The Center for Equal Opportunity and the National Association of Scholars are concerned that it has become increasingly common for colleges and universities to include in their advertisements for faculty positions a stated preference for applicants on the basis of race, ethnicity, and sex. We have enclosed some recent examples, although we could have included many more.
As you know, Title VII of the 1964 Civil Rights Act prohibits the consideration of race, ethnicity, or sex in hiring and promotion decisions, and explicitly makes it illegal “to print or cause to be printed or published any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination” based on race, ethnicity, or sex (42 U.S.C. sec. 2000e-3(b)). Specifying particular groups from whom applications are sought, and not listing others, would seem clearly to violate this provision. Suppose, for instance, the shoe were on the other foot, and an ad specified that “White males are encouraged to apply,” let alone “especially” encouraged to apply? We think that the Commission would, quite rightly, take a dim view of this.
To be sure, the Supreme Court has of course upheld the use of limited preferences based on race, ethnicity, and sex–see United Steelworkers v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987)–but only when there is a “manifest imbalance” in a “traditionally segregated job category.” It would seem to us very unlikely that most institutions of higher education in 2006 would be able to meet this standard, especially the necessary showing that they have a history in recent times of having “traditionally segregated” a job position.
Do you agree with this analysis? If so, and given the widespread practice of violating 42 U.S.C. sec. 2000e-3(b), we would request that the Commission communicate in some way to universities and colleges that they should be more careful in their wording of employment advertisements.