Complimentary discrimination and complementary discrimination in faculty hiring.

• Author: Onwuachi-Willig, Angela

TABLE OF CONTENTS INTRODUCTION I. A LONG WAY TO GO? II. CAN A COMPLIMENT BE DISCRIMINATORY? A. What Bidding Wars? B. Too Good for Discrimination? 1. On Being Overqualified 2. On Rejecting Compliments III. COMPLEMENTING DISCRIMINATION A. Risky Business? B. Holding Out for the Dream CONCLUSION: AVOIDING BAD COMPLIMENTS Introduction

Faculty hiring at colleges and universities (1) can be a messy process. Although there are arguably objective criteria for evaluating applicants during the appointments process, (2) faculties generally make their final decisions on offers among qualified candidates based on subjective criteria, such as speculations about a candidate's future productivity and teaching effectiveness. Is the candidate a good fit for the department? Will he or she be a productive scholar for years to come? How will the institution's students respond to the candidate as a teacher?

When faculties add factors of diversity, especially racial diversity, to the mix of their hiring considerations, the responses to these questions can become even stickier. For candidates who are on the margins, such as racial minorities, questions regarding whether the candidate is a good fit are less likely to work to their advantage. (3) Majority faculty members often find it hard to imagine minority candidates engaged in future discussions of politics and current events during the lunch hour in the faculty lounge.4 Majority faculty members also experience difficulty in seeing such candidates as younger versions of themselves, ready to carry on the department's traditions. (5) In some cases, a minority candidate's questions about issues of diversity and inclusion on campus can work to raise flags about him or her as a potential troublemaker, someone who may disrupt the collegiality among the faculty with controversial "side" issues. (6) Similarly, questions about a minority candidate's scholarship or reception by students can become tinged by race, especially if the candidate's scholarship focuses on issues of race and diversity. (7)

Ultimately, when faculties fail to give an offer to a minority candidate at the end of the hiring process, they frequently offer two particular excuses. These two reasons are voiced in terms that are at once distinct and complementary of one another.

1. There were no, or hardly any, applications from qualified minority candidates to consider. (8)

2. There was no point in even trying to interview the few, qualified minority candidates on the market because they would never accept an offer from the department. These candidates are in such high demand that there will be many bidding wars between institutions over them. (9)

   According to this usual round of excuses, there are two basic types of minority faculty candidates: (1) those who are unqualified for the department, and (2) those who are "overqualified" for the department. (10)

   Usually, academic articles address the disadvantages of the minority applicant in the first category--the minority candidate who is deemed unqualified or unworthy for hire, in many cases due to conscious or unconscious (11) biases (12) in the evaluation of applicants. This Article, however, concentrates on the concept of the "overqualified minority candidate," the faculty candidate who is presumed to have too many opportunities and thus gets excluded from faculty interview lists and consideration. Specifically, this Article poses and answers the question: "Can this form of complimentary exclusion--exclusion from interviewing pools based upon the notion that one is just 'too good' to recruit to a particular department--be a form of actionable discrimination?" Part I of this Article begins by briefly reviewing the changes in faculty diversity and inclusion at colleges and universities, both generally and within specific fields. Part ii lays out a hypothetical of a superstar, bidding-war minority candidate and explicates how the exclusion of this candidate, although accompanied by high praise, may constitute actionable discrimination. In so doing, it examines how federal courts have analyzed overqualification when employers have articulated it as the reason for not hiring a job applicant in discrimination lawsuits. it then explains why the myth of the "overqualified" minority faculty candidate as the "highly sought-after" candidate can render his or her exclusion from interviews, and thus hiring, a unique and

   specific form of racial discrimination. Part iii defines two new terms for these types of discriminatory encounters. "Complimentary discrimination" refers to the exclusion of superstar minority candidates from the interviewing and hiring process based upon the myth that their race, coupled with their credentials and "affirmative action," will make them too highly sought after, too difficult to pursue, and too expensive to recruit. (13) "Complementary discrimination" refers to the exclusion of qualified minorities who do not fit the superstar profile as a result of departments' decisions to hold out for the Great black/Latino/Asian Pacific American/American Indian Hope and their resistance to "settling" for "lesser" minorities. Part III further explicates how complimentary discrimination produces complementary discrimination. Specifically, it explains how faculties' dreams of one day recruiting the Great black/Latino/Asian Pacific American/American Indian Hope--generally the only type of minority candidate whom they truly find acceptable--can function as an excuse for not "settling" for racial minority candidates who are well qualified but not "superstars," an excuse that only results in a cycle of low representation of minorities on college and university faculties. To illustrate this point, this Part details a hypothetical involving a minority female candidate on the entry level market in law. This Article concludes by expressing the need for increasing diversity on college and university faculties in today's society and the importance of carefully evaluating one's own biases when creating and serving on faculty search committees.

   1. A LONG WAY TO GO?

      Although this Article focuses on an analysis of discrimination in faculty hiring, it is important to note the progress that American institutions of higher education have made in racially and ethnically diversifying their faculties. For example, according to the Department of Education, there was a 58% increase in the number of racial minorities who held full-time faculty positions at colleges and universities in the United States between the years 1995 to 2005. (14) Specifically, the percentages of Latina/o and Asian Pacific American faculty grew by 75%, each to 22,818 and 48,457 faculty members, respectively. (15) The percentages of African American and American Indian faculty grew, too, but at lower rates, with African American faculty up by 33% to 35,458, and American Indian faculty up by 50% to 3,231. (16) Additionally, another study of twenty-eight private institutions revealed that new hires at those schools were slightly more diverse than the overall faculty profile at those schools, with 12.2% of new hires being Asian Pacific American, 6.9% of new hires being Latina/o, 4.8% of new hires being African American, and 0.6% of new hires being American Indian. (17)

      Although faculties on university and college campuses are increasingly becoming more diverse, they still have a long way to go. (18) To begin, between 1993 and 2003, the percentage of underrepresented minority faculty at "four-year institutions grew only 2% nationally, from approximately 6% to 8%." (19) In some fields, such as law, the proportion of minorities who are being hired into faculty positions is decreasing over time. For example, in 2005, the Association of American Law Schools (AALS) reported that "minority candidates for faculty positions bore a disproportionate share of the decrease in hiring slots," noting that "both the absolute number as well as the proportion of minority law professors hired decreased in 1996-97 from 1990-91." (20)

      Additionally, the combined percentage total of racial minorities in non-tenure track positions such as contract professor, lecturer, and instructor is greater than the percentage of racial minorities within the tenure stream at any rank, (21) which means that, especially now, in the midst of the economic downturn, fewer minority professors will be teaching at colleges and universities. (22) in fact, as one goes up the professorial ranks on campuses, the proportion of faculty of color declines at each level. (23) Specifically, the proportion of minority faculty in higher education continues to drop as one examines faculty numbers from the assistant professor to associate professor to full professor rank. (24) As of 2007, statistics from the Department of Education showed that African Americans constituted 6.3% of assistant professors, 5.5% of associate professors, and 3.4% of professors; Latinos constituted 3.8% of assistant professors, 3.3% of associate professors, and 2.4% of professors; Asian Pacific Americans constituted 10.3% of assistant professors, 7.7% of associate professors, and 7.1% of professors; and American Indians constituted 0.4% of assistant professors, 0.4% of associate professors, and 0.3% of professors. (25)

      Additionally, while there is a pipeline problem for faculty positions due to the low percentages of racial minorities with a Ph.D. or with other academic credentials, the lack of diversity among college and university faculties cannot be explained away by pipeline issues alone. (26) For example, in a study of nearly 300 recipients of all races who had been awarded fellowships from three prestigious programs run by the Ford, Spencer, and Mellon Foundations, a team of scholars found that even elite minority candidates experience difficulty finding academic jobs. (27)

      Specifically, the researchers found that even though the minority Ph.D.s in their study were among the most elite of...