The pitfalls and the pendulum – recruiting for affirmative action programs and the law

People often ask me to predict how current events are shaping the
future of affirmative action. The wonder aloud about the legality of
initiatives to recruit, action, and promote Black faculty and
administrators. My response may vary somewhat, depending on the purpose
of the question and the questioner. But, invariably, I make one point
emphatically: The pendulum tends to swing back and forth in response to
the political climate of the country, but the backward arcs have never
been dramatic — especially in comparison with the wider swings forward.

As a lawyer, an equal opportunity/affirmative action administrator,
and as a seasoned civil rights activist, I have paid close attention to
the difference between rhetoric and results. We’ve endured a great deal
of rhetoric, but little has actually changed in the law for the country
as a whole.

Still, questions persist about the future of affirmative action.
More often than not, they are based on Proposition 209 and the Hopwood
decision. The continued references compel explanations, and we must be
willing to give them — over and over again.

Proposition 209 applies only to California’s public institutions
and programs, and carves out an exception — as it must — to permit
public entities to engage in affirmative action programs mandated by
federal law.

The Hopwood decision, involving the University of Texas Law School
admissions program, applies only no public educational institutions in
the Fifth Circuit — Texas, Louisiana, and Mississippi. The U.S.
Supreme Court’s decision in the Bakke case, which permits the use of
race as a factor in admissions decisions, is still good law in every
other jurisdiction according to reputable legal scholars. The program
outlawed by Hopwood involved the use of a dual admissions policy based
on race that was suspect. Its demise was predictable. Race can never be
the sole factor or the determining factor in admissions — or
employment — decisions.

So what can we do now to recruit, retain, and promote Black faculty
and administrators without worrying about whether or not it is lawful?

Private schools using private funds may, generally, continue to
implement their affirmative action programs — whether based on
mandatory compliance with Executive Order 11246 (which pertains to
federal contractors) or on voluntary compliance permitted by Title VII.
The anti-affirmative action rulings on racial classifications that have
not withstood the court’s strict scrutiny test, which requires a
compelling governmental interest to justify the classification, apply
to public institutions.

All institutions of higher education, whether public or private may implement affirmative action programs the are:

* mandated by Executive Order 11246;

* imposed under a court ordered consent decree as a remedy for discrimination;

* or required by a conciliation agreement entered into with a civil
rights enforcement agency following a finding of discrimination.

Recruiting efforts that are designed to attract minority applicants
for vacant positions are legal as long as anyone — regardless or race,
gender, etc — is allowed to apply for the job. Setting aside funds for
special recruitment efforts and targeting certain positions for
minority outreach efforts — such as those in areas of
under-utilization or under-representation — are also lawful. Setting
aside positions for candidates of a particular race is suspect, unless
imposed as a remedy for discrimination.

Retention and promotion decisions that rely on race as the sole or
determining factor also are suspect. The best arguments to support
retaining or promoting a minority employee over a non-minority include
justifications based on superior qualifications or performance, better
fit with institutional program needs, and/or greater seniority. When
any of these reasons are evident there is no reason to use race as a
factor and it should not be included.

Considerations that correlate with race — such as cultural
diversity, success in overcoming disadvantaged status, experience that
fills a void in the current teaching workforce in the field, and
establishment or expansiqon of curriculum — appear to be lawful
considerations in admissions and employment decisions.

Proponents of affirmative action must be vigilant in their
advocacy, creating opportunities, and taking advantages of those that
arise, to express their support.

We are very clearly in the midst of serious challenges to
affirmative action. Those of us who believe in its rightness must
regain the high ground in framing the debate, in defining the terms, in
interpreting what it is and what it is not, and in making a persuasive
case for what we think is just.

Now is, and always has been, the time to act. The pendulum swings
— back and forth, to and fro. Our task is to ensure that when its
momentum ceases, it is resting just where we want it, just where we put

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