Dousing the Fires of Racial Discrimination

Editor’s note: Roger Clegg is president and general counsel of the Center for Equal Opportunity, which filed amicus briefs urging the Supreme Court to hear and rule for the plaintiff firefighters in the Ricci case.

If university officials breathed a sigh of relief after the Supreme Court handed down its recent decision in Ricci v. DeStefano, the New Haven firefighters case, they made a mistake. Many seem to believe that the case won’t have any impact on their use of racial preferences in faculty decisions.

A gulp would be more appropriate than a sign of relief. Ricci should and will apply to common college and university racial preference policies in hiring. Officials ignore it at their peril.

In the Ricci case, the city threw out the results of a promotion exam because too many whites, and not enough blacks, scored well on it. The city argued that, because the test had a “disparate impact” on blacks (that is, a much higher percentage of whites than blacks did well on it), it could have been sued if it had accepted the results of the exam.

The Supreme Court disagreed. It ruled that New Haven was not justified in throwing out the test results because the relevant law—Title VII of the 1964 Civil Rights Act—doesn’t allow an employer to discriminate on the basis of race unless there is strong evidence that it would lose such a disparate impact suit. And, the Court continued, such evidence was lacking here, given the care that had been taken in constructing the exam.

I was pleased by the Ricci decision and I expect it to have an impact on colleges’ hiring of faculty and others. Among the practices I believe are vulnerable is the rejection of finalist pools for faculty positions because they lack candidates from certain racial or ethnic groups.

Colleges and universities sometimes conduct a search to fill a faculty opening but then decline to hire anyone from the pool of finalist candidates because the school really wanted to hire someone from an “underrepresented” group, none of whose members made the cut. Doing that looks just like New Haven’s treatment of the firefighters who aced the promotion exam.

I argued for the similarity of university hiring and New Haven’s tossing out of the pool of qualified firefighters in an interview with Inside Higher Education the day after the Supreme Court’s decision. The writer also sought the opinion of Ada Meloy, general counsel for the American Council on Education, who tried to minimize the impact of the case. She argued that the firefighters who didn’t get the promotions they had expected “had a much greater assurance of being promoted” than would a group of finalists for an academic position, who would know that only one of them could get the job.

She also argued that there is much more subjectivity in the selection of college faculty members than in the choice of people to work in a fire department.

Those are distinctions without a legal difference. Whether or not the people in a pool of job applicants have a high assurance of getting the job sought, and whether selection criteria are subjective or objective, isn’t legally relevant to the discriminatory motives of the employer. That is where the law focuses.

At least one higher education case that is analogous to Ricci has already been litigated. In Rudin v. Lincoln Land Community College, the school’s Screening Committee chose a pool of eligible candidates that did not include a “diverse” candidate. Then, however, the school’s Equal Employment Compliance Officer added the name of a black applicant, Paul Hudson, who had been considered by the committee but not chosen as a finalist for the position.

The Screening Committee interviewed all the finalists. Janine Rudin was ranked as second-best and Hudson second from the bottom. Nevertheless, Hudson was offered the job.

Rudin sued, claiming both racial and sexual discrimination against her by the college. Her case was dismissed by the trial court, but the Seventh Circuit Court of Appeals reversed and remanded the case. The three judges concluded that the college’s practice of placing minority applicants into the finalist pool was circumstantial evidence of discrimination that the trial court should have heard. (The case was later settled.)

The Rudin and Ricci cases together show that the courts won’t take a blasé attitude toward hiring practices in higher education where some people are given advantages simply because of their race.

That should make college and university officials wary of policies such as that announced in 2005 at Marquette University, where the provost declared that no one would be hired for a full-time faculty position unless the finalist pool contained at least one “diverse” candidate. (I note that Marquette is in the same circuit as the Rudin decision.)

Federal courts have long been troubled by the use of racial preferences, sometimes grudgingly allowing them but usually ruling against them. Although colleges and universities may think that they have complete freedom to pursue “diversity” to the utmost, the law doesn’t permit them to discriminate on the basis of race any more than New Haven’s fire department. If they continue doing so, they’ll be on very thin ice legally.

Let me conclude with a specialized statement for university legal counsel. The Supreme Court in Ricci didn’t need to say a word about its 2003 University of Michigan cases, because, unlike Ricci, they did not involve Title VII. Title VII is a different statute and, for several reasons, the discrimination in student admissions allowed in the Grutter case is irrelevant to discrimination against faculty members.

The ruling in Ricci will be directly applicable to many all-too-common university practices. And, more broadly, a clear majority of the Court takes a dim view of racial, ethnic, and gender employment discrimination undertaken in the name of achieving politically-correct numbers—i.e., diversity. That kind of discrimination is found in all kinds of faculty policies, from the way job notices are worded, to the award of graduate fellowships, to making “opportunity hires,” to offering pay premiums, and of course to the big thumb put on the scales in hiring decisions.

(For a more complete discussion of racial preferences and faculty hiring, see my article “Faculty Hiring Practices and the Law” in the May 19, 2006, Chronicle Review.)

But, it may be objected, isn’t there tension between the broader antidiscrimination principle in Ricci and the Supreme Court’s holdings in the Weber (1979) and Johnson (1987) cases? In those cases, it’s true that the Court allowed preferences based on race, ethnicity, and sex under Title VII, but only where the employer could point to a “manifest imbalance” in a “traditionally segregated job category” and where preferences would not “unnecessarily trammel” the interests of nonpreferred employees. In 2009, there will never be a situation where the “necessary” way to fight discrimination is through more discrimination, rather than simply stopping discrimination—to paraphrase Chief Justice Roberts’s pronouncement in the 2007 Seattle and Louisville schools opinion.

In all events, the legal standards in Weber and Johnson should be interpreted to conform to the one articulated in Ricci. That is, any employer that wants to use otherwise forbidden preferences in hiring and promotion must have, per Ricci, “a strong basis in evidence” that it would be liable under Title VII unless it used them. That evidence would typically include statistical disparities (“manifest imbalance”) and recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice O’Connor supported in her concurrence in Johnson.

Look at it this way: If an employer cannot legally engage in disparate treatment unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to engage in disparate treatment when it is not motivated by fear of a Title VII lawsuit at all?