I applaud the news that the U.S. Department of Justice plans to investigate and sue colleges and universities for reverse discrimination. What is perhaps more important, however, is the impact this welcome development will have on faculty hiring in higher education. Although the Supreme Court held in 1986’s Wygant v. Jackson that it violates the Constitution’s equal protection clause to prefer minority faculty over non-minority faculty in order to ensure faculty role models for minority students, academic institutions nevertheless strongly prefer minority candidates in their faculty hiring processes. Indeed, race is used much more aggressively in faculty hiring than it is in student admissions—and that’s saying something—in large part because there are far fewer faculty positions available than there are admissions slots. Several examples come quickly to mind. They all involve law schools because, as a law professor myself, law faculty hiring practices are what I know the most about.
First, a friend who teaches at a different law school copied me on the following email he sent to a prominent civil rights lawyer: “Our university has offered the Law School money for an extra faculty slot, but only if the appointee is black. I know we’re not alone in this, but it seems even more obviously illegal than arrangements that give preferences to minorities.”
Second, the former dean of a large public law school used her law school’s faculty hiring process to advance her vision of “social justice,” a vision that her own faculty criticized because it led to the virtual disqualification of every white male faculty candidate during that dean’s tenure.
Third, the dean of a small private law school (not the one at which I teach) informed me that he had “promised” the American Bar Association that he would hire only minority faculty for several years. Both the ABA and the Association of American Law Schools aggressively encourage law schools to hire minority faculty.
Fourth, and related to the third example, a different law school was criticized by both the ABA and the AALS for not hiring enough minority faculty, even though that law school had (a) invited every minority faculty candidate listed in the AALS faculty recruitment registry to interview with the law school at the hiring conference in Washington, D.C., (b) asked every minority faculty candidate who interviewed with the law school in D.C. to fly back to campus, all expenses paid, to interview further, and (c) offered a job to every minority faculty candidate who accepted the invitation to visit the campus. In short, there was nothing else the law school could do to try to recruit minority faculty candidates—and what it did was illegal—but that still wasn’t good enough for the accrediting bodies.
There are, I’m sure, colleges and universities that don’t insist on using race in such a heavy-handed fashion, although I’m not aware of any. In fact, the faculty hiring process has gotten so out of hand that one law school did not immediately disqualify a minority candidate who recently had failed the bar examination. You read that correctly: a law professor who failed the bar exam.
Swedish Nobel laureate Gunnar Myrdal famously referred to race as “the American dilemma.” He was correct. However, it’s no solution to that dilemma for America’s colleges and universities to violate the nation’s civil rights laws. The Justice Department should be commended for realizing that.
Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His eight books include “First Principles: The Jurisprudence of Clarence Thomas.”