VOLOKH at mail.law.ucla.edu
Thu Mar 8 11:12:00 PST 2001
Unless I'm mistaken, the law does not require that qualifications be
"absolute predictors of success" -- if it did, then no qualifications would
More broadly, if someone thinks that the existing qualifications are
unsound, they should change them to those that are sounder (recognizing that
no mix of qualifications is an "absolute predictor"). I have no idea what
the demographic results of such improved qualifications. Will it continue
the vast overrepresentation of Jews (like me), of the secular (like me), or
the smaller overrepresentation of Democrats? Will it yield the same huge
underrepresentation of Christians, Republicans, or Hispanics (a higher
degree of underrepresentation than of blacks, incidentally)? Will it yield
the same amazing underrepresentation of Republican women (which I believe
are represented at 1/30 of their fraction of the full-time working
population)? Nobody knows. But if someone has a proposal for some better
qualifications standard, that's great.
None of this, though, justifies retaining a standard that is
supposedly inferior and actually *illegal* (or so some people claim) and
then "compensating" for this by race preferences.
Leland Ware writes:
> The problem with law school hiring is that most hiring committees continue
> apply the "traditional" selection criteria to applicants. These
> qualifications exclude a disproportionate percentage of minority
> applicants and
> they are not absolute predictors of success of law school teaching. Hiring
> committees that rigidly apply these criteria are not only excluding
> applicants who might become outstanding scholars and teachers; they are
> exposing thier institutions to liability under the federal anti-
> laws. In the case of faculty hiring, much of the bias against people of
> operates at an unconscious level. It is hidden by "objective" standards
> are used to denote merit and academic accomplishment. But, these
> are not objective. They are often as much a reflection of an individual's
> background and economic status as they are an accurate measure of
> Hiring committees may not be awareof the subconscious forces that affect
> decision-making but these influences are evident in the results of their
> recruitment efforts.
> Richard Ausness wrote:
> > It seems to me that the term "affirmative action" can be used to
> describe a
> > number of different types of race-based or gender-based decisions. Over
> > the years, I have seen examples of each type either in the hiring area
> > with respect to student admissions.
> > The most controversial form of affirmative action involves the decision
> > hire or admit an explicit number or percentage of the favored group,
> > as women or racial minorities. The decision-makers then select the
> > requisite number of candidates from the applicable pool. This is
> > accompanied by such self-serving expressions as "We need to have another
> > African-American [or woman] on the faculty." or "Do you want a lily
> > student body?" The idea is to pick the "most qualified" candidates in
> > pool, but there is no minimum threshold that must be met to get into the
> > candidate pool.
> > A second type of affirmative action involves applying criteria that are
> > lower or different to the favored group of candidates. For example, in
> > case of student admissions, it is not uncommon to accept a lower minimum
> > LSAT score for minority applicants than for others. In the case of
> > hires, a school may broaden the candidate pool for the favored group by
> > considering applicants from less prestigious schools or by ignoring
> > rank, Law Review service, judicial clerkships or some other indicator
> > academic or professional accomplishment.
> > A third type of affirmative action applies the same criteria to all
> > candidates, but involves efforts to affirmatively seek out members of
> > favored group in order to induce them to join the applicant group.
> > of us who have served on Dean search committees know how necessary it
> > to ensure that women and minorities are represented in the applicant
> > even though this may require telephone calls or other special efforts
> > are not made in the case of other potential candidates.
> > Finally, affirmative action may simply mean taking race, gender or some
> > other characteristic into account, along with other factors, when
> > from a candidate pool that is solely based on merit.
> > People will disagree about the legitimacy of some, or perhaps all, of
> > affirmative action measures, but it would seem that only the first two
> > types described above would cause candidates with lower
> > objectively-determined qualifications from being preferred over
> > with higher qualifications.
> > Richard C. Ausness
> > Professor of Law
> > University of Kentucky
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