Affirmative action redux

[Volokh, Eugene]

        It seems to me very hard to infer discrimination from the fact that
the percentage of blacks on a faculty is 4% whereas nationwide it's 5%.
Maybe U Del is imposing different requirements, and requirements that are
justified as a matter of business necessity.  (And again, if they aren't
justified as a matter of business necessity, why isn't it just changing
them?  I'll bet a lot that the U Del administration does in fact believe
that the requirements are sound, and that it wants to be a relatively elite
university.)  Maybe it has a somewhat different mix of disciplines than some
in the nationwide sample.  Geography likewise plays a role.  I just don't
see how, given Croson, this sort of rough comparison is sufficient to
justify an overtly race-based preference.

        Again, an analogy:  Nationwide, about 26% of all law professors are
Jewish, compared to 2% of the full-time working population.  At UCLA, the
number is, to my recollection, closer to about 35%.  At the same time,
Christians are underrepresented by a factor of 2 compared to their fraction
of the full-time working population in schools nationwide, and I suspect
they are at least slightly more underrepresented at UCLA.  Is discrimination
in favor of Jews a plausible hypothesis?  Sure; we Jews often find it
(consciously or subconsciously) easier to be get along with other Jews, and
easier to be impressed by them.  Is discrimination against Christians a
plausible hypothesis?  Absolutely, especially in the academic, largely
secular, overwhelmingly left-of-center, Southern Californian stratum of
society that my colleagues and I generally travel in.  But these are just
plausible hypotheses, and the contrary hypotheses are equally plausible.  (I
suspect that for whatever reasons the qualified labor pool for a teaching
job at UCLA *is* disproportionately Jewish compared to the full-time working
population, and possibly even compared to the qualified labor pool for other
schools, which may have somewhat different credential requirements and
somewhat different geographical factors in play.)

        I'm pretty certain that this would be nowhere near enough evidence
under Croson to justify a hiring preference for Christians or non-Jews, even
if it turned out that the percentages on the UCLA Law faculty, or even in a
larger group such as the UCLA faculty generally, were 20% or more off from
the percentages at other schools.

        Of course, one could argue that preferences for blacks should be
treated differently from preferences for Christians, non-Jews, or what have
you, because of past societal discrimination, the need for role models
(though why don't devoutly Christian law students need devoutly Christian
lawprof role models?), or whatever else.  But those arguments are foreclosed
by Croson et al.; and the argument about the need to remedy identified
discrimination by this institution runs into the problems I identify above.

        Eugene

> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Monday, March 05, 2001 7:56 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Affirmative action redux
>
> the arg would be that to avoid Title VII liability as an employer whose
> employment practices "tend to discriminate on the basis of race" (because
> of disproportionately low percentages of blacks on the faculty [of a
> formerly de jure seg'd pub. university]--our percent of black faculty is
> four.  National percent is five.  This puts us twenty percent lower than
> what appears to be the qualified labor pool.  [believe me, I would not
> stoop to this use of statistics if
> not driven by Sup Ctdecisions that make little sense to me], states as
> employers should be allowed to take flexible affirmative measures to
> desegregate traditionally seg'd job categories [i.e. introduce greater
> racial diversity into their work force] as long as they are not trammeling
> the rights of non-minority applicants /employees (as happens with, e.g.
> race-based layoffs.).   So whadya think?
> LFG
>
> Bill Funk wrote:
>
> > Leslie Goldstein wrote:
> >
> > > as of 1987, s.ct. said in Johnson v. Trans. Agency, which did involve
> a
> > > state hiring agency that the rules under Title VII were that (1)
> > > flexible affirmative consideration in hiring for members of groups
> > > disfavored in "traditionally segregated job categories" were not
> > > unlawful so long as they did not "unnecessarily trammel the rights of
> > > non-minority "applicants.  Court relied on Weber.
> >
> > Correct me if I'm wrong, but wasn't Johnson a Title VII case?  That is,
> it did not address the constitutionality of the affirmative action in that
> case.  In my original response I said that I didn't see how the Court
> would uphold such a plan as Leslie described under the 14th Amendment.  It
> is not inconceivable that the Court would say that Title VII allows
> private employers more leeway in affirmative action than the 14th
> Amendment allows to government actors.
> > Again, however, I would love to hear an argument how the Court's current
> 14th Amendment jurisprudence would allow racially conscious hiring of
> minorities to avoid a disparate impact of facially neutral hiring policies
> on minorities.
> >
> > Bill Funk
> > Lewis & Clark Law School
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