- The Washington Times - Friday, January 24, 2003

American University is currently running an advertisement on H-Net, an online clearinghouse for academic jobs, that begins, "American University is interested in building upon its high quality and diverse faculty by increasing the number of faculty in under-represented groups in academia." American University (AU) then proceeds to describe the four tenure-track positions for which it is advertising.

An aspiring professor was interested in AU, but knew that "under-represented groups" referred not to, say, Republicans or Mennonites, but to certain racial and ethnic groups, typically blacks or Latinos. And so he sent an e-mail to Dr. Ivy E. Broder, AU's dean of academic affairs, seeking "to clarify the parameters of the search: the listing/description your office filed with h-net suggests that the university is soliciting applications only from scholars who hail from under-represented groups." Dr. Broder replied, "Your interpretation of the ad is correct. Thank you for your inquiry and best of luck in your search for an academic position."

At this point, the aspiring professor contacted the Center for Equal Opportunity, and we, along with the American Civil Rights Institute, wrote a letter last November to the general counsel of AU. The letter outlined the facts above, and then continued: "Please do not insult our intelligence by suggesting that AU defines 'under-represented groups' as anything other than in terms of race, ethnicity, and perhaps sex. The term 'under-represented' is so understood throughout academia these days; moreover, were it otherwise, Dr. Broder would not have sent this applicant on his way with no knowledge of him other than what she deduced from his name, namely that he was a Jewish male."

Our letter went on to point out that this sort of discrimination violates Titles VI and VII of the Civil Rights Act of 1964, as well as 42 U.S.C. sec. 1981. Putting aside the question of whether in fact AU is discriminating in its hiring decisions, we noted that it clearly is violating 42 U.S.C. 2000e-3(b), which makes it an unlawful employment practice "to print or publish or cause to be printed or published any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin…"

Accordingly, we asked that AU change the advertisement by removing any reference to "under-represented groups." In addition, we requested that AU affirm that it will follow the federal civil-rights laws and not discriminate or grant preferential treatment on the basis of race, ethnicity, or sex.

AU's general counsel, Mary E. Kennard, took a little under two months to reply to our letter, which caused a lot of consternation at AU. In her reply, Ms. Kennard assured us that AU does not discriminate, and asserted that the ad in question "is consistent with the University equal employment opportunity policy and the law. And the search is open to all qualified applicants."

Ms. Kennard's assertion is at odds with a fair reading of the ad, and of course is flatly contrary to the way it was interpreted not only by the applicant but also by AU's own Dean of Academic Affairs, who should know. Still, it is nice that AU now apparently admits that its job search must be "open to all qualified applicants" and that the school must "not discriminate on the basis of race, ethnicity, sex, or any other protected bases under civil rights laws…"

Applicants still have until the end of the month to apply for the positions that AU is advertising, and anyone reading this op-ed now knows that, in theory at least, skin color, ethnicity, and sex will not disqualify an applicant, and so one hopes that no one will refrain from applying on those bases.

The aspiring professor is no right-wing kook, by the way, but defines himself as well-left-of-center. But he is, understandably, disappointed that liberals have abandoned the principle of nondiscrimination. Most victims of politically correct bias in the academy do nothing; our hats are off to this man for challenging American University.

Maybe the next time around, AU will be less biased in the way it advertises. We'll be watching.

We also hope that the federal government will be watching. The relevant federal agencies include: the Office for Civil Rights at the U.S. Department of Education (since, as a federal-funding recipient, AU is covered by Title VI of the Civil Rights Act of 1964); the Office of Federal Contract Compliance Programs of the U.S. Department of Labor (which ensures that contractors with the federal government do not engage in racial, ethnic, and gender discrimination); and the Equal Employment Opportunity Commission (which enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination).

The Bush administration told the Supreme Court last week that a desire for "diversity" does not justify quotas. It ought to be willing to warn American University that a flat-out exclusion of consideration for applicants born with the wrong skin color, country of ancestry, or sex is even less justified.


Roger Clegg is general counsel of the Center for Equal Opportunity.

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