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McRaven’s racial hiring policy for UT is likely illegal, experts say

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Chancellor Bill McRaven is enacting new discriminatory hiring policies while paying little heed to federal case law that requires him first to prove his predecessors were racist.

A hiring policy announced last week by Chancellor Bill McRaven of the University of Texas System is racially discriminatory and may well violate federal civil rights law, two experts told Watchdog.org.

The new policy would apply to hiring for deans and above at all 14 campuses in the system. “No senior position can be filled without allowing a qualified woman or minority candidate to be interviewed all the way to the last round of the process,” McRaven said.

This sort of policy is known as a “Rooney rule” after the National Football League team owner who first proposed the requirement for all head coach job openings.

“The Rooney rule is illegal, and I think that the McRaven application of it to UT is even more illegal, since it violates not only Title VII but also the Equal Protection Clause of the Constitution,” according to Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank dedicated to issues of race and ethnicity.

While the Supreme Court has interpreted Title VI of the Civil Rights Act of 1964 in a way that allows race for the sake of diversity to be used in university admissions, university hiring is covered by Title VII of the act.

“The federal courts have never recognized a ‘diversity’ exception to Title VII,” Clegg said.

During a Board of Regents meeting last week, McRaven pointed out in a slide show 32 percent of the System’s students and 62 percent of the faculty were white. While 39 percent of the students were Hispanic, just 11 percent of the faculty is Hispanic.

“This slide makes it very clear that we are not doing the job we ought to be doing in driving equal opportunity and fairness in our hiring and promotion processes,” McRaven said. “Making sure our faculty and staff reflect the changing look of Texas is not just about fairness. It’s also about effectiveness. We need faculty, administrators, and campus leaders who understand the people they’re serving, who come from the same kinds of places.”

McRaven’s statement undermines the policy’s legality, Clegg said.

In two cases, the Supreme Court has rejected the idea that schools can discriminate in hiring and firing so that the faculty better reflects the student body.

Former Gov. Ann Richards tried to do the same thing McRaven is doing now, directing state agencies in 1991 to “produce a workforce that reflects the ethnic and gender diversity of the state’s population.”

That got the Texas Education Agency sued. The federal Court of Appeals for the region ruled affirmative action in government hiring was unconstitutional unless there was some “past provable discrimination.”

“This is a dubious argument as a policy matter, but what is amazing is that the argument continues to be made even though the Supreme Court rejected it, as a legal matter, over 20 years ago,”Clegg said.

 

McRaven hasn’t proven that his predecessors were racist or sexist. As of Fall 2013, 45 percent of dean, provost and vice presidential positions were held by women, and 19 percent were held by minorities, according to Inside Higher Ed.

Ward Connerly, the president of the American Civil Rights Institute, said that McRaven might have a little more leeway in hiring administrators than in faculty. Connerly led five major state initiatives banning affirmative action and discrimination in state contracting.

The reason for treating faculty and administrators differently is that “we have a culture in our society that administrators are appointed at the whim of the chancellor or the president, and they’re not otherwise subject to the laws that apply,” Connerly said. “That’s why you have governors who are very proud to say they’ve made appointments that look like the state.”

“If they just put someone into the pool for an administrative position rather than the faculty, then that might not violate any law,” Connerly said. “That also depends on whether they have an unbiased and fair process for determining the ultimate selection, and that’s in the eye of the beholder.”

McRaven’s purpose, is make “sure our faculty and staff reflect the changing look of Texas,” could undermine the policy’s legality, he said.

“I’ve always felt that when you state that you’re going to build a pool that reflects the diversity of the state, you’re telegraphing your desire – if not your intent – to discriminate,” Connerly said.

McRaven’s policy announcement comes just as the University of Texas is due to return to the Supreme Court to argue that its affirmative action program for students is constitutional.

The case brought to the court’s attention that like McRaven, former President Bill Powers offered constitutionally impermissible justifications for affirmative action that conflicted with the university’s legal arguments to the court.

UT lawyers must go back and explain why the school misled the court in depicting a carefully calibrated admissions system using race as one factor, while Powers doled out admissions at his whim, for reasons that included race.

Powers’ office overruled initial denials by the admissions department in at least 764 cases, according to an official investigation whose findings were left out of a final report, but were obtained by Watchdog.org.

The importance of Watchdog’s discovery, which has been cited to the Supreme Court in this case, is that it shows the university was dishonest about how admission is actually practiced.

A practice shrouded in secrecy by an institution willing to lie to the court about how students are actually admitted raises doubts about the possibility of courts to have “strict scrutiny”of the process.

McRaven’s decision to challenge the Supreme Court’s guidance on hiring could prove to be one more reason for the court to doubt UT’s intentions.

UT’s admissions system is “a black box” in which the “use of race is arbitrary,” and arbitrary racial discrimination is unconstitutional, the Cato Institute concluded in a legal brief.

Connerly, for one, isn’t expecting a sweeping decision from the court.

“For decades, they’ve looked the other way and violated the Civil Rights Act of 1964” in trying to accommodate the incompatible aims of diversity and equality, he said.

Contact Jon Cassidy at [email protected] or @jpcassidy000.

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Jon Cassidy was a former Houston-based reporter for Watchdog.org.