The Chronicle of Higher Education devotes an entire section of its issue this week to “Diversity in Academic Careers,” and doubtless I and others will be weighing in on various aspects of that section. Pamela J. Bernard, vice president and general counsel at Duke, discusses the “legal minefields” of affirmative action in faculty hiring, and much of what she advises is sound, as far as it goes. But there’s one major problem: She thinks that, because the Supreme Court carved a “diversity” exception out of the Constitution and Title VI of the 1964 Civil Rights Act for student admissions, that there is a similar exception for faculty hiring, which is covered by Title VII of the Act.
Not so: Title VI and Title VII are different statutes, and I’m aware of no federal court that has allowed a diversity exception to Title VII, and at least two courts of appeals that have rejected such a claim. Thus, employers cannot point to the touchy-feely benefits of diversity, but must instead demonstrate a “manifest imbalance” in a “traditionally segregated job category,” to quote the Supreme Court. And, as Bernard concedes, “establishing evidence of current or past discrimination and demonstrating that a particular program is tailored to respond to that discrimination, while possible, is difficult.”