Affirmative action redux
lesl at UDEL.EDU
Sun Mar 4 19:09:05 PST 2001
Still thinking about the aff. action proposal (state u creating an extra job when a racial minority candidate comes in second to a white fella in a regular faculty job search) I already described to the list--what about a TITLE VII argument as setting forth the compelling interest in question--it would go like this:
Since Title VII penalizes as unlawful any employer's "classif[ication of] employees" in a way that "tends to" discriminate onthe basis of race, and since this clause has been read by the courts to forbid empoyer practices that have a discriminatory impact (unless strictly justified by business necessity) [even] a state university has legal reasons to go out of its way to do its hiring in a way that manages to hire very well qualified minorities, so that its hiring techniques will not result in an unnecessarily [negatively] discriminatory [toward racial minorities] impact. The carefully tailored hiring program that I already described athough it arguably bumps into the general discouragement of race-conscious practices by govt, does so only because it has to in order to avoid violating another federal law adopted as part of Congress regulatory power under the 14th and interstate commerce powers.
Are there some obvious problems with this argument?
thanks for any help people can offer.
p.s. I should perhaps add that my university HAS been known to create second job when the secondbest candidate was extraordinarily good for some other reason and it did not want him (a white male) to get away for some other reason. This this would not in fact be soemthing that has ONLY been done for racial minoritites . But it would be basically for them.
More information about the Conlawprof