gratz and Beyond A. The University of Michigan Cases: The Supreme Court s decisions in Gratz v. Bollinger and Grutter v. Bollinger deal with student admissions and do not directly address affirmative action in hiring. However, many elements of the decisions can be interpreted to lend support to faculty diversity efforts, and some lessons can be drawn from these decisions that are applicable in other contexts. For further information on the Gratz and Grutter cases, see Springer, Ann D., Affirming Diversity at Michigan, 89 Academe 54 (September/October 2003). Academe/03so/03sospri.htm 1. Grutter Support for Diversity in Hiring: a. Diversity as a Compelling Interest: The Court made a strong statement in Grutter in support of diversity in education as a compelling state interest. The need for faculty diversity is another component of overall diversity on campus, and would this be supported by the courts finding educational diversity to be a compelling interest under federal law. b. Deference: The Court again endorsed the concept of giving deference to educators to make educational decisions. When the makeup of the faculty is tied to the educational mission and pedagogical decisions of the university and its faculty, faculty hiring should also be entitled to such deference i. [G]iven the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. Grutter, 123 S.Ct. at Recognizing the Court s tradition of giving a degree of deference to a university s academic decision, Justice O Connor went on to conclude that good faith on the part of a university is presumed absent a showing to the contrary. Id. The Court specifically noted that the Law School s educational judgment that such diversity is essential to its educational mission is one to which we defer. Id. c. Context: The Court stressed the importance of context in analyzing racial classifications, and that strict scrutiny was a framework for considering the importance and sincerity of the reasons for the use of race in that particular context. Given the Court s acceptance of the educational value of diversity, and deference to academic decision makers, this focus on context may apply beyond the student admissions scenario. i. This may be particularly true given the Court s willingness to accept the arguments of amici that diversity is important to functioning in today s global 7

8 economy. The Court recognized the importance of diversity in preparing students for leadership roles in society, and the role of colleges and universities in preparing those leaders. All of these arguments can also be applied to the need for faculty diversity. See, e.g., Petit v. City of Chicago, 352 F.3d 1111 (7 th Cir. 2003)(noting that the Grutter court relied on both military and civilian amici in concluding that a racially diverse officer corps and work force is a substantially compelling benefit of diversity, and considering that reliance important in its own application of Grutter to the employment context). d. Non-remedial Arguments: In endorsing diversity as a compelling state interest, the Court did not limit the use of race to remedial arguments, and in fact recognized that other non-remedial arguments might pass strict scrutiny. e. Remedial Arguments: The Court also cited favorably prior decisions involving remedial race conscious hiring. However, the Michigan cases did not directly support, or address, diversity in faculty hiring, and the Court has, in the past, rejected the idea of faculty role models as a basis for race based hiring. 2. Lessons: a. Broad Definition: Like student diversity, faculty diversity initiatives should be approached with a broad definition of diversity. As in admissions, any consideration of faculty diversity should consider many characteristics in addition to race, gender and national origin. Not only diversity in experience and background, but also diversity in research agendas and pedagogical approaches should be considered. b. Individual Merit: Faculty candidates must be considered on individual merit, on an individual basis. Just as the court found the mechanistic point system in Michigan s undergraduate admissions program problematic, so too are any employment quotas, separate tracks for consideration, special diversity hires, or any other automatic mechanisms likely to be problematic. Race should be considered as a plus factor, not the deciding factor. c. Race-Neutral Alternatives: Alternative means of diversifying which are not based on race should be considered. This is perhaps more practical in the employment context than in the admissions context, as a focus on diversity of research agendas and curricular programs can go a long way toward diversifying the faculty without focusing on the race of the particular applicant. To the extent that race is considered, the burden on those who do not get a plus factor should be considered as part of the analysis of the impact of the diversity program. d. Time Limit: Given the Supreme Court s desire to see the end of the need for affirmative action programs in the next 25 years, any programs should be treated as non-permanent and subjected to periodic review. 8

9 B. Cases Post Grutter and Gratz: Courts are still just beginning to determine how to apply the Michigan cases to employment and other situations. While there have been very few cases on the issue, those courts that have considered it have generally applied the main concepts of the Michigan decisions to the employment and contracting context, recognizing their application beyond the admissions arena. 1. Petit v. City of Chicago, 352 F.3d 1111 (7 th Cir. 2003): This case was the first federal appellate attempt to apply Grutter in the employment setting, and in doing to the court upheld a race-conscious affirmative action plan in the Chicago police department. The court reasoned that there was a compelling need for diversity in a large metropolitan police force charged with protecting a racially and ethnically divided major American city like Chicago. It also held that the CPD had a compelling interest in a diverse population at the rank of sergeant in order to set the proper tone in the department and that the presence of minority supervisors is an important means of earning the community s trust. The court also noted that the Chicago plan in question did not affect every minimally qualified candidate as did the blanket award of 20 points per candidate... in Gratz, that the procedures minimized harm to members of any racial group, and that the plan was limited in time. a. See, also, Bullen v. Chaffinich, 2003 U.S. Dist. LEXIS 22419, *22 (D. Del. Dec. 5, 2003) (the court, rejecting a reverse discrimination suit against the Delaware State Police by white plaintiffs who contended that the department used an illegal quota system, cited Grutter to help define a quota system: A program does not operate as a quota system if it does not insulate the individual from comparison with all other candidates ). 2. Sherbrooke Turf, Inc. v. Minnesota DOT/Nebraska DOR, 345 F.3d 964 (8 th Cir. 2003): Challenge by non-minority contractors to states implementation of federal highway program requirements that a portion of federal highway construction funds go to businesses owned by socially and economically disadvantaged individuals (with the rebuttable presumption that women and racial minorities are socially and economically disadvantaged). Citing Adarand, Croson and Grutter, the court concluded that the regulations were narrowly tailored because they placed strong emphasis on the use of race neutral means to increase minority business participation,... prohibit[ed] the use of quotas,... severely limit[ed] the use of set-asides, [and have] substantial flexibility [allowing waivers to states and not penalizing those who didn t meet goals.] Moreover, the court noted, the regulations limit preferences to those small businesses that fall under an earnings cap, and contain built in durational limits. The court was especially impressed by the fact that the program only presumed that minorities were socially and economically disadvantaged (with the presumption being rebuttable), that wealthy minority firms were excluded, and that those not presumed to be disadvantaged could be certified as demonstrating actual disadvantage. Thus, the court concluded, race is made relevant in the program, but it is not a determinative factor. 9

10 3. A few courts have begun to consider the application of Gratz and Grutter in higher education employment cases, but none have directly addressed the issue of faculty diversity. See, e.g., Walker v. Bd. of Regents, 300 F. Supp. 2d 836 (D. Wis. 2004), aff d, 410 F.3d 387 (7 th Cir. 2005) (in case involving race and sex discrimination claims by former University of Wisconsin chancellor, the court opined that Grutter makes clear that academic freedom does not give universities the right to discriminate against protected classes: At most, the Court has suggested that academic freedom could be a relevant consideration in evaluating affirmative action plans ). C. Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County, 551 U.S. (2007). This case was the first ruling by the Supreme Court regarding affirmative action in an educational context since the 2003 ruling in Grutter and Gratz. The Court held that voluntary school integration-assignment plans adopted by Seattle and by Jefferson County, Kentucky were unconstitutional. The Supreme Court s holding was extremely fractured (4-1-4). Although a majority of the justices agreed that the plans were unconstitutional, a different majority held that school districts had a compelling interest in promoting diversity which justifies their giving some consideration to race, even in the absence of past segregation. In sum, the Court reaffirmed Grutter and Gratz and reiterated that institutions of higher education have a compelling interest in a diverse student body and may voluntarily adopt affirmative action admissions policies designed to ensure a diverse student. D. State Law: Individual states also have particular laws governing employment discrimination, and permissible actions thus vary state by state. State laws can be more protective than federal law, providing protection to additional classes of people, 2 or they can be more restrictive, banning affirmative action. 3 2 See, e.g., California law barring discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation (Ca. Gov. Code 12940); DC Human Rights Act, prohibiting discrimination on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, disability, matriculation, or political affiliation (D.C. Code ), Wisconsin Fair Employment Law prohibiting discrimination based on race, color, creed, ancestry national origin, age, sex, gender, disability, arrest/conviction record, marital status, sexual orientation, military reserve membership, and use/nonuse of lawful products (Wis. Stat. Sub. 11, Chap ). 3 See laws limiting consideration of race in California (California Proposition 209, Cal. Const. Art. I, 31); Florida (One Florida Initiative, Fla. Admin. Code Ann. R. 6C-6.002(7)); Washington (Washington State Initiative 200, Wash. Rev. Code. Ann. Ch , notes; Michigan Civil Rights Initiative, Mich. Const. Art. 1, 26. Moreover, Ward Connerly, who lead the campaigns that resulted in bans on affirmative action in public employment and education in the states of California, Washington, and Oklahoma reportedly, is now leading similar ballot initiatives in Arizona, Colorado, Missouri, Nebraska and Oklahoma. See also Affirmative action may be on the ballots, USA Today, December 27,

11 However, despite anti-affirmative action state laws, race and gender neutral practices that enhance the candidate pool and eventual hiring of racial/ethnic minorities and women may be lawful. 4 At least one state has also considered laws mandating diversity in faculty hiring. See Bill Mandates Diverse Faculty, The Daily Texan, April 5, IV. How to Diversify: Best Practices to Recruit and Retain Diverse Faculty A. Some Key Factors 1. Process Matters. Establish a system of review that includes all the constituencies involved, and considers the myriad of practices designed to increase diversity and serving as impediments to diversity. Examining isolated programs or practices on an individual basis as issues arise will not serve to achieve diversity goals and is not likely to lead to effective practices or to community support. Moreover, the Grutter Court paid a great deal of attention to context, and to the need for periodic review and thorough evaluation of race conscious programs in the Michigan cases. A scatter-shot review and inconsistent statements by different parts of the institution are not likely to support an argument that the institution s interest is compelling and narrowly tailored. The College Board has recently released a strategic policy manual written by Art Coleman and Scott Palmer of Holland and Knight to help institutions asses, identify, evaluate and implement areas of needed change and coordination. See Federal Law and Recruitment Outreach and Retention: A Framework for Evaluating Diversity Related Programs (The College Board, 2005), (see also Federal Law and Financial Aid: A Framework for Evaluating Diversity Related Programs (The College Board, 2005)). 2. Leadership from the top down. Institutions that have had success in diversifying faculty speak about the need for commitment to diversity principles at all levels of the 4 See, e.g., San Francisco Fire Fighters Local 798 v. City and County of San Francisco, 38 Cal. 4 th 653 (2006). The California Supreme Court upheld the San Francisco s Civil Service Commission s use of a banding selection process which considered candidates within a certain group or band of scores from promotional examinations to be equally qualified. The banding process, which produce[d] a more diverse work forces than a scheme that selects promotional candidates from narrower bands was held to valid under California s antidiscrimination law (commonly known as Prop 209) because the size of the band was not based on race and gender, but rather was based on statistical models. In addition, the hiring authority used neutral criteria (i.e., years of experience and employment history) to select candidates from the band. 5 Texas House Bill 236 and Senate Bill 1643 would require the Texas Higher Education Coordinating Board to develop a plan to enable institutions of higher education to identify, attract, hire and retain faculty and staff who reflect the population of the State. Both bills were left pending in the education committee. 11

12 institution, having both procedures and programs in place and money to fund them, and accountability university wide. See, e.g., Kendra Hamilton, Mission Possible: Three Disparate Institutions Raise the Bar Nationwide for Recruiting and Retaining an Ethnically Diverse Faculty, Black Issues in Higher Education, October 23, Successful diversification requires committed and dedicated leadership operating in a reasoned way, but willing to take strong measures. And you have to start at the top with the president, yes, but also with the vice presidents as leaders of their divisions, the deans as leaders of their colleges, the chairs as leaders of their departments. There has to be committed leadership up and down the organization. Dr. Albert Simone, President, Rochester Institute of Technology. Id. It is essential to both have a diversity policy in place, and to encourage people to follow it by example. The policy should talk about the institution s strong commitment to using legal means to achieve diversity, and the importance of expanding the pool of applicants, diversifying the recruiting, etc. Phrase the policy in terms of making sure everyone has an equal opportunity. To be legally sound, diversity policies and goals need to reflect the overall mission of the institution, be consistent across the actions, statements and policies of the institution, and across all levels of the institution. See, e.g., Andre Bell and Arthur Coleman, Race and Diversity Practices for the Post- Grutter Era, Chronicle of Higher Education, May 27, Thus, strong statements and actions in support of diversity are important from both faculty and administration leaders. 3. Successful diversity is both global and circular. Once policies and programs supporting diversity are in place, these policies then provide the basis for individual hires and the creation of new programs and policies. Each feeds off the other. Such circularity is the key to a successful and legally defensible diversity program. Hires based specifically on race are subject to legal challenge. Yet when hires are focused on those individuals whose research and pedagogical interests meet the stated goals, policies and programs of the community, and those policies and programs include ones that focus on diverse learning, new pedagogies, intercultural programs, etc., a diverse set a hires is more likely to result. Moreover, having such policies allows faculty and administration to be evaluated on criteria like their demonstrated commitment to equal educational opportunity. Faculty and administrators evaluated on these criteria, in turn, are more likely to hire more diverse faculty and create more diverse programs. See, for example, O Rourke, Sheila, Strategies for Achieving Faculty Diversity at the University of California in a Post-Proposition 209 Legal Climate, Concurrent Session Paper, Keeping Our Faculties Conference, University of Minnesota proceedings.html. Student body diversity and faculty diversity are also mutually reinforcing. A diverse student body and diverse faculty work well together, creating opportunities and demand for collaboration, new pedagogies, and broader outreach. See, e.g., Antonio, a.l., Diverse Student Bodies, Diverse Faculties, 89 Academe 14 (Nov.-Dec. 2003). And, of course, a diverse faculty involved in student recruitment makes it easier to 12

13 recruit a diverse student body, while a diverse student body makes the institution more appealing to faculty candidates committed to diversity goals. Examine all phases of the recruitment/hiring/ retention of faculty members. Ensure that the campus continually audits a comprehensive plan to address and show a commitment to diversity in every area of campus life, including faculty hiring, curricular reform, student enrollment, campus activities, and general campus climate. Work at all levels to interrupt routines. Interrupting routines which have led to the non-diverse status quo is the key to keeping non-diverse faculties from constantly replicating themselves. Often, reexamining routines, and the assumption underlying them, can identify to small changes that can be made which have a significant impact. See, e.g., Smith, Daryl G., Turner, Caroline S.V., Osei-Kofi, Nana, Richards, Sandra, Interrupting the Usual: Successful Strategies for Hiring Diverse Faculty, The Journal of Higher Education, 75:2 133 (March/April 2004). The concept of affirmative action is essentially the revision of standards and practices to ensure that institutions are in fact drawing from the largest marketplace of human resources in staffing their faculties, and a critical review of appointment and advancement criteria to ensure that they do not inadvertently foreclose consideration of the best-qualified persons by untested presuppositions which operate to exclude women and minorities. Affirmative Action in Higher Education: A Report by the Council Committee on Discrimination, AAUP Policy Documents & Reports, 193 (9 th ed. 2001). i. Coordinate with Equal Employment Opportunity Officers. Diversity coordinators and affirmative action offices should help in structuring and implementing overall practices, but it is important that such offices be part of an overall campus strategy and not just an isolated voice. Indeed, over-involvement of the Equal Employment Opportunity Office combined without a coordinated institution-wide commitment can cause legal problems and may be less defensible under the Grutter analysis. At least some courts have held that direct Equal Employment Office influence over particular hires can be evidence of reverse discrimination. However, if these offices involvement is limited to supporting and ensuring the implementation of requisite federal and state employment mandates, their practices are legitimate and valid. See, e.g., McHenry v. Pennsylvania State System of Higher Education, 50 F.Supp.2d 401 (E.D. Pa. 1999) (noting that extensive involvement by social equity office did not involve selecting the final candidate, but was limited to approving the advertisement, encouraging the committee to interview a diverse pool of applicants, and helping develop a broad pool); Hall v. Kutztown University, 75 FEP 1440 (1998) (university had very detailed affirmative action recruiting and candidate review plan, which was acceptable because there was no evidence that affirmative action policies were directly applied to any particular hiring decisions). 13

14 ii. Be Aware of Perceptions: Designers of diversity programs must also be careful about creating the perception that diverse hires are not based on merit. If the hire is seen as imposed upon, rather than chosen by, a part of, and supported by the department, then the hire is not likely to be successful. The new hire can become isolated, and not receive the mentoring and support necessary to receive tenure. See, e.g., Johnstrud, L.K. & Sadao, KC, The Common Experience of Otherness : Ethnic and Racial Minority Faculty, The Review of Higher Education 21(4) (1998). 4. Eliminate Myths. Research shows that perceptions about strong competition for a few qualified minority candidates, and the lack of minority candidates available for positions, are not supported in fact. Studies show that elite minorities often aren t actively recruited, do not have competing job offers, and worry about a tight job market like everyone else. Yet such perceptions are used, consciously and unconsciously, by both faculty and administrators to justify limited diversification efforts and success. See, e.g., Smith, Daryl G., How to Diversify the Faculty, 86 Academe 48 (Sep.-Oct. 2000); Daryl Smith, Lisa Wolf, and Bonnie Busenberg, Achieving Faculty Diversity: Debunking the Myths (Association of American Colleges and Universities 1996). B. Recruiting/Outreach 1. Courts have found race conscious recruiting acceptable under all of the different legal standards. Taking steps to increase the pool of qualified applicants increases chances for diverse candidates, and exposes the institution to a broader pool of talent. See, e.g., Hammer v. Ashcroft, 383 F.3d 722 (8 th Cir. 2004); Duffy v. Wolle, 123 F.3d 1026 (8 th Cir. 1997); Hill v. Ross, 183 F.3d 586, 589 (7 th Cir. 1999) (plans designed to search intensively for minority candidates... do not entail preferential treatment for any group in making offers of employment ). Note too that federal contractors are essentially obligated to reach out to a diverse pool of candidates under the rules of Executive Order See also AAUP s policy on The Ethics of Recruitment and Faculty Appointments: An institution that announces a search should be genuinely engaged in an open process of recruitment for that position. Descriptions of vacant positions should be published and distributed as widely as possible to reach all potential candidates. The procedure established for reviewing applicants and for selecting final candidates should be consistent with the institution s announced criteria and commitment to a fair and open search. The Ethics of Recruitment and Faculty Appointments, AAUP Policy Documents & Reports 141 (9 th ed. 2001) 3. Specific Strategies a. Expand Networks: Often job information is shared as part of regular contact and communication, and those who find out about jobs through these methods are in the best position to have the time and connections to prepare competitive applications. But those who are not part of the usual networks of senior faculty 14

15 and administrators miss out on the advantage this kind of networking and recruiting provides. Thus institutional policies and practices need to be aimed toward supporting expansion of these networks. See Smith and Turner, Hiring Faculty of Color: Research on the Search Committee Process and Implications for Practice, Plenary Paper, Keeping Our Faculties Conference, University of Minnesota (Remember, if the finalists for a faculty job are all white, it s a sure thing that the new professor will be white. Madeline Wake, Provost Marquette University. A Diversity Candidate in Every Pool, Inside Higher Ed., October 14, 2005.) New policies and practices put in place should recognize that expanding networks must be an ongoing activity, not just something done at the time of a search. Another strategy is to establish and cultivate ongoing and routine relationships with local and national diverse organizations and special interest groups, as well as with students and faculty at colleges and universities that educate graduate students of color. b. Advertise/Publicize Widely i. An overall search plan should include advertisements in journals and periodicals that make special efforts to reach minority faculty and graduate students. There are over 100 academic journals publishing research of interest to racial and ethnic groups. Don t forget electronic advertising: new positions should be posted on disciplinary electronic discussion lists, seeking out such lists likely to be subscribed to by minority faculty and graduate students). ii. Advertising can go to targeted faculty members or graduate students at minority-serving institutions, organizations that work on minority issues, components within organizations such as minority caucuses in national scholarly associations, personal contacts in the field who are likely to know promising graduate students or other potential applicants, and faculty at majority white schools granting a substantial number of doctoral degrees to minorities, or at historically black colleges and universities. iii. Create and maintain a list of diverse publications, list serves, institutions and resources for outreach. This prevents each search committee from having to regenerate such a list, and creates a forum for sharing knowledge and resources. c. Consider Adjunct and Part Time Faculty: minorities and women are more highly represented in these categories, and thus including such candidates will increase opportunities for a diverse candidate pool. In addition such candidates may already be teaching the students at your institution, and bring the benefit of that experience. 15

16 d. Create faculty fellows programs: Think about creating research fellowship and post doctoral programs to bring promising junior faculty candidates to the university. Such programs can be used as outreach tools to bring a variety of graduate and post-doctoral students to campus, allowing faculty to get to know their work and get a sense, early on, of whether they would be a good fit with the department. e. Position Description: A description that realistically reflects the full range of skills and knowledge needed will lead to a better pool, and present a strong argument against claims that race or sex was impermissibly considered in hiring. i. Some Cases: (a) See, e.g.: Medcalf v. Trustees of Univ. of Pennsylvania, 71 Fed. Appx. 294 (3d Cir. 2003). A male job applicant sued alleging that he was not hired or even interviewed for a position as coach of the women s crew team because the decision maker wanted to add a woman to the all male coaching staff. In upholding the district court s refusal to grant the university s motion for summary judgment, the court paid particular attention to the job skills listed in the job description. Noting that the job description placed a high importance on actual coaching ability, yet the university argued in court that the woman hired was chosen for her superior administrative skills, the court concluded that the evidence reveals inconsistencies in Penn s position as to what hiring criteria it used to make the decision regarding the open coaching position, and what qualities it valued most highly in candidates. This, combined with evidence of the desire to diversify the coaching staff, was enough for the court to allow the suit against the university to proceed. (b) Kokes v. Angelina College, 220 F. Supp. 2d 661 (2002): White male applicant challenged the institution s refusal to hire him for a faculty position. The job description required a master s degree and some college teaching, indicated that the instructor would be teaching freshman and sophomore level courses, and expressed a preference for candidates with experience in community college teaching and the ability to interact with a diverse student body. Kokes argued that he had a PhD, had taught longer (at 4 year institutions) and had published much more than Jackson, the African-American woman hired. The college argued that while both candidates were highly ranked by the search committee, Jackson had more general teaching experience, more community college teaching experience, had already taught several semesters at the College, and had better teaching references. The court, in dismissing Kokes federal claims, noted that everyone agreed that both candidates were qualified for the job, and different employers may weigh candidates qualities in various ways and the qualities that one employer would say are essential might not be that important to another employer in the same field. The court also 16

17 noted that different schools with different communities and missions would value qualifications differently. (c) Sadki v. SUNY College at Brockport, 310 F. Supp. 2d 506 (W.D.N.Y. 2004). In this case the search committee and the department favored a visiting professor as their top candidate for an assistant professor position. The job description required a PhD or equivalent in French and demonstrated ability to conduct and publish scholarly work. The candidate s PhD was in education, International Studies and African Studies, he was fluent in French, and had been teaching four French classes a semester at the college for the past two years to excellent reviews. The dean did not favor his candidacy, however, citing his failure to meet the advertised requirements for the position and his surprise that the department had not tailored the position more specifically. The president agreed, and the candidate was not offered the position. He sued for race and national origin discrimination, and the court denied summary judgment to the college, noting that the failure to follow the job description with this candidate, and the candidate the job was eventually offered to, could lead a jury to conclude that racial animus was part of the motivation for the decision. ii. Well-crafted job descriptions are particularly useful in states where state law forbids considering race and ethnicity in hiring at all. Even in these states, institutions may consider whether the research interests of a candidate meet the particular research or curricular goals of the institution, program or department. Thus if the institution has expressed diversity as part of the definition of academic excellence, it can give positive consideration to candidates research agendas that enhance understanding of race, ethnicity, gender, multiculturalism, etc. Similarly, curricular initiatives that focus on issues like comparative cultural studies and social justice mean that candidates considered to teach those classes should have experience and research issues in those areas. iii. Criteria to consider: (a) Criteria for consideration to increase diversity can include factors like demonstrated ability to work with diverse students and colleagues, or experience with a variety of teaching methods or curricular perspectives. The overall excellence of a given department may be better assured by considering its existing strengths and weaknesses and, accordingly, varying the emphasis given to different kinds of individual qualification for appointment from time to time, instead of applying a rank-order of standards of fitness identically in every case. The failure to consider appointments in terms of a balance of qualities within a department may in fact result in less overall excellence than otherwise. Affirmative Action in Higher Education: A Report by the Council Committee on 17

18 C. Search Committees Discrimination, AAUP Policy Documents & Reports, 193, (9 th ed. 2001). (b) Overly rigid criteria should be avoided. Criteria like years of service might exclude promising candidates from less traditional backgrounds who could make substantial contributions to the institution and such criteria may not be necessary for the position. (c) Avoid simply tying the position to immediate teaching needs, or the qualifications or experience of those who have filled the position in the past. (d) Include interdisciplinary or interdepartmental work, which creates a broader applicant pool. Creating opportunities for a variety of pedagogical techniques and approaches is not only more applicable to a greater variety of students and learning styles, but is more likely to bring in a greater variety of candidates. See, e.g., Does Diversity Make a Difference? Three Research Studies on Diversity in College Classrooms, American Council on Education & American Association of University Professors (2000). 1. Work with search committees to educate those doing the hiring on the nuances of the issues and legal restraints in this area. Committees should receive guidance about reaching out to the complete pool of qualified applicants, subtle forms of discrimination that can creep into the process, ways to evaluate candidates in a way that values diversity, and what they should and shouldn t say and promise. Be sure to discuss ways to avoid stereotypical assumptions. Often, search committees carry assumptions of which they are not even aware. Such assumptions can be particularly strong in relation to particular disciplines or areas of study. Just as professors don t need to be white to teach Shakespeare; neither do they need to be black to teach African American studies. See, e.g., Stern v. Trustees of Columbia Univ. in the City of New York, 131 F.3d 305 (2d Cir. 1997), where the Second Circuit reversed a lower court and sent to a jury charges that Columbia University discriminated against an instructor because he was not of Hispanic descent. The instructor, who had taught Spanish and Portuguese at Columbia since 1978 and served as interim director of the University's Spanish language program for two years, claimed he was not seriously considered for the permanent directorship because he is a white male of Eastern European descent. The University claimed that although Stern was a finalist for the position, it chose another candidate based on qualifications and not bias. The person who was hired was described as an American of Hispanic descent. Stern alleged that this individual had not yet earned his PhD, had less teaching experience and had written less extensively, and was not proficient in 18

19 Portuguese. The search committee at Columbia asked each of three finalists (including these two) to teach "tryout" classes, and found that the candidate they selected "mesmerized" the class while Stern s teaching was weak. 2. Provide search committees with specific materials about the institution s commitment to diversity and its educational benefits. Clearly articulate an institution s rationale for support of diversity by making explicit the connections between faculty diversity and educational excellence. Make diversity recruitment resources available to search committees, and consider creating an institutional diversity recruitment document if one does not exist. There are many excellent materials available (in hard copy and on the web) on concrete processes and strategies for diversifying. See, e.g., Turner, C.S.V., Diversifying the Faculty: A Guidebook for Search Committees, (Association of American Colleges and Universities, 2002); University of Washington Faculty Recruitment Toolkit, admin/eoo/forms/ftk_01.html; Michigan State University Handbook Best Practices for a Successful Academic Search: Practical Tips & Resources for Recruiting a Diverse Faculty, Kent State University Diversity Instruments, Hiring for Diversity Instrument, Retaining For Diversity Instrument,. 1A%20UAAR%20Implementing%20Instrument.doc. 3. How are search committees chosen? Faculty members who are active researchers and attendees at professional conferences are more likely than others to have encountered minority faculty in their area of study. Human nature provides that search committees are likely to replicate themselves, because people value and are most comfortable with that with which they are most familiar. The more diverse the committee, the more diverse the candidates are likely to be. Processes that lead to diverse, active committees go a long way in expanding diversity. a. The matter of access is in part... a function of the procedures through which professional academics have been sought out and recognized within the academy. Insofar as few are called, the range of choice must necessarily be a narrow one, and those fewer still that are chosen tend to mirror the profession s image of what it is, not what it should or might be. Beyond procedural defects, however, the very criteria by which professional recognition is accorded have necessarily tended to reflect the prejudices and assumptions of those who set them, and professional recognition and advancement have generally been accorded those who most closely resemble the norm of those who have in the past succeeded in the academy. Affirmative Action in Higher Education: A Report by the Council Committee on Discrimination, AAUP Policy Documents & Reports, 193 (9 th ed. 2001). 4. Support search committees throughout the process. Dedicated efforts to reach out to diverse candidates takes extra time and effort. Administration support and encouragement for these efforts is crucial to keep them going. Such support might include providing resources like funding for travel to conferences that facilitate exposure to more diverse colleges, sponsoring requests to faculty who have led 19

20 D. Retention diverse searches to present information to their colleagues, providing class buyouts for those spending significant amounts of time on such efforts, etcetera. See, e.g., Turner, C.S.V., Diversifying the Faculty: A Guidebook for Search Committees, (Association of American Colleges and Universities, 2002) 1. Mentoring: Following-up with the new faculty hire regularly and increasing formal and informal efforts to reach out to new hires, integrate them into the social and professional life of the department and the university community, and provide them guidance on research, teaching, and the tenure and promotion process is key to retaining hiring gains. Isolation often felt by minority faculty is an institution-wide problem, and needs institution-wide solutions. Integration into the community is as important as integration into the department. Student body diversity, too, plays a role in reducing this sense of isolation. See, e.g., Antonio, a.l., Diverse Student Bodies, Diverse Faculties, 89 Academe 14 (Nov.-Dec. 2003). Building a community that includes professionals from all backgrounds and that is supportive is more likely to maintain successful diversity efforts at the faculty level. Standing our Ground: A Guidebook for STEM Educators in the Post Michigan Era, Am. Assoc. for the Advancement of Science and Natl. Council for Minorities in Engineering (Oct. 2004). PDFs/Standing_Our_Ground.pdf. 2. Criteria for promotion and tenure: Make sure that there are not subtle discriminations built into the criteria for promotion. a. Areas of study: Are all areas of study weighted equally? Are ethnic studies treated differently or undervalued in some way? What journals and publications are valued? Do they include newer journals that publish in less traditional areas of study? Search committees should contain faculty members familiar with interdisciplinary approaches and new forms of scholarship so that they can evaluate and push candidates that may fall outside the established or traditional. b. Service commitment: Be sure that minority faculty members receive credit for the various ways in which they provide service to the university through service on committees, mentoring and tutoring students, etc. Remember that minority faculty members often have demands placed upon them that differ from the expectations placed upon white faculty members. See, e.g., So Many Committees, So Little Time, Chronicle of Higher Education, December 19, Those carrying an excess service load should be encouraged to ask for reduced teaching loads to balance their time commitment, and service should be listed as part of the job description upon which the faculty member is evaluated. c. Student Evaluations: Where issues of race and ethnicity are explicitly raised in classes, be aware of potential student reactions and prejudices when considering the weight to assign to student course evaluations. Also be aware of prejudices and assumptions regarding the professor s race or gender that may be reflected in student evaluations. For example, what students might consider knowledgeable 20