Will Universities Stop Discriminating?

Of course not. The Supreme Court has held that race discrimination in university admissions violates the 14th Amendment and, where it applies, Title VI of the Civil Rights Act of 1964. It isn’t a leap to apply the same principle to faculty hiring and promotion. But that won’t bring an end to racist practices by universities, any more than Brown v. Board of Education automatically ended racist practices in the deep South.

Today’s universities are every bit as committed to race discrimination as were Lester Maddox, George Wallace and Ross Barnett. They see discriminating in favor of some ethnic groups and against others as their core mission–more central, from their perspective, than such mundane matters as teaching mathematics, history and the like.

Following Brown v. Board of Education, it took years of litigation and, more than anything else, a popular conviction that race discrimination was wrong to bring about integration. Today, the same will prove true. It will require lots of lawsuits to force universities to comply with the Constitution, but more fundamentally, we need to regain the commitment to equality that has been lost in academic circles.

Meanwhile, what is to be done? Texas lawyer and activist Louis Bonham takes up this question in the broader context of anti-DEI legislation. How, he asks, can we force universities to behave lawfully? After all, bans on race discrimination are nothing new:

For decades, it has been illegal for California institutions to give racial preference in admissions, hiring, or contracting. Despite this clear, politically popular law, have California state universities ended their use of racial preferences? Anyone familiar with the UC System will tell you they have not.

Instead, state employees violate the law and continue such practices. UC Berkeley’s law-school dean, Erwin Chemerinsky, typifies this prevailing attitude. In a recently surfaced video from earlier this year, this head of a public law school admits he and his school violate California law, via a process he calls “unstated affirmative action”:

What I mean by unstated affirmative action is: What if the college or university doesn’t tell anybody, doesn’t make any public statements? […] I’ll give you an example from our law school, but if ever I’m deposed I’m going to deny I said this to you. When we do faculty hiring, we’re quite conscious that diversity is important to us, and we say diversity is important, it’s fine to say that. But I’m very careful, when we have a Faculty Appointments Committee meeting, anytime somebody says, “You know, we should really prefer this candidate over this candidate because this person would add diversity,” I say, “Don’t say that. You can think it. You can vote it. But our discussions are not privileged, so don’t ever articulate that that’s what you’re doing.”

The idea is, apparently, that as long as university administrators don’t confess to race discrimination on the record, they are immune. Bonham cites several more instances of this scofflaw attitude. So, what can be done about it? Bonham proposes a number of state law measures that, as he says, will give teeth to state anti-DEI statutes, but are equally applicable to enforcing the 14th Amendment and Title VI. This is going to be brief, but you can follow the link for the details. The overarching point:

To be effective, any consequences must focus not on the institutions but on the individuals who are engaged in illegal behavior or have been charged with preventing or redressing it.

Some possibilities:

Mandatory suspension / termination of employment. ….

Individual liability. Make those who knowingly violate the law (either directly or by failing to stop it) or conspire to violate the law subject to individual liability for statutory damages, with no legal immunity and no reimbursement from their employer. …

Prohibitions on accreditor conduct.

Private rights of action. Who enforces the law? Absent meaningful penalties on the individuals who fail to do so, expecting universities to police their own in this area is delusional. That problem could be solved by enlisting members of the public to serve as private attorneys general….

Perjury prosecutions.

All of these measures are appropriate and should be brought to bear. I do think, however, that the ultimate solution, as in the deep South decades ago, lies in a clearly-expressed popular consensus that race discrimination packaged as “affirmative action” is immoral and unacceptable.

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