This year, when Union College set out to fill four new faculty posts, it kept the guest list short and select: Only black and Hispanic professors were invited to apply.
With that kind of approach to affirmative action, the only thing the college might be inviting is a lawsuit, some experts suggest.
But drastic times call for drastic measures, says Roger H. Hull, president of Union. The Schenectady, N.Y., college has tried for years to diversify its faculty, he says, but despite those efforts, the campus still looks almost lily-white. Only four of the 188 professors are black, seven Hispanic, and seven Asian American.
Those numbers are "ridiculously low," Mr. Hull acknowledges. And he feared that retirements and a tenure battle might undermine them further. "I happen to believe very strongly that a diverse institution is a stronger institution," the president says.
That's why, when departments recently made requests to add faculty positions, he agreed to create four new jobs -- with the caveat that they be filled by black or Hispanic scholars.
Last spring, after a vigorous debate, the faculty approved the proposal by a 2-to-1 margin. Searches began in the fall. No advertisements were placed. Instead, graduate departments were contacted about top candidates. Union's professors worked the halls at conferences. Letters of inquiry were sent to promising minority scholars.
The tactics worked. Union hired Daniel Mosquera, who was a visiting professor, for the Spanish department, and Carolyn Mitchell, who is black, for the English department. The psychology department has just hired a Hispanic professor. The fourth new position has yet to be assigned to a particular department.
Union officials refused to identify the newest addition to its psychology department and didn't want to discuss the identity of the two other professors hired under the targeted searches, although they had already been named in a local newspaper.
"We've attracted an extraordinarily qualified faculty group," insists Linda E. Cool, dean of the faculty. "Such publicity might be embarrassing to the individuals," she says, because it casts doubt on their qualifications.
Local news media seemed to think so. A Schenectady talk-radio show blasted the college for its new hiring policy, broadcasting the home telephone number of the college's dean of arts and sciences so that listeners could call her to complain.
Despite the backlash, the searches have ardent supporters on the campus. "We want to provide an excellent education," says Therese McCarty, chairwoman of the Faculty Executive Committee. "Exposing students to a variety of points of view is an essential part of a liberal-arts education. But it's very difficult to do that without a diversity of backgrounds on the faculty."
That's all well and good, critics say, but is a set-aside program really the best way to go about fixing things? "We would be a better campus if we were more diverse, but you can't tell people, 'You can't apply if you're the wrong color,'" says Julius Barnabel, a professor of mathematics. "It's a basic ethical objection."
Terry S. Weiner, chairman of the political-science department, concurs. "I share the goals of the people who proposed this," he says, but he argues that Union had not tried hard enough to recruit minority professors by conventional means before resorting to unconventional ones. "The ends don't support the means," he says. "They violated basic premises of fair treatment, and I think eventually they'll be found unconstitutional -- if they're not already."
Union is not the only college seeking to diversify its faculty in unorthodox -- some would say unconstitutional -- ways. In March, a California jury returned a $2.75-million verdict against San Francisco State University, finding it guilty of discriminating against a white lecturer who charged that he had been passed over for a tenure-track post because of his race.
Howard E. McNier, who had taught in San Francisco State's College of Business for four years, said colleagues had told him that the dean of the business school said a white man would be hired "over my dead body." Arthur Wallace, dean of the business school at the time, denied ever making such a remark. But during the trial, a tenured professor testified that Mr. Wallace had told him that he would not authorize the hiring of any white men in the business school. Mr. Wallace, who is black, retired last year.
Patricia B. Bartscher, the university's lawyer, says that Mr. McNier's charges of discrimination were "meritless," and that the university was "dumbstruck" by the verdict. San Francisco State may appeal or request a new trial, she says. "This isn't about discrimination. This is about a university's ability to set academic qualifications." She argues that Mr. McNier lacked the credentials required for a tenure-track job.
The jury disagreed, voting 11 to 1 in favor of Mr. McNier.
At Union College, President Hull does not think he will run into the same difficulty. He notes that Union is a private institution, and that most case law that could be used against it deals with public universities. "No matter what you do in this world, you will be criticized for it. Therefore, you had better do what you believe in," Mr. Hull says. "I'm aware of the risks, but I think we're on solid legal ground."
Many legal experts think it's pretty shaky. "The ability to restrict a search is very limited," says George R. La Noue, a political scientist at the University of Maryland-Baltimore County, who follows affirmative-action issues. "There are, at the moment, no courts that I know of that have approved this kind of a restriction. This is really a quota."
Union's policy seems ripe for challenge under either Title VI or Title VII of the Civil Rights Act of 1964, he says. Title VI bars any educational institution that receives federal funds, including student aid, from discriminating on the basis of race. Under Title VII, employers are prohibited from using diversity as a reason for making employment decisions based on race.
Barbara A. Lee, a professor of human-resource management at Rutgers University, who has written about higher-education law, thinks Union is heading down a slippery slope. "There's no reason a college can't contact people they know and invite them to apply for a job," she says. "But to not have an open search is problematic, because other people don't have a chance to compete equally."
Robin Wilson contributed to this report.
Copyright © 1999 by The Chronicle of Higher Education