American Association of University Professors
How to Diversify Faculty: The Current Legal Landscape
Ann D. Springer
AAUP Associate Counsel
October 2002
I. Benefits of Diversifying
A. A diverse faculty benefits students. Numerous studies and longstanding
research shows that a diverse faculty and student body lead to great benefits
in education. 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., Chait, Richard P. and Trower, Cathy A.,
Faculty diversity: Too Little for Too Long, 104:4 Harvard Magazine 33
(March-April 2002); Turner, C.S.V., Diversifying the Faculty: A Guidebook
for Search Committees, (Association of American Colleges and Universities,
2002); Does Diversity Make a Difference? Three Research Studies on
Diversity in College Classrooms, American Council on Education &
American Association of University Professors
(2000)(http://www.acenet.edu/programs/omhe/diversity.cfm)
B. 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 not only expensive for the institution, but also
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 less likely to engage in the kind of
discrimination that creates legal liability for the institution.
C. Fears of "reverse discrimination" claims resulting from efforts to
diversify are highly overrated. The vast majority of claims filed are "regular"
discrimination claims, i.e. those filed regarding discrimination against
minorities. Failure to diversify will leave an institution open to these claims.
"Reverse discrimination" claims—allegations that diversification policies or
actions take race into account in violation of the law—while a concern, are
still a very small percentage of EEOC complaints.
II. Law on Diversifying Faculty
A. The law in this area is very unsettled. Factors like whether an institution
is public or private, has a history of discrimination, and accepts federal
funding all play a role. The law is essentially circular. To put it simply, the
Constitution and federal statutes require that employers eliminate
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 14th Amendment to the
Constitution and Titles VI and VII of the Civil Rights Act of 1964.
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 100. <
http://www.ed.gov/offices/OCR/regs/34cfr100.pdf>). Some courts have
found that the standards for analysis of Title VI are the same as those under
the 14th Amendment to the Constitution. See "F" below.
E. A presidential order known as Executive Order 11246 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, <www.dol.gov/dol/allcfr/Title_41/
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. 11246. 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.. . ." 41 CFR 60-2.10.
(This definition goes on to require specific workplace
analyses, 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 AAUP Redbook, Affirmative Action in
Higher Education (p. 193); Affirmative Action
Plans (p. 201).
F. The 14th 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."
1. This constitutional provision, and the
standards the courts have developed to
implement it, applies only to public
institutions. However, some courts have stated
that this standard is the same as the standard to
be applied under Title VI, which would mean
that the constitutional standard is applied to
virtually all institutions, public and private.
2. Under the 14th 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."
3. 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, 288 F.3d 732 (6th Cir.
2002)).
a. 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. 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. 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, 311-12
(1978)(quoting Sweezy v. New
Hampshire, 354 U. S. 234
(1957)).
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, 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
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 "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, 275-6
(1986); Taxman
v. Board of
Educ. of the
Township of
Piscataway, 91
F.3d 1547 (3rd
Cir. 1996), cert.
dismissed, 522
U.S. 1010
(1997).
4. 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); Wigand v. Jackson Bd. of
Educ., 476 U.S. 267 (1986).
III. How to Diversify
There are myriad ways, both large and small, to diversify the faculty. Institutions have tried
many different approaches to diversifying within the parameters of the law. While some
have been found problematic by the courts, others are considered both safe and effective.
A. Some institutional diversity programs have been found somewhat problematic by the
courts, although many of them still contain good elements, or could be easily retooled to
address the courts' concerns.
1. Bonus Hire Programs: programs where a department is given an
additional faculty position if it hires a minority candidate.
a. University of Nevada v. Farmer, 930 P.2d 730 (1997), cert.
denied, 523 U.S. 1004 (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.
2. Incentive Funds: Funds designed to provide incentives to departments to
recruit and hire minorities; extra departmental money, salary assistance,
etcetera.
a. Such funds should be directed toward additional recruiting
of minority faculty. However, to the extent they could be
shown to actually directly influence individual hires they
could run afoul of Title VII and the Constitution.
b. There is one court that has explicitly considered this issue,
and the decision is mixed. Honadle v. University of Vermont
and State Agricultural College, 56 F. Supp. 2d 419 (D.Vt.
1999). The University of Vermont had a "faculty incentive
fund" that provided grants for the hiring of minority faculty
and faculty who will enhance "multi-cultural curricula."
Departments did not know at the time of hire whether they
had received a grant because applications weren't considered
until later in the year, and funding was contingent on
availability. A federal district court ruled that the fund, to the
extent it functioned as a racially conscious inducement for
departments to recruit minority faculty members, did not
violate Title VII. However, the court noted that there was no
evidence that the plan or anyone administering it dictated any
hiring decisions. Had it been found that the funds had the
effect of influencing the decision to hire a candidate on the
basis of race, the plan would not have passed constitutional
muster.
3. Voluntary/Mandatory Set Asides: Plans to hire a "quota" of minorities, or
to set aside certain positions, have not been supported by the courts. See,
e.g., City of Richmond v. J.A. Croson Co., 488 U.S 469 (1989); Regents of
the University of California v. Bakke, 438 U.S. 265 (1978).
a. The court in Honadle discussed the problem with this
option as a distinction between "'inclusive' forms of
affirmative action, such as recruitment and other forms of
outreach, and 'exclusive' forms of affirmative action, such as
quotas, set asides and layoffs." 56 F.Supp.2d at 428.
b. Eg: Hill v. Ross, 183 F.3d 586 (7th Cir. 1999). When faced
with a lawsuit by a male professor whose appointment to a
tenure track position was blocked because the dean said that
the department needed a certain amount of women to reach its
target of 62%, the Seventh Circuit held that a state university
may not require that each department's faculty mirror the
sexual makeup of the pool of doctoral graduates in its
discipline.
4. Special Protection for Minorities: Creating special protections for
minorities once hired is also considered problematic.
a. The Third Circuit found that race conscious layoff
decisions were not acceptable even when the goal was to
promote a public high school faculty's racial diversity.
Taxman v. Board of Educ. of the Township of Piscataway, 91
F.3d 1547 (3d Cir. 1996), cert. dismissed, 522 U.S. 1010
(1997). (The Supreme Court granted certiorari in this case,
but a coalition of civil rights groups, concerned that the
unusual facts presented a bad test case for the Court, helped
to arrange a settlement before it was heard). Plans for
preferential promotions or salary increases for minorities
would face the same problems. They would have to pass strict
scrutiny, and unless designed to rectify specific and
demonstrable past discrimination, would likely be struck
down.
5. Race/Sex as a "plus" factor: Considering race or sex as one positive factor
among many remains constitutional as a compelling factor under the
diversity argument in Bakke.
a. Constitutional standards would require such a plan to be
narrowly tailored. A plan that considered race or sex as one of
many factors would by its nature seem more flexible (one of
the criteria for narrow tailoring), as it allows for varied
weighting and consideration of a whole range of factors.
b. Considering race or sex as one factor among many would
probably pass Title VII.
c. If race or sex were a sole factor however, it would violate
both Title VII and the Constitution.
i. See, e.g., Stern v. Trustees of Columbia
Univ. in the City of New York, 131 F.3d 305
(2d Cir. 1997). The Second Circuit reversed a
lower court and ordered a jury trial to review
charges that Columbia University
discriminated against an instructor because he
was not of Hispanic descent. The plaintiff,
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, was allegedly 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, not bias. The person who
was hired is described in court papers 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 than the plaintiff, and was not
proficient in 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 the
plaintiff's teaching was weak.
B. There are many good, legal approaches that institutions can and should implement to
diversify the faculty.
1. Recruiting/Outreach
a. Courts have found race conscious recruiting acceptable
under all of the different 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., Duffy v. Wolle, 123 F.3d 1026 (8th Cir.
1997); Hill v. Ross, 183 F.3d 586 (7th Cir. 1999).
i. Advertise Widely: advertise in journals and
periodicals that make special efforts to reach
minority faculty and graduate students.
Vacancy announcements can also be sent to
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, and personal
contacts in the field who are likely to know
promising graduate students or other potential
applicants. Consult with minority faculty
members on campus for their views on
outreach.
ii. Position Description: Realistically reflect
the full range of skills and knowledge needed.
Criteria for consideration can include factors
like demonstrated ability to work with diverse
students and colleagues, or experience with a
variety of teaching methods or curricular
perspectives. Rigid criteria that are not
absolutely necessary for the position should be
avoided, because they might exclude
promising candidates from less traditional
backgrounds who could make substantial
contributions to the institution if given the
opportunity. In addition, tying the description
closely to the real range of skills needed is a
strong argument against claims that race or sex
was impermissibly considered in hiring.
2. Search Committees
a. Search committees are often the weak link in
discrimination lawsuits. It is unfair and unrealistic to expect
faculty committees to understand the nuances of the issues
and legal restraints in this area without information and
support from the administration and its policies. Even well
meaning people often misunderstand affirmative action and
can unwittingly say or do things that cause candidates to feel
they are being discriminated against or misrepresent the
position or the institution's commitment to diversity.
b. Briefing search committees ahead of time is a benefit to the
committee and to the institution. 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. They should also receive materials about
institutional commitment to diversity and its educational
benefits.
c. Pay attention to whether candidates' graduate schools are
ranked, and if so, how minority serving institutions and
programs fare in that ranking. Make sure that the ranking of
minority institutions accurately reflects the strength of their
programs and the advantages they offer, and does not reflect
any prejudice or discrimination.
3. Retention:
a. Mentoring: Increase 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.
b. Criteria for promotion and tenure: Make sure that there
aren't subtle discriminations built into the criteria for
promotion.
i. Areas of study: Are all areas of study
weighted equally? Are ethnic studies treated
differently or undervalued in some way?
ii. 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.
iii. 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.
IV. Resources
Following is a list of resources helpful in this area:
Affirmative Action in Higher Education: A Report by the Council Committee on
Discrimination, AAUP Policy Documents & Reports 193, 194 (9th 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 (9th ed., 2001).
Alger, Jonathan R., Minority Faculty and Measuring Merit: Start by Playing Fair, 84
Academe 71 (July-Aug. 1998).
Alger, Jonathan R., Unfinished Homework for Universities: Making the Case for
Affirmative Action, 54 Washington University Journal of Urban and Contemporary Law
73 (1998).
Alger, Jonathan R., When Color-Blind is Color-Bland: Ensuring Faculty Diversity in
Higher Education, 10 Stanford Law & Policy Review 191 (Spring 1999).
Antonio, A.L., Faculty of Color and Scholarship Transformed: New Arguments for
Diversifying Faculty, 3 Diversity Digest No. 2, at 6-7 (2000).
Blackshire-Belay, C., The Status of Minority Faculty Members in the Academy, 84
Academe 32-35 (July-Aug. 1998).
Chait, Richard P. and Trower, Cathy A., Faculty diversity: Too Little for Too Long, 104:4
Harvard Magazine 33 (March-April 2002) (available on the web at <http://www.harvardmagazine.com/on-line/030218.html>)
Coleman, Arthur L., Diversity in Higher Education: A Strategic Planning and Policy
Manual, The College Board (2001).
Diversity Web: http://www.diversityweb.org/ (University of Maryland & Association of
American Colleges and Universities).
Does Diversity Make a Difference? Three Research Studies on Diversity in College
Classrooms, American Council on Education & American Association of University
Professors (2000).
Getting Results: Affirmative Action Guidelines for Searches to Achieve Diversity,
Pennsylvania State University: The Affirmative Action Office (1997).
Knowles, M.F. and Harleston, B.W., Achieving Diversity in the Professoriate: Challenges
and Opportunities, American Council on Education (1997).
Minorities in Higher Education, American Council on Education (an annual report).
Moody, JoAnn, Retaining Non-Majority Faculty - What Senior Faculty Must Do, 10 The
Department Chair 1, Anker Publishing Company (Summer 1999).
Smith, Daryl G., How to Diversify the Faculty, 86 Academe 48 (Sep.-Oct. 2000).
Smith, Daryl G., Wolf, Lisa E., & Busenberg, Bonnie E., Achieving Faculty Diversity:
Debunking the Myths (Association of American Colleges and Universities, 1996).
Springer, Ann, Update on Affirmative Action in Higher Education: A Current Legal
Overview (maintained on AAUP's Website
<www.aaup.org/Issues/AffirmativeAction/aalegal.htm>
Turner, C.S.V., Diversifying the Faculty: A Guidebook for Search Committees (Association
of American Colleges and Universities, 2002).
Turner, C.S.V. & Myers, S.M., Jr., Bittersweet Success: Faculty of Color in Academe,
Allyn & Bacon (1999).
Turner, C.S.V., New Faces, New Knowledge, 86 Academe 34 (Sep.-Oct. 2000).
University of Wisconsin-Madison: Search Handbook,
<http://www.ohr.wisc.edu/polproced/srchbk/sbkmain.html>
Whitman, Robert S., Affirmative Action on Campus: The Legal and Practical Challenges,
24 Journal of College and University Law 637 (Spring 1998).
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