The discussion to date about Fisher v. University of Texas, the landmark case presently awaiting disposition by the U.S. Supreme Court, has focused on the use of race and ethnicity as a basis for admitting students to the nation’s colleges and universities. That’s understandable. After all, the plaintiff is a white student who was denied admission to the University of Texas because, she alleges, she isn’t black.
What is perhaps more important, however, is the impact that the Fisher decision will have on faculty hiring in higher education. Although the Supreme Court held in 1986's Wygant v. Jackson that it violates the Constitution’s equal protection clause to prefer minority faculty over non-minority faculty in order to ensure faculty role models for minority students, academic institutions nevertheless strongly prefer minority candidates in their faculty hiring processes. Indeed, race is used much more aggressively in faculty hiring than it is in student admissions, in large part because there are far fewer faculty positions available than there are admissions slots. Several conspicuous examples come quickly to mind. They all involve law schools because, as a law professor myself, law faculty hiring practices are what I know the most about.
First, a friend of mine who teaches at a different law school copied me on the following email that he recently sent to a prominent civil rights lawyer: “Our university has offered the Law School money for an extra faculty slot, but only if the appointee is black. I know we’re not alone in this, but it seems even more obviously illegal than arrangements that give preferences to minorities.”
Second, the dean of a large public law school uses her law school’s faculty hiring process to advance her vision of “social justice,” a vision that her own faculty has criticized because it has led to the virtual disqualification of every white male faculty candidate since that dean’s tenure began.
Third, the dean of a small private law school (not the one at which I teach) informed me that he had “promised” the American Bar Association that he would hire only minority faculty for the next several years. Both the ABA and the Association of American Law Schools strongly encourage law schools to hire minority faculty.
Fourth, and related to the third example, a different law school was criticized by both the ABA and the AALS for not hiring enough minority faculty, even though that law school had (a) invited every minority faculty candidate listed in the AALS faculty recruitment registry to interview with the law school at the hiring conference in Washington, D.C., (b) asked every minority faculty candidate who interviewed with the law school in D.C. to fly back to campus, all expenses paid, to interview further, and (c) offered a job to every minority faculty candidate who accepted the invitation to visit the campus. In short, there was nothing else the law school could do to try to recruit minority faculty candidates—and what it did was illegal—but that still wasn’t good enough for the accrediting bodies.
There are, I’m sure, colleges and universities that don’t insist on using race and ethnicity in such a heavy-handed fashion, although I’m not aware of any. Put directly, it is difficult to imagine a worse example to set for students, especially law students, than that involving faculty hiring practices in higher education. The Court has assumed ever since the Bakke decision in 1978 that colleges and universities are administering their affirmative action programs in good faith. It’s time for the Court to acknowledge in the Fisher case that assumption is incorrect.
To make the point another way, decisions about which students to admit and which faculty to hire are too important for the Court to do anything but forbid altogether the use of race and ethnicity as considerations. As my father, a retired college professor, wisely put it after reading the email I quoted above, “The reason great schools have great programs is because they have faculty who have a deep knowledge of their area and also add knowledge in their area. To hire faculty on any other basis is leading to the destruction of their own reputation and the quality of the product.”
As almost everyone seems to know, higher education in America is in crisis. Perhaps the Fisher decision will be the first step in saving us from ourselves.
"Nevin Montgomery" is the pseudonym of a professor at an American law school.