Hiring Discrimination and Quotas at OSU?

Editor’s note: What follows is a statement by the head of the Ohio affiliate of the National Association of Scholars reflecting on a program recently announced at Ohio State University. Because the OSU program is part of a national initiative to increase the number of women appointed to faculty positions in the sciences, we believe that the questions that Professor Dent raises have broader relevance. His statement reflects the views of the members of the Ohio Association of Scholars expressed at their annual meeting on October 3.

The Ohio Association of Scholars, the Ohio chapter of the National Association of Scholars, is concerned that the recently adopted Comprehensive Equity at Ohio State ("CEOS") Program will lead to hiring discrimination and quotas that are illegal, unconstitutional, and contrary to the University's mission of academic excellence. We are particularly concerned because this Program is using funds provided by the National Science Foundation ("NSF"). We call upon officials of the University and the NSF to modify and clarify the goals and methods of this program to ensure that it is conducted in a legitimate, non-discriminatory and academically sound way.

As announced by the University on September 25, the goal of the five-year program is "to change academic departmental culture in disciplines in which women are underrepresented on the faculty" to one that "specifically fosters women's and underrepresented minorities' opportunities for achievement."

"Specific goals of Project CEOS include retaining to promotion and tenure all of the current female assistant professors in STEM disciplines [science, technology, engineering, and mathematics]; achieving 30 percent representation by women among the 80 faculty hires anticipated over the next five years in the participating colleges; hiring at least six new faculty who are either African-American, Hispanic, Asian-American or Native-American women; appointing at least three additional women as associate deans and chairs; and increasing entrepreneurial activity by women by 50 percent."

Nowhere is it stated that these numbers are to be reached without illegal discrimination. Nowhere is it stated that those administering the program will monitor its implementation or take any other steps to prevent discrimination. Nowhere is it indicated that there will be any transparency in the program so that those affected by the program--including appointment, promotion, and tenure applicants; students and other members of the academic community; state and federal officials, and members of the public--can determine whether the program is being carried out without illicit discrimination.

Although the numbers in the program are not explicitly labeled quotas, their very existence, coupled with the demands to "change academic departmental culture" and specifically to foster "women's and underrepresented minorities' opportunities" will place tremendous pressure on all involved in granting appointments, promotions, tenure, and perquisites.

We strongly support measures to eliminate any discrimination by gender (or any other inappropriate basis), to seek the best qualified people for all University positions, and to encourage success of all people and institutions within the University. However, the announcement of the CEOS Program does not indicate that any gender discrimination exists now or in the recent past. To the contrary, the statement declares that "Ohio State has adopted progressive policies that allow for flexibility on the tenure track and has created support offices promoting gender equity" and that "[t]he circumstances at Ohio State are common to many other institutions."

Since there apparently is no discrimination to eliminate, affected people in the STEM disciplines may reasonably fear that they will be punished if they fail to reach the stated numbers and that they have no way to do so without discrimination. The absence of any announced safeguards suggests that they may be able to engage in discrimination without incurring any sanction and without their discrimination even being detected.

The Supreme Court has held that racial and gender diversity may be considered in admissions and employment at a state university if diversity has been shown empirically to serve the school's legitimate academic purposes. But it has made no such ruling for faculty "diversity," and even if preferential treatment there does not violate the Constitution, it is doubtful that such discrimination is permitted under Title VII of the Civil Rights Act of 1964. In any case, the announcement of the launching of CEOS does not indicate that any such showing has been made here, and the academic need for the program is not readily apparent. It is not evident, for example, how gender would affect research or results in engineering, or that the performance of students in math would be affected by the gender of the instructor.

Without solid empirical evidence of the benefits to be achieved by increased gender diversity, the constitutionality of the CEOS Program is highly doubtful. The absence of such evidence is especially disturbing in the disciplines of science, technology, engineering, and mathematics, which traditionally insist that propositions be supported by empirical data.

The Supreme Court has further indicated that even where diversity may be considered, it is only to be one factor in a process of weighing all of the pertinent attributes of all candidates. Numerical goals are highly suspect because they are inconsistent with the idea that the merits of all candidates are weighed individually. Numerical targets are even more suspect when a program imposes extreme pressure to reach them, so that those implementing the program may feel compelled to choose members of the favored group regardless of their qualifications. Finally, we reiterate that all this assumes that the Supreme Court will permit a "diversity" justification for racial, ethnic, and gender preferences in employment, which it has not yet done under either the Constitution or Title VII.

Apart from questions of legality, we are concerned about the impact of the CEOS program on the University and its constituents, including the supposed beneficiaries of the program. When a University that expressly proclaims that it has not been discriminating against members of a group undertakes rapidly and greatly to increase the numbers of that group in its faculty and administration, doubts will inevitably arise about the fairness of the program and the qualifications of the members of the favored group who are chosen. Such doubts stigmatize the supposedly favored persons and undermine trust and cooperation in the university.

Accordingly, we call upon officers of the University and the NSF to take no substantial steps to implement the CEOS program until several measures have been taken to modify and clarify its goals and methods. First, they should reveal what evidence they have of the benefits of the gender diversity they wish to enhance. If such evidence is inadequate or nonexistent, they should suspend implementation of CEOS until they can present adequate evidence.

When and if such a showing has been made public, all those involved in implementing CEOS should be told clearly that diversity is but one of many factors they are to consider in making employment decisions. It should be stated unequivocally that no sanctions will be imposed upon individuals or departments that comply with the Program in good faith, even if they fail to reach the program's stated numerical targets.

Finally, we urge the administrators of CEOS to provide a system of careful oversight so that operation of the program does not result in illegitimate discrimination. Any such program should include the compilation, retention, and disclosure of records of all relevant employment decisions. An ombudsman should be appointed to monitor the program for and to investigate complaints of illicit discrimination. The records compiled should be made available (with individual identities shielded) to all interested persons so as to foster confidence that standards of quality have been maintained and improper discrimination has not occurred..

Ohio State is the flagship school of Ohio's state system of higher education It is an institution of which all Ohioans should be proud. Research in science and technology has been highlighted as an engine for economic growth in Ohio. The CEOS program raises serious questions about the University's compliance with the law of the land and its maintenance of standards of excellence. We urge students, faculty, and staff at Ohio State, state officials, and members of the public to indicate their support for steps to ensure that the legitimacy of the CEOS Program is adequately demonstrated and, if implemented, is accompanied by proper safeguards so that Ohio State will always be a great university of which we all can justifiably be proud and will fulfill its mission to be a leader in technological innovation for the benefit of all Ohioans.

George W. Dent, Jr.

President, Ohio Association of Scholars