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2005 BYU Educ. & L.J. 33 (2005)
Diversity in Higher Education: The Consideration of Race in Hiring University Faculty

handle is hein.journals/byuelj2005 and id is 37 raw text is: DIVERSITY IN HIGHER EDUCATION: THE CONSIDERATION OF RACE IN HIRING UNIVERSITY FACULTY Suzanne E. Eckes* I. INTRODUCTION The U.S. Supreme Court firmly established that a diverse student body is a compelling state interest in Regents of the University of California v. Bakke,1 Grutter v. Bollinger,2 and Gratz v. Bollinger.3 The answer, however, to whether a diverse faculty constitutes a compelling interest remains unclear. This paper explores whether the arguments used in student body diversity cases may extend to university faculty diversity as a compelling state interest. Race-conscious faculty affirmative action programs require different legal considerations depending on whether the programs aim to achieve university faculty diversity or to remedy past discrimination. Race-conscious affirmative action cases reviewed by the Supreme Court can be divided into the following three categories: the consideration of race for diversity purposes, including viewpoint diversity; the consideration of race to correct racial imbalance; and the consideration of race to remedy past discrimination. In the context of higher education, the cases focused on student body diversity. In the context of employment, the cases generally focused on remedying past discrimination.4 In order to examine diversity, remedial interest, and racial balance arguments in race-conscious affirmative action programs for hiring faculty, an analysis of several key race-conscious student admissions and employment cases is necessary. Specifically, before Bakke, Grutter, and Gratz, there were a series of public employment affirmative action cases that addressed past discrimination and racial imbalance. These cases provide guidance to institutions seeking to use race as a factor in hiring faculty members. After comparing the diversity rationale cases with the * Suzanne E. Eckes, J.D., Ph.D. is an assistant professor in Educational Leadership and Policy Studies at Indiana University. The author would like to thank Martha McCarthy and Erica Christie for their helpful comments on this paper. 1. Regents of the U. of Cal. v. Bakke, 438 U.S. 265 (1978). 2. Grutter v. Bollinger, 539 U.S. 306 (2003). 3. Gratz v. Bollinger, 539 U.S. 244 (2003). 4. Some employment cases have addressed racial balancing as well as past discrimination.

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