Diversity, race as proxy, and religion as proxy

[Leslie Goldstein]

my experience around here is that pretty many faculty do attend their
church, although I do not ask.  My basic concern for hiring blacks is
that they were discriinated against here; we were de jure segregated and
we have yet to live down that imagein the balck community.  In a 17%
black state, the student bodyis five percent black , while the percent
at the hbc (formerly de jure black) is 50%.
LFG
"Volokh, Eugene" wrote:

>
>
>         The argument is now shifting from a remedying discrimination
> rationale to a "diversity of experiences, outlooks, and ideas"
> rationale.  We've of course discussed the latter point (though to be
> frank also the former point) extensively on the list; but my basic
> reaction is that I'll believe that people are really interested in
> "diversity of experiences, outlooks, and ideas" when they start giving
> preferences to devout Christians or other groups that certainly have
> their own diverse ideas, experiences, and attitudes, and that are
> certainly underrepresented on many faculties.  See generally
> http://www.law.ucla.edu/faculty/volokh/diversit.htm (43 UCLA L. Rev.
> 2059).
>
>         How many U Del faculty members are Christians who regularly go
> to church?  Are they underrepresented compared to their fraction of
> the public at large (probably about 35-40% of the people in the normal
> faculty age groups)?  Are you concerned that they might claim this
> underrepresentation means intentional discrimination or at least
> illegal disparate impact?  Don't you want exposure to their "diverse
> points of view and diverse life experiences"?  What affirmative steps
> is the university taking to make sure that they are included?
>
>         Needless to say, I'm not encouraging religious preferences,
> whether in the name of diversity or not.  I think this example shows
> that even the noble end of diversity of experiences, outlooks, and
> ideas doesn't justify the means of discrimination.  But if I'm wrong,
> and the intellectual diversity rationale is compelling enough to trump
> the Equal Protection Clause, then it seems hard to see why the same
> wouldn't apply with regard to religious preferences as well as race
> preferences.  (And, of course, the presence of race preferences
> without the presence of religious preferences would potentially make
> the policy unconstitutionally underinclusive with respect to the
> interest in intellectual diversity.)
>
>         Eugene
>
>      -----Original Message-----
>      From:   Leslie Goldstein [SMTP:lesl at UDEL.EDU]
>      Sent:   Thursday, March 08, 2001 5:25 AM
>      To:     CONLAWPROF at listserv.ucla.edu
>      Subject:        Re: Affirmative action redux
>
>      I might buy it if we were talking about a hisotirically black
>      school state college that was 90% black and the white admits were
>      slightly below mean or median but not out of line from plenty of
>      blacks admitted.  The arg would be that exposure to diverse point
>      sof view and people form diverse life experiences is educational
>      for the res t o f the student body.  In other words , I find your
>      point of view as to what "merits" college admission unjustifiably
>      narrow.  On hiring I might favor the white preference if it were
>      in a majority-black country (say sub-saharan Africa) with a
>      lenghty tradition of favoring blacks by ethnicity in govt. jobs.
>      In other words, it all depends.
>      Leslie
>
>      "Volokh, Eugene" wrote:
>
>
>                   OK, let's say that someone was defending his
>           practice of giving a preference to whites in hiring.  "I'm
>           disturbed by the assumption," he says, "that my employees
>           are appointed EITHER on the white preference system OR on
>           merit.  Remember, most of the time there is no 'best person
>           for the job'; there are several well qualified candidates,
>           any one of whom would probably do fine.  The other tests of
>           qualifications are notoriously unreliable (ask anyone who's
>           hired people whether they can confidently predict who can
>           work out and who can't); so when I let in someone with
>           marginally lower paper credentials because he's white, I'm
>           not really compromising 'merit standards', so long as he's
>           absolutely 'well qualified.'"
>
>                   I think that most people wouldn't buy this.  They'd
>           say:
>
>                   (1)  The other tests of qualifications, even if they
>           are imperfect, are fairly decent predictors, or else you
>           wouldn't be using them for anyone.
>
>                   (2)  Thus, when you depart from these tests in
>           considering the applicant's race, you are indeed hiring
>           someone who is less qualified -- even if only slightly less
>           qualified -- because of the person's race.
>
>                   (3)  You might be able to defend this decision to
>           prefer people based on race even though they are somewhat
>           less qualified, but you have to defend it on the merits, not
>           by denying that you are indeed departing from merit
>           principles and hiring the less qualified over the more
>           qualified.
>
>                   (4)  And if you think the other tests are flawed,
>           you can fix them, but you can't keep using these flawed
>           tests and at the same time use them as an excuse for race
>           discrimination.
>
>                   I'd say the same here.
>
>                   Eugene
>
>           Judy Baer writes:
>
>           I'm disturbed by an assumption I find (perhaps wrongly)
>           lurking in these
>           last posts: that one is appointed EITHER on affirmative
>           action OR on merit.
>           Remember, personnel experts tell us that of the time there
>           is no "best
>           person for the job;" there are several well qualified
>           candidates, any one of
>           whom would probably do fine (as well as a pool of minimally
>           qualified
>           candidates, and some who are unqualified.) Remember, also,
>           that to make aff.
>           action and merit mutually exclusive is part of the reason we
>           have this
>           problem.
>
>           Judy Baer
>           Texas A&M
>
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