MEMORANDUM
May 24, 2006
To: Dave Frohnmayer
From: Melinda Grier
Re: Diversity Plan
You asked that I review the Diversity Plan to ensure its compliance with state and federal laws and to confirm the informal oral advice I previously provided. I have completed my review and can assure you there is nothing in the plan that violates or recommends actions that would violate laws prohibiting various types of discrimination. In fact, the plan recommends actions that are much like those required or recommended for federal contractors, such as the University, to diversify their workplaces.[1]
Federal laws regarding prohibited discrimination arise largely out of federal statutes adopted expressly for that purpose. Race and gender distinctions by state entities, such as the University of Oregon, also will receive heightened scrutiny under the U.S. Constitutional protections afforded through the Fifth Amendment as applied to state and local governments through the Fourteenth Amendment. Additionally, the federal government through Executive Order has imposed requirements on entities receiving federal contracts.
As a structural framework for my analysis, I have separated the Diversity Plan’s components related to students from those relating to employees. The laws applying to each are different and the application of Constitutional provisions, while similar, is distinct. I have also limited my review to provisions that might violate laws prohibiting discrimination on the basis of race or sex. Although the Diversity Plan focuses on a broad definition of diversity, race and sex are afforded the greatest levels of protections from prohibited discrimination and race and sex-based distinctions receive the highest levels of scrutiny. One can reasonably assume permissible race or sex- based distinctions are also permissible when applied on other bases.[2]
Finally, it is crucial to distinguish prohibitions on discrimination, often referred to as “non-discrimination,” from affirmative action.[3] Discrimination is treating individuals differently because of their race, sex, national origin, etc. This can occur either through deliberate actions or through actions that, on their face, appear to be neutral but in application have the effect of discriminating. Affirmative action refers to those activities that go beyond a mere treating individuals in a similar fashion but includes taking affirmative steps to avoid discrimination or to overcome the past effects of discrimination. In general, federal statutes and the U.S. Constitution prohibit discrimination and permit, but do not require, affirmative action.[4] This is in contrast to the executive orders that require federal contractors to undertake certain types of analysis and to take affirmative action in response to a lack of a racially and sexually diverse workforce.
Let me begin with an analysis of the framework that applies to employment matters. Title VII of the 1964 Civil Rights Act makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” because of race or sex. As I noted above, discrimination can be either overt differences in treatment or neutral policies or practices that result in different treatment. However, Title VII does not require identical treatment of all individuals so long as consideration of race or sex is not a motivating factor in an employment decision. I have found nothing in the plan that suggests individuals should be treated differently in the terms and conditions of their employment in ways that are prohibited by Title VII. To the contrary, the plan makes express reference to following rules relating to hiring.
Although the plan does advocate neutral policies, I see nothing in the plan nor do I envision anything that would necessarily mean those policies or practices would have the effect of discriminating. As I read the plan, its goal is to make certain that the neutral policies we currently have do not have the effect of discriminating on a prohibited basis. Whether a proposed policy will have a discriminatory effect is speculative, but certain policies, e.g. consideration of criminal history, use of certain standardized tests, are recognized as often having a discriminatory effect. I have never known one of the practices suggested by the plan, e.g. expanding the qualified applicant pool, partner-hiring, visiting scholar opportunities, inclusive language in job announcements, retention and promotion, alone, to have resulted in prohibited discrimination.
The Diversity Plan focuses on affirmative efforts to attract and retain qualified employees toward the goal of developing a diverse workforce. The Supreme Court has reviewed and approved voluntary affirmative action in the employment context. It approved consideration of an applicant’s sex in a hiring decision between comparably qualified candidates.[5] It also approved a training program for unskilled workers in which half of the openings were, for a period, reserved on the basis of race.[6] [7] The types of affirmative action typically found to violate the Constitution or Title VII involve hiring quotas, set-asides and lay-off based on race. The Supreme Court has established a number of factors under which race and sex may be considered in employment decisions. The Court looks to see if the action unnecessarily trammels the rights of others, is a temporary means to correct a manifest imbalance or underrepresentation, contains only goals not quotas, makes distinctions between comparably qualified individuals and is part of an adopted affirmative action plan.
The latter point is crucial in this analysis. Although the Diversity Plan is not the University’s Affirmative Action Plan and would not meet the requirements of an affirmative action plan under the Executive Order, it is very much like a plan. That is a key component in my analysis. Not only do I find nothing in the Diversity Plan that recommends a practice that would violate Title VII, Title VII is not a statute designed to review affirmative action or diversity plans. The Supreme Court has encouraged employers to adopt plans to guide them in achieving equal opportunity employment and diversifying their workforces. The University has long established hiring and personnel policies, which are consistent with legal requirements. The Plan does not advocate changing those in anyway that would violate our legal obligations.
Finally, I want to mention the affirmative nature of the plan, which parallels many of the aspects of an approved affirmative action plan. Executive Order 11246, as amended, requires federal contractors to have an affirmative action plan that meets certain standards.[8] In summary, its requirements include identification of problem areas, establishment of goals and objections and development and execution of action-oriented programs. The Diversity Plan contains many of these elements.[9] Furthermore, from my experience, the types of activities proposed in the Diversity Plan are precisely the kinds of action-oriented programs contained in many university affirmative action plans, often at the behest of the Office of Contract Compliance Programs, the agency responsible for enforcing the Executive Order.
In summary, there is nothing in the Diversity Plan that violates federal employment discrimination statutes or Constitutional protections against race or sex discrimination. It does not require prohibited discrimination; its recommended affirmative action is consistent with U.S. Supreme Court guidance on the issue. Further, its approach is consistent with the approach required of federal contractors, including the University of Oregon, by the federal government.
Constitutional and statutory standards applicable to consideration of race in educational programs were reviewed recently by the U.S. Supreme Court.[10] While similar to the employment context, the Court grants greater deference to colleges and universities in making educational decisions. An applicant’s race may be considered in admissions decisions to a program, college or university to meet two compelling interests – obtaining educational benefits of a diverse student population and remedying the effects of past discrimination. In my experience, the first interest, obtaining educational benefits of a diverse student population, is given much greater deference and the second - remedying past effects.
Like in the employment setting, certain restrictions apply. The use of the consideration must be limited to the time necessary, it must not unduly burden other students, it cannot involve quotas but can consider critical mass necessary to achieve the educational benefits of a diverse student population and if it excludes others, must consider the alternatives.
I have reviewed the Diversity Plan. Nothing in the Plan suggest or advocates programs that would be restricted at all on the basis of race. Programs are recommended that would have the effect of benefiting individuals, who as a result of their race, might find the University inaccessible or less welcoming, but there is no suggestion that access to or participation in these activities would be restricted by race. Efforts to expand services and improve the campus climate benefit all students. I can find nothing in the Plan indicating any of the recommendations would be restricted by race or sex.
In summary, there is nothing in the Plan that would require or tend to encourage the University to act in ways that are contrary to federal statutory or constitutional law.
[1] You know my background in this area. However, this memo may be shared with others who are not. I have been working in the area of discrimination law and affirmative action for approximately thirty years. In fact, from 1977 until the mid-1980’s my primary assignment was in this area. Since 1992, I have regularly taught Employment Discrimination Law at the UO Law School. As a result, I am very familiar with the obligations of federal contractors and the assessment and recommendations frequently made by the Office of Federal Contract Compliance completes of federal contractors.
[2] Prohibitions of discrimination on the basis of disability and religion also require provision of accommodation. However, the actions proposed in the Diversity Plan do not implicate those requirements.
[3] This distinction is often unclear to those who are not familiar with the law of this area. Media and commentators frequently use “affirmative action” in referring to prohibitions of discrimination. The Diversity Plan generally specifies actions rather than using either term. On page 28, the Plan uses the term “affirmative action rules when it states ”Units should not merely seek to comply with the affirmative action rules but should go beyond those legal obligations to try to develop a diverse pool of high-quality applicants for each search.” In its use of the term “affirmative action rules”, the Plan clearly refers to prohibitions on discrimination. In fact, developing a diverse pool of highly qualified applicants has been a key component of affirmative action programs for many years.
[4] As noted above, prohibitions of discrimination based on disability and religion require reasonable accommodation, which is a type of affirmative action.
[5] Johnson v. Transportation Agency of Santa Clara County, 480 U.S. 616 (1987).
[6] United Steelworks of America v. Weber, 443 U.S. 193 (1979). It should be noted in Weber, a union representing all employees had agreed to the program as part of collective bargaining negotiations. Also, the employer was not a public entity.
[7] In a more recent case, the Ninth Circuit concluded that pay raises provided solely on the basis of race and gender to correct a perceived imbalance among faculty members at a public university did not violated Title VII. Rudebush v. Hughes, 313 F.3d 506 (2002).
[8] 41 C.F.R. 60-2
[9] The University of Oregon has a separate affirmative action plan. Therefore, it would be duplicative and unnecessary to include all the elements and detail required in the Affirmative Action Plan.
[10] Grutter v. Bollinger, 123 S.Ct. 2325 (2003). Gratz v. Bollinger, 123 S.Ct. 2411 (2003) Standards related to distinctions based on sex would be no stricter under a constitutional analysis.