Phi Beta Cons

Liberal Professors and Unlawful Discrimination

Jere Surber’s “explanation” for liberal bias in the academy has touched off quite a bit of commentary, both here and elsewhere, yet not much of it has examined the issue from a legal perspective. How much of the bias is the result of systematic and unlawful discrimination? And (more important) how do we identify discrimination in the absence of overt bans on conservative applicants?

I spent much of the early part of my career working for large law firms. My focus was in commercial litigation, but I spent many long hours assisting in employment litigation as well — often defending companies from allegations of race and gender bias. In the modern era, race and gender discrimination claims don’t typically hinge on “smoking guns,” where a supervisor or employer makes explicitly race- or gender-discriminatory decisions. While you do find cases where someone might say, “I don’t want any more [fill in the ethnic category] working here,” it is far more typical to see the following in meritorious discrimination cases:

1. A failure to hire or promote without explanation in spite of demonstrably similar or superior credentials or qualifications;

2. When explanations are provided, justifying the failure to hire or promote seemingly equivalent or superior candidates through the use of unquantifiable and highly subjective criteria: “John wasn’t perceived as a team player; while Bill exhibits strong leadership skills and the ability to rally the crew around him.”

3. Extreme scrutiny of the applicant’s record in isolation from other applicants’ qualifications; including sometimes comprehensive critiques that — discovery reveals — favored applicants did not receive.

4. Discipline based on perceived failures that is unevenly applied (i.e. We didn’t fire Jane because she’s black. We fired her because she was frequently late for work. But then scrutiny of attendance records reveals that Jane’s peers were late more often than Jane).

But here’s what makes a faculty case more difficult than, say, cases involving discrimination in hiring auto workers: Universities are quite successful at persuading courts (and often the media) that what they do is just so darn complex and specialized that outsiders can’t begin to understand or evaluate their hiring processes.

This leaves us with such abject absurdities as universities claiming the highest possible academic rigor, then rallying around notorious professors who record rap albums rather than produce serious scholarly works, department chairs who barely possess the credentials to teach junior high, and “scholars” who don’t publish but continue to rise through the academy through the strength of their radical (and often grotesquely irresponsible) activism. (Yes, I’m talking to you, “Group of 88.”)

It’s only when the academy stops employing (and even promoting) the likes of the Group of 88 that I’ll listen to Jere Surber’s argument that liberals are the ones who study “large-scale historical processes and complex cultural dynamics.” And what kind of “complex cultural dynamics” is he talking about? Perhaps Mark Anthony Neal’s recent lecture: “Looking for Leroy: HomoThugs, ThugNiggaIntellectuals and ‘Queer’ Black Masculinities.”

Yep, that’s some complex stuff.

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