Access and Broad Diversity In STEM Fields: Real World Effectiveness and Legal Sustainability AAAS Annual Meeting February 2010 ____________ Melinda Grier,

Access and Broad Diversity In STEM Fields:

Real World Effectiveness and Legal Sustainability

AAAS Annual MeetingFebruary 2010 ____________

Melinda Grier, Vice President and General Counsel

University of Oregon

Jamie Lewis Keith,Vice President and General Counsel

University of Florida

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The National Imperative For Enhanced Access And Racial, Gender And Economic Diversity In Higher Education

• The Nation Is Facing A Crisis Of Declining Intellectual Capacity And Challenges To Social Justice.

• Higher Education Institutions Play A Pivotal Role In Addressing.

• Consider:– Higher Education’s Central, Multi-Faceted Mission– U.S. Leadership In Higher Education, Innovation And The Global

Economy– Quality Education For All Students In An Increasingly Diverse

World—Partnership of Higher Education, Government, Industry– Demographics Of U.S. College Age Population– Pipeline Problem For Selective Higher Education, Industry, And

Academia In STEM Fields—Community College Roles– Progress Of Other Nations In Higher Education And Innovation – Principles Of Justice On Which Our Nation’s Democracy

Depends

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Higher Education’s Central Educational Mission• Faculty, Student Diversity Efforts—And Enhancing Employment and

Educational Access—Must Be Tied To Mission, Effective And Legally Sustainable To Be Successful

• Articulate Mission Broadly, Within The Context Of An Increasingly Diverse Society:

– Providing The Best Education For All Students, – Producing Excellent Research, – Expanding Educational Access, And – Serving The Nation’s Workforce, Citizenry, And National Security

Needs

• Achieving Mission, Requires A Broadly Diverse Campus Community

– Diversity Includes Many Aspects of Individuals – Includes, But Is Not Limited To, Race/Ethnicity/Gender

– Validated By The U.S. Supreme Court In Grutter As A Compelling Educational Interest That Could Justify Appropriate Consideration Of Race In Higher Education Admissions

– Institution-Specific Commitment/Findings And Data Are Helpful

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U.S. Has A “Pipeline” Problem -- Social Justice Challenge

• Increasing Educational And Workforce Access/Diversity For Minorities And Women—Is An A-Political Imperative

– African Americans, Hispanics And Native Americans (Part Of The Soon-To-Be Majority) Are Highly Under-Represented In STEM And Other Higher Education

– Women (The Already-Majority) Are Highly Under-represented In STEM Higher Education

– These Minorities And Women Are Highly Under-Represented In The STEM Workforce, Including Academia—Minorities Are Under-Represented In Many Fields

– The U.S. Is Losing Vast, Needed Intellectual Capacity To Compete In The Global Economy And Sustain Its Leadership and National Security

– 16 Other Countries Are Graduating A Greater Proportion Of College Students In STEM Fields

– Higher Education, Government and Industry Must Clearly Articulate This A-political, Unifying Message And Address The National Imperative To Increase Student and Faculty Access and Diversity In STEM Fields

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AAAS—AAU Diversity & Law Project• Objectives—In Light Of Demographic Trends And STEM’s Critical Role:

– Identify And Foster Common Understanding Of Effective Diversity/Access Programs That Are Also Legally Sustainable -- STEM Focus, But Broadly Applicable

– Build Productive Partnerships of Academic Policy/Program And Legal Leaders To Design And Implement Diversity/Access Programs That Work And Survive

– Support Measurable Progress Within 5-6 Years As National Imperative

• Funded By Alfred P. Sloan Foundation And National Science Foundation– August 2008-October 2010, Phase 1 -- Phase 2 In Planning

– Drs. Daryl Chubin And Shirley Malcom Of AAAS and Jamie Lewis Keith, Esq. of Univ. of Florida, Project Directors

– Dr. John Vaughn, AAU Liaison -- Expert Advisory Board Contributes

– Art Coleman/Scott Palmer/EducationCounsel LLC -- Bob Burgoyne/Ted Shaw/Fulbright & Jaworski LLP-- Project Outside Counsel, Phase 1

– College Board, ACE, NACUA, AAMC, AACC Joining AAU As Participants In Phase 2, Currently Being Planned, With Art Coleman/EducationCounsel as Project Outside Counsel -- Continued Participation By Expert Advisory Board, Fulbright

Complicated Legal Landscape: Different Legal Justifications Are Required For Employment and Students

Employment-Remedial• Equal Protection Clause

– Public Institutions

• Title VII (Race, Ethnicity, Gender, Religion)

– Private (>15 Employees), Public employers

• OFCCP--Executive Orders (Race, Ethnicity, Gender, Religion)

– Federal Contractors

• Title VI (Race/Ethnicity); Title IX (Gender)

– If Purpose Of Federal Funding Is Employment Or Employment Confers An Educational Benefit

– Overlaps With Title VII

Student Programs-Diversity• Equal Protection Clause (EPC)

– Public Institutions

• Title VI (race)– Whole Operation Of Federal

Funding Recipient, Including Employment If It Is The Purpose Of Funding Or Confers An Educational Benefit

– EPC Principles To Privates

• Title IX (gender)– Whole Operation Of Federal

Funding Recipient, Including Employment.

– EPC Principles To Privates

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Complicated Legal Landscape For Employment

• Equal Protection, Title VII and OFCCP Regulations Prohibit Racial, Gender, Religious, National Origin Discrimination In Employment,

• Limited Exceptions Apply, If “Remedial” Justification Exists--- Including an Employer’s Narrowly Tailored Title VII-Voluntary Action—and, For Federal Contractors, OFCCP-Required Action -- To

- Remedy “Manifest Imbalance,” “Under-utilization,” or the Present Effects of an Employer’s Own Past Discrimination

- Narrowly Tailored - Without Unnecessarily Trammeling Reasonable Expectations/Interests Of Others

- Title VII Permits Voluntary Action – Must Also Be Narrowly Tailored, Short Duration and Consistent with an Affirmative Action Plan and May Be Prohibited by State Law (CA, MI, NE, WA, FL)

- OFCCP Requires Plan and Good Faith Action By Federal Contractors—But Not Discrimination in Actual Hiring/Promotion/Lay Off Decision

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Complicated Legal Landscape For Employment

• Key To Employment Legal Regimes Is Defining “Remedial” Boundaries

• To Consider Race/Ethnicity/Gender, Must Be Remedying Institutional (Not Societal) Discrimination Or “Underutilization”

- Discrimination = 2 Or More Orders Of Magnitude Disparity

- Manifest Imbalance = Court-Recognized, Somewhat Lesser Disparity Under Title VII

- Artificially Restricted Qualified Labor Pool = E.g., EEOC Regulations Permit Capacity-

Building Programs Where A Trainable Cohort Exists That Could Expand The Pool—May

Help With Some Pipeline Problems

- Underutilization = OFCCP 80% Measure – Possibly Lesser Disparities but undecided

- Without Remedial Context, Consideration of Race, Ethnicity, Gender Are NOT Justified

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Complicated Legal Landscape For Employment

-- Diversity Rationale = While Undecided By The Courts, The Compelling 1st Amendment-Protected Educational Interest Of Institutions Of Higher Education In Broad Faculty Diversity (Modeled On The Compelling Educational Diversity Rationale For Students)

May Bolster Weaker Remedial Justifications (e.g., the lesser OFCCP rationales—those other than the Title VII “manifest imbalance” or OFCCP 80% measure)---Or May Be An Independent Justification—In Faculty Employment, Consistent With Title VII’s Purpose.

Not As Clearly Applicable to Non-Faculty/Staff Not Directly Involved In Educational Process

Not Prudent To Rely Exclusively On This Justification . . . Presently

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Complicated Legal Landscape—Education • Equal Protection And Titles VI (re: Race in Educational Benefits) And IX (re: Gender in Educational Programs), Prohibit Discrimination By Public Institutions and Public and Private Federal Funding Recipients, Unless Consideration Of Race/Gender Satisfy “Strict or Heightened Scrutiny”--

-Narrowly Tailored (Race)/ Substantially Related (Gender) Action To Foster Broad (Not Just Racial and Gender) Student Body Diversity As Necessary to Achieve a University’s Compelling 1st Amendment-Protected Educational Mission

-Can’t Use Race/Gender More Than Necessary To Achieve Compelling Interest-Must Consider Workable Neutral Alternatives –Then One Factor Among Many In Holistic Assessment of Qualifications—Exclusivity Rarely Justified-Must Be Time Limited To While Need Exists—And Periodically Evaluated-Must Not Unreasonably Affect Others’ Interests (Apply Same Criteria to All—Everyone Competes On Equal Ground)

- Title IX Covers Student Admissions/Programs And Faculty Employment In Educational Programs

- Title VI Covers Students, Federally Funded Employment, And Probably Faculty Employment That Provides Educational Benefits (Per OCR Regulations),

-State Laws/EO May Restrict Consideration Of Race/Ethnicity/ Gender In Admissions By Public Institutions (CA, WA, MI, NE, FL)

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Navigating A Complicated Legal Landscape

• Required First –And Best Approach To Avoid Triggering Legal Restrictions While Still Achieving Diversity, Improving Access—Is:

– Articulate That Broadly Defined Faculty and Student Diversity Are Critical To Achieving Institution’s Mission of Excellent Education, Excellent Research, Access, and Service to Society—Diversity In Itself Is Not The Objective—The Educational Benefit of Diversity For All Students, The State And The Nation Is The Objective

– Focus On Outreach And Removing Barriers To Racial Minorities, Women, Other Under-Served Groups, As Well As Outreach To More Traditional Prospects---Not Representation Of Racial Minorities Or Women In The Applicant/Candidate Pool Per Se--- Before Hiring Or Program Selection Decision-Making

– Focus On Record of “Conduct of Inclusion” And Barrier Removal Of Every Candidate---Not Race And Gender --- In Evaluating Candidates And Making Hiring/Selection Decisions

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Outreach and Removing Barriers – Employment and Graduate Education

• Focus on Outreach Efforts And Review Adequacy Of Outreach—Not Diversity Of Applicant Pool/Candidate Interviewee List

– Advertise In Educational And Professional Journals And Usual Places To Attract Any Interested Applicant

– Also Advertise With Societies And In Publications Targeted To Minorities, Women, People With Disabilities

– Make Personal Contacts And Track Prospects Constantly, Including Minorities, Women, Other Under-Served Groups, Then Notify Prospects When Opportunities Arise

– Invite Prospects, Including Minorities, Women, Other Under-Served Groups, To Guest Lecture Or Visit As Part Of Overall Visiting Practice

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Outreach and Removing Barriers

• Outreach (Not The Applicant Pool Or Potential Candidate--Interviewee List) Is Inadequate If More Or Better Outreach Is Available And The Applicant Pool/Possible interviewee List Are Not Broadly Diverse—

• Make Part Of Process Up Front, Not After Application Process Begins

- Ads And Web Page Note – Be Clear That Applications Will Be Accepted Until A Notice That Application Period Is Closed

- Outreach Done And Measured

- Consider Adequacy Of Outreach Before Closing Applicant Pool Or Finalizing Candidate/Interviewee List

- If The Best Outreach Is Done, And The Applicant Pool/Interviewee List Are Still Not Diverse, Outreach Is Adequate, A Serious Pipeline Problem Exists, And The Search Proceeds

- But, Don’t Let Search Committees Off The Hook For Excellent Outreach

- If All Reasonable Outreach Isn’t Exhausted—And Applicant Pool/Possible Interviewee List Are Not Diverse—Direct Search Committee To Do More Outreach To Build A More Inclusive Pool (Not To Interview Diverse Candidate)

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Outreach And Removing Barriers

• Focus On Removing Barriers To Women, Minorities, Others Under-Served

– Pay Attention To Program And Job Descriptions And Articulating Qualifications In An Appropriate And Flexible Manner -- Include Conduct of Inclusion As Factoring Favorably In Holistic Assessment of Many Qualifications Of Each Person

– Consider Carefully Whether A Range Of Background Experience ---Traditional And Nontraditional---Is Possible For Qualified Candidates

– Reject Unnecessarily Restrictive Notions of Qualifications -- Don’t Generalize That Only Limited Programs/Schools Prepare Candidates Adequately

– Analyze Individual Intellectual Capacity, Accomplishments, Promise, And Situations

– Always Apply The Same Criteria To All Candidates, Just Take Care To Articulate Criteria As Flexibly And Broadly As Possible For Highly Qualified Students And Faculty (And Do Not Use Race And Gender As Criteria In Hiring, Promotion, Layoff)

– Don’t Change Criteria For Selection Or Process On The Basis Of Race/Gender Once Started And Applicants/Candidates Are Identifiable

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Neutral Strategies/Criteria: Conduct of Inclusion, Providing Opportunities to Use Differences To Enhance Outcomes

• Record of Inclusive Conduct, Experience Removing Barriers May Include

– Experience working with People Of Different Cultures, Socio-Economic Backgrounds, Races, Genders, Experiences, Perspectives

– Experience working with a Full Range Of Viewpoints (Not A Proxy For “Liberal” Perspective)

– Demonstrated ability to Engender an Understanding Of Broad, Individual Perspectives

– Demonstrations of Such Understanding And Broad Perspectives In Teaching, Learning, Research Activities, Mentoring, Other Work To Enhance Collaboration, Issue Identification, Problem-Solving, Creativity

• Seek Faculties And Students – Of Any Race/Gender – With Demonstrated Records Of Including Minorities, Women, Other Under-Served Individuals, And Many Perspectives In Classroom, Research, Mentoring, Other Work Activities To Provide Opportunities To Use And Develop Skills For A Diverse Society

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Neutral Strategies/Criteria Conduct of Workplace Inclusion

• Conduct—Not Viewpoint Focused

– Regardless Of View Of Race And Gender, Conduct In Class, Research Activities (Not Topics/View), Mentoring, Other Work Can Be Inclusive, Providing Opportunities For Collaborative Analysis And Problem Solving Among Broadly Diverse People

• Race And Gender Neutral—This Individual Conduct That Anyone May Possess And Apply—Or Lack.

– In A Society Where Race And Gender Affect Life Experiences, Minorities And Women May Have To Develop Skills To Successfully Collaborate With People Different Than Themselves, But Not All Do.

– Others May Possess Skills And Have Experience Breaking Down Barriers For Under-Served Individuals.

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Neutral Strategies/Criteria Conduct of Workplace Inclusion

• Mission-Critical Apart From Race/Gender

– Provides Mission-Critical Educational And Research Opportunities And Experiences In An Increasingly Diverse And Connected Society, Fosters Potential Of Better Issue Identification, Problem-Solving, Research.

• Benefits– Will Result In Faculties, Workforce, And Students Who Create A more Inclusive

Campus Community.

– Has Ancillary Benefit Of Creating More Broadly Diverse Faculties And Students—Including Minorities And Women.

– Can Be Used In Most Employment Actions, Any Student Or Faculty Diversity Program.

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Neutral Strategies: Socio-economic/Other Disadvantage Criteria

• Socio-Economic Diversity Is Needed To Achieve The Broad Diversity Of Faculties, Workforces (i.e., Background) And Students That Produces Educational Benefits.

• In U.S. Society, There Is An Ancillary Benefit of Greater Racial Diversity.

• Use Kahlenberg Model Which More Completely Defines Socio-Economic Status.

– Includes Poverty Concentration Of Residential Area And School District

Per U.S. Census, Total Wealth—Not Only Annual Income.

• First In Family To College, STEM, Academic Careers.

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Neutral Strategies: Build Relationships With Community Colleges, Other Greater Access Points

• Build Relationships With Institutions/Communities That Already Provide Greater Access

– Community Colleges

– Local Municipality’s Schools

– Historically Black Colleges

– Institutions That Graduate A High Percentage of Women, Minorities

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Green Lights: Practices Less Likely to Trigger Heightened Review—More Likely To Be Sustained

– Conducting broad-based, "inclusive" recruitment and outreach activities, including race/gender targeted action

– Monitoring data based on race/gender to track needs, progress

– Race- and gender-neutral, diversity-related criteria authentically tied to mission

– Barrier removal, with evidence of special barriers

– Neutral climate-enhancing strategies

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Yellow Lights: Practices Requiring Care / Close Legal Advice

~ Framing institutional interests only as other than EBD/traditional remedial (when connected with challengeable practices)

~ Consideration of race/ethnicity/gender, as one of many factors

~ In capacity-building programs where qualified pool is artificially limited and neutral criteria/outreach are inadequate

~ In hiring/promotion if there's a remedial foundation and capacity building, outreach, barrier removal are inadequate

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Yellow Lights: Practices Requiring Care / Close Legal Advice

~ Consideration of race/ethnicity/gender, as one of many factors in student enrollment-related actions

~ Limited "exclusive" non-admissions, non-hiring/firing programs (“affinity groups”) within a larger universe of broadly available programs where neutral criteria/outreach/lesser approaches are inadequate

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Red Lights: Practices to Avoid

Defining diversity only with respect to race, ethnicity & gender

Using racial-gender quotas or racial-gender balancing to equal societal representation

Using separate standards /criteria or processes for minority or women applicants

Weighting race/gender through an automatic/mechanical point system

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Red Lights: Practices to Avoid

Considering race/gender to make lay off decisions

Changing criteria/process on race/gender basis after candidates are identified

Exclusive programs that are the only or very predominant programs available