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Firefighters and Professors

June 30, 2009

WASHINGTON -- Some critics of affirmative action believe that Monday's ruling by the U.S. Supreme Court on race and hiring could be used to question practices used in faculty and administrative hiring in higher education. Lawyers in higher education, however, tend to reject that view.

The U.S. Supreme Court ruled, 5 to 4, that white and Latino firefighters in New Haven were illegally denied promotions when the city threw out the results of a promotion test that would not have resulted in the promotions of any black firefighters. New Haven officials maintained that they rejected the test because it had a "disparate impact" on black firefighters, and feared being sued if no black firefighters were promoted.

Under federal law, measures that result in "disparate impact" -- a statistical pattern in which some groups are less likely to be employed than others -- aren't necessarily illegal. And the Supreme Court found that this test was sufficiently related to job duties and business practices that it was valid. (The dissent argued otherwise.) Further, the majority opinion said that the fear of being sued by black firefighters did not justify rejecting the test results.

In numerous ways, the hiring of New Haven firefighters does not resemble most hiring of faculty members and administrators, which is not based on test scores. Generally, the higher education legal world -- which has been watching the case closely, but not taking an active role in it -- has viewed those differences as significant enough that there should not be immediate ramifications. Critics of colleges' affirmative action policies in hiring, however, see principles at play in the New Haven case that they believe should apply to higher education. (One key note: The decision has no apparent impact on the 2003 decisions by the Supreme Court that upheld the use of race and ethnicity, in certain situations, in public colleges' admissions decisions. Generally, the Supreme Court treats admissions decisions and hiring decisions as separate matters.)

Roger Clegg, president of the Center for Equal Opportunity, a group that has criticized affirmative action programs in higher education, said he was pleased by the Supreme Court's ruling and expected it to have an impact on colleges' hiring of faculty and others. Among the practices he cited as vulnerable (not used by all colleges): letting departments make hires when there isn't a regular slot available if a good minority candidate has been identified, or rejecting finalist pools because they lack candidates from certain racial or ethnic groups.

Clegg said that the legal problems facing such policies becomes evident when groups are substituted. "Imagine a dean saying to a department that if you are going to hire a minority person you can't have a slot early, but if you find a white person you can. Or a dean saying to a department that you don't have any whites in the pool so we'll throw the pool out," Clegg said.

While these situations aren't identical to New Haven, Clegg said that the Supreme Court's majority opinion is based on a principle of racial equality in hiring. "If a college treats [job] applicants differently based on race, they are now on very thin legal ice," he said.

But Ada Meloy, general counsel for the American Council on Education, said that while colleges should study the decision, she didn't except to see much of an impact. "I don't think there are strategies that are widely used in higher education that are threatened by this decision. Efforts to increase diversity, particularly of faculty, will continue," she said.

Asked about some of the examples Clegg cited, she noted differences between those situations and the one in New Haven. In the firefighters case (and any hiring based on highest scores on an exam), there is a clear ranking of candidates and a decision to throw out a test or alter a test creates situations in which specific individuals are harmed because they do not get the job they would have with their test score.

The firefighters who lost positions "had a much greater assurance of being promoted" than would a group of finalists for an academic job, where searches regularly are expanded or refocused based on a range of criteria. There would be no way for any finalist to assume he or she would be hired but for a desire to broaden a pool, she said. "I don't think the desire to have a diverse pool of candidates is threatened by this decision," she said.

 

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