Dec. 18, 2006

Casting a Wide Net

The Bush administration has not always been friendly to affirmative action in higher education — coming out against the University of Michigan’s affirmative action admissions plans, for example, when they were reviewed by the Supreme Court in 2003.

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But with one of the leading groups opposing affirmative action in higher education attacking the way colleges try to diversify their applicant pools for faculty and administrative positions, one of the administration’s key civil rights agencies is backing colleges and angering their conservative critics. At issue is the practice of colleges stating in job notices that they particularly welcome applications from female or minority scholars (and in some case in fields traditionally dominated by women, that male applicants are welcome).

Some critics of affirmative action are gearing up to challenge such notices. But in an interview Friday, a senior official at the U.S. Equal Employment Opportunity Commission said that such notices were legal and that the agency had no plans to challenge them.

The Center for Equal Opportunity — which has taken an aggressive stance in fighting affirmative action in higher education — has been pushing the EEOC to bar such job notices, and is planning to seek support from the U.S. Justice Department on the issue. This particular affirmative action battle has been waged largely behind the scenes but emerged last week because of a dispute involving the American Economic Association. The association has had a policy of barring such notices in its job listings, but is reconsidering that policy after being criticized for rejecting postings with such language.

In Phi Beta Cons, a conservative blog on higher education, Roger Clegg published a portion of a letter he had sent to the EEOC calling for it to tell colleges to stop using jobs notices that say that they welcome members of particular groups to apply. He argued that such job notices violate Title VII of the Civil Rights Act of 1964, which bars discrimination in hiring, including practices in job advertising that are discriminatory. Clegg — president of the Center for Equal Opportunity — said such notices are not only illegal, but wrong.

“Suppose, for instance, the shoe were on the other foot, and an ad specified that ‘White males are encouraged to apply,’ let alone ‘especially’ encouraged to apply? We think that the commission would, quite rightly, take a dim view of this,” Clegg wrote.

In his blog post, Clegg noted that he would be testifying before the commission on these issues early next year. But Clegg didn’t mention that the EEOC had answered his letter — pretty much rejecting his arguments.

Peggy R. Mastroianni, associate legal counsel of the EEOC, wrote to Clegg that in cases where applicant pools do not match “the relevant qualified labor force,” it is not only legal, but frequently encouraged by the EEOC, for employers to “adopt proactive measures” to diversify pools.

“Because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants,” she wrote. “Such diversification is not equivalent to preferential hiring. If whites or men are underrepresented in some positions, it might be appropriate to ‘encourage’ applications from them. For example, in some cases it may be appropriate to encourage men to apply for some positions in nursing.”

In an interview Friday, Clegg said that his group — which has in the past played a key role in organizing opposition to various forms of affirmative action — intended to push both EEOC and the Justice Department to change this position. He said he believed that while EEOC staff lawyers may have considered the issue, he did not think the members of the commission itself had spent sufficient time on it. And he said he was confident that if they did, they would see a problem.

He added that it was “implausible” that colleges would especially want to welcome some applicants, and not give them unfair preference in actual hiring decisions. And he also said that colleges that use this technique — of welcoming specific groups — were doing so regardless of whether departments had significant problems with attracting a diverse applicant pool.

But in an interview, also on Friday, Mastroianni rejected those arguments. She said that if some departments are using the “welcome” statements in job postings and getting a diverse pool, there might be a relationship so it would not follow that the statements are no longer needed.

Of the practices of college in this area, she said: “We’ve been aware of this for a long time and don’t view it with alarm.”

Saranna Thornton, a professor of economics at Hampden-Sydney College, said that the practice is also a crucial one and that colleges should be prepared to defend it.

“People thinking of applying for jobs will go to a college Web site for a department and if they see that the department is fairly homogeneous, then they will look at the equal opportunity statement, and if it’s just an equal opportunity statement, they may think that’s wink wink, nod nod” and the department isn’t really committed to diversity, Thornton said.

In contrast, if these potential candidates see a statement that explicitly invites applications from members of groups not well represented in the department, that’s a concrete invitation that could prompt the would-be candidates to actually apply, she said.

Critics of affirmative action, she said, are trying to confuse “inclusive” affirmative action (which is legal) with “exclusive” affirmative action, which in some cases has been successfully challenged. If a college said it only would accept applications from female or minority candidates, or only recruited at meetings of female academics, that would be the sort of “exclusive” affirmative action that courts have questioned.

But Thornton, who is chair of the American Association of University Professors Committee on the Economic Status of the Profession, said steps taken by colleges and other employers to expand pools are “always legal,” adding that “widening the funnel is always legal.”

She stressed that — in some situations — men could end up benefiting. “I think that, morally and ethically, this is the right thing to do,” she said. “There are still a lot of stumbling blocks — intentional and unintentional in the road for women and minorities in academia, and I think that’s true whether you are talking about women in economics and men in nursing.”

— Scott Jaschik

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Comments

I told Scott Jaschik that the EEOC’s answer to my letter was “nebulous”—which is why I didn’t mention it—and I stand by that. It says, “job advertisements typically should not indicate a preference based on race, sex, or ethnicity” (citing the statutory provision that I did as well as an EEOC regulation), and suggests that the only exception could be where “the employer’s existing recruitment methods consistently result in an applicant pool that does not reflect the relevant qualified labor force”—and I suspect that most universities using these notices cannot document that the have determined this to be the case. The letter is also equivocal in saying that it “might” be appropriate to encourage whites and men to apply if they are underrepresented, and it is far from clear to me that facially discriminatory job notices are merely “focused recruitment.”

Mr. Jaschik told me on Friday that Peggy Mastroianni’s comments to him that day were a lot clearer than her letter to me—and he’s right about that. But I’m not sure I’d rank an “associate legal counsel” as a “senior official,” and the EEOC views itself as a “quasi-independent” agency, so I hope that her views are not the administration’s.

In all events, her reasoning is unpersuasive. Especially amusing is her claim that, if the applicant pools are not sufficiently “diverse,” this shows that discriminatory job notices are needed—but if they are sufficiently “diverse,” then this just goes to show that such notices may still be needed and are working well.

At the end of the day, I’m happy to see if the full Commission and the Justice Department agree with Ms. Mastroianni about the meaning of the statute, which states: “It shall be an unlawful employment practice for an employer … to print or cause to be printed or published any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin ….” Now, I ask you, if a job notice says that applications from some groups are, for instance, “especially encouraged,” can anyone seriously argue that this is not “indicating any preference”?

Roger Clegg, President and General Counsel at Center for Equal Opportunity, at 8:45 am EST on December 18, 2006

A Fix?

I would think if the wording just read “we encourage...” without any superlatives, applicants would feel less daunted by the present demographic pool, and the majority would not feel threatened by the wording which merely sounds more inviting.

kgotthardt, at 9:25 am EST on December 18, 2006

this just in: angels to dance on head of pin

Just wondering — Does anyone really think that this makes a difference? Will a superlatively qualified, say, Hispanic economist feel less willing to apply for a sought-after job because if it lacks these taglines?

By the same token, because of the large applicant pools that supposedly will result from these taglines, will universities be able to pay professors less (perhaps up to 25% less) because there are so many more qualified people.

Or is this all form over substance, and does it detract from the real problems in academe and society at large?

Larry, at 10:30 am EST on December 18, 2006

Pointless Rhetoric Is Welcome

Anyone who thinks left-wingers dominate all of academia need only look at the idiots at the American Economic Association, who ban job postings that include the standard boilerplate language saying “applications from female or minority scholars are welcomed.” But the only thing dumber than banning these statements as discriminatory is imagining that such statements actually change anything. Any female or minority scholar who sees such language knows immediately that it means nothing, that colleges are perfectly capable of requiring such language even while they do nothing to prevent discrimination. Colleges should stop wasting everyone’s space by this pretense; but the idea that an association or the federal government should step in to prevent it is even more insane.

John K. Wilson, at 10:30 am EST on December 18, 2006

Anyone who thinks left-wingers dominate all of academia need only look at the idiots at the American Economic Association.

That’s an awfully small “n” you’re looking at. Economics is arguably the only academic discipline that has moved to the “right” in the last 50 years (according to Milton Friedman and others). So, economics isn’t a terribly good example.

K.T., at 10:45 am EST on December 18, 2006

For Real?

Maybe this was true when jobs were plentiful, whenever that was. But given the buyers market for academic labor today, I think few departments will lose good hires for this reason.

jm, at 11:30 am EST on December 18, 2006

No Irish need apply

And does the distinguished Dr. Thornton have any data on how many Irishmen read the statement and think, “Well, it’s obvious that they intend to hire from an ‘approved’ racial group (wink wink, nod nod), so there’s no point in even applying.”

Paddy, at 12:10 pm EST on December 18, 2006

Claptrap

Now isn’t that preposterous? Some poor grad student works for years on a doctorate, and reaches the point that it makes sense for that person to look for a job, but won’t spend a stamp on a particular application because the language of comfort and encouragement is missing? This is the imbecility of political correctness. There is no hope for anyone who could take that claptrap seriously. The upshot of our tolerance of this sort of silly magical thinking, and all the rest of the plain nonsense that comes with PC, is that we in the academy have lost our credibility with intelligent, educated people trained in other disciplines — accounting, medicine, engineering, etc. That, in turn, costs us our opportunity to educate those same folks about more important matters, like the abominations committed by our current Imbecile-in-Chief and his cynical handlers, or, perhaps, like the distribution of wealth. When we finally stop allowing the PC Taliban to rule our discourse, we will then, and only then recover our influence in the real marketplace of ideas.

Bill, at 5:35 am EST on December 19, 2006

Intent of the Law

It is the intent of the law that sets the context. Clegg and the Center for “Equal” Opportunity treat the words of affirmative action law as if it has the same intent as the “Separate but Equal Doctrine". The intent of the words which encourage application by people of color and women to new positions is intended to diversify previously segregated career fields, not to explicity deny access to any and all white men. Almost any law that is deliberately mis-interpreted could be construed as damaging to white men [and others]. The South considered the imposition of the 13th Amendment as an unconstitutional “taking” of property [Slaves]. But what was purpose of the Amendment, to give the previously enslaved freedom, or to take away property?Moreover, there could be no law enforcement if upon the imposition of the enforcement, we interpreted that latter action as the true infraction. For example, speeding criminals could not be caught by State Police who are exceeding the speed limit, because we would focus on the speeding police, and not the original crime.

Arnold, at 10:45 am EST on December 19, 2006

Arnold, I was going to stay out of this substantive debate, but I think that there are some analytical problems with your argument that, at a minimum, you need to address.

1) In our system of government, it is somewhat difficult to tell what the “intent” of any law is. There are 535 Congressmen (plus a tie-breaker), and one president. Each of them might have differing views as to what “intent” is. The holders of these offices change – and change quite frequently. Therefore, if you are going to argue that there is an objective intent of the statute, you need to explain how to devine such an intent, and why other modes devinition are not acceptable. 2) Secondly, since you allude to the constitution, you need to explain how a statute, with an interpretation that conflicts with the constitution, must be construed. Most courts hold that it should be construed to avoid constitutional problems, but this seems somewhat dishonest, as it may well be the above lawmakers actually wanted to do something unconstitutional, and the court should simply declare it to be so.

3)Next, in practice, you are dealing with a regulation. Regulations, as you know, are adopted by agencies, pursuant to the APA. However, they must not only be constitutional, but they cannot conflict with any above-statutes. Even then, an agency’s discretion in adopting a regulation is cabined by the scope of the authority that Congress provided it with, as a need to comply with the procedures of the APA. You probably need to address the required deliberations before declaring it to be completely wrong.

4) I am unsure how something can be “deliberately” misinterpreted. Instead, I think you mean to argue that you would simply disagree that the offered construction does not reflect the sum-total of American law.

5) I think that your argument regarding the 13th amendment can more simply be resolved on constitutional grounds: that a later amendment trumps an earlier one.

6) As to your speeding example, you probably want to review the 5th amendment. It is quite possible for the government to take property. The question is whether a the person that property gets a form of “due process.” This is encapsulated within the 5th amendment. Therefore, while people speeding might lose property, they are entitled to protections under the 5th (and sometimes the 6th) amendments.

Bill, I generally agree with you, but I think that since it is silly to think that adding a few words substantively changes an applicant pool, I attribute it to just administrative silliness, and not a developed doctrinal view of the world. For better or worse, most of us will put up with such silliness, because if you placate people like that with their taglines, they usually won’t cause you any further trouble.

Larry, at 12:35 pm EST on December 19, 2006

Intent of the Law or of “the Action”

Larry- I’ve posted some responses below—for the good of the debate. 1) Courts routinely reference the Congressional Record to divine the intent of bills when they were passed. They probe the debates in Congress but highlight the collective intent of those who authored bills in question. 2) The phrase “intent of the framers” which was the mantra of the former Attorney General Edwin Meese alludes to the controversy regarding whose intent should be favored when statutes seem to contravene constitutional principles—in Meese’s case, along with other conservatives in the Regan administration, we should favor only the intents of those who signed the constitution. There are those on the current Supreme Court like Scalia who continue to believe that we should focus on the framers’ intents and there are those who believe that the constitution is an organic document, like Breyer [and Thomas Jefferson] who believe that the changing times and social mores should influence how statutes fare against the constitution. So what has developed are series of legal tests to determine whether a statute that looks unconstitutional on its face, is in fact permissible. In cases involving race, that test is strict scrutiny. 3) The intents of constitutional principles, laws, and regulations all have sources that can be researched. 4) Legal opponents of affirmative action know that if they use the term, “preferential treatment” to describe what is actually intended to be a deliberative process where a number of factors are weighed, the term will trigger repudiation most of the time. So they will fight for those words and add that schools truly intend to discriminate against white men. That is a deliberate mis-interpretation. 5) Again, the point here is not that the 13th Amendment actually posed a legal conundrum, but that the Amendment provided the opportunity for those opposing the civil right with a way to characterize the legal action as damaging to others.6) The point about speeding is that the police must violate the very law [speeding] in order to catch someone violating that same law [speeding]. But the difference in how we view each person is the intent of the individual. In the first case, a person is seen as keeping the law, in the second, the person is seen as breaking it. Again, it is the intent that makes the difference.

Arnold, at 11:15 am EST on December 20, 2006

minorities and Scalia on statutory v. constitutional intent

Arnold, Just a couple of points: Can we really be sure that a statement of intent by one legislature in a floor speech or report really evidences legislative intent of the whole body? Indeed, since most legislation might be a compromise between two positions (even within a political party) the views of a given legislator do not necessarily speak for everyone. In extreme cases, the losers may (and, in my experience, have) inserted legislative history into the bill either to influence courts or to make it appear less constitutional than the victors would have liked.

Interpreting the constitution and interpreting statutes are different. While I think you are overstating Scalia and Breyer’s view on the issue, assuming your view of Scalia’s position, the “intent” of a given signer of the constitution is only indicative of one signer. But more importantly, even if we knew the intent of all of them, since the constitution was not subject to a presidential veto (like legislation is) we need not question whether an additional compromise with an executive was incorporated (or not incorporated) into the intent.

Therefore, while it is nice to research on floor debates, and reports, it is doesn’t necessarily turn up any intent of all signers, or even of a body. (In fact, this is actually Scalia’s position legislation (though not the constitution) itself: unless a given word is agreed to by both houses and signed by the president (or a veto is overridden) it simply isn’t the law.

A policeman who speeds to catch someone is not necessarily violating a law, since most states provide statutory “law enforcement exceptions” to their speed limits.

Larry, at 6:50 pm EST on December 20, 2006

Interpretations of the Constitution

Larry- As for overstating Justices’ Breyer and Scalia’s views, see this link for Justice Breyer’s new book, Active Liberty- http://www.amazon.com/Active-Libe...-0331256-7832951?ie=UTF8&s=books, in which the review states, “Breyer saves his hard ball for the very end: a calm, judicious but powerful attack on the interpretive approach of some of his judicial colleagues, what he calls an “originalist” approach, relying primarily on a close reading of the text of a statute or the Constitution. Anticipating originalists’ criticism that only their approach can prevent judicial subjectivity, Breyer forcefully illustrates the many constraints on subjectivity and shows that originalism is not as objective as they claim."On Scalia, see this link to his 1996 speech before Catholic University, where he talks about how laws not found in the constitution at it’s writing should not be allowed today. http://www.courttv.com/archive/legaldocs/rights/scalia.html

Arnold, at 5:15 pm EST on December 27, 2006

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Casting a Wide Net

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Comments

A Fix?

this just in: angels to dance on head of pin

Pointless Rhetoric Is Welcome

For Real?

No Irish need apply

Claptrap

Intent of the Law

Intent of the Law or of “the Action”

minorities and Scalia on statutory v. constitutional intent

Interpretations of the Constitution

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Research Associate University of North Carolina, Chapel Hill

Professional Academic Advisor, Open Option University of Colorado

Assistant/Associate Professor — Physical Education Pedagogy Hofstra University

Project Scientists, Department of Pediatrics University of California, Irvine

Asst. Prof. Art History/Gallery Director Marietta College

Case Manager University of North Carolina, Chapel Hill

Faculty TEMP F-T, MUSIC (Theory and Ear Training) Lone Star College System

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