Yesterday’s Supreme Court decision in Ricci v. DeStefano (the New Haven firefighters case) has people wondering if it might affect employment practices in higher education. This story from Inside Higher Ed features some jousting between Roger Clegg (well known to PBC readers) and Ada Meloy, general counsel for the American Council on Education.

Clegg maintains that the ruling could and should have an impact, particularly where decision-makers advertise a faculty opening but then decide to hire no one when the pool of applicants turns out not to have anyone with the right “diversity” characteristics. Meloy counters such “diversity” efforts by colleges and universities are different because the firefighters against whom New Haven discriminated on the grounds that it desired more diversity “had a much greater assurance of being promoted” than would a group of finalists for a professorship.

True, but why should that be the touchstone? Why should it be impermissible for a governmental entity to say that a group of employees who had earned promotion will be denied that promotion because none is a “minority” and yet permissible for a public college to say that no candidate from an objectively qualified group will be hired because the school really wanted a “minority” candidate? In both instances, individuals are ruled out of certain job openings because the institution doing the hiring had a preference for a person or persons with different racial characteristics. What’s the difference?