October 21, 2007

More Questions I'd Like Lawyers to Analyze: Diversity 101

Hatched by Dafydd

Here is another one of my fantasy hypthotheical questions designed to educate readers -- including this writer -- about the intricacies of the law; and again, I honestly don't have a sodding clue what the answer should be (I'm not a lawyer, but I sometimes play sea-lawyer on this blog). Please, I would appreciate it if those regular readers of ours who stand accused of being lawyers (Beldar, the Power Liners, Clarence Thomas, Patterico, etc), particularly those versed in constitutional law, would essay an answer...

You are sitting on the Supreme Court, and a case comes before you where Professor Rigoberto Uhuru is suing a university because she was rejected for a position on a campus faculty in favor of another candidate, Professor Guy "Whizzer" White. Uhuru is a self-proclaimed liberal, White is a self-proclaimed conservative (I warned you it was a fantasy hypothetical!) Professor Uhuru is unquestionably better qualified than Professor White by all objective, measurable criteria; and the University of Upper Iquana admits in discovery that Uhuru did better in the interview than White.

UUI also admits that the reason the less-qualified White was selected was that the faculty is, the administration says, "95% liberal;" and the Faculty Senate complained that there was insufficient ideological diversity. There is no evidence of any previous administration specifically favoring liberals over conservatives; it just happened to work out that way.

The administration secretly decided to consider only conservatives, specifically in order to remedy that perceived imbalance; they also interviewed liberals such as Uhuru to make it less obvious what they were doing, but never had any intention of offering her the job, once they read her blog a week before her interview.

Finally, to really bollox things up, despite the claim that the faculty is "95% liberal," in fact, 40% of the faculty are registered Republicans.

(Assume Uhuru had a great lawyer, and she sued on every imaginable criterion of discrimination, breach of contract, or mopery with intent to gawk; so if she would have an actionable case under any claim, you can rule in her favor if you want and order any appropriate relief or compensation.)

So here are the questions:

  1. Does current caselaw allow discrimination against a candidate for employment on grounds of diversity of ideology if UUI is a public university? How about if UUI is a private university?
  2. Should the Court overturn current caselaw, whichever way it currently stands?
  3. If such discrimination is unconstitutional or illegal, what remedy should the Court order?

No books, notes, or calculators will be allowed in the classroom during this exam; the proctor will disappear immediately after the exam begins to get a pedicure, so you're all on your honor.

Hatched by Dafydd on this day, October 21, 2007, at the time of 3:52 PM

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The following hissed in response by: nk

1. The basis is First Amendment, not Fourteenth Amendment Equal Protection. The weight of the law is that such "discrimination" is prohibited in a public university, and not prohibited and even to be expected in a private university.

2. It will be hard for any one case to overturn the current law because the issue is broad with a lot of implications for speech, thought and associational rights. And if you haven't guessed yet, my opinion is that it should not be overturned.

3. Money is always good. A decree whereby the Court supervises the establishment of policies and procedures to avoid the situation in the future is a tried and proven remedy as well.

The above hissed in response by: nk [TypeKey Profile Page] at October 22, 2007 5:26 AM

The following hissed in response by: BarbaraS

I knew the moment you stated the reason she was suing that she was a liberal. Only a liberal would sue for a job she was turned down for. A conservative usually accepts the prospective employer's decision and goes on to find another job. Only a liberal has the intestinal fortitude to force people to hire her and have to work with them afterwards. I am not a lawyer either but I was under the impression that most states are at whim employers and since this is a state university this should be a state case.

The above hissed in response by: BarbaraS [TypeKey Profile Page] at October 22, 2007 6:21 AM

The following hissed in response by: nk

... I was under the impression that most states are at whim employers and since this is a state university this should be a state case.

Nope. Sorry. Your State cannot tell you what to think, believe, say, or what political party to belong to anymore than the Federal government can unless it's necessary for the furtherance of an overwhelming government interest and the method used is the least restrictive means.

Which, BTW, is what distinguishes a First Amendment analysis from the test du jour of Fourteenth Amendment Equal Protection analyses that we have been seeing in race/sex/ethnicity/age discrimination cases.

The above hissed in response by: nk [TypeKey Profile Page] at October 22, 2007 7:47 AM

The following hissed in response by: nk

P.S. And if I were the judge in the case, you would have an uphill battle to convince me that any government has any business inquiring into liberal or conservative views let alone an overwhelming interest in doing so.

The above hissed in response by: nk [TypeKey Profile Page] at October 22, 2007 7:57 AM

The following hissed in response by: wws

I think this question comes about because of the common but mistaken belief that all "discrimination" is unlawful, and that its presence provides a cause of action for anyone so offended. Not so. As referenced by a previous comment, the only forbidden discrimination is that which is done on the basis of race, religion, national origin, family status, sex, or age - and even within those categories, there are significant exceptions. (Mandatory retirement policy based on age? No problem. A church only hires those whose religious beliefs are compatible? No problem.)

Point being that all other forms of discrimination, whether they are economic, ideological, or idiosyncratic, are just fine. Even if the employer had stated that the most qualified applicant would be hired, and then didn't follow through, there would still be no cause of action. (detrimental reliance, maybe, but that would require some really unique circumstances) The employer lied - too bad. People lie all the time, it hurts their reputation, but it's still the job-seekers tough luck. Outside of those specific protected categories, nobody has a "right" to get a certain job. The only real hope would be for a plaintiff to try and convince the court that the complained of legal discrimination was nothing but a pretext for some form of prohibited discrimination, such as race. Difficult to do, and attempts to do this on economic terms (such as challenging credit checks) have usually failed.

And do I think the Supreme Court should change this? Heavens, no, not unless you want to establish the principle that Courts can apply ideological criteria to almost every decision possible. If anyone truly desires a change, then they should lobby either Congress or their state legislature to add ideological diversity to the list of required criteria for public hiring. I won't be holding my breath for such a change, though.

The above hissed in response by: wws [TypeKey Profile Page] at October 22, 2007 9:34 AM

The following hissed in response by: wws

p.s. - since you titled your post "diversity 101", I should point out that in terms of hirings and admissions (especially in education!) the word "Diversity" is a shibboleth that means race, as in "not caucasion and not oriental", sex, as in "not male", and occasionally sexual preference, but nothing else. Ever.

You've got to understand the terminology to understand how and when it's applied.

The above hissed in response by: wws [TypeKey Profile Page] at October 22, 2007 9:50 AM

The following hissed in response by: Ben Pugh

I note that none of the commentors have yet answered your question. I’ll give it a crack.

First off, I believe that private schools are given more latitude to hire professors based on ideology than public schools. Notre Dame is free to hire a Catholic espousing Catholic doctrine over a more on-paper “qualified” atheist advocating that Jesus was a homosexual, provided that has some relevance to the particular job the candidate is seeking. Current law is probably similar for public universities, but I don’t know how far it extends off the top of my head, and you said no books, notes, or calculators so I’ll punt on that one.

So, presuming Upper Iquana is private, they likely can hire professors based on ideology, whether to create “diversity” by balancing out its faculty ideology or to make the prevailing ideology uniform and on the same page. (See William F. Buckley’s “God and Man at Yale” for the argument that a private university should have a mission, not just exist to present “both sides.” As a less controversial example, suppose a university's physics department is dominated by proponents of string theory as the best way to a GUT (Grand Unified Theory). I think the university could go either way in its hirings - more string theory advocates because that is what the university wants to advocate or string theory sceptics because it wants its students to hear a robust debate.)

But what if they are both applying for a professorship in a non-political field, say chemistry? I don’t know whether there is any statute, state or federal, making such ideology discrimination unlawful for private universities. I think there is a statute making such discrimination illegal for state employees. As for the Constitution, this would be a First Amendment issue, not a Fourth Amendment equal protection issue, so such discrimination would not be unconstitutional by a private university (no state action) but likely is unconstitutional as a violation of free speech if done by a public university if the job has no relationship to the political ideology of the applicant. (It’s another question whether a public university can constitutionally fire a professor for spouting liberal propaganda during class – probably yes, presuming the professor is teaching a field where such discussion is irrelevant, like chemistry, but probably not if the professor is spouting such propaganda on her own time. But then you also have to deal with tenure, which is not a constitutional issue, but a contractual issue.)

Where it gets trickier is when otherwise non-racially based criteria have a “disparate impact” on members of protected racial classes. It gets tricker still when in any individual case the given reasons don’t quite match the facts. So here I’ll punt again, because your hypothetical omitted crucial information – the decision of the trial court.

The biggest problem I have with Justice O’Connor’s opinion in Grutter v. Bollinger is that she not only failed to acknowledge the factual findings of the trial court, but implicitly rejected those findings without even saying she was. The trial court found as a fact that Michigan Law School’s stated reasons for giving preferred minorities a “plus” – i.e., to achieve a “critical mass” to ensure “diversity” – were not the actual reasons for giving the “plus” – i.e., to balance out the student body’s racial make-up in proportion to the applicant pool.

After demonstrating the numbers showing that “critical mass” is different for each preferred minority group, but coincidentally almost identical to each group’s percentage of the applicant pool, Justice Kennedy’s dissent notes, “The District Court relied on this uncontested fact to draw an inference that the Law School’s pursuit of critical mass mutated into the equivalent of a quota. 137 F. Supp. 2d 821, 851 (ED Mich. 2001).”

So, did the trial court find as a fact that Upper Iquana’s stated rationale for hiring Whizzer was different from the actual reason? You have set forth some evidence suggesting that the ideological balance factor was not the university’s true reason for rejecting Uhuru. The Supreme Court has no business deciding these factual issues.

On the other hand, Uhuru’s lawyer could probably make an undisputed case that blacks are generally more liberal so that any discrimination in favor of conservatives has a disparate impact on blacks. The origin of this “disparate impact” nonsense is Griggs v. Duke Power, a case on which Thomas Sowell has criticized extensively (and rightly so). The idea that a racially neutral classification can be illegal if it happens to come about that more members of the socially-undesirable class (i.e., whites or Asians) do better under that classification than socially-preferred classes (i.e., blacks, Hispanics and Native Americans) is so preposterous that only the Warren Court could come up with it.

So now I think I can address what you are getting at with your post. Does Grutter v. Bollinger create a “diversity” compelling state interest such that any “disparate impact” such discrimination might have on protected minorities is now acceptable? This is the Gordian Knot that liberals have tied. On the one hand, to justify overt racial discrimination, they had to invent concepts like “diversity” and “critical mass” when any examination of the numbers shows that they don’t really believe it or practice it. On the other hand, the logic of the “diversity” and “critical mass” rationales leads naturally to allowing the kind of political ideology discrimination your hypothetical poses. Will these concepts have any life beyond allowing liberals to discriminate in favor of their favored “victim” racial groups?

I doubt it. I don’t know of any case law deciding the issue you pose. On the one hand, the “diversity” advocates should have absolutely no problem with professor hirings based on diversity of opinion. That is arguably more important for the total educational “diversity” experience than diversity among the students. Moreover, as “diversity” proponents have argued, race is merely an inexact proxy, one of many factors that go into determining whether a particular student will bring “diversity” of thought, experience and opinion to the student body. When that diversity among candidates is easily identifiable in the much smaller applicant pool of individual professor job hirings, it should be easy to give exhausting individual attention to the candidates’ diversity of thought, experience and opinion in a way that simply cannot be done on the scale of a large university’s student admissions process.

If the canard of “diversity” is ever tested like this, expect liberals to cry foul, liberal judges to craft ever more sophistry-laden opinions, finding some totally unconvincing way to distinguish the situations. I don’t expect any public university to ever test the “diversity” rationale the way you suggest, however.

Getting to your question number two, I don’t think the Supreme Court should overrule case law allowing private universities to hire professors on the basis of the ideology the university wants to teach. If you think Yale is too liberal, go to Hillsdale. I’m also a Goldwater conservative on the idea of the government policing racial or any other discrimination. I think it is best left to the competitive marketplace. But the more appropriate question is whether Congress or the states have the power to enact statutes prohibiting ideological discrimination. If they do (and I think the states do for their public universities), then the Supreme Court should uphold the statutes.

The larger question you pose is, should the U.S. Supreme Court hold that “diversity” is a compelling state interest such that university professors (we’ll set aside the question of whether this rationale applies to any other class of state employees) may be hired on the bases of their political ideology, which discrimination, if not accompanied with any need for “diversity” would otherwise violate the applicants’ First Amendment rights of free speech? Well, in my opinion, the entire “diversity” nonsense should be overruled. I also am a Federalist so I think the state of Massachusetts should be free create public universities that teach Marxism as the gospel, and hire and fire their faculty based on ideology as they see fit. If Massachusetts wants their chemistry professors to take 3/4ths of every class worshipping Gaia, watching Al Gore’s dumb movie, and ranting about the evils of corporate America, Rethuglicans and Chimpy McBushitler, go right ahead. Disapproving Massachusettsians should move to another state, or vote their representatives out of office. Employers should not hire chemistry majors from Massachusetts state universities.

For a concrete example, suppose the administration of George Mason University decides there are too many conservative professors in its Economics department. They think that the Economics department should have a “diversity” of opinion, which naturally should include a “critical mass” of Marxists. What do to? Sue for discrimination? Why should courts get involved? Why not call your local Virginia state representative and tell him or her: 1) abolish tenure; 2) fire the university administrators who want to hire the Marxists; and 3) let Walter Williams hire who he wants.

To answer your third question, since this type of discrimination should not be unconstitutional or illegal, there is no remedy for Uhuru. She should look for another job at a university that wants her to teach what she wants to teach. Or, she should move to a state with public universities that support her ideology. Or, she should ask her state representatives to change the university’s hiring criteria.

How’s that for an off-the-top-of-my-head stab?

The above hissed in response by: Ben Pugh [TypeKey Profile Page] at October 22, 2007 7:50 PM

The following hissed in response by: Dafydd ab Hugh

I find this fascinating...

That last answer was longer than my entire post! I've assiduously read each of these comments, and I think I'm more confused than when I posted.

Is the law always this complex and seemingly contradictory?

As a non-lawyer, my common-sense understanding -- not directly answering the questions, since they're oriented towards someone familiar with the law -- is that I think if UUI is a private university, they can hire anyone they want, so long as they're not making the decision on the basis of race or sex.

What I mean is that this is my understanding of the law -- speaking as a layman. This is what has filtered down to me.

As to shoulds, I think a private university should be able to hire or fire anyone they want, even for racist, sexist, or other bigoted reasons.

If UUI is public, then I imagine the law would make it illegal to refuse to hire someone simply for what he believes, so long as he's willing to follow the accepted curriculum. And I support this sort of law -- as applied to public employment paid for by taxes.

I also suspect that I would quickly find myself hauled before a special EEOC court and rendited to the Hague, where I would have my epaulets severed... because I'm convinced that the law is anything but common sense, so a "common-sense understanding" must necessarily be complete rubbish.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 23, 2007 2:43 AM

The following hissed in response by: nk

Good morning Dafydd,

You're correct in your common sense understanding. I don't see that other than "legalspeak" I contradict you in my previous comments.

First Amendment law is pretty straightforward but it is very broad -- from wearing a T-shirt that says "F*** the Draft" in a courthouse to reciting the Pledge of Allegiance to a loyalty oath as a prerequisite for professional licensing, etc.. Stiil, in all these cases the anlysis has remained the same for about ninety years. If an agent of the state is trying directely or indirectly to restrict speech, thought, belief or association, the state must demonstrate a very powerful (overwhelming) governmental interest for its actions and those actions must be the "least restrictive" on speech, thought, belief and associational rights.

There can be no lessons taken from Fourteenth Amendment/Commerce Clause sex/race/ethnicity etc. *discrimination* cases. Different laws, different rights, and varying analyses and balancing tests which have depended on the composition of the Courts from time to time, and are, as you say, in part contradictory.

The above hissed in response by: nk [TypeKey Profile Page] at October 23, 2007 5:17 AM

The following hissed in response by: kimsch

As a member of three - count 'em - three "protected" classes I don't think that there should be any "protected" classes at all. The first few had reasons at the time, but those reasons are diminishing. All we are doing now is adding new groups of people to "protect". Pretty soon everyone will be "protected". Even now, being "protected" doesn't really mean much and it causes one to wonder if one is being hired or kept on because of one's skills and talents or one's "protected" status.

I am not qualified to be a train engineer. But I could apply for a job as one and when I'm not offered the position (being unqualified and all) I could sue for the position saying that I was discriminated against because I am a member of those three "protected" classes (female, disabled, and over 40-years-old). Could probably find some lawyer to file (or go pro se) and get some kind of settlement just to make me go away.... Sad really.

If Hillary becomes President (please Lord, no) would it be on her own or because of Bill. She'll never know. Probably be really resentful of him as well because she'll never know...

The above hissed in response by: kimsch [TypeKey Profile Page] at October 23, 2007 12:11 PM

The following hissed in response by: BarbaraS

Nope. Sorry. Your State cannot tell you what to think, believe, say, or what political party to belong to anymore than the Federal government can unless it's necessary for the furtherance of an overwhelming government interest and the method used is the least restrictive means.

For your information an at whim or at will state is one where the state law says business can hire or fire as they please and has nothing to do with the above. Where the businesses can get into trouble is where race and age are involved.

The above hissed in response by: BarbaraS [TypeKey Profile Page] at October 23, 2007 1:14 PM

The following hissed in response by: Ben Pugh

Your post and the comments demonstrate the constitutional problems that arise when the state provides education. In that context, both sides - the university and the professor applicant - have a legitimate claim on protection by the First Amendment.

Teaching is speech. It would clearly be a violation of the First Amendment if the government tried to regulate what a private school taught. When the government is in the business of providing education, especially at the university level, it must select what is taught, what to emphasize, and what not to teach. Each of these decisions would be protected by the First Amendment for a private university.

Universities professors are also paid to conduct research and publish. In social areas, part of the professor's job is clearly linked with the articles the professor publishes. Should a university be able to hire and fire a professor because of the ideology of the professor's academmic articles? For a private university, of course. For public university, the professor has a serious argument that his or her free speech rights are being violated. How about for a professor's overtly political activity? Do not universities want the fame and notariety when a professor is a pundit on a talking heads news show? Or organizes large public political rallys? Or write op-ed pieces in newspapers? Are these activities part of the professor's job, such that the university has a legitimate interest in what message its name is associated with, or is it free speech activity on the professor's own time?

The above hissed in response by: Ben Pugh [TypeKey Profile Page] at October 23, 2007 1:52 PM

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