By Roger Clegg
Should universities weigh race and ethnicity in deciding whom to hire for their science departments?
The American Association for the Advancement of Science thinks so, according to a recent National Journal article. "Science and engineering should look like the rest of the population," says AAAS's Daryl Chubin, and if hiring decisions don't yield the right numbers, "somebody needs to pull the plug and say this has not been an open and fair search."
Taking steps to ensure that the best possible individuals apply and are hired is fine---indeed, that's precisely what the whole process should be about. Casting your recruiting net far and wide is a good idea, as is reassessing your recruiting policies to make sure that you are not overlooking good sources of candidates. Reevaluating selection criteria from time to time is, likewise, unobjectionable; if some criteria are weighed too heavily or not heavily enough, with the result that the best individuals are not selected, then that needs to be fixed. And, of course, everyone involved in the selection process, from beginning to end, needs to be told that the best individuals, regardless of skin color or national origin, are to be picked.
But it's clear that nondiscrimination is exactly what AAAS does not have in mind. The National Journal article says that it wants to "allocate additional slots to U.S. racial and ethnic minorities" and to protect universities from "likely lawsuits by groups seeking color-blind admissions policies." As the quotes above suggest, it is demanding that schools get their numbers right. It wants quotas, it wants race and ethnicity to be weighed when hiring decisions are made.
And if race or ethnicity is weighed, then racial and ethnic discrimination is taking place. Let's have no nonsense about this not being so, since skin color or national origin is "only one factor." Either that factor makes a difference sometimes in who gets picked or it doesn't. If it never makes a difference, then there's no point in considering it. If it does make a difference on occasion, then on those occasions someone is getting or not getting the job because of skin color or national origin. That's discrimination. Since we are dealing with scientists and not English majors, this kind of logic ought to be understandable.
As we enter the second decade of the third millennium, in a country that is increasingly multiracial and multiethnic, it ought to be accepted that anyone who wants to engage in the inherently divisive and unfair practice of racial and ethnic discrimination has a heavy burden of proof. The AAAS makes two arguments in favor of discrimination: that diverse "perspectives and backgrounds" are desirable, and that minority students need role models ("Students are helped by seeing teachers who are similar to them").
As I'll discuss, neither of these arguments is very persuasive, as a matter of law or policy. But even if there was something to them, is there enough to them to be worth all the costs? Here's the tab: Racial and ethnic discrimination is personally unfair, passes over better qualified candidates, and sets a disturbing legal, political, and moral precedent that such discrimination is no big deal; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their students, colleagues, and themselves; it compromises the academic mission of the university and lowers the overall academic quality of the faculty, with predictable results in the quality of teaching and research; it breeds hypocrisy within the school; it encourages a scofflaw attitude among college officials; it mismatches professors and institutions, guaranteeing failure for many of the former; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.
The answer is no, it's not worth it. But let's continue and consider the specific legal and policy defects in the diversity and role model justifications.
It's predictable that the AAAS would try to justify faculty discrimination on the basis of "diversity," since that's the justification for any academic sin nowadays and, as the National Journal article indicates, the AAAS believes that the Supreme Court's 2003 University of Michigan decisions have left the door open to this justification. But while discrimination in the name of student-body diversity has been narrowly upheld (for now) by the 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 a federal court---particularly the current Supreme Court---would make one up.
Nor have the federal courts done so. In the leading appellate 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 lawfully 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 "underrepresented" minorities. The New Haven decision now further suggests that a university's track record of discrimination against, say, Latinos 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 it could be successfully sued for that failure---a very high bar.
So much for the law. Does discrimination in the name of diversity make sense as a matter of policy, in order to ensure a variety of "perspectives and backgrounds"?
Making the dubious assumption that one can and should make good guesses about life history and viewpoints based on an applicant's skin color and what country his or her ancestors came from---what in other, politically incorrect contexts is called "stereotyping"---it remains obvious that those are likely to be irrelevant in most jobs, and especially in the sciences. Perhaps being African American might give one insight into some subfields of, say, sociology---but inorganic chemistry or quarks or calculus?
In all events, skin color and national origin are actually not good proxies for one's backgrounds and experiences. Why, for example, blithely assume that someone named Hernandez is going to more culturally competent when it comes to teaching (or treating, if we are training doctors) poor Puerto Ricans than someone named Finkelstein or Li? Mr. Hernandez, after all, may be a rich Californian whose ancestors' arrival there predates statehood, who grew up in Beverly Hills, and knows no Spanish nor even any Latinos, except some of the servants (none of whom are Puerto Rican), while Ms. Finkelstein grew up living next door to the Sotomayors in the Bronx and Mr. Li is majored in Latin American studies and is fluent in Spanish.
Another good answer to the claim that, all other things being equal, it's nice to have a diversity of backgrounds and experiences is ... that all other things are never equal. That is, the choice is unlikely to be between two identically qualified candidates, one with a similar background to everyone else who's already on the faculty and the other with a dissimilar background. Rather, what the AAAS wants is someone to be picked even if they are less qualified (even if not completely unqualified).
We are always led to believe that race and ethnicity are simply being used as tiebreakers, but that's not true. It's demonstrably untrue in university student admissions, and there's little doubt that it's untrue with respect to hiring as well.
Bottom line: Why not pick the best qualified person, and teach them the cultural competence you think he or she may need, if you really think that your Puerto Rican physics and biology students will have a hard time understanding and dealing with non-Puerto Rican professors? Cultural competence, after all, is neither brain surgery nor rocket science. Rocket science, on the other hand, is rocket science, and brain surgery is brain surgery.
Turning to the role model argument, as a legal matter it is also a nonstarter. The Supreme Court rejected it 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' science students are not taught by someone who may not look like they do?
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 student never look up to a black professor, or a black student to a white professor, 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?
All of this also applies to nonacademic employers, both public and private, by the way: Racial and ethnic discrimination in the name of diversity is illegal, unfair, divisive---and stupid. It is shameful that academic, corporate, and government employers have all bought into this nonsense.
Roger Clegg is president and general counsel of the Center for Equal Opportunity