Legal and Policy Implications for Faculty Diversification in Higher Education.

Abstract The Supreme Court has established that diversity is a compelling state interest with regard to student body diversity in the higher education context, namely medical school and law school. Many educators and higher education organizations view racial and ethnic diversity among faculty as an important educational objective. Faculty diversity is also considered critical to achieving student body diversity, which the Court has held to be a compelling state interest. However, the Court has neither articulated whether a diverse faculty is a compelling state interest, nor discussed what affirmative action policies are sufficiently narrowly tailored to achieve the diversity. Legal and policy-based arguments are made with respect to race as a factor in faculty hiring decisions. Also, arguments for university efforts to foster faculty diversification and consider race as a factor in employment are made. Introduction The last quarter century has undoubtedly witnessed the increased representation of historically underrepresented populations in postsecondary, graduate, and professional schools. These populations, in turn, become future men and women of the professoriate. Yet, the principal driver of these gains is largely attributable to Congressional and state legislation through affirmative action programs or, more contemporaneously, diversity plans. Numerous research studies show that having a heterogeneous faculty yields outcomes beneficial to students' overall educational experience (e.g., Johnson, 2001; Smith, Wolf & Busenberg, 1996; Thomas, 1990). Diversity is important in higher education. Until 2003, the U.S. Supreme Court effectively left the territory of deciding affirmative action cases in higher education. The last case the Supreme Court decided dealing with race-conscious admissions prior to 2003 was Regents of the University of California v. Bakke (1978). There, the Court ruled that race could be used as a plus factor in higher education admissions considerations, particularly in the medical school context. Hence, subsequent to Bakke, key issues concerning diversity issues in higher education remained in abeyance. Therefore, the U.S. Supreme Court's granting of ceitiorari to hear and decide two companion cases-Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)calling for the elimination of affirmative action plans in higher education admissions represented the Court's return to the affirmative action debate. The Supreme Court reiterated an earlier ruling (City of Richmond v. Croson, 1989) that the use of quotas was impermissible (Gratz, 2003). The Court also clarified the law by ruling that the use of race as one of several evaluative factors was permissible (Grutter, 2003). Thus, the Court validated the admission scheme employed by the University of Michigan Law School to achieve its student body diversity goals. Finally, the Court intimated its own hopes for the demise of affirmative action, even going so far as to proffer a prediction that in the next 25 years affirmative action and other attendant programs would no longer be necessary (Grutter, 2003). Gratz and Grutter (2003) represent the second time the Supreme Court addressed affirmative action in higher education admissions. Thus, Gratz and Grutter effectively gave some judicial guidance to the uncertain, but still highly charged, issue of affirmative action in higher education in the legal context of an elite public institution. In these hotly debated cases, the Supreme Court ultimately found considerations of diversity in higher education admissions to be a compelling state interest. By finding diversity in the higher education context to be a compelling governmental interest in the Gratz decision (undergraduate admissions context) and Grutter decision (law school admissions context), the Supreme Court seemed to suggest that diversity is important in other areas of society and particularly in higher education. …