Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring

Abstract

Can universities legally employ race- and sex-based preferences in faculty hiring? This Article explores the history, law, and practice of faculty-related affirmative action, tracing its origins back to largely forgotten legal challenges in the early 1970s over universities’ blatant discrimination against women. Since that time universities have developed hiring schemes that are typically hidden from public view and that steer certain minority and female faculty candidates into special hiring processes. Those special processes, euphemistically called “Target of Opportunity Programs” (TOPs), create faculty positions for which candidates are identified on the basis of race and sex and for which candidates from non-preferred demographics are not invited to apply. The legality of TOP searches is rarely discussed openly on campus. While some have suggested that the Supreme Court’s diversity jurisprudence in the admissions context permits preference-based faculty hiring, this Article shows that the diversity rationale travels poorly to the context of faculty hiring. Moreover, faculty hiring, unlike admissions, is regulated by a complex system of anti-discrimination norms in state law, federal employment law, and administrative regulations that appear to tightly constrain permissible employment-related affirmative action. The Article concludes that race- and sex-based preferences for faculty hiring are problematic. They are difficult to justify under the standard diversity rationale, and they seem to violate employment law and an Executive Order governing government contractors by creating the functional equivalent of race- and sex-based set asides.