I have a piece in today’s Clarion Call that discusses the applicability of Ricci v. DeStefano (the New Haven firefighters decision) to faculty hiring and promotion. I include a pitch to university counsel, arguing that, in addition to Ricci’s applicability to common university practices that seem closely analogous to what the Supreme Court rejected — for example, throwing out a search committee’s pool of finalists because it is insufficiently “diverse” — it also behooves schools to acknowledge the decision’s broader teaching, namely that a majority of the Court takes a dim view of politically correct discrimination in order to get one’s numbers right. I conclude:
My reason for posting this argument here is to encourage the lawyers and others reading this to think about how Ricci might be used to narrow the use of employment preferences based on race, ethnicity, and sex more broadly — and, specifically, how it might be used to ensure that the Weber and Johnson decisions are interpreted as very limited exceptions to Title VII’s seemingly categorical ban on such discrimination.
But, it may be objected, isn’t there tension between the broader antidiscrimination principle in Ricci and the Supreme Court’s holdings in the Weber (1979) and Johnson (1987) cases? In those cases, it’s true that the Court allowed preferences based on race, ethnicity, and sex under Title VII, but only where the employer could point to a “manifest imbalance” in a “traditionally segregated job category” and where preferences would not “unnecessarily trammel” the interests of nonpreferred employees. In 2009, there will never be a situation where the “necessary” way to fight discrimination is through more discrimination, rather than simply stopping discrimination — to paraphrase Chief Justice Roberts’s pronouncement in the 2007 Seattle and Louisville schools opinion.
In all events, the legal standards in Weber and Johnson should be interpreted to conform to the one articulated in Ricci. That is, any employer that wants to use otherwise forbidden preferences in hiring and promotion must have, per Ricci, “a strong basis in evidence” that it would be liable under Title VII unless it used them. That evidence would typically include statistical disparities (“manifest imbalance”) and recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice O’Connor supported in her concurrence in Johnson.
Look at it this way: If an employer cannot legally engage in disparate treatment unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to engage in disparate treatment when it is not motivated by fear of a Title VII lawsuit at all?