You are here

Law Professors: I'm Shocked to Find Gambling In This Casino!

Just as a character in Casablanca claimed to be shocked to find gambling in a casino, race-conscious employers typically deny that they considered race in hiring.  It's legally risky to admit discriminating.  It can also devalue the credentials of the beneficiary of the discrimination.  Admitting you hired a colleague based on her race would also be viewed as rude, insulting, and stigmatizing.  But for some reason, commentators are taking at face value claims by a couple members of law school hiring committees that law professor Elizabeth Warren's purported Native American ancestry played no role in their decision to hire her.

(After denying that she ever claimed to be Native American in professional circles, Warren has now admitted doing so, supposedly just to "make friends."  She admits that her only basis for claiming to be Native American is a great-great-great grandmother, which would make her 1/32 Native American.  That is ridiculous.  I have reviewed thousands of college applications and admissions decisions, and never saw a candidate get a plus in admissions based on being less than 1/16 Native American, especially one with Warren's lack of cultural ties to any tribe.  Moreover, the press routinely characterizes people with far more non-white ancestry than Warren’s as white.  Warren did not “tell the truth,” says the University of Virginia's Larry Sabato  “It’s pretty obvious she was using (the minority listing) for career advancement.”  Cornell's William Jacobson says that Warren's claims just "don't add up," in multiple ways.)

While a few members of these hiring committees -- perhaps those most willing to talk to the press -- may not have taken her purported race into account, most probably did, given the pervasive presence of affirmative action in law school hiring (as I noted earlier, one law school had large preferences for Native American applicants), and the demand by law school accreditors that law schools engage in affirmative action.  But if they are smart, hiring committee members won't publicly admit it, because of the legally unsettled nature of how much you can use race in hiring to promote "diversity."  Unlike using race in admissions (which the Supreme Court has blessed, to a certain extent, in its University of Michigan decisions, which upheld a law school's affirmative action policy, but struck down the undergraduate affirmative action policy at the very same university for using race too heavily), using race in hiring to promote diversity is still a legal gray area.  Civil-rights agencies favor using race, and the American Bar Association effectively demands it in some cases, but two federal appeals courts have rejected it.

If school officials publicly admit they used race in hiring, that could trigger a reverse discrimination lawsuit by whites.  The Board of Education of Piscataway Township used race as a tie-breaker in layoffs, resulting in the layoff of a white teacher, and was found guilty of racial discrimination, by a federal appeals court even though it cited diversity as its reason, and even though it used race only as a tie-breaker, to avoid flipping a coin.  You can find that decision, Taxman v. Board of Education of Piscataway Township, 91 F.3d 1547 (3d Cir. 1996), at this link.

For people involved in law school hiring to admit that Elizabeth Warren’s race was a factor in her hiring could expose them to liability for reverse discrimination (and personal liability, under 42 U.S.C. 1981, which allows not just institutions, but individual college decisionmakers to be held liable for damages, and which the Center for Individual Rights has in fact used to sue individual school officials for reverse discrimination).  Such an admission would be legally risky.  (Paul Bedard of the Washington Examiner has argued that Warren’s race was likely a factor in her hiring at Harvard, since no one with her humble, non-prestigious alma mater in fact ended up at a place like Harvard.  Harvard Law School was under heavy pressure to hire women and minorities at the time that Warren was hired, as I described at length earlier.  As the University of Wisconsin's Ann Althouse observes, “Harvard was under a lot of pressure at that time to do something about the lack of racial diversity on the faculty, and I'm skeptical of the claim that Warren's minority status never came up during the hiring process.”).

The safest path for many college officials is to consider race in hiring somewhat, but not admit it.  Using race appeases liberal civil-rights bureaucrats and law-school accreditors, but not admitting it effectively prevents lawsuits by conservative non-profit law firms like the Center for Individual Rights (CIR), which lack the resources to sue over anything but the most blatant and obvious cases of reverse discrimination.  Although there are many civil-rights agencies and liberal interest groups that favor affirmative action, there are only a small number of entities like CIR and the Pacific Legal Foundation that sue over affirmative action.