At Prawfsblawg, Howard Wasserman today poses a question: Would it violate the Fourteenth Amendment, or Title VII of the 1964 Civil Rights Act, if universities collectively adopted a policy of interviewing at least one minority candidate for each available football head-coaching job? The proposal is analogized to the NFL’s Rooney rule, and I’ve written about black-coach shortage in the NFL context here.
The answer is yes, such a policy would violate the law. The Supreme Court has ruled that all uses of racial classifications trigger “strict scrutiny” and are “presumptively” illegal, and Title VII expressly prohibits racial discrimination, not only in actual hiring but also in the classification and treatment of applicants. If, absent the proposed rule, a minority candidate would not have been interviewed, then the rule provides preferential treatment to that candidate when he is brought in, to the detriment of his nonminority competitors — not only vis-à-vis the others chosen for an interview who now face another rival, but for the nonminorities who were ineligible even to be considered for the additional slot.
So, can the discrimination be justified? That seems very unlikely. The post says it is a “problem” that only 4 percent of the coaches are black when 46 percent of the players are, but why is that? The Supreme Court flatly rejected the role-model rationale over 20 years ago, in Wygant v. Jackson Board of Education (1986). Justice Powell wrote in Wygant, “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.” And the fuzzy diversity rationale from the Court’s University of Michigan cases isn’t applicable here: No one is suggesting that there are “educational benefits” to exposing football players to different coaches, since (a) each player will probably have only one head coach per career, and (b) skin color is a very poor proxy for any educational benefits the coach provides.
In Hazelwood School District v. United States (1977), the Court similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. That makes sense, and for a variety of nondiscriminatory reasons, the racial makeup of the pool of qualified coaches will likely be different from that of qualified players (and both are likely different from the racial makeup of the general population). For starters: If college coaches are generally required to have college degrees (a not-unreasonable assumption), and if several years’ coaching experience is also required, we’re talking about degrees earned at least ten years ago — that pool is going to be a lot whiter and a lot less black than the pool of current college players.
The remaining possible justification for the proposed rule (and the only one recognized by courts for Title VII) would be that it’s needed to remedy or prevent antiminority discrimination. But, as both a legal and commonsense matter, this argument works only if there is reason to suppose that a specific school or schools are engaging in discrimination: Why require schools that are not discriminating to begin considering race? I doubt that such discrimination happens very often, since what most schools want is to win, period. Everyone knows that black coaches can win (two words: Tony Dungy; two more words: Lovie Smith).
I’m prepared to believe that in some schools there may be some rich boosters or university officials who are irrationally opposed to hiring black coaches, but the narrowly-tailored (Fourteenth Amendment) or less trammeling (Title VII) solution to that is to cut out the racist boosters or fire the racist officials — not to impose an interview quota for the school, let alone for all the other schools, including those with no history of discrimination.
The last question posed is whether the dearth of black coaches opens the schools (individually or in the aggregate, through the NCAA) to a lawsuit if it is not addressed. Well, it would if there were actual discrimination, but as discussed above that seems unlikely. What if neutral hiring practices have a “disparate impact” (the example given: if a head-coaching position goes automatically to an assistant coach, who’s likely to be white) to use Title VII parlance? For starters, I’m not sure there is a disparate impact if, as discussed above, the applicant pool is defined correctly. But even if there is, the employer still has an opportunity to justify the challenged practice, and I think that the practice of preferring to promote from within would meet Title VII’s standards. College football is not alone in this policy, and it has obvious practical and morale advantages.