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December 17, 2009

Discrimination In Granting Tenure?

By Roger Clegg

Allegations of tenure discrimination have recently been leveled against Emerson College on grounds of race and against DePaul University on grounds of sex.

At Emerson, two black scholars were denied tenure, the local chapter of the NAACP became involved, and an investigation has been launched by the Massachusetts Commission against Discrimination. The school has agreed to give one of the professors another shot next year, in exchange for dropping his complaint with the Commission.

Four women are challenging DePaul's tenure denial. They have a lawyer, have unsuccessfully appealed the denial to the school's president, and have now indicated that they plan to take DePaul to court.

In neither case has direct evidence of discriminatory intent been alleged, such as racist or sexist comments. Instead, statistical disparities of one sort or another are cited.

So, is there anything to these allegations?

The track record of such claims is mixed at best, although the scorekeeping is complicated by the fact that many such cases are settled out of court. Race and sex discrimination surely exist, although these days the only institutionalized discrimination of either sort in academia is of the politically correct variety---that is, against whites and "overrepresented" minorities (especially Asians) and men. But no doubt there remain aberrant instances of old-fashioned discrimination against "underrepresented" minorities and women. And perhaps the plaintiffs here will be able to marshal persuasive evidence that this is what happened to them.

I would offer three thoughts, though, based in particular on news coverage of the cases by the Chicago Tribune and the Boston Globe.

The use and abuse of statistics. Statistics are not irrelevant in proving that employment discrimination occurred. If people of one color apply to a school in the same numbers and with the same qualifications and are never or much more seldom hired (or granted tenure), then that is certainly a relevant fact.

But they have to be as qualified and they have to apply. And it is the racial or gender makeup of the applicant pool that matters, not the racial and gender makeup of, say, the general population, the student body, or some other group.

So when, in its article about the Emerson case, the Boston Globe noted that, nationwide, African Americans constitute 13 percent of U.S. college students and only 5 percent of tenured faculty, it provided no relevant evidence to support the plaintiffs. Likewise, when it pointed out that, at Emerson, only 3 percent of the student body is black but 4 percent of the tenured faculty is, it provided no relevant evidence to support the college.

Dumb and/or anti-gay does not mean race or sex discrimination. It is worth noting that, at DePaul, there is apparently some evidence that the tenure process may be flawed (it's asserted that there is, for example, a lack of relevant expertise among some members of the review committee) for reasons having nothing to do with discrimination. There are also rumors there that "anti-gay feelings might be involved," to quote the Chicago Tribune article.

But true or not, it is a leap from either to race or sex discrimination. A Catholic institution can be hostile to sodomy without being hostile to women; and it can be incompetent without being sexist or racist.

Do you want nondiscrimination or not? This is the most important question raised by the two stories here. It is often the case that the same folks who rail against discrimination (of the old-fashioned sort) also support discrimination (of the politically correct kind).

In particular, for example, they insist that a heavy thumb should be placed on the scales to ensure that more underrepresented minorities are hired, in order to ensure plenty of "role models." Theodore Landsmark, president of the Boston Architectural College and now a member of the panel that Emerson has convened to explore minority promotions, was quoted to this effect by the Globe.

As a legal matter, this argument is a nonstarter. The Supreme Court rejected the role model argument over twenty years ago, in Wygant v. Jackson Board of Education. A decade before that, in Hazelwood School District v. United States, the Court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. And rightly so. As Justice Powell wrote in Wygant, "Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education."

Likewise, are Idaho universities entitled to avoid hiring African Americans, Maine colleges Latinos, and Nebraska schools Asians---to ensure that those states' natives are not taught by someone who may not look like they do? Should Ruth Simmons have been disqualified as president of Brown University, on the grounds that she is an unsuitable role model for all those white male students there?

The law aside, it is ugly indeed to presuppose that one can admire---one can adopt as a role model---only someone who shares your skin color. Can a white child never look up to a black person, or a black child to a white person, or either one to an Asian or Latino or American Indian? Does this also mean that men cannot admire women, or a Christians admire a Jew, or the able-bodied admire someone in a wheelchair? I love the fact that, when President Bush was asked who he wanted to grow up to be when he was a boy, he replied without hesitation, "Willie Mays." And why not?

Finally, as long as we're discussing the legal justifications for politically correct discrimination, I should also say a word about the "diversity" rationale (the Boston Globe discusses the efforts of schools "to diversify their faculty"). While discrimination in the name of student-body diversity has been narrowly upheld (for now) by the Supreme Court, this is not so with regard to faculty discrimination. Title VII of the 1964 Civil Rights Act applies to the latter and not to the former, and it explicitly declines to carve out a "bona fide occupational qualification" for race, so it is unlikely that any federal court---particularly the Supreme Court---would make one up. In the leading federal case on the matter, Taxman v. Piscataway Township Board of Education, the en banc U.S. Court of Appeals for the Third Circuit refused to carve out a diversity exception for faculty employment discrimination under Title VII. The Fifth Circuit has ruled the same way, and there is no federal decision to the contrary.

The Supreme Court's decision this summer in the New Haven firefighters case is relevant here, too. It was already the case under the Court's Title VII decisions that a showing of a "manifest imbalance" in a "traditionally segregated" position was required for race or sex to be considered; one hopes that, 55 years after Brown v. Board of Education and 45 years after the 1964 Civil Rights Act, there is not much traditional segregation left---especially since, in recent decades, universities have been cheerfully discriminating in favor of women and minorities. The New Haven decision suggests that a university's track record of discrimination against, say, women has to be so bad and so recent that, if it did not provide them a preference, there is a "strong basis in evidence" that they could be successfully sued for that failure---a very high bar.

And, once more putting the law aside, schools should in any event ignore skin color and national origin and sex and simply hire the best professors they can. Period. It's hard enough to get competent teachers at any level without disqualifying some and preferring others because of irrelevant physical characteristics. Few would say, "I'm willing to be taught by a less qualified teacher so long as he or she shares my color." Likewise, for research and writing, hiring anything less than the best qualified minds will inevitably compromise the school's academic mission.

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Roger Clegg is president and general counsel of the Center for Equal Opportunity.



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