Saturday, September 18, 2004

Desperately Seeking Only Women and Minorities

The American Association of Law Schools (AALS), helps law schools connect with people who want to become law professors. Toward that end, the AALS runs the Faculty Appointments Register (FAR), a database to which each job candidate can submit a one-page, standardized form describing where he or she went to school, worked, and so forth. The FAR form asks candidates to identify their sex and ethnicity.

The AALS allows law schools to search the FAR forms online through an interface that allows you to, for instance, pull up only candidates who have gone to particular schools, passed certain bar exams, held judicial clerkships, and so forth. The AALS interface also allows schools to sort candidates by sex or ethnicity. Interestingly, though, that interface allows only certain sorts of searches. Under the heading of sex (“Gender” in AALS-speak), the only options are “No Preference,” or “Female.” Under the “Race/Ethnicity” heading, the only options are “No Preference,” or “Minority.” You thus cannot search for male or non-minority candidates.

Why does the AALS offer such curiously circumscribed searches? I am not sure, and right now I do not intend to speculate. For now, I am content to wonder whether it can possibly be legal to discriminate between job candidates by making it harder to find males and non-minorities. Or, to put it in complementary terms, I wonder whether it can possibly be legal to encourage the preferential treatment of women and minorities.

Perhaps I am silly to even raise the question. Surely an association of law schools would not misunderstand their obligations under federal and state laws forbidding discrimination on the basis of sex, race, ethnicity, or national origin! Why, the AALS’s own Bylaws say, at section 6.3.a, “A member school shall provide equality of opportunity in legal education for all persons, including faculty and employees with respect to hiring . . .without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, disability, or sexual orientation.”

Could an organization such as the AALS itself be violating laws that forbid sexual or racial discrimination in hiring? Call me a legal simpleton, but the question really does throw me for a loop. I guess that we won’t really know for sure unless somebody brings a lawsuit, one that might helpfully resolve this seeming legal paradox.


KipEsquire said...


My initial thoughts are: (1) The AALS is not a state actor, so equal protection doesn't apply automatically. (2) Since AALS is not the employer, but only a referral service in this context, the practice also would not implicate the Civil Rights Act of 1964 and its progeny.!

Anonymous said...

AALS may not be a state actor (emphasis on "may," given the Supreme Court's decision in Brentwood Academy holding an intercollegiate athletic association to be a state actor), but a good number of the schools that use its FAR services are. If they utilize a function that the AALS makes available on its front page (the other search options are buried deeper in the program), they ARE violating the Equal Protection clause, as there is no way to sustain the argument that a race filter is simply using race as a plus factor permitted (for now) by the Supreme Court under the Grutter decision. Indeed, the race filter is even more problematic that the point system found unconstitutional in Gratz.

Private schools who utilize the illegal search function will also find themselves on the wrong side of the law. Title VII prohibits this kind of discrimination in employment, and Title VI subjects these schools to loss of federal funds for engaging in unlawful discrimination.

But neither is the AALS itself off the hook (which ought to know better). Because it seeks to procure employment for potential law professors, it may well be an "employment agency" and therefore also subject to Title VII. Moreover, because it has facilitated, even encouraged, discrimination by state actors, a claim could be brought under 42 U.S.C. sec. 1981, the old Ku Klux Klan act, for conspiracy to deprive individuals of their civil rights.

Someone needs to tell Justice O'Connor that her holding in Grutter has not put racial classifications on the path to extinction, but has taken the lid off any pretense that race is only being used as a plus factor.

Anonymous said...

Suppose I want to hire a female or minority law professor (I know I'm in the minority for wanting that!), then how do I go about it without stepping on any(white)bodies toes? I want to diversify my faculty for a variety of reasons. Help me, please. Is this an affirmative action issue or a diversity issue or both? I wanna be fair too but fairness (no discrimination) is not absolute. Discrimination has a lenghty historical component to it too such as slavery and Jim Crow and everpresent subtler but no less invidious forms of racism.


Tom W. Bell said...

Good question, Trumpit. I think I'll post something on the main page in reply.