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August 7, 2012

What Columbia Is Doing Is Illegal

Just 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.

You 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.

And 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 ago. 

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, here.

Comments (17)

Despiser:

When and why have these Social Justice freaks decided to go to War against me because I'm a white male?

The time is well past to end this nonsense and get Govt the he-ll out of our way...

Alex Bensky:

Sorry, Roger. You say this because you're behind the times on the forward-looking, progressive legal theory of the left generally and President Obama in particular.

It may be "unconstitutional," but you have forgotten that now "fairness and social justice" outrank the constitution; the constitution is no longer the supreme law of the land when fairness, free medical care, and diversity are involved.

You know "diversity." It's the concept that, inter alia, women and blacks by those virtues alone have unique insights and ways of doing things.

On campuses this is called "diversity." In other areas it's called "racial profiling."

I wonder how my white male liberal friends in academia feel about this. Since they all have tenure they probably think it’s just fine. Liberal compassion is the ultimate oxymoron.

DADVocate:

Such policies by universities also harm the quality of education. The only qualities that should matter in hiring a professor if the professor's mastery of his subject, his ability to teach, and , if needed, ability to do research.

Jack:

Content of their character? Nope.
Academic excellence? Nope.
Outstanding intellectual achievement? Nope.

Right skin color? You're hired!

You know what? The United States is turning into a racist society. And it begins in academia.

Next, we'll be setting aside commercial airline pilot and surgeon jobs for minorities only. After all, the standards for those sorts of jobs are merely a patriarchal construct with no correspondence to reality.

But this has been going on for a quite some time. Back in the late 80s the President of San Francisco State University did the same thing and no courts stopped him.

bob:

I was a University of Michigan law student back in the mid-1970s, when Bollinger was a mere professor. I noticed then, and continue to notice now, that he was/is strongly committed to affirmative action, so long as it did/does not interfere with his own employment and advancement. At the time, a number of U of M professors, including Bollinger, were bemoaning the lack of law professors who were minorities. When some of us suggested they resign to make way for minority professors, they were very silent. There remains a shortage of minority presidents of major Law Schools, I await Bollinger's immediate resignation to make way for a minority replacement.

willis:

Meanwhile, the poor students incurring a life-long debt to attend Columbia are doing so under the illusion that their teachers were hired because of their superior performance and capability, not because of a role-model resemblance to the students themselves.

WJW:

So who has standing for a lawsuit against racist Columbia?

If it is the Holder Justice Dept, then no lawsuit will ever happen.

If it is a job applicant, then that is likely as the job applicant, even if they win, will be banned from almost all universities in the US.

Interesting. I was part of a hiring committee for a staff position at a Division I public university that included a faculty member on the hiring committee. The faculty member was shocked that we were not going to explicitly make race/sex a factor in who we hired, saying that is how things were done in his/her department when hiring faculty (we used a points-based ranking system for candidates on 5 areas outlined by the job duties, and the faculty member wanted us to essentially bump up the score of any female or minority applicant by 10 percent.)

Needless to say, we said no and the faculty member thankfully dropped the subject.

OTOH, I have also seen plenty of examples where there were attempts (sometimes successful) to actively discriminate against women and minorities in hiring or promotion as well.

Paul A'Barge:

time to sue Columbia. Any takers out there in Legal-land?

LogicalSC:

Illegal??

Nothing is illegal to Leftist\Progressives with their lockstep ideologue judges and the support of their propaganda wing in the MSM.

When are you people going to understand, they can do ANYTHING they want whenever they want.

There is no longer a Constitution or Law unless it can be used to bludgeon or intimidate their opponents into submission.

Illegal, unConstitution, pshaww, that is a relic.

Anonymous:

I work in a STEM field. There are virtually no viable candidates who belong to favoured minority groups in my field. Affirmative action applies almost exclusively to women in this context.

I have watched its progress over the years. At first it was principally a mechanism for low calibre men to exert influence and get goodies that were otherwise beyond their reach. For instance, many low quality proposals by low quality male researchers were funded because they attached female collaborators to their teams. Such men won favour with federal funding agencies and used that favour to exert influence in academic politics.

Gradually the level of discrimination against men has been ratcheted up. At this point, I refuse to participate in NSF panels because the funding rates for new male PIs are about 1/5 of that for new female PIs. There is a significant difference in the quality of the proposals offered by the two groups, but it favours the men (this is an understatement).

Hiring men is now impossible. Our department has been told that only women and minorities need apply. The message wasn't sent directly, of course, but it was sent.

Increasingly, non-bureaucratic measures for the evaluation of work are being eliminated. This is being done for a number of reasons, but part of the justification is that such measures are "biased." We had a dean tell us that "funding records aren't subjective" whereas our faculty's assessment of the technical quality of a piece of work is subjective and likely biased.

R.I.P. American scientific establishment.

One doesn't do science by bureaucracy, by consensus, or by fiat. We are already seeing the results of trying to do so: increasing consensus and decreasing relevance.

jkstewart:

There needs to be a correction...

The #1 criteria for hiring is the ability to bring in grants.

distant #2 is orthodoxy (see #1)

#3 teaching is done by grad students

...Academia is a cesspool of political correctness whether it's hiring or admissions

Fairly easy to fix, using the Liz Warren rule: Anyone who has the same amount of Cherokee heritage as Liz or more may be declared to be American Indian. By the same rule, every person considered for employment has at least one female parent, so using this rule they may be considered female for the purposes of hiring.

See, easy.

richard40:

Of course for all this talk about the importance of diversity, and the need for faculty to reflect the community, there is little to no viewpoint diversity, with many departments, like socialogy, being componsed of 90% leftists. Even "conservative" departments, like engineering, have more leftists than conservatives.

Bill:

Fairly easy to fix, using the Liz Warren rule: Anyone who has the same amount of Cherokee heritage as Liz or more may be declared to be American Indian..."

I know the poster meant to be facetious but there is a serious issue raised in that post. When Elizabeth Warren, an obviously white woman, claimed Cherokee ancestry to secure a job at a highly prestigious law school, an appointment that her modest academic pedigree would have otherwise excluded her from, no one at either Penn or Harvard questioned it.

One wonders if a man as white appearing as ... oh ... say ... Lee Bollinger ... were to claim to be African-American by virtue of 1/32 blood if the claim would go as unquestioned and be as eagerly embraced in the academe as Warren's was?

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