Even before the recent, widespread student protests over campus climate issues, many colleges and universities were working to make their faculties more diverse. But can a department specifically reserve a position for an underrepresented minority candidate? That’s what some are asking after a job ad for an assistant professorship reserved for nonwhite, non-Asian Ph.D.s was abruptly deleted from a jobs site on Tuesday.
The post (inactive but still cached here) on HigherEdJobs mostly resembled a typical ad, encouraging applicants “with a Ph.D. in physics or a related area, a strong research record and a passion for teaching” to apply. It also included a standard equal employment opportunity statement saying the University of Louisville is “an affirmative action, equal opportunity, Americans with disabilities employer, committed to community engagement and diversity, and in that spirit, seeks applications from a broad variety of candidates.”
But just under that statement, the ad continued, “The Department of Physics and Astronomy announces a tenure-track assistant professor position that will be filled by an African-American, Hispanic American or a Native American Indian [sic].”
The ad, posted in mid-October, was taken down after the department received a complaint that the preferences didn’t include applicants with disabilities, said C.S. Jayanthi, chair of physics and astronomy. She said she forwarded the complaint to administrators, and the ad was promptly removed.
In the interim, others have questioned the broader legal issues raised by a job ad limiting a faculty search to members of select racial and ethnic groups.
“I’ve never seen that before and it strikes me as inappropriate,” said Benjamin Reese Jr., vice president and chief diversity officer at Duke University and president of the National Association of Diversity Officers in Higher Education.
Marshall Rose, president of the American Association for Access, Equity and Diversity, who recently retired as director of the Office of Equity and Diversity at Bowling Green State University, agreed, saying the ad likely violated federal and state laws governing equal opportunity. Those include Titles VI and VII of the Civil Rights Act of 1964. The former prohibits “exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color or national origin,” and the latter prohibits employers from discriminating against employees on such grounds.
“These are the terms and conditions of employment, from how you get into an organization to what happens to you in between, when you’re there and how you leave,” he said.
Rose expressed surprise that such an ad had ever survived the university’s vetting process, as did Jayanthi, the department chair. She said she knows physics and that there’s a mandate for more underrepresented minority faculty members in the natural sciences, and the ad was drafted thus -- not based on any nuanced understanding of federal employment law.
Cindy Hess, a university spokeswoman, said via email that the human resources department was notified of “the error” and the ad was removed immediately.
“The position will be reposted and [human resources] will contact all applicants and encourage them to reapply,” she said.
Hess said the university “strives to attract candidates representing the labor market availability percentage for women and minorities in those job groups where underutilization has been identified. We are committed to exercising all good faith efforts to recruit women or minorities in job groups at rates which are at least equivalent to their availability in the labor market.”
She also provided the university’s diversity vision statement, which says, in part, “We commit ourselves to building an exemplary educational community that offers a nurturing and challenging intellectual climate, a respect for the spectrum of human diversity.”
Jayanthi said she wondered how the department was supposed to attract minority candidates without explicitly saying so in the job ad. “Everybody’s in an unusual situation, nobody knows how to handle this,” she said. “How we do increase our diversity is not clear at all.”
Reese, of Duke, said there are better, more inclusive methods -- primarily opening up the candidate pool to include more underrepresented minorities. That way, he said, there’s no racial preference in the hiring decisions, but the odds increase that the strongest candidate will be someone who makes the department more diverse. Colleges and universities broaden their applicant pools by various means, he added, such as tracking the careers of Ph.D. graduates and networking at disciplinary conferences. Others have more formal diversity plans in place, including those that seek to put more minority students in the Ph.D. pipeline and effectively mentor them so that they choose to stay in higher education.
Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston Law Center and director of its Institute for Higher Education Law and Governance and former general counsel for the American Association of University Professors, said the legality of racial restrictions in job ads isn’t necessarily clear-cut. That’s because there’s some legal precedent to support institutions’ right to choose candidates considering in part characteristics such as religion, he said (although the 1984 federal case he cited, Pime vs. Loyola University in Chicago, involved a private, religiously affiliated institution, whereas Louisville is public).
The Law of Higher Education, by Barbara A. Lee, senior vice president for academic affairs at Rutgers University at New Brunswick, and William A. Kaplin, a distinguished professorial lecturer and senior fellow at Stetson University's Center for Excellence in Higher Education Law and Policy, is a widely cited resource among administrators and faculty alike. The current edition says that based on legal precedent, any affirmative action plan, especially at a public university, "would need to use goals rather than quotas, and would need to ensure that the protected characteristic [such as race or gender] was not the sole criterion, but one of a constellation of relevant factors, in the hiring decision."
Olivas also said that where race may be considered in faculty hiring decisions, it may not be the sole criterion. But he said the better question than whether Louisville's approach was legal was whether it was effective. And the answer? Not at all, he said.
“The biggest problem with this is the misdirection it has occasioned, suggesting the only way to diversify is through a likely unsuccessful and singular way that is not nuanced,” he said. Among the potential problems with such an approach, he added, is that any candidate hired based on a racial preference could face scrutiny from his or her new colleagues.
"Anytime someone gets a job, someone else doesn't get the job," Olivas said.
Olivas said that the ad reminded him of Louisville President James Ramsey’s recent Halloween costume stereotyping Mexicans, in that both events were two sides of the same racially tone-deaf coin. (Ramsey and his staff later apologized for wearing sombreros, large mustaches and ponchos and sharing a photo.)
“Someone’s asleep at the switch here,” Olivas said.