Jason Webb Yackee, Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring, 2020 Wis. L. Rev. 1199 (2020).
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 several largely forgotten legal challenges brought in the early 1970s concerning universities’ blatant discrimination against women. Since that time, universities have developed hiring schemes that are typically hidden from public view and steer certain minority and female faculty candidates into special hiring processes. These special processes, 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 cannot apply. The legality of TOP searches is rarely discussed openly on campus. While some have suggested that the Supreme Court’s diversity rationale in the admissions context permits preference-based faculty hiring, this Article shows that the diversity rationale translates 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. This 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.
