As part of a new â€œanti-racismâ€ push, George Mason University plans to discriminate based on race in favor of a faculty of color. On July 23, Dr. Gregory Washington, the president of GMU, announcedÂ that â€œWe will develop specific mechanisms in the promotion and tenure process that recognize the invisible and uncredited emotional labor that people of color expend to learn, teach, discover, and work on campus.â€
Dr. Washington announced these proposals in the context of the â€œnational conversationâ€ about race following â€œthe murder of George Floyd.â€ His goal is â€œestablishing George Mason University as a national exemplar of anti-racism,â€ with a â€œmetric-driven,â€ mandatory â€œvisionâ€ of â€œanti-racismâ€ to be pursued by each â€œcollege and school,â€ incorporated into the â€œuniversityâ€™s planning and budgeting process.â€
That includes a â€œTask Force on Anti-Racism,â€ â€œsystems and standards of anti-racism,â€ â€œrequired diversity, inclusion, and well-being coursework,â€ and the mandatory inclusion of an â€œanti-racism statement on all syllabi.â€ An initial $5 million is pledged for campus initiatives promoting anti-racism and diversity.
But legally speaking, the changes he proposes to the promotion and tenure process are themselves racially discriminatory. It is not just â€œpeople of colorâ€ who â€œexpendâ€ â€œuncreditedâ€ labor, yet the mechanisms he proposes only recognize such contributions from minorities, not whites. With certain exceptions, the civil-rights laws forbid discrimination against whites. This racial discrimination is unconstitutional. (White faculty sometimes tutor and help disadvantaged and minority students, sit on diversity committees, orÂ serve as advisorsÂ to minority student groups).
A government entity like George Mason University can only engage in racial discrimination against whites if it has a compelling reason for doing so, and the discrimination against whites is necessary and narrowly tailored. Outside the context of college admissions, race is only supposed to be used as a â€œlast resort,â€ after race-neutral alternatives have been tried. (SeeÂ Bartlett v. StricklandÂ (2009)).
A racial preference in favor of minorities requiresÂ prima facieÂ evidence that the institution using it engaged in recent, widespread discrimination against those minority groups. That means the institutionâ€™s own discrimination, not discrimination against the minority group by others in society. For example, the Supreme Court ruled that the City of Richmond could not give blacks racial preferences in city contracts based on discrimination by other people. (SeeÂ Richmond v. J.A. Croson Co.Â (1989)).
President Washington says that â€œnot everyone at Mason feels equal or is treated equally.â€ But if there are individual instances of black students or faculty not being â€œtreated equallyâ€ at Mason, the solution is to treat them equally and compensate them for any discrimination they have suffered â€” not discriminate in favor of people of color as a group. Evidence of widespread discrimination, not just a few individual instances of discrimination, has to be shown to justify using a racial preference. (See, e.g.,Â Middleton v. City of FlintÂ (1996)).
Also, black peopleâ€™s history of discrimination does not justify preferences in favor of â€œpeople of colorâ€ in general. Past discrimination against one racial minority (such as black people) does not justify racial preferences for another minority group (such as Asians or Eskimos). The Supreme Court faulted the City of Richmond for including Eskimos and Aleuts in an affirmative-action program when there was no history of discrimination against such groups. (SeeÂ Richmond v. J.A. Croson Co.Â (1989)).
Courts have struck down racial set-asides when they included minority groups such as Asians that lacked black peopleâ€™s history of being discriminated against by the government using the racial preference. (SeeÂ L. Feriozzi Concrete Co. v. Casino Reinvestment Dev. Auth.Â (2001)).
President Washington has mentioned the fact that GMUâ€™s faculty are whiter than its student body. But that is legally irrelevant and not a reason to use race in faculty hiring. The faculty have special qualifications that students do not, and faculty were mostly hired at a time when the qualified applicant pool was whiter than it is today, due to Americaâ€™s changing demographics. Comparing the racial breakdown of faculty to students is like comparing apples to oranges, legally speaking. The Supreme Court said that not even unintentional discrimination (â€œdisparate impactâ€) is shown by comparing the racial breakdown of different components of an institution that have very different qualifications. It did that in rejecting a discrimination lawsuit against an employer that had an overwhelmingly white skilled workforce, and an overwhelmingly minority unskilled workforce. (SeeÂ Wards Cove Packing Co. v. AtonioÂ (1989))
Moreover, most courts say that the government can use race-based affirmative action only to remedyÂ intentionalÂ discrimination. (See, e.g.,Â Builders Association v. County of CookÂ (2001);Â People Who Care v. Rockford Board of EducationÂ (1997);Â Michigan Road Builders v. MillikenÂ (1987)).
Nor can GMU give racial preferences to achieve â€œdiversity.â€ Race can constitutionally be considered in student admissions, but only when it is necessary to achieve diversity. Unlike some elite colleges, GMU would be diverse even without considering race. For example, a school that would have been 20% minority even without using raceÂ was forbiddenÂ to consider applicantsâ€™ race, because it was already diverse enough.
A civil-rights law, Title VII, also forbids racial discrimination in hiring. It only lets educational institutions consider race in hiring to remedy a â€œmanifest imbalanceâ€ in a â€œtraditionally segregated job categoryâ€ â€” not to promote â€œdiversity.â€ So a court ruled that a white teacher could not be laid off to preserve a schoolâ€™s diversity. (SeeÂ Taxman v. Board of EducationÂ (1996)). Given its substantial minority population, GMU does not have a â€œmanifest racial imbalanceâ€ that would warrant using race.
The likelihood of discrimination in hiring is increased by the anti-racism planâ€™s â€œmetric-driven,â€ mandatory â€œvisionâ€ of â€œanti-racismâ€ to be pursued by each â€œcollege and school.â€ â€œMetric-drivenâ€ could easily amount to a racial quota for people of color. Even â€œgoalsâ€ or other metrics can constitute illegal racial quotas in the eyes of the courts. For example, an appeals court ruled that auditing institutions that do not meet certain racial metrics constitutes an illegal racial quota, even when the audits donâ€™t necessarily lead to a finding of racism. (SeeÂ Lutheran Churchâ€“Missouri Synod v. FCC(1998)).
That risk of illegal discrimination against whites is heightened by the fact that â€œanti-racismâ€ doesÂ not meanÂ simply the absence of racism, according to most proponents. To most of them, being â€œanti-racistâ€ means advocating discrimination in favor of people of color in order to transform a fundamentally racist society. TheÂ bibleÂ of â€œanti-racismâ€ is â€œHow to Be an Antiracist,â€ by Boston Universityâ€™s Ibram X. Kendi. The â€œkey conceptâ€ fromÂ How to Be an AntiracistÂ is that to remedy the underrepresentation of minority groups, you need to engage in discrimination in the opposite direction â€” i.e., discriminate against whites. As the bookÂ explains, â€œThe only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.â€
The Supreme Court does not accept this broad approach to using race as a â€œremedy.â€ It generally confines the use of race to eliminating the present effects of recent, widespread discrimination. (See, e.g.,Â Richmond v. J.A. Croson Co.Â (1989)).
In short, the bible of â€œanti-racismâ€ is at war with the constitutional guarantee of equal protection, as defined by the courts.
Depending on how it is applied, GMU may also run into legal problems with its mandatory inclusion of an â€œanti-racism statement on all syllabi.â€ Faculty can certainly be required to pledge not to discriminate on their syllabus, and to include on their syllabus a notice that they comply with the civil-rights laws. But that may or may not be what GMU has in mind with its â€œanti-racismâ€ statement.
To most proponents, â€œanti-racismâ€ does not mean simply being non-racist, asÂ Dr. Kendi, and other sources (such asÂ CBS News,Â Psychology Today, andÂ Vox) state. â€œThe opposite of â€˜racistâ€™ isnâ€™t â€˜not racist,â€™â€ Dr. Kendi writes. â€œIt is â€˜antiracist.â€™â€
This version of anti-racism also involves factual beliefs at odds with what many faculty have found in their research. For example, Dr. Kendi, in views celebrated by theÂ New York Times, says that â€œWhen I see racial disparities, I see racism.â€
Kendiâ€™s claim ignores the fact that many racial disparities are not caused by racism. For example, Latinos liveÂ three years longerÂ than whites, on average, even though doctors donâ€™t discriminate in their favor. Asians make more money than whites,Â on average. And while blacks make less money than whites, on average, immigrants from African countries like Nigeria actuallyÂ make more moneyÂ than whites do.
Forcing academics to endorse the view that racial disparities are due only to racism â€” not other factors â€” would require GMU faculty â€” such as economics professor Walter Williams â€” to repudiate their own publications, and say something they believe to be false.
That raises serious First Amendment issues. Compelled speech can violate the First Amendment, as the Supreme Court noted in striking down loyalty oaths for college faculty. (SeeÂ Keyishian v. Board of RegentsÂ (1967)).
Colleges have greater ability to limit in-class speech than out-of-class speech. But even in class, courts sometimes strike down restrictions on faculty speech. For example, a federal appeals court ruled in favor of a college professor who used the N-word to discuss racism. (SeeÂ Hardy v. Jefferson Community CollegeÂ (2001)).
Freedom of speech also includes freedom from compelled speech. For example, an appeals court ruled in favor of a professor who was ordered to change a studentâ€™s grade. The court said it was fine for the college to change the grade, but it could not force the professor to do so against his conscience, because that was unnecessary compelled speech. (SeeÂ Parate v. IsiborÂ (1989)).
Colleges canâ€™t require their faculty to be â€œanti-racistâ€ in their publications. Faculty writings deemed insensitive cannot be punished. (SeeÂ Adams v. University of North Carolina-Wilmington(2011)).
Indeed, the First Amendment even protects racist faculty publications, as an appeals court ruled in 1992. (SeeÂ Levin v. HarlestonÂ (1992)).