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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, February 7, 2018

Leiter: Using 'Hidden' Faculty Hiring Criteria As Decisive Factor Raises Ethical And Legal Questions

ChronicleChronicle of Higher Education op-ed:  Academic Ethics: ‘Hidden’ Hiring Criteria, by Brian Leiter (Chicago):

Any seasoned academic who has been involved with job searches knows there are two sets of criteria for some positions: the ones in the published ad and the "hidden" ones.

"The dean says we must hire a woman this time," reports the chair. Or the dean says: "The department’s lack of racial diversity is becoming a problem, you’ve got to fix that with this year’s search." Or the department’s star faculty member tells the chair, "If you don’t hire my spouse into a permanent line finally, we will take jobs elsewhere next year." All of those fall into the hidden-criteria column.

The published job ads connected to such searches reveal nothing of the underlying reality. For legal reasons, no job ad can say, "Only women should apply," or "This job is open only to spouses of very famous members of our department."

Of course, every job search may involve considerations that are not part of the position’s public advertisement. Unbeknownst to applicants, the search committee may be stacked in favor of quantitative candidates in international politics, rather than theorists; or in favor of corporate-law experts, rather than public-law scholars. Even more commonly, members of the search committee take seriously only applicants from certain programs, or with certain recommenders — even though the ad says nothing about either.

So why should we be concerned about the hidden criteria in some searches but not in others?

The crucial difference is that, in a worrisome case, the unadvertised consideration is decisive in the hire.

Certainly in some searches, race or gender is a hidden factor but not a decisive one. The same goes for hidden criteria based on differences in scholarship or pedigree. For example, despite the committee’s leanings, an excellent theorist may prevail over a quantitative scholar, or an outstanding candidate from an unranked program may be hired by the pedigree snobs.

But when the hidden criteria involve decisive but unmentioned factors — more often demographic and personal than scholarly ones — applicants are effectively being lied to. They are led to believe that all applicants who meet the advertised criteria will be considered when, in fact, only the candidates of a certain gender or race will get serious consideration, or, in the extreme spousal-hiring case, only one candidate will get serious consideration. ...

[T]hat returns us to the underlying question: Can we — in the service of increasing, say, racial or gender diversity on a faculty — lie to all applicants about the real hiring criteria? Most American colleges and universities have, de facto, answered that question in the affirmative, but are they right to do so?

As I noted in a previous column, the "diversity" rationale in hiring is a dubious one. The evidence that there are pedagogical benefits to having a demographically diverse faculty is close to nonexistent, even if there are morally compelling reasons to give preferences to the descendants of victims of vicious discriminatory practices as a matter of compensatory justice. The problem right now is that, legally, institutions cannot openly draw such distinctions in their hiring practices. And the result is that they regularly demand that search-committee members be complicit in breaking the law and lying to applicants.

There is at least one other possible justification for hidden-criteria searches — that they counteract biases of the existing faculty. The idea of "implicit bias," however, has been debunked, as documented in the pages of The Chronicle. The more important case is that of "explicit" bias, since even the courts have been receptive to the idea of demographic preferences given a history of such prejudice.

But any faculty member who suspects racial or gender bias of any kind in the hiring process should be reporting that to university lawyers. The remedy for unlawful bias in a faculty search is not lying to applicants and breaking the equal-opportunity laws. It is stymieing and removing the perpetrators of unlawful bias from the process.

http://taxprof.typepad.com/taxprof_blog/2018/02/leiter-the-immorality-and-illegality-of-hidden-faculty-hiring-criteria-like-gender-and-race-.html

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Comments

This plainly happens at Rutgers. In fairness, when they don't do this, they tend to prefer white males. But either way, it's bad.

Posted by: mike livingston | Feb 7, 2018 3:22:56 AM

God, this is so true. I've worked on appointments for years and have witnessed this first-hand. Also, with EVERY search, it's an unspoken expectation that the person hired be politically liberal.

Posted by: AnonLawProf | Feb 7, 2018 5:34:14 AM

It is part of the Baby Boomer DNA to reflect upon one's path to success and assume, with the same hard work, that he/she could achieve the same success today.

However, recent trends in legal hiring are challenging this treasured assumption as it exists within our Boomer law faculty. There are about 65 full time hires these days. Of these, probably only 50 go to schools reputable enough to even be worth mentioning in academic circles.

Of the 50 hires, a solid majority (say, 28) go to women. Of the remaining 22, probably 7 go to diversity hires (any non-white ethnicity). That leaves about 15 white guys a year getting hired as legitimate full time law profs at schools worth mentioning.

My guess is that nearly all of the 15 white guys are going to be hired for the more practical, business related courses (e.g. tax, M&A, securities, corps). There are likely fewer than 3, and perhaps zero (gasp), theory-oriented white male profs hired every year. To the contrary, this demographic made up about half of my faculty at a high ranked law school in the mid 2000's.

So, the Baby Boomer theory-oriented while male profs are sort of having to come to grips with the fact that they might not make it if they were on the market today. That is a tough pill to swallow!

Posted by: JM | Feb 7, 2018 9:20:49 AM

The principle is as old as time: Two wrongs make a right.

Posted by: AMTbuff | Feb 7, 2018 10:27:36 AM

Actually, almost every job ad I see plainly states that members of certain groups are actively encouraged to apply. Thus, every applicant is on notice that the faculty has an interest in diversity and may be inclined to take any number of factors into consideration during the process. Attack efforts to diversify if you care to, but don’t accuse the relevant institutions of stealth. That having been said, any number of institutions will undertake the charade of a “public” search when the whole song and dance is to make sure X gets the desired position. Self-respecting faculty members do not waste their time giving such processes the aura of legitimacy.

Posted by: Benedictus | Feb 7, 2018 10:53:51 AM

I must admit I respect and appreciates Mr. Leiter's willingness to openly confront this uncomfortable truth despite the potential ramifications. Really makes me appreciate arguments for tenure.

Posted by: Anon | Feb 7, 2018 8:01:36 PM

What a sad world we live in when calling out blatant and widespread corruption is risky without life tenure.

Posted by: GU | Feb 12, 2018 1:00:18 PM