For some justices, race-based programs in education are generally inimical to our constitutional values. In 2017, Chief Justice John Roberts declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In 2006, Roberts also wrote: “It is a sordid business, this divvying us up by race.”
We have previously discussed the constitutionality of programs that exclude whites or males. The federal and state governments have long used “set asides” or minority preferences in contracting or benefits. Yet, in 1989, in City of Richmond v. JA. Croson Co., the Court struck down the City of Richmond’s minority and female-owned business program as a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
However, a key aspect to the Croson ruling was the failure of the City of Richmond to present evidence of racial discrimination on the part of the city or the city’s prime contractors. Thus, “If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion.” The Court fractured on the issue, but a plurality maintained that a “state or local subdivision … has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction.
One challenge in litigation could be based on standing. The CCSU could argue that white faculty are not harmed by the fact that minority faculty are getting assistance. Tenure is not a zero-sum game where tenure for one professor means the loss of tenure to another. However, there are often limited “slots” on faculties. Barred faculty could claim that this program gives an advantage to other academics in seeking limited positions.
There would not be any serious problem, in my view, to CCSU spending money to recruit minority faculty candidates. Moreover, there may be differences in pay or compensation that deans agreed to with individual candidates. However, once on the faculty, the question is whether the university can offer such professors an advantage denied to colleagues in the form of such grants or subsidies.
Putting aside the constitutional questions, there is also a major academic policy question over the need of universities to maintain a level playing field for all faculty. Once on the faculty, professors are ideally subject to the same standards and opportunity for tenure. However, this program facilitates the progress toward tenure for some based on their race or identities.
It is not clear if there will be a challenge to this program and, thus far, there is no public response from CCSU.