Affirmative action redux

[Leslie Goldstein]

I think that geography does play a role; I recall that Cornell U had
trouble attracting black professors to live in Ithaca NY.  That cannot
however explain the UD situation.  I grant you that these are not
powerful statistical disparities.  But supposing for the sake of
discussion  that UD 's percent of black faculty were 2% with a national
average of COMPARABLE (any measure you like) universities being at five
percent.  Are you saying that even then under Croson , a state u cannot
use avoidance of Title VII lawsuits to engage in racially conscious
affirmative hiring efforts?  I am not saying hire weakly qualified
people.  This is about creating extra jobs to hire a number 2 or 3
candidate in a pool of , say , a couple of hundred candidates.  Or maybe
a hundred.  Do you believe that violates the 14th Amd under current Sup
Ct doctrine?
LFGoldstein

> "Volokh, Eugene" wrote:
>
>         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